MARC STALEY APPELLANT v. APPELLEE

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Court of Appeals of Kentucky.

MARC STALEY APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE

NO. 2012–CA–000687–MR

Decided: May 31, 2013

BEFORE:  MAZE, STUMBO AND VANMETER, JUDGES. BRIEFS FOR APPELLANT:  Jason A. Hart Dept. of Public Advocacy Frankfort, Kentucky BRIEF FOR APPELLEE:  Jack Conway Attorney General of Kentucky Courtney J. Hightower Assistant Attorney General Frankfort, Kentucky

NOT TO BE PUBLISHED

OPINIONAFFIRMING

Appellant, Marc Staley (hereinafter “Marc”) appeals his 2012 conviction and sentence by the Christian Circuit Court for torture of an animal.   Finding no error on the part of the trial court and no misconduct on the part of the Commonwealth during trial, we affirm.

Background

In December of 2010, Marc and his wife, Ismelda, lived together and had four dogs, one of which was a Jack Russell named Baxter.   One evening, while Marc and Baxter were playing, Baxter became agitated and bit Marc. In response, Marc picked the dog up by his neck and choked him.   After Ismelda told him to stop choking the dog, Marc did so, but took the dog to the bathroom, ran water over him and chained him up outside.   When Ismelda woke up the next day, Baxter was alive and in the home.

Most of that day, Marc was home alone with Baxter while Ismelda worked.   That evening, Marc was supposed to pick Ismelda up from work but failed to do so.   When Ismelda arrived home, Marc smelled of alcohol and Baxter was missing.   When she asked Marc where Baxter was, Marc was evasive.   Finally, Marc brought Ismelda a black garbage bag with Baxter's deceased body inside of it.   Marc told her that he had killed Baxter because he would not be quiet.   After Marc left for work the next morning, Ismelda looked around the apartment and found small amounts of blood in the bathroom, which had been recently cleaned.   Ismelda called police, who interviewed her and looked for other evidence.   Officer Platero, the investigating officer, observed that Baxter had been skinned from the top of his scalp to the base of his tail.

After Ismelda filed a report, authorities indicted Marc on one count of torture of a dog.   At trial, Ismelda testified that due to a medical condition from which she suffered, it would be very difficult, if not impossible, for her to have children.   For this reason, she stated that her relationship with her animals was closer “than most normal people.”   Officer Platero also testified to his observations of the scene and Baxter's injuries.   Marc testified in his own defense that he choked Baxter because Baxter bit him again while Ismelda was at work.   He stated that Baxter struggled against him but died as a result of the choking.   Marc told the court that he panicked after he realized Baxter was dead and spent a few hours drinking and trying to decide what to do with the dog's body.   Marc stated that he took the dog into the bathroom and placed him in the tub while trying to locate his micro-chip.   Believing that the chip could be used to locate Baxter, Marc testified that he began cutting on Baxter to find and remove the chip.   After failing to find it, Marc used the internet to research where the chip was and what it looked like.   Marc then ceased his efforts to find the chip and placed Baxter in a garbage bag.   Marc testified that Baxter was already dead when he began looking for the chip.

Following the close of both the Commonwealth and the defense's case, Marc's attorney moved the court for a directed verdict, arguing that the Commonwealth failed to establish the necessary elements of torture, as defined in Kentucky law.   The trial court overruled both motions.   During its closing argument, the Commonwealth presented a lengthy anecdote regarding the origins of the term “man's best friend” and proceeded to show pictures of Baxter's body with the caption “A Bond Betrayed.”   The Commonwealth also reiterated Ismelda's testimony regarding her inability to have children and the close relationship she had with her animals.   Finally, the Commonwealth informed the jury that they could find Marc guilty under two factual theories:  (1) That Baxter was alive when Marc began skinning him, meeting the statutory definition of torture;  or (2) that Baxter died as a result of Marc choking him, which also met the statutory definition of torture.   Marc's attorney did not object to these portions of the Commonwealth's closing argument.

