# IMPORTANT NOTICE NOTTO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOTTO BE PUBLISHED." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR.USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY_COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, · RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY-ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONS.IDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENTTO THE COURT AND ALL PARTIES TO THE ACTION.RENDERED: AUGUST 24, 2017 NOT TO BE PUBLISHED 

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2016-SC-00413-MR

BRIAN RAMSEY APPELLANT
ON APPEAL FROM KENTON CIRCUIT COURT V. HONORABLE PATRICIA M. SUMME, JUDGE NO. 16-CR-00172
COMMONWEALTH OF KENTUCKY

.MEMORANDUM OPINION OF THE COURT AFFIRMING APPELLEE

Appellant, Brian Ramsey, appeals from a judgment ofthe Kenton Circuit Court convictinghim ofsecond-degree robbery; two counts oftampering with physical evidence; being a first-degree persistentfelony offender; and· sentencinghim to a total oftwentyyears in prison. As grounds for relief, Appellant contends thathe is entitled to a reversal ofthe trial court'sjudgment because the prosecutor made improper statements during the Commonwealth's closing arguments. Forthe reasons stated below, we affirm. In December 2015, Appellant entered a bankin downtown Covington and passed a note to the teller demanding money and indicating that.h~ had a gun. The teller handed over approximately $2,000.00.Through a series ofeye-witnesses,-police easily traced Appellant's getaway path from the bank, and he was captured a shorttime later at the Florence Mall, where he had spentmuch ofthe stolen money. A portion ofthe stolen cash was recovered from his person at the time ofhis arrest. About a week afterhis arrest, and while incarcerated awaiting trial, another $250.00 of the robbery proceeds was discovered concealed inside Appellant's anal cavity. Appellant was charged with second-degree robbery, two counts of tampering with physical evidence, and ofbeing a first-degree persistent felony offender. One charge oftampering with evidence involved the money removed from Appellant's rectum. As his only ground for relief, Appellant contends that the prosecutor engaged in misconduct when he said the following during his guilt-phase closing argument: A week after the robbery, he's still got evidence shoved up his own backside. 

### Again, still a week later, afterhe's been arrested, hiding the evidence frompolice. Ican only imagine hoping to take that money off so 

### he can spend it inprison somewhereI suppose. [Objection overruled.] Whateverhe was going to do with it; by where he put it, he was hoping no one was going to find it there. Appellant contends that this argument is improper because it mentions prison, and he further contends, "if [the improper comment] did notlead to his conviction, itcould have led to the harsh sentence that thejuryrecommended.". In that vein, Appellant points out thathe received the maximum available sentence for the crimes. "The parties have wide-latitude during closing statements to argue their respective cases, to comment on the evidence and draw reasonable inferences 2therefrom, and to draw attention to the weaknesses in the opposing party's case." 

### Ordway v. Commonwealth, 391 S.W.3d 762, 796 (Ky. 2013). Further, "In order tojustifyreversal, the misconduct ofthe prosecutor must be so serious as to render the entire trial fundamentally unfair." 

### Stopher v. Commonwealth, 57 S.W.3d 787, 805 (Ky. 2001) (citation omitted). In addition, "we reverse for prosecutorial misconductin a closing argument only ifthe misconductis 'flagrant,' 

### orifeach ofthe following three conditions is satisfied: (1) proofofthe defendant's guilt is not overwhelming; (2) defense counsel objected; and (3) the trial court failed to cure the error with a sufficient admonishment to thejury." 

### Eames v. Commonwealth, 91 S.W.3d 564, 568 (Ky. 2002). We are persuaded that the prosecutor's statement.under review falls well within the permissible range ofcommentary on the evidence. We see nothing in the statement that rendered the trial fundamentally unfair, and since the evidence ofAppellant's guiltwas overwhelming, we fail to see how the prosecutor's comments adversely affected the verdict. We adhere to the long-settled standard ofourpredecessor court that "in making their arguments to thejury, [prosecutors] should confine themselves to the law and the evidence, and should not go outside ofthe record for the purpose ofbringing to the attention ofthejury matters which have no bearing whatever on the questions atissue, and which are conveyed to thejuryfor the sole purpose ofinflaming theirpassions and excitingtheir prejudice." 

### Chicago, St. L. & 

### N.O.R. Co. 

### v. Rowell, 151 S.W. 950, 955 (Ky. 1912) (citations omitted).
3As with any matter, prosecutors may notinclude references to prisori in their closing arguments in order to inflame the passions and prejudices ofthejury. However, we have no brightline rule similar to our rule against commenting on
a defendant's right to remain silent thatprohibits the mere mention of "prison" in a prosecutor's guilt-phase closing argument. In context, the prosecutorwas plainlyinferring from the evidence a plausible motive that might explain whyAppellant would.try to conceal and retain some ofthe stolen cash after his arrest. We see nothing unfair or improper aboutthe comment. Accordingly, we are persuaded that no error occurred. In any event, even ifthe commentwere deemed to have crossed the bounds ofpropriety, it was harmless. Eye-witnesses allowed police to quickly identify and find Appellant and arresthim with some ofthe stolen money in hand, and more ofthe stolen money concealed on his person under circumstances that he could not plausiblyrefute. Furthermore, he admitted his guilt in a telephone call from thejail. In light ofthis overwhelming evidence ofguilt, the prosecutor'sfleeting reference to "prison" inAppellant's future could notpossibly have swayed the verdict in this case. Evidentiary and other non-constitutional errors will be deemed harmless ifwe can say with fair
assurance that thejudgmentwas not substantially swayed by the error.



### · Winstead v. Commonwealth, 283 S.W.3d 678, 689 (Ky. 2009) (citation o_mitted).

4For the foregoing reasons, thejudgment ofthe Kenton Circuit Court is affirmed. All sitting. All concur.

COUNSEL FORAPPELLANT: Linda Roberts Horsman Assistant PublicAdvocate
COUNSEL FOR APPELLEE: Andy Beshear Attorney General 

### ofKentucky Kenneth Wayne Riggs AssistantAttorney General

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