Opinion
NO. 2010-CA-002214-MR NO. 2011-CA-000085-MR
07-20-2012
CHARLES EDWARD CHENAULT APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Erin Hoffman Yang Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky James Harvey Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM MASON CIRCUIT COURT
HONORABLE STOCKTON B. WOOD, JUDGE
ACTION NO. 10-CR-00059
APPEAL FROM FLEMING CIRCUIT COURT
HONORABLE STOCKTON B. WOOD, JUDGE
ACTION NO. 10-CR-00040
OPINION
AFFIRMING IN PART, REVERSING IN PART,
AND REMANDING
BEFORE: CAPERTON AND THOMPSON, JUDGES; LAMBERT, SENIOR JUDGE. CAPERTON, JUDGE: Charles Edward Chenault appeals from his conviction of criminal possession of a forged instrument, first-degree, in Mason Circuit Court and the subsequent conditional guilty plea in Fleming Circuit Court to two counts of criminal possession of a forged instrument, first-degree. Chenault's conditional guilty plea in Fleming County and his conviction in Mason County have been consolidated for purposes of this appeal. On appeal, Chenault argues multiple evidentiary issues upon which we have found no reversible error. However, we do find that the court erred in assessing court costs against Chenault, an indigent defendant; as such, we reverse the assessment of court costs and remand for further consideration of whether Chenault is (1) a poor person as defined by Kentucky Revised Statutes (KRS) 453.190(2), and (2) unable to pay court costs now, and will be unable to pay court costs in the foreseeable future in light of Maynes v. Commonwealth, 361 S.W.3d 922 (Ky. 2012). Accordingly, we affirm in part, reverse in part, and remand this matter for further proceedings.
Senior Judge Joseph E. Lambert sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
The facts of this appeal were the subject of testimony at a jury trial in Mason County. Prior to the start of trial in Mason County, Chenault sought to exclude testimony concerning the events in Fleming County which resulted in the Fleming County charges, arguing that the testimony would violate Kentucky Rules of Evidence (KRE) 404(b). The Commonwealth stated that it would not introduce any evidence of the charge upon which the Fleming County jury had acquitted him but would introduce evidence related to the other two charges in Fleming County that resulted in a hung jury. The trial court overruled Chenault's motion in limine and concluded that the acts of passing counterfeit notes in Fleming County within a few days time under such similar and peculiar circumstances could properly be admitted to show Chenault's common plan or scheme and to confirm his knowledge that the notes were counterfeit. As such, the trial proceeded in Mason County.
Prior to his trial in Mason County, Chenault was tried in Fleming County resulting in an acquittal on one count of possession of a forged instrument and a hung jury concerning the remaining two counts of possession of a forged instrument. At the Mason County trial the prosecutor did not refer to the facts surrounding the charge Chenault was acquitted of. Additionally, we note that the same judge, prosecutor, and defense attorney were involved in Chenault's criminal proceedings in both Mason Circuit Court and Fleming Circuit Court.
Valerie Middleton, a clerk at the Mason County Speedway, testified that on March 19, 2010, Chenault tendered a $50 bill which appeared counterfeit. Middleton marked the bill with a pen used to detect counterfeit currency. The mark on the bill turned black, indicating that the bill was counterfeit. Middleton told Chenault that the bill was counterfeit and he replied that, "It can't be, I got it from Kroger." Middleton laughed; Chenault smiled and said, "Yeah, I did." She replied, "No you didn't" and she showed it to her supervisor Brandy Eckert Thomas. Middleton had been trained to retain counterfeit bills that were tendered but she had never received one before and a line of customers waited so she returned the bill to Chenault without thinking. He then paid with other currency for the purchase.
Assistant Manager Brandy Eckert Thomas was speaking on the telephone to store manager Cora Bayless when Middleton showed her the bill and asked Thomas if it appeared to be a fake. Thomas agreed that it did and after Middleton returned the bill to Chenault, Bayless told Thomas that she needed to retrieve the bill from Chenault.