After being instructed under Torture of a Dog or Cat, as well as the lesser-included offense of Cruelty to Animals, the jury found Marc guilty of the former and the court adopted the jury's recommended sentence of three years' imprisonment.   On January 26, 2012, Marc's counsel filed a motion for a new trial, arguing that the trial court's ruling on his motion for directed verdict had been erroneous and that several parts of the Commonwealth's closing argument merely inflamed the jury's passions.   The trial court overruled this motion and entered the final judgment of conviction on March 13, 2012.   This appeal follows.

Analysis

On direct appeal, Marc makes three primary allegations of error, two of which he acknowledges were unpreserved for appeal.   Marc argues that the trial court erroneously overruled his motions for a directed verdict on the basis that the Commonwealth failed to prove the necessary elements of torture under KRS 525.135.   This issue was preserved for appeal.   Marc next argues that the Commonwealth presented alternative theories of his guilt during its closing argument which confused or misled the jury.   Marc did not preserve this issue for appeal, but he argues that it constituted “palpable error” on the part of the trial court and therefore requires our review.   Finally, Marc contends that the trial court erred in admitting irrelevant and otherwise inadmissible evidence, including the anecdote from the Commonwealth's closing argument, as well as Ismelda's testimony regarding, and the Commonwealth's reference to, her inability to have children.   We address these issues in turn and under the lens of their respective standards of review.

I. Marc's Motions for Directed Verdict

We first review the sole argument Marc preserved properly for appeal – that regarding his motions for directed verdict.   In doing so, we, like the trial court, must draw all fair and reasonable inferences from the evidence in favor of the Commonwealth and assume that the evidence for the Commonwealth is true, reserving for the jury questions as to credibility and weight to be given to testimony.  Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky.1991).   The trial court is authorized to grant a directed verdict if the Commonwealth has produced no more than a mere scintilla of evidence;  if the evidence is more than a scintilla and it would be reasonable for the jury to return a verdict of guilty based on it, then the motion should be denied.  Id. On appellate review, the standard is slightly more deferential;  the trial court should be reversed only if “it would be clearly unreasonable for a jury to find guilt.”   Id. (emphasis added ).

A directed-verdict motion is reviewed in light of the proof at trial and the statutory elements of the alleged offense.  Lawton v. Commonwealth, 354 S.W.3d 565, 575 (Ky.2011).   Therefore, we first examine the statutory elements of Torture of a Dog or Cat under Kentucky law.  KRS 525.135 reads,

(1) As used in this section, unless the context otherwise requires, “torture” means the intentional infliction of or subjection to extreme physical pain or injury, motivated by an intent to increase or prolong the pain of the animal.

(2) A person is guilty of torture of a dog or cat when he or she without legal justification intentionally tortures a domestic dog or cat.

Marc argues that the Commonwealth's evidence at trial did not withstand even the less scrutinous burden for directed verdict because Marc's testimony was that the animal died from being choked.   Marc contends that, because the Commonwealth provided no evidence as to the pain the animal felt while being choked, the time it took for the dog to die or that the animal was alive when it was skinned, that Marc's conduct did not constitute “torture” and that he was entitled to directed verdict on that charge.   We disagree.

The evidence before the jury was sufficient that a reasonable juror could find Marc guilty beyond a reasonable doubt.   Marc himself testified that when he choked Baxter, the dog fought against him, squealed and yelped, and that the animal died as a result of his actions.   Marc testified that he cut on the dog for the limited purpose of finding the very small microchip.   However, the Commonwealth presented photos of Baxter with injuries reasonably seen to be more extensive than, and inconsistent with, injuries caused by such supposedly limited cutting.   The jury heard both Ismelda and the investigating officer testify that blood was found in the bathroom where Marc testified he took the dog after he choked it.   Although the Commonwealth did not present testimony that this meant Baxter's heart was still beating when he was skinned, the lack of such testimony did not prohibit the jury from reasonably inferring such a fact from the available evidence.

