RENDERED: MARCH 3 , 2023; 10:00 A.M. NOT TO BE PUBLISHED 

# Commonwealth of Kentucky Court of Appeals

NO. 2020

- CA

- 1488

- MR
ROYDALE HOLT APPELLANT

v. APPEAL FROM LOGAN CIRCUIT COURT

HONORABLE JOE W

. HENDRICKS, JR., JUDGE

ACTION NO. 20

- CR

- 00084

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION AFFIRMING
**   **  **
BEFORE: CALDWELL, M C NEILL, AND TAYLOR, JUDGES. TAYLOR, JUDGE: Roydale Holt brings this appeal from a November 5, 2020, Judgment and Sentence on Verdict After Jury Trial entered by the Logan Circuit Court. Holt was convicted by a jury of robbery in the first degree and possession of a handgun by a convicted felon. The Logan Cir cuit Court sentenced Holt in accordance with the jury’s recommendation of seventeen

- years’ incarceration for the robbery conviction and five

- years’ incarceration for the handgun conviction, to- 2

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be served concurrently

. Holt now appeals his conviction. Upon careful review of the record below , we affirm. Background

On or about February 27, 2020, Holt traveled from his home in Tennessee to Russellville, Logan County, Kentucky, in a Chevrolet Impala with an acquaintance, Robert Harris. Harris had arranged to purchase a 1985 Oldsmobile from Damien Gilbert on Facebook M arketplace and brought Holt along to drive the Impala back to Tennessee after the purchase. Harris and Gilbert arranged through Facebook Marketplace to meet in Norton Alley, behind Mutt’s Liquor
Store , in Russellville. The Oldsmobile needed some mechanic al work before it could be driven, so Harris and Gilbert worked on the car for a period of time that day before finalizing the sale. Harris then paid Gilbert six hundred dollars ($600)
for the Oldsmobile in three 100

- dollar bills and fifteen 20

- dollar bil ls.

Gilbert testified that after he received the money from Harris, he began picking up tools in the alley . At that time, he w as then confronted by Holt. Gilbert testified that Holt held a gun at his right side and demanded Gilbert give him the money. Gilbert began to beg for his life and ultimately handed Holt the money he had just received from Harris along with his cellphone. Holt then ran
back to the Impala and left the scene in the automobile, following Harris , who was- 3

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in the Oldsmobile waiting for Holt to depart. Harris witnessed the robbery and his testimony regarding events that day closely aligned with Gilbert’s.

As soon as Harris and Holt pulled away, Gilbert called 911. Officer Tony Robinson of the Russellville Police Department was th e first to respond at the scene. Body camera footage indicated that Gilbert told Officer Robinson that he had received eight hundred dollars ($800) for the Oldsmobile , but also told him he was paid in three 100

- dollar bills and fifteen 20

- dollar bills. L ater, in a written statement given at the Russellville Police Department, Gilbert again stated Harris had paid him eight hundred dollars ($800) for the Oldsmobile , but listed the
denominations as three 100

- dollar bills and fifteen 20

- dollar bills

.

After leaving Norton Alley, Harris and Holt went to a nearby gas station and purchased food. Harris testified that Holt got into the passenger side of
the Oldsmobile to eat and put a gun into the glove compartment. Shortly thereafter, detectives arrived on the scene. Harris gave them permission to search the Oldsmobile and the gun was found in the glove compartment. Harris and Holt were arrested. At the police station, it was determined that Holt had six hundred and one dollars ($601) in his wallet

– three 100

- dollar bills, fifteen 20

- dollar b ills, and one 1

- dollar bill. Gilbert’s cellphone was found along the side of a road and Officer Robinson dusted it for fingerprints. One print matched a known print of Holt’ s.- 4

- At trial, the security surveillance video taken from behind Mutt’s Liquor Store was shown to the jury . In the video , the parties appear at a distance. Gilbert, Harris, and Holt were able to identify themselves, one another, and the vehicles in the video. However, at no point is Holt seen brandishing or pointing a gun. The Commonwealth admitted as much in its opening statement and each of the officers and detectives who reviewed the video also admitted in their testimony that a gun is not visible i n the footage.

At first, Harris denied any knowledge of the robbery, but later informed police that he had witnessed Holt rob Gilbert. Harris entered into a plea agreement with the Commonwealth and agreed to testify truthfully against Holt. Holt was ind icted for robbery in the first degree and possession of a firearm by a convicted felon. Holt represent ed himself at trial, but the trial court appointed standby counsel who assisted him throughout all aspects of the trial. After a three

day trial, the ju ry convicted Holt on both charges. This appeal followed.