Thomas and another assistant manager, Tammy Shortridge, followed Chenault outside. Thomas told Chenault that she needed to look at the bill to see if it was one of the older fifties. He gave the bill to Thomas and she kept it. Chenault told them that he had received the bill from Kroger and he wanted to know how he would get his money back. They told him he would have to wait until the police arrived. Chenault departed rather than await the arrival of the police. Thomas saw a woman with dirty blond hair in the driver's seat of the car with Chenault when he departed. Both women obtained different halves of the license plate number of the red Pontiac. A video recording of the transaction at Speedway was introduced into evidence. Thomas testified to the mark placed next to Grant's face on the bill.
Thomas gave the counterfeit bill to Maysville police officer Bernard Evans, who arrived shortly after Chenault left. Officer Evans testified that he never kept the bill sealed or labeled because he never let anyone take it overnight. He never documented when the bill was removed or returned to the envelope because he kept the bill within his eyesight. Evans stated that because of this, no chain of custody was necessary. Evans did bring the bill to court so that counsel could inspect it, but it otherwise never left his possession. Further, Evans did not place the bill into an evidence locker but instead kept it in his locker along with other "personal police related locker" belongings. He testified that this was the bill he received from Eckert and it remained in the same condition. Evans did document receipt of the bill and included its serial number in his case report. Evans recognized the mark on the bill when displayed by an overhead projector and pointed the mark out to the jury.
Danny White, a security officer with the Bank of Maysville, testified that he was trained to detect counterfeit currency. He opined that the bill was counterfeit based upon its texture, the lack of an embedded security strip, and the oddness of its size and outline. When asked to identify the mark Middleton testified to placing on the bill, White did not see the mark made on the bill with the pen when he examined it for the first time on the witness stand. He was familiar with the marks such pens would make but not so familiar that he knew whether the ink which produced a black mark on counterfeit bills would fade over time.
Terri Lowe, a cashier at Ken's New Market in Flemingsburg, which is located in Fleming County, testified that Chenault ordered dinner on March 20, 2010, and handed her a $50 bill. He left the bill with Lowe while he went back into the aisles to look for sea salt. When Lowe looked at the bill she saw that it appeared different from the other bills in her drawer, so she took it back to the customer service desk to mark it with a counterfeit banknote detection pen. The mark turned black which indicated to her that the bill was counterfeit. Lowe told her manager, Alan Argo, who then spoke with Chenault. Chenault left without the dinner.
Alan Argo testified that when Lowe brought the $50 bill to him, the bill lacked the correct watermarks and that it appeared counterfeit when marked with the pen. When Argo spoke to Chenault about the problem, Argo marked a genuine bill with the pen to show the difference and informed Chenault that he could not accept the bill. Chenault told Argo that he had obtained the bill as change from a local gas station. Argo returned the bill to Chenault and told him to take it up with the people there.
Kayla Marshall testified that she checked out Chenault's purchases at Sav-A-Lot in Flemingsburg on March 20, 2010. Chenault gave her a $50 bill and she returned a lot of change to him. The checkout line was busy and she did not closely examine the bill at the time. Sav-A-Lot's manager, Tony Argo, Alan Argo's brother, testified that after receiving a warning from Ken's New Market that someone was trying to pass counterfeit bills, he reviewed the store video, saw that Chenault had been there twenty to thirty minutes earlier and that he retrieved the $50 bill from Marshall's till. Argo testified that the bill "checked bad" and that he turned the bill over to police.
Flemingsburg Police Department patrol officer Jeremy Meade had told employees of the BP station in downtown Flemingsburg to be on the lookout for a male and female who were passing counterfeit currency and he described the two, as well as the car in which they were traveling. During his shift on March 21, 2010, Officer Meade received a call from the BP station that individuals had attempted to pass counterfeit currency. This information was erroneous; the employees had merely seen Chenault and co-defendant Nikki Snipes, and identified them and the car from the description provided.
As Officer Meade entered the BP parking lot, the red Pontiac exited the parking lot. Officer Meade then turned his car around and initiated a stop of the vehicle. Chenault had no identification and introduced himself as "Donnie Chenault," and provided a false date of birth and social security number. Neither Chenault nor Snipes had counterfeit bills in their possession and none were found pursuant to a search of her family's home nearby, where the two had stayed.