In sum, assuming all the above evidence was true, the Commonwealth presented sufficient evidence for a reasonable juror to conclude that Marc had intentionally subjected Baxter to extreme pain or injury which was intentionally and unjustifiably prolonged by the chosen method of harm.   A reasonable juror could deduce from this evidence that Marc, given his past outburst towards Baxter and the manner in which Baxter died, chose to harm Baxter in an intentionally cruel way – by choking or by skinning him.   Hence, the trial court was correct in letting this case proceed to the jury, as the limited circumstance under which directed verdict is appropriate did not exist in this case.

II. Alternative Theories of Guilt in Commonwealth's Closing Argument

As Marc acknowledges in his brief, his argument that the Commonwealth improperly argued two theories of his guilt to the jury is unpreserved on appeal, as his trial counsel failed to object at the time of the Commonwealth's closing statement.   A defendant waives his right to relief from an error when he does not object at trial and fails to raise the issue in his motion for a new trial.   See Harris v. Commonwealth, 342 S.W.2d 535 (Ky.1961).   Furthermore, we may review this alleged error under RCr 10.26 if we believe it to be “palpable” and to have affected Marc's “substantial rights” resulting in a manifest injustice.   However, we elect against such a review.

An appellate court may review for error pursuant to RCr 10.26 if the alleged error appears to result in a manifest injustice and is clear or plain under current law.   See Brewer v. Commonwealth, 206 S.W.3d 343 (Ky.2006).   Such a “palpable error” must affect the fairness, integrity or public reputation of the proceeding so as to be “shocking or jurisprudentially intolerable.”   Marc's case, and the error he alleged occurred stemming from the Commonwealth's closing argument, did not produce such a result.

In Travis v. Commonwealth, 327 S.W.3d 456 (Ky.2010), our Supreme Court held that a jury may be instructed on multiple offenses if there is sufficient evidence of each in the record so as not to confuse or mislead the jury.   Marc relies on this case to characterize the Commonwealth's statement to the jury regarding its two theories of Marc's guilt under Torture of a Dog or Cat –either he tortured Baxter by choking him or he tortured Baxter by skinning him alive.   Marc characterizes both theories as “superfluous” because evidence of each was “insufficiently supported by the evidence.”  Travis at 463.   Marc further contends that he suffered prejudice when at least one member of his jury relied on this “superfluous” instruction, in violation of the unanimity requirement for jury verdicts.

Again we find that the jury in Marc's case heard evidence which tended to show that either theory could be true.   Marc testified that he choked Baxter, that Baxter squealed, whined and fought him while being choked and that Baxter died as a result of the choking.   The jury also heard from both Ismelda and the investigating officer that trace amounts of blood were found in the bathroom where Marc stated he took Baxter to search for his micro-chip.   Hence, unlike the instruction in Travis on which Marc relies, there was evidence presented at trial regarding both theories of liability.   Having heard this evidence, the jury was then free to consider both, only one or none of them based upon the weight and credibility it wished to assign to each piece of evidence.   Such is the exclusive providence of the jury.   See Commonwealth v. Cox, 837 S.W.2d 898 (Ky.1992).

Accordingly, the Commonwealth's closing argument cannot be said to have confused or misled the jury and we decline to review further Marc's conviction and sentence which followed, as the trial court's order did not constitute “palpable error.”

III. Commonwealth's Closing Argument and Alleged Misconduct

The final issue on appeal concerns Ismelda's testimony during trial and various statements made by the Commonwealth in its closing argument.   Marc contends that Ismelda's testimony regarding her relationship with her dogs was irrelevant and, despite there being no objection from defense counsel, was improperly admitted into evidence.   Marc further argues that the Commonwealth's closing argument, which reiterated this testimony, as well as mentioned an historical anecdote regarding the origins of “man's best friend,” was both irrelevant and specifically designed to inflame the passions and prejudices of the jury.   We disagree with both arguments.