Holt makes four arguments on appeal: (1) the trial court erred when it denied Holt’s motion for a directed verdict; (2) the trial court erred when it allowed the Commonwealth to present rebuttal e vidence that was not disclosed in discovery; (3) his conviction for being a convicted felon in possession of a handgun must be vacated due to erroneous jury instructions; and (4) the jury instructions for robbery in the first degree denied Holt a unanimous verdict.- 5

- Standard of Review Holt recognizes that his arguments to this Court are largely unpreserved and therefore requests palpable error review under Kentucky Rule s of Criminal Procedure (RCr) 10.26 which states :

A palpable error which affects the su bstantial rights of a party may be considered by the court on motion for a new trial or by an appellate court on appeal, even though insufficiently raised or preserved for review, and appropriate relief may be granted upon a determination that manifest inj ustice has resulted from the error. Accordingly, unpreserved error may be noticed on appeal only if it is “palpable” and “affects the substantial rights of a party.” RCr 10.26. This Court may only grant relief if it determines “that manifest injustice has resulted from the error.” Id. “[W]hat a palpable error analysis ‘boils down to’ is whether the reviewing court believes there is a ‘substantial possibility’ that the result in the case would have been different without the error.” Brewer v. Commonwealth , 206 S.W.3d 343, 349 (Ky. 200 6) (citations omitted). Although Holt as serts that his second argument wa s preserved, we disagree for the reasons stated herein and also review only for palpable error.

Holt ’s first argument on appeal seeks palpable error review of the trial

c ourt’s denial of his motion for a directed verdict. With the assistance of standby counsel, Holt moved for a directed verdict at the end of the Commonwealth’s case

in

- chief , which was denied by the trial court . Holt then put on his own proof,- 6

-

including testifying on his own behalf. Holt did not renew his motion for directed verdict at the close of his case, nor after the Commonwealth presented rebuttal testimony. In Kentucky:

[I] n order to preserve an alleged directed verdict issue for appeal, criminal defendants must : (1) move for a directed verdict at the close of the Commonwealth ’ s evidence; (2) renew the same directed verdict motion at the close of all the evidence, unless the defendant does not present any evidence; and identify the particu lar charge the Commonwealth failed to prove, and must identify the particular elements of that charge the Commonwealth failed to prove. Ray v. Commonwealth , 611 S.W.3d 250, 266 (Ky. 2020)

.

Upon review, we discern no manifest injustice in the denial of Holt’s
motion

. The trial court may grant a motion for directed verdict only “ if the prosecution produces no more than a mere scintilla of evidence. ” Commonwealth

v. Benham , 816 S.W.2d 186, 188 (Ky. 1991)

. Holt argues the Commonwealth failed to offer substantial evidence that he was armed with a deadly weapon ; however, he ignores the testimony of Gilbert and Harris , who both testified they saw a gun in Holt’s hand when he demanded Gilbert’s money. Harris further testified that Holt placed the gun in the glove compartment of the Oldsmobile after the robbery

. The Commonwealth never claimed th e gun was visible in the surveillance video from Mutt’s Liquor Store and , in fact , warned the jury that they would not see a gun in the video. The jury was free to believe or disregard the- 7

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testimony of both Gilbert and Harris regarding whether Holt used a gun as it was a question of credibility. “ It is the job of the jury to evaluate the credibility of witnesses and lend to that evaluat ion the relative weight they deem fit. ” Hatfield v. Commonwealth , 250 S.W.3d 590, 596 (Ky. 2008) (citing Gray v. Commonwealth , 203 S.W.3d 679, 692 (Ky. 2006) ).

Holt ’s second argument is that the trial court committed error pursuant

to Brady v. Maryland , 373 U.S. 83 (1963) because the Commonwealth was permitted to use as rebuttal evidence body camera footage from Officer Robinson that was disclosed for the first time during the trial

. Holt argues that under Brady , the suppression of material evidence would warrant a new trial. The body camera video showed Officer Robinson dusting and lifting one or two fingerprints from Gilbert’s cell phone , but Officer Robinson testified that he dust ed and lifted six fingerprints in total

. Officer Robinson testifi ed that he usually does not have his body camera on when dusting an item for fingerprints and acknowledged turning it off and on during the process in the instant case. Officer Robinson als o testified that he had inadvertently overlooked the footage when looking through files on his computer, but it was turned over to the Commonwealth, who subsequently turned it over to Holt, before the last day of the trial. The trial court allowed the
Com monwealth to use the footage as rebuttal evidence because Holt repeatedly put forth the theory that the fingerprints that matched Holt’s were actually lifted from- 8

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Holt’s cell phone rather than Gilbert’s , despite testimony from Officer Robinson that Holt’s c ell phone was never dusted for fingerprints.

Holt contends his second argument is preserved because standby counsel filed a motion in limine for any and all body camera footage from any officers that were part of the investigation. We disagree. At trial, Holt and standby counsel objected to the footage only to the extent that it showed one or two fingerprints being lifted prior to when Officer Robinson turned off his body camera. However, the trial court pointed out that the issu e raised by Holt looked to which cell phone was printed, not the procedure used

. Further, Holt was not indicted for theft of the cellphone. When Holt stated the footage did not show what type of cell phone it was, the trial court asked him if his cell phone looked substantially similar to the cell phone in the footage. Holt responded that it did not.

E ven if Holt had made a valid Brady argument, it would be without merit. See Brady , 373 U.S. 83. To wit :

A s a general rule “[t]here is no general constitutional right to discovery in a criminal case and Brady did not create one.

. . .” Weatherford v. Bursey, 429 U.S. 545, 559, 97 S. Ct. 837, 846, 51 L. Ed. 2d 30, 42 (1977). Rather, Brady concerns those cases in which the government possesses information that the defense does not and the government ’ s failure to disclose the information deprives the defendant of a fair trial. Therefore, reversal is required only where “there is a ‘reasonable probability’ that, had the eviden ce been disclosed to the defense, the result of the proceeding would have been different. A reasonable probability is- 9

- the probability sufficient to undermine the confidence in the outcome.” United States v. Bagley, 473 U.S. 667, 682, 105 S. Ct. 3375, 338 3, 87 L. Ed. 2d 481, 494 (1985). Moreover, Brady only applies to “the discovery, after trial , of information which had been known to the prosecution but unknown to the defense. ” United States v. Agurs , 427 U.S. 97, 103, 96 S. Ct. 2392, 2397, 49 L. Ed. 2d 342, 349 (1976) (emphasis added). Bowling v. Commonwealth , 80 S.W.3d 405, 410 (Ky. 2002)

.

Holt received the additional body camera footage used by the Commonwealth in rebuttal prior to the end of the trial , and he was able to cross

examine Officer Robinson regarding the footage . We discern no manifest injustice or error by the trial court

.

Holt ’s third argu ment is that his conviction for being a felon in possession of a handgun must be vacated due to er roneous jury instructions. He does not challenge the fact he is a convicted felon, 1 but rather that the trial court crossed out the word “Arresting” in the portion of the instruction related to his prior felony offense from Tennessee. The jury instructi on at issue reads :

You will find Defendant, Roydale D. Holt, guilty of Possession of a Firearm by Convicted Felon [u]nder this instruction if, and only if you believe from the evidence alone and beyond a reasonable doubt all of the following: A. That in Logan County, Kentucky on or about February 27, 2020 [,] and before fi nd ing of the Indictment Herein, the

1 Roydale Holt admitted he was a convicted felon during the penalty phase of the trial.- 10

- Defendant knowingly had in his possession a .22 caliber Taurus revolver; B. That the .22 caliber Taurus revolver was a handgun as defined below [;]
AND C. That the Defendant had been previously convicted of Evading Arresting Motor Vehicle by Judgment of the Davidson County Tennessee Circuit Court on September 16, 2004. Holt argues that, by crossing out the word “Arresting” in the
ins truction, the result is not a n offense under Tennessee law. We again review for palpable error under RCr 10.26.

Even though erroneous jury instructions are presumed prejudicial, “ an erroneous jury instruction may sometimes be an unfo rtunate, yet ultimately
harmless error. ” Harp v. Commonwealth , 266 S.W.3d 813, 818 (Ky. 2008) (footnote omitted). The presumption of prejudice “ can be successfully rebutted by showing that the error did not affect the verdict or judgment.” Harp , 266 S.W.3d
at 818 (internal quotation mark s and footnote omitted). At trial, Renee Stratton, Chief Deputy Clerk of the Logan Circuit Court, testified regarding a certified final judgment from Davidson County, Tennessee. Stratton testified that certified judgment of conviction indicates that Holt was convicted of a Class E felony in Tennessee and received a one

- year sentence, entered on September 16, 2004. She- 11

-

further testified that the judgment indic a ted Holt’s offense was Evading Arrest in a
Motor Vehicle. Hol t did not cross

- examine Stratton and the certified copy of the judgment was entered into evidence as Commonwealth’s Exhibit 8.

We cannot conclude that striking the word “Arresting” in the jury
instruction affected the verdict. Regardless of the exact title of the offense under Tennessee law, t he Commonwealth presented uncontroverted proof that Holt had been convicted of a felony in Tennessee in 2004. The re could have been no confusion regarding which offense was referred to in the instructions because the Commonwealth introduced evidence regarding only one felony conviction. Stratton’s testimony was confirmed by the certified judgment entered into
evidence. Finally, the jury recommended the minimum sentence of five

- years’ impr isonment for this offense, to be served concurrently with the robbery conviction. U nder Kentucky Revised Statutes (KRS) 527.040(2), the offense is a Class C felony, punishable by imprisonment for not less than five years, but no more than ten years. Acco rdingly, there was no manifest injustice warranting reversal. RCr 10.26. Any purported error in the instruction was harmless at best.

For Holt’s final argument, he asserts that the jury instructions for robbery in the first degree deprived him of a unanimous verdict. He asserts this is because the jury was o ffered conflicting evidence as to whether Holt threatened the- 12

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use of force by brandishing the gun or used physical force by holding the gun to Gilbert’s head. KRS 515.020 states :

(1) A person is guilty of robbery in the first degree when, in the course of committing theft, he

. . . uses or threatens the immediate use of physical force upon another person with intent to accomplish the theft and when he

. . . : (a) Causes physical injury to any person who is not a participant in the crime; or (b) Is armed with a deadly weapon; or (c) Uses or threatens the immediate use of a dangerous instrument upon any person who is not a participant in the crime. (2) Robbery in the first degree is a Class B felony [

. ] “[I] nstructions in criminal cases should conform to the language of the

statute. It is left to the lawyers to flesh out the bare bones in closing argument

. ” Parks v. Commonwealth , 192 S.W.3d 318, 326 (Ky. 2006) (internal quotation mark s and citations omitted). Here, the jury instruction for robbery in the first degree mirrored the language of KRS 515.020 . In closing argument

– and also i n opening argument

– the Commonwealth made clear its theory of the case was that Holt threatened the immediate use of physical force upon Gilbert. Although Gilbert told the 911 operator that Holt held a gun to his head, his testimony during trial was that Holt held the gun at his side during the robbery

. Gilbert also testified he was frightened and scared for his life when he called 911.- 13

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Further, although the video from behind Mutt’s Liquor Store was limited, Holt can be seen standing face

- to

- face with Gilbert for fifteen seconds. At no point does it appear that Holt held a gun to Gilbert’s head. Furthermore, Gilbert’s written statement to the police does not indicate that Holt held a gun to his head during the robbery. Harris also did not testify that he saw Holt hold the gun to Gilbert’s head. Even if we accept Holt’s assertion the jury instru ction was flawed because it contained what amounts to superfluous language that Holt “used or threatened the immediate use of physical force upon [Gilbert] : ”

[E] rror resulting only from superfluous language does not present a pure unanimity problem. On t he contrary, such flawed instructions only implicate unanimity if it is reasonably likely that some members of the jury actually followed the erroneously inserted theory in reaching their verdict. If that can be shown, then a unanimous verdict has been de nied and the verdict must be overruled. However, if there is no reasonable possibility that the jury actually relied on the erroneous theory

– in particular, where there is no evidence of the theory that could mislead the jury

– then there is no unanimity prob lem. Though such a case presents an error in the instructions, namely, the inclusion of surplus language, the error is simply harmless because there is no reason to think the jury was misled. To the extent Burne tt [ v . Commonwealth , 31 S.W.3d 878 (Ky. 2000) ] mandates reversal in this latter situation, it is now overruled.
Travis v. Commonwealth , 327 S.W.3d 456, 463 (Ky. 2010)

.

In the instant action, there is no reason to believe any members of the jury w ere misled into believing the alternate theory that Holt held a gun to- 14

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Gilbert’s head. There was simply no evidence presented to that end

. Therefore, there was no palpable error under RCr 10.26.

For the foregoing reasons, the J udgment and Sentence on Verdict After Jury Trial of the Logan Circuit Court is affirmed.
ALL CONCUR.
BRIEF S FOR APPELLANT: Erin H. Yang Frankfort, Kentucky BRIEF FOR APPELLEE: Daniel Cameron Attorney General of Kentucky Bryan D. Morrow Assistant Attorney General Frankfort, Kentucky