Snipes testified that she had danced in an adult entertainment establishment in Lexington when she and Chenault began dating in February 2010, but she had stopped at his request a few weeks into the relationship. Snipes acknowledged that she had received counterfeit bills at least five times in different cities when she danced. Snipes claimed to have thrown them away after discovering them and did not have any when she met Chenault. After she quit dancing she had no money and Chenault, who had no job but claimed to work at a friend's music studio, bought their food, clothes, drugs and alcohol.
Chenault testified that he had traveled from Florida to Lexington the last week of February and that he began dating Snipes a few days later. He stated that the two went to the Maysville/Flemingsburg area to meet Snipes's mother. He claimed that she still worked as a dancer until they were arrested and that any money he spent came from her. He said that he did not travel with cash, but instead carried gift cards and he had nine or ten cards in his possession when he was arrested. Chenault denied knowing that he possessed any counterfeit bills. He said that any cash he and Snipes spent was hers.
Chenault claimed that the incident at the Speedway happened the first day he was in Flemingsburg. He complained that wherever he and Snipes went people looked funny at him. Chenault claimed that he purchased tobacco at the Speedway and that Middleton showed the bill he tendered to Thomas and when Middleton returned, she asked him if he had a smaller bill. He paid with another bill and left. Chenault claimed that on the way out the door, he said something the Speedway employees disapproved of and Thomas and Shortridge followed him outside to discuss his remark. He denied that anyone at the Speedway questioned the authenticity of his tendered bill but he could not explain why the recording indicated that he held up the bill and examined it after Middleton returned it to him.
Chenault then testified that he went to both Ken's New Market and to Sav-A-Lot because he needed to buy sea salt for Snipes. He said that Ken's had none and the employees referred him to Sav-A-Lot-where he bought groceries but was unable to find sea salt. He denied that anyone at Ken's confronted him about a problem with the currency.
Chenault acknowledged providing Officer Meade with false identifying information but stated he did so because his license was suspended. When reminded on cross-examination of his prior testimony that he was in the process of changing his name, Chenault acknowledged that was true but cryptically said that the social security number goes with the name. He also stated that he did not trust law enforcement and that he came to Lexington after a close friend of his was shot in Florida by law enforcement. He had no documents related to his changing his name but indicated that he had retained a lawyer in Miami to carry it out. Snipes had testified that Chenault only used the name "Donnie" when questioned by the police.
The jury found Chenault guilty of criminal possession of a forged instrument in the first degree, acquitted him of being a persistent felony offender, and recommended a sentence of nine years of imprisonment. Following his conviction in Mason County, Chenault entered a conditional guilty plea in Fleming Circuit Court to two counts of criminal possession of a forged instrument, first-degree, rather than undergo another trial. His sentence of ten years in Fleming County was to be served concurrently with his sentence in Mason County. It is from these convictions that Chenault now appeals.
On appeal Chenault presents four arguments, namely: (1) evidence of subsequent bad acts should have been excluded under KRE 404(b); (2) admission of evidence from two separate counties in two separate trials impaired Chenault's right to present a defense; (3) introduction of the $50 bill was error due to defects in the chain of custody; and (4) court costs assessed against Chenault must be vacated.
The Commonwealth responds with four counter-arguments, namely: (1) the trial court did not abuse its discretion in permitting the Commonwealth to introduce evidence of Chenault's other crimes pursuant to KRE 404(b); (2) admission of other acts evidence did not infringe upon Chenault's Fifth Amendment right against self-incrimination and Sixth Amendment right to counsel; (3) the Commonwealth laid a proper foundation to introduce the forged bill into evidence; and (4) court costs may not be levied against Chenault. With these arguments in mind, we turn to the first issue presented - the admission of other acts evidence under KRE 404(b).
Chenault first argues that the trial court erred by permitting the introduction of other acts evidence. Given that this issue concerns an evidentiary matter, we note that our review is for an abuse of discretion. See Johnson v. Commonwealth, 105 S.W.3d 430 (Ky. 2003). The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles. See Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
KRE 404(b) makes evidence of other crimes, wrongs, or acts inadmissible to prove the character of a person in order to show conformity. Two exceptions exist within the rule. KRE 404(b)(1) allows admission of the evidence if offered for some other purpose, such as motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident. KRE 404(b)(2) allows admission of the evidence if it is so inextricably intertwined with other evidence essential to the case that separation of the two could not be accomplished without serious adverse effect on the offering party. KRE 404(b) is exclusionary in nature since, "[i]t is a well-known fundamental rule that evidence that a defendant on trial had committed other offenses is never admissible unless it comes within certain exceptions, which are well-defined in the rule [KRE 404(b)] itself." Clark v. Commonwealth, 223 S.W.3d 90, 96 (Ky. 2007) (internal citations omitted). We note that KRE 404(b) applies to other acts committed either subsequently or prior to the charged crime. Robert G. Lawson, The Kentucky Evidence Law Handbook, § 2.25[2], at 125 (4th ed. LexisNexis 2003).
Multiple federal courts examining the issue of whether a defendant's involvement in counterfeit activity as other acts evidence under FRE (Federal Rules of Evidence) 404(b), the federal counterpart to KRE 404(b), have permitted the introduction of other bad acts evidence to prove intent and knowledge. See United States v. Crachy, 800 F.2d 83 (6th Cir. 1986); United States v. Bowie, 232 F.3d 923 (D.C. Cir. 2000); United States v. Thompson, 730 F.2d 82 (8th Cir. 1984); United States v. Cooper, 733 F.2d 1360 (10th Cir. 1984); United States v. Lemaire, 712 F.2d 944 (5th Cir. 1983); United States v. Cardillo, 708 F.2d 29 (1st Cir. 1983).
Sub judice, Chenault was convicted of criminal possession of a forged instrument, first-degree, in Mason County. KRS 516.050 states in part:
He additionally pled guilty to two counts of criminal possession of a forged instrument, first-degree, in Fleming County.
(1) A person is guilty of criminal possession of a forged instrument in the first degree when, with knowledge that it is forged and with intent to defraud, deceive or injure another, he utters or possesses any forged instrument of a kind specified in KRS 516.020.(Emphasis added.) Arguably, the statute places Chenault's mental state into issue. See Walker v. Commonwealth, 52 S.W.3d 533, 536 (Ky. 2001) ("In this case, the Commonwealth was required to prove intent to sell as a separate element of the crime charged. This alone was probably enough to place the issue of Walker's mental state in dispute.") Certainly, once Chenault denied knowledge of the counterfeit bills, his mental state was an issue. Thus:
When a defendant raises the issue of mental state, whether by a "mere presence" defense that specifically challenges the mental element of the government's case or by means of a general denial that forces the government to prove every element of its case, prior bad act evidence is admissible because mental state is a material issue.Walker at 536 (internal citation omitted).
Accordingly, we agree with the trial court that evidence of other acts of passing counterfeit currency in a neighboring county within a few days time of passing counterfeit currency in Mason County under the facts sub judice were admissible to confirm Chenault's knowledge that the notes were indeed counterfeit.
We note that when a party attempts to admit 404(b) evidence for purposes of intent, as here, we require a fourth inquiry and thus question whether the issue of intent is in genuine dispute. Walker, 52 S.W.3d at 536 (citing Robert G. Lawson, The Kentucky Evidence Law Handbook, § 2.25, p. 98 (3d ed 1993)). Sub judice, the issue of intent was clearly in genuine dispute based on the mens rea of the statute and Chenault's general denial of knowledge.
Moreover, we likewise agree with the trial court that the evidence admitted sub judice of other acts of passing counterfeit currency in Fleming County within a few days prior to the time of passing counterfeit currency in Mason County under such similar and peculiar circumstances could properly be admitted to show Chenault's common plan or scheme. The evidence presented by the Commonwealth was that Chenault went to multiple businesses within a few miles of each other. At each business he would attempt to purchase a small amount of goods, attempt to pay with a $50 dollar bill, and then receive change therefrom. When questioned about the bill's authenticity, Chenault would claim that he received the bill as change from yet another local business and then depart.
Based on this evidence the trial court was correct in concluding that the charged crime was part and parcel of a greater endeavor which included the charged crime. Accordingly, the trial court was correct in admitting the evidence as a part of a common scheme or plan. See Commonwealth v. English, 993 S.W.2d 941, 943 (Ky. 1999)("Thus, 'common scheme or plan' was intended to refer to the fact that the charged offense was but one of two or more related criminal acts."). As such, the evidence was properly admitted under KRE 404(b)(1). However, if evidence is admissible under KRE 404(b), it may still be excluded under the KRE 403 balancing test. Bell v. Commonwealth, 875 S.W.2d 882 (Ky.1994). See also Davis v. Commonwealth, 147 S.W.3d 709, 725 (Ky. 2004) ("Although relevant and probative, the evidence can still be excluded if its probative value is substantially outweighed by its prejudicial effect. KRE 403.").
In determining the admissibility of "other acts" evidence under the balancing test, we must analyze the evidence using a three-tier inquiry involving its: (1) relevance, (2) probativeness, and (3) prejudice. Bell at 888-891. An appellate court will only reverse the evidentiary ruling if an abuse of discretion has occurred. Barnett v. Commonwealth, 979 S.W.2d 98 (Ky. 1998). Thus, we now must assess whether the evidence presented by the Commonwealth concerning Chenault's attempts to pass counterfeit currency in two different counties was an abuse of discretion in light of Bell.
KRE 401 defines relevant evidence as, "evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence." Clearly in the matter sub judice the acts of passing counterfeit notes in Fleming County within a few days time of the Mason County act of passing a counterfeit note under similar and peculiar circumstances was relevant to show Chenault's knowledge that the bills were counterfeit and intent to negotiate the bills in payment for goods.
The second prong of Bell, probativeness, addresses whether the evidence of the uncharged crime is sufficiently probative of its commission by the accused to warrant its introduction into evidence. We believe that the evidence introduced sub judice was sufficiently probative, given the eyewitness testimony concerning Chenault and the counterfeit notes. Moreover, the acquittal of the charges in Fleming County did not preclude the Commonwealth from presenting this evidence in a KRE 404(b) context in Mason County because it was a "subsequent action governed by a lower standard of proof." Hampton v. Commonwealth, 133 S.W.3d 438, 442 (Ky. 2004). Thus, the evidence offered was probative; the trial court's overruling the motion to exclude on the basis of lack of probativeness was not an abuse of discretion.
Last, we must assess whether the "potential for prejudice from the use of other crimes evidence substantially outweigh its probative value." Bell at 890. While Chenault argues that the potential prejudice from the introduction of evidence related to passing counterfeit notes in a different county outweighs its probative value, we disagree. Chenault also argues, correctly, that KRE 403 prohibits the introduction of needless cumulative evidence; however, there was no citation to any objection to the cumulative nature of the evidence, if any, at trial. This argument was not preserved and shall not be considered for the first time on appeal. See Shelton v. Commonwealth, 992 S.W.2d 849, 852 (Ky.App. 1998) ("An appellate court will not consider a theory unless it has been raised before the trial court and that court has been given an opportunity to consider the merits of the theory.").
Nor has Chenault requested a palpable error review concerning the cumulative nature, if any, of the evidence. "Absent extreme circumstances amounting to a substantial miscarriage of justice, an appellate court will not engage in palpable error review pursuant to RCr [Kentucky Rules of Criminal Procedure] 10.26 unless such a request is made and briefed by the appellant." Shepherd v. Commonwealth, 251 S.W.3d 309, 316 (Ky. 2008) (internal citations omitted).