Marc contends that these issues were preserved for appeal by his motion for a new trial.   However, Marc did not object at trial to any of the comments of which he now complains.   As a result, we will reverse the trial court regarding Marc's allegations of prosecutorial misconduct only if the misconduct was “flagrant.”   See Barnes v. Commonwealth, 91 S.W.3d 564, 568 (Ky.2002).   Also, because Marc raised his objection to Ismelda's testimony neither at trial, nor in a motion for a new trial, we once again may, but elect not to, review it under “palpable error” analysis pursuant to RCr 10.26.

Marc takes specific exception, both in his motion for a new trial and on appeal, with the Commonwealth's repeated mention of Baxter as one of Ismelda's “children” in its closing statement.   This theme arose from Ismelda's testimony that her animals are like her children because she cannot have children.   Marc argues that such information “had no tendency to make a fact of consequence more or less probable” and was designed solely to prejudice the jury against him.  KRE  Double 401.   However, we find no “flagrant” misconduct on the part of the Commonwealth;  in fact, we find no misconduct of any kind or severity.

Regarding the Commonwealth's closing argument and use of Ismelda's testimony, some level of background evidence and victim impact evidence is admissible at trial.   See Hilbert v. Commonwealth, 162 S.W.3d 921 (Ky.2005).   The jury heard evidence that Baxter was Ismelda's dog and like a child to her.   Because Marc failed to object to, or otherwise exclude, this testimony was properly admitted into evidence and was subject to mention during closing arguments, including in the context of the impact Marc's alleged actions had on others.

Regarding the Commonwealth's historical anecdote regarding the origins of the expression “man's best friend” we find a similar lack in severity or flagrancy of the alleged misconduct.   Marc argues the presentation to the jury of, not only this history lesson, but also portraying Marc's crime as “A Bond Betrayed” was exclusively designed to enrage and prejudice the jury against him.   Again, each party is entitled to some leeway in their presentation of the case to the jury.   See Stopher v. Commonwealth, 57 S.W.3d 787, 805–06 (Ky.2001) and Slaughter v. Commonwealth, 744 S.W.2d 407, 412 (Ky.1987), overruled on other grounds in Hudson v. Commonwealth, 202 S.W.3d 17 (Ky.2006).   Furthermore, Marc's indignation at the Commonwealth's going “so far as to say that [Marc] murdered the dog” is a puzzling and insufficient basis for his claim of prosecutorial misconduct, given that Marc admitted that he choked the dog to death.   Especially given counsel's failure to object and the resulting higher burden of proving misconduct, we find nothing in the Commonwealth's statement which is atypical or prejudicial to Marc. The Commonwealth's argument that Marc's act betrayed a sacred bond between himself and his dog was neither irrelevant nor “flagrant” misconduct.

Overall, we see nothing inherently prejudicial or adverse to the Commonwealth's duty in its statements to the jury.   While, indeed, not every comment necessarily went to proving the elements of the crime in question, parties are entitled to some leeway, even theater, in making their opening and closing statements.   The portions of the Commonwealth's closing statement to which Marc now objects constituted little more than a dramatic portrayal of facts and evidence already in the record and did not encroach on the boundary of misconduct.   Hence, we find no merit in Marc's arguments to the contrary.

Conclusion

We find that the trial court correctly permitted this case to proceed to a jury, whose task it was to assign an appropriate weight and credibility to the testimony and evidence.   In addition, due to the limited standard of review under which we are permitted to review Marc's other unpreserved claims of error, we find no error and no prejudice in Marc's trial.   Accordingly, the Christian Circuit Court's judgment of conviction and sentence is affirmed.

ALL CONCUR.

MAZE, JUDGE: