Hulsey v. Commonwealth

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CLINTON HULSEY APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE

No. 2023-CA-0719-MR

Court of Appeals of Kentucky

November 8, 2024

NOT TO BE PUBLISHED

APPEAL FROM KENTON CIRCUIT COURT HONORABLE PATRICIA M. SUMME, JUDGE ACTION NO. 22-CR-01235

BRIEFS FOR APPELLANT: Robert C. Yang Frankfort, Kentucky

BRIEF FOR APPELLEE: Russell Coleman Attorney General of Kentucky Melissa A. Pile Assistant Attorney General Frankfort Kentucky

BEFORE: CETRULO, ECKERLE, AND GOODWINE, JUDGES.

OPINION

CETRULO, JUDGE:

Appellant Clinton Hulsey ("Hulsey") was convicted of first-degree robbery and sentenced to 10 years of imprisonment following a jury trial in the Kenton Circuit Court. He appeals his conviction and sentence because, he argues, (A) the court improperly admitted evidence of other bad acts, and (B) the court erred by not giving the jury his requested lesser included offense instruction.

After review, we find error with regard to the evidentiary ruling and affirm in part, reverse in part, and remand for a new trial.

BACKGROUND

On August 4, 2021, Caroline Harris ("Ms. Harris") was working at her shop, Kratom Direct, in Elsmere, Kentucky. Around 2:00 p.m. that day, a man entered Kratom Direct wearing a white N-95 mask, dark colored t-shirt, and tennis shoes with a white stripe around the bottom. Ms. Harris testified that the man briefly spoke to her, walked toward the rear of the store, walked back to the entrance, peered out the front windows, approached Ms. Harris, and moved uncomfortably close to her. The man then punched Ms. Harris, took her cellphone and $250 from the cash register, ordered Ms. Harris to stay on the ground, and left Kratom Direct.

Ms. Harris testified that she had seen a blue car outside the store around the time of the robbery. Detective Eric Higgins of the Elsmere Police Department ("Detective Higgins") investigated the robbery and found Ms. Harris's cellphone one street away from Kratom Direct. Detective Higgins also stopped a blue car near the store, but testified that he determined that the driver did not meet Ms. Harris's description of the robbery suspect.

Another robbery occurred at a gas station in Lawrenceburg, Indiana on August 11, 2021. Footage gathered during the Lawrenceburg robbery investigation depicted the robber and his getaway vehicle, a black Jeep with a star on the hood. The police investigating the Lawrenceburg robbery posted this footage online and were subsequently contacted by Hulsey's ex-wife and a co-worker of his, who identified Hulsey as the Indiana robber. Hulsey was apprehended in Boone County, Kentucky for the Indiana robbery, and he was briefly detained there before being moved to an Indiana jail. When confronted with the evidence, Hulsey admitted that he was the individual depicted in the Indiana gas station robbery, but stated that he did not remember the robbery.

Hulsey's ex-wife also saw photos of the Kratom Direct robbery and contacted Detective Higgins to inform him that she believed Hulsey was the culprit in the Kratom Direct robbery. She also spoke with Hulsey on the phone, while he was in jail, and informed him that the police had photos of someone that looked like him committing these robberies. Hulsey told his ex-wife that he had no recollection of committing either robbery.

In August 2021, Hulsey lived out of his black Jeep that had the imprint of a star in the hood. Around that time, Hulsey worked as a night shift electrician at an Amazon facility, and, by his own admission, he regularly used methamphetamine and kratom.^[1] Hulsey testified that on August 4, 2021, he got off work at approximately 3:00 a.m., whereafter he unsuccessfully sought to procure drugs. Subsequently, he parked at a gravel parking lot near Target off of Turfway Road in Florence, Kentucky. According to Hulsey, he awoke shortly before noon and, after acquiring some food, went to a Methodist church near his place of employment, where he stayed until approximately 4:00 p.m.

After becoming aware of Hulsey as a suspect, Detective Higgins contacted the Indiana investigators and visited the Indiana jail on August 17, 2021 to interview Hulsey. Detective Higgins showed Hulsey the still photos captured by Kratom Direct's security system, but, while Hulsey admitted that the person in the photos looked similar to him, he stated that he had no recollection of robbing the Kratom Direct store and could not remember exactly what he did on August 4, 2021.^[2] Indiana police showed Detective Higgins photos taken from inside Hulsey's black Jeep after he was arrested, and those photos showed a plain black shirt, white cloth mask, and black shoes with white soles in the back seat of the Jeep. Detective Higgins never directly linked Hulsey's black Jeep to the Kratom Direct robbery.

A Kenton County Grand Jury indicted Hulsey for the Kratom Direct robbery. Six days before the trial, the Commonwealth moved to introduce evidence of the Indiana robbery at trial. Typically, Kentucky Rule of Evidence ("KRE") 404 excludes the introduction of other bad acts evidence for charges that the defendant is not facing in the trial. However, the Commonwealth reasoned that the Indiana robbery evidence fell into a KRE 404 exception as it was inextricably intertwined with the Commonwealth's own investigation and proved Hulsey's identity as the Elsmere robber because taken together the two robberies established Hulsey's modus operandi.

Four days after the Commonwealth moved to introduce the Indiana robbery evidence, Hulsey filed a motion in limine to exclude all evidence of the Indiana robbery due to it being inadmissible character evidence and unduly prejudicial to Hulsey. One day before trial, the trial court held a hearing on the admissibility of the KRE 404 evidence. Ultimately, the trial court expressed some concern about admitting all of the Indiana evidence without limitation. The court ruled that portions of Detective Higgins's Indiana video jailhouse interview with Hulsey would be redacted, and the Indiana robbery video would be played on mute from the time Hulsey entered the gas station until the time he left.

At trial, before the Commonwealth's opening statement, the trial court gave the jury an admonition regarding the Indiana robbery evidence and stated "you may only use any evidence of testimony of bad acts occurring in . . . Indiana as proof of the identity of the defendant, plan, or absence of mistake or accident. You can't use it as proof of guilt." Later in the trial, Hulsey objected again to the introduction of the Indiana robbery video and argued that it was overly prejudicial. At a bench conference, the trial court reaffirmed its ruling that the Indiana robbery video was inextricably intertwined with the Kenton County investigation and that the jury could use evidence of that robbery as proof of Hulsey's identity, plan, or absence of mistake. The video was muted, and the jury viewed the Indiana robbery from the time that Hulsey entered the gas station until the time he left. Throughout the trial, still photos taken from that Indiana security video footage were frequently juxtaposed with the still photos captured by Kratom Direct's security system and presented to the jury and witnesses for comparison. The jury found Hulsey guilty of first-degree robbery, and this appeal followed. Additional facts are added as necessary.

STANDARD OF REVIEW

We review whether a trial court erred in its evidentiary ruling for an abuse of discretion. Leach v. Commonwealth, 571 S.W.3d 550, 553 (Ky. 2019) (citation omitted). Likewise, "[w]e review a trial court's ruling regarding jury instructions for abuse of discretion." Exantus v. Commonwealth, 612 S.W.3d 871, 888 (Ky. 2020) (citing Ratliff v. Commonwealth, 194 S.W.3d 258, 274 (Ky. 2006)).

"The test for abuse of discretion is whether the trial judge's decision was arbitrary, unreasonable, unfair, or unsupported by sound legal principles." Leach, 571 S.W.3d at 553 (citation omitted).

ANALYSIS

On appeal, Hulsey asserts that the trial court erred by (A) improperly admitting evidence of "other bad acts," i.e., evidence of the Indiana robbery, and (B) failing to instruct the jury on the lesser included offense of second-degree robbery.^[3] Conversely, the Commonwealth argues the Indiana evidence was properly admitted because it established Hulsey's modus operandi and is inextricably intertwined with the Kratom Direct robbery. Alternatively, the Commonwealth asserts that if there was any evidentiary admission error, it was harmless. Also, the Commonwealth asserts that the trial court properly excluded the second-degree robbery jury instruction.

A. Other Bad Acts Evidence

Generally, KRE 404(b) renders "[e]vidence of other crimes, wrongs or acts" inadmissible to prove propensity to commit an act, but a trial court may admit the evidence:

(1) If offered for some other purpose, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident; or

(2) If so inextricably intertwined with other evidence essential to the case that separation of the two (2) could not be accomplished without serious adverse effect on the offering party.

KRE 404(b). "[T]he list of exceptions in KRE 404(b)(1) is not exhaustive but illustrative. Prior bad acts may be admitted to show un-enumerated exceptions such as common scheme or plan or modus operandi." Leach, 571 S.W.3d at 555 (citation omitted) (emphasis added).

The Kentucky Supreme Court "has previously stressed, KRE 404(b) is 'exclusionary in nature'; and, as such 'any exceptions to the general rule that evidence of prior bad acts is inadmissible should be 'closely watched and strictly enforced because of [its] dangerous quality and prejudicial consequences.'" Woodlee v....