Chenault additionally argues that the trial court never admonished the jury regarding the admission of the other acts evidence. However, Chenault never requested such admonition. Thus, the matter was waived. See Brock v. Commonwealth, 391 S.W.2d 690, 692 (Ky. 1965)(internal citations omitted). As such, we cannot conclude that the potential for prejudice from the use of other crimes evidence substantially outweighed its probative value. Thus, we agree with the Commonwealth that the trial court properly admitted the proffered evidence of other acts of passing counterfeit notes by Chenault in light of Bell. As such, we find no evidentiary error.
Chenault next argues that the admission of evidence from two separate counties in two separate trials impaired Chenault's right to present a defense. Chenault argues that by having to defend against the Mason County charge in Fleming County and vice versa, he was denied his Fifth Amendment right against self-incrimination as well as his right to present a defense. The Commonwealth argues that this issue has been waived because Chenault sent a detailed letter to the Attorney General from jail disclosing his entire defense to the Attorney General prior to any motion tendered by his counsel arguing the constitutional issue. As to this latter argument, we disagree with the Commonwealth that the letter sent by Chenault was sufficient to waive this argument. It has oft been expressed that a waiver of important constitutional rights by a defendant must be knowingly, voluntarily, and intelligently made. See Turner v. Commonwealth, 647 S.W.2d 500, 500 (Ky.App. 1982) ("Boykin does require a knowing, voluntary and intelligent waiver of all important constitutional rights."). In the matter sub judice, there is no indication that Chenault's letter to the Attorney General was penned in light of a knowing, voluntary and intelligent waiver of any constitutional rights related to this appeal. As such, we turn to the substance of Chenault's argument that his constitutional rights were violated by the admission of evidence from two separate counties in two separate trials which impaired his right to present a defense.
Which was consistent with his testimony at trial.
We believe this matter to be resolved by the learned discussion in Morrow v. Commonwealth, infra, wherein the Kentucky Supreme Court determined that a defendant may properly claim his innocence and at the same time present evidence of the affirmative defense of entrapment, albeit, an inconsistent defense:
[T]hat the law, in many arenas, indulges in the legal fiction of inconsistent pleadings and defenses. See, e.g., Demma, 523 F.2d at 985 ("The rule in favor of inconsistent defenses reflects the belief of modern criminal jurisprudence that a criminal defendant should be accorded every reasonable protection in defending himself against governmental prosecution."); see alsoMorrow v. Commonwealth, 286 S.W.3d 206, 212 (Ky. 2009). Moreover, in Hilbert v. Commonwealth, 162 S.W.3d 921, 925 (Ky. 2005) (internal citations omitted), the Kentucky Supreme Court held that, "The defendant's 'choice between complete silence and presenting a defense has never been thought an invasion of the privilege against compelled self-incrimination."' We note that Chenault was free to present multiple as well as inconsistent defenses to the charges in the two counties. Thus, we must conclude that Chenault's constitutional rights were not violated by having two separate trials in two separate counties with evidence properly admitted into evidence through KRE 404(b).
Love v. State, 441 So.2d 1353, 1356 (Miss.1983) ("Litigants in all cases are entitled to assert alternative theories, even inconsistent alternative theories.")
We now turn to Chenault's third argument, namely, that introduction of the $50 bill was error due to defects in the chain of custody. Chenault claims that the Commonwealth was unable to prove that the proffered counterfeit bill was materially unchanged and, thus, it was error to admit it into evidence. In support thereof, Chenault directs this Court's attention to the testimony provided by Officer Evans that he did not keep the bill in the evidence locker or sealed or labeled and to White's inability to find the black mark on the bill indicating counterfeit currency.
A further review of the testimony provided reveals that while Officer Evans did not keep the bill sealed or in an evidence locker, he testified that he stored the bill in his personal police locker and this was the bill he received from Eckert and it remained in the same condition. Evans also documented receipt of the bill and included its serial number in his case report. Further, Evans recognized the mark on the bill and, with the aid of an overhead projector, pointed the mark out to the jury. Thus, Chenault's argument hinges upon the requirements imposed by KRE 901.
KRE 901 states in part:
(a) General provision. The requirement of authentication or identification as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.KRE 901.
(b) Illustrations. By way of illustration only, and not by way of limitation, the following are examples of authentication or identification conforming with the requirements of this rule
. . . .
(4) Distinctive characteristics and the like. Appearance, contents, substance, internal patterns, or other distinctive characteristics, taken in conjunction with circumstances.
In addressing a "chain of custody" the Court in Rabovsky v. Commonwealth, 973 S.W.2d 6, 8 (Ky. 1998), noted, "The integrity of weapons or similar items of physical evidence, which are clearly identifiable and distinguishable, does not require proof of a chain of custody...." Rabovsky at 8 (internal citations omitted). The Court went on to further state,
Even with respect to substances which are not clearly identifiable or distinguishable, it is unnecessary toRabovsky at 8 (internal citations omitted).
establish a perfect chain of custody or to eliminate all possibility of tampering or misidentification, so long as there is persuasive evidence that "the reasonable probability is that the evidence has not been altered in any material respect."... Gaps in the chain normally go to the weight of the evidence rather than to its admissibility.
Additionally, the court in Thomas v. Commonwealth, 153 S.W.3d 772, 779 (Ky. 2004), discussed the requirements for a proper foundation for admissibility:
Logically, a proper foundation requires the proponent to prove that the proffered evidence was the same evidence actually involved in the event in question and that it remains materially unchanged from the time of the event until its admission. Beason v. Commonwealth, Ky., 548 S.W.2d 835, 837 (1977). See also McCormick on Evidence § 212, at 8 (John W. Strong ed., 5th ed.1999). The necessary foundation depends upon the nature of the evidence. Evidence readily identifiable and impervious to change may be admitted based solely on testimony that it appears to be the actual object in an unchanged condition. Beason, 548 S.W.2d at 837. See also Grundy v. Commonwealth, Ky., 25 S.W.3d 76, 80 (2000) (same). However, the more fungible the evidence, the more significant its condition, or the higher its susceptibility to change, the more elaborate the foundation must be. E.g., Rabovsky v. Commonwealth, Ky., 973 S.W.2d 6, 8 (1998) (laboratory-tested blood sample); Mollette v. Ky. Pers. Bd., Ky.App., 997 S.W.2d 492, 495 (1999); Paul C. Gianelli, Chain of Custody and the Handling of Real Evidence, 20 Am.Crim. L.Rev. 527, 537 (1983) ("[I]f the condition of an object, not merely its identity, is the relevant issue, a chain of custody may be required to establish that the object had not been altered....").Thomas at 779.
Our jurisprudence in Kentucky does not require absolute proof of identity. Thomas at 781. Thus, if the condition of a particular piece of proffered evidence is essential to a case and witness testimony is persuasive that there is a reasonable probability the evidence has not been altered in any material respect since the time of the crime, then, absent another reason sufficient to exclude the evidence, it is not an abuse of discretion for the trial court to admit the evidence. See Thomas at 781.
As explained in Thomas:
We initially note that the requirement of unchanged condition is "to be read in light of the principle that such evidence is admissible if the trial judge determines that there is a reasonable probability that the evidence has not been altered in any material respect since the time of the crime." United States v. Jackson, 649 F.2d 967, 973 (3d Cir.1981) (internal quotation and citation omitted). Thus, the trial court's decision stands absent an abuse of discretion. Id.; Grundy, 25 S.W.3d at 80 (trial court granted wide discretion because required foundation depends on the nature of the evidence); see also United States v. Lane, 591 F.2d 961, 962-63 (D.C.Cir.1979) ("So long as the court is persuaded that as a matter of normal likelihood the evidence has been adequately safeguarded, the jury should be permitted to consider and assess it in light of the surrounding circumstances.").Thomas at 781-82.
Naturally flowing from the discretionary nature of this inquiry is the principle that an unbroken chain of custody is generally unnecessary. "Chain of custody" is not an end in itself, but a term of art describing a means of proving an object's authenticity. McCormick, supra, § 212, at 9 ("[F]oundational requirements are essentially requirements of logic, and not rules of art."). Any gaps go to the weight, rather than the admissibility of the evidence, and the proponent need only demonstrate a
reasonable probability that it has not been altered in any material respect. McKinney v. Commonwealth, Ky., 60 S.W.3d 499, 511 (2001); Rabovsky, 973 S.W.2d at 8; Mollette, 997 S.W.2d at 495. Thus, in line with liberal chain of custody requirements, the mere fact that evidence has been misplaced, insecurely kept, or unstored for a significant period of time is not per se fatal to admissibility.... That aside, the most relevant factors are the circumstances surrounding the preservation of the evidence and the likelihood of tampering by intermeddlers. Pendland v. Commonwealth, Ky., 463 S.W.2d 130, 133 (1971) ("All possibility of tampering does not have to be negated. It is sufficient in these cases that the actions taken to preserve the integrity of the evidence are reasonable under the circumstances.")... "[S]peculation ... is not enough to destroy ... integrity." Brown v. Commonwealth, Ky., 449 S.W.2d 738, 740 (1969). See also Pendland, 463 S.W.2d at 133 (noting the absence of evidence of tampering).
In the case sub judice there was no evidence in the record that suggested the counterfeit bill had been tampered with, or that Officer Evans could not account for the whereabouts of the bill. The basic requirement for the admission of evidence is that there be evidence sufficient to support a finding that the matter in question is what its proponent claims. Below, we have the testimony of Officer Evans that he kept the bill in his locker, which was locked. Additionally, the bill produced by Officer Evans in court, (1) had a distinctive mark placed on it by Officer Evans when re recovered it from Chenault and which Officer Evans recognized and identified in court; and (2) had the same serial number as the bill taken from Chenault.
While a better form of storage of evidence would be preferable, our jurisprudence does not require a perfect chain of evidence to be established prior to its admission. Thus, we agree with the Commonwealth that the trial court did not err in admitting into evidence the $50 counterfeit bill.
Turning now to the fourth and last issue raised by Chenault, that the court erred in imposing court costs because he is an indigent defendant, we note that the Commonwealth agrees with Chenault based on Travis v. Commonwealth, 327 S.W.3d 456 (Ky. 2010). However, recently, in Maynes v. Commonwealth, 361 S.W.3d 922 (Ky. 2012), the Kentucky Supreme Court held that "there is no prohibition on imposition of court costs on a defendant who qualifies for the services of a public defender if the trial court determines under the circumstances of that particular case that the defendant is able to pay such costs." Maynes at 923. Of import, the Maynes court distinguished prior cases, like Travis, when it stated:
In Travis the Court held: "At the time of trial, both Travis and Dawson were receiving the services of a public defender, and were granted the right to appeal in forma pauperis. They were clearly indigent. Thus, the trial court clearly erred in imposing a fine and court costs upon the Appellants." Travis at 459.
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[I]n none of those cases was the defendant's ability to pay made an issue, nor in any of them was the recoupment statute invoked. Without some reasonable basis for believing that the defendant can or will soon be able to pay, the imposition of court costs is indeed improper. Here, by contrast Maynes was to be released from custody pursuant to his diversion agreement, and so, unlike the defendants in the cases just referred to, he could reasonably be expected in the near future to acquire the means to pay the relatively modest court costs of $130.00.Maynes at 930.
Thus, in light of Maynes,
Courts may now impose court costs on an indigent defendant, "unless the court finds that the defendant is a poor person as defined by KRS 453.190(2) and that he or she is unable to pay court costs and will be unable to pay the court costs in the foreseeable future." KRS 23A.205.Smith v. Commonwealth, 361 S.W.3d 908, 921 (Ky. 2012). Accordingly, we reverse the trial court's imposition of court costs, and remand for a determination of whether Chenault is (1) a poor person as defined by KRS 453.190(2), and (2) unable to pay court costs now, and will be unable to pay court costs in the foreseeable future.
In light of the aforementioned, we affirm Chenault's conviction but reverse the imposition of costs upon him and remand for further proceedings.
ALL CONCUR. BRIEFS FOR APPELLANT: Erin Hoffman Yang
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
James Harvey
Assistant Attorney General
Frankfort, Kentucky