             IMPORTANT NOTICE
        NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."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THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE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UNPUBLISHED KENTUCKY APPELLATE DECISIONS, ·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BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED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
DOCUMENT TO THE COURT AND ALL PARTIES TO THE
ACTION.
                                                 RENDERED: AUGUST 24, 2017
                                                      NOT TO BE PUBLISHED

               ~uprttttt dtnurf nf !ft:enfurku
                               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                                               APPELLEE



                  . MEMORANDUM OPINION OF THE COURT

                                  AFFIRMING

      Appellant, Brian Ramsey, appeals from a judgment of the Kenton Circuit

Court convicting him of second-degree robbery; two counts of tampering with

physical evidence; being a first-degree persistent felony offender; and·

sentencing him to a total of twenty years in prison. As grounds for relief,

Appellant contends that he is entitled to a reversal of the trial court's judgment

because the prosecutor made improper statements during the Commonwealth's

closing arguments. For the reasons stated below, we affirm.

      In December 2015, Appellant entered a bank in 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 of eye-witnesses,-police easily traced Appellant's

getaway path from the bank, and he was captured a short time later at the

Florence Mall, where he had spent much of the stolen money. A portion of the

stolen cash was recovered from his person at the time of his arrest. About a

week after his 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 of being a first-degree persistent felony

offender. One charge of tampering 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, after he's been arrested, hiding
      the evidence from police. I can only imagine hoping to take that
      money off so he can spend it in prison somewhere I suppose.
      [Objection overruled.] Whatever he 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 not lead to his

conviction, it could have led to the harsh sentence that the jury recommended.".

In that vein, Appellant points out that he 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
                                        2
therefrom, 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 to justify reversal, the misconduct of the 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 misconduct in a closing argument only if the

misconduct is 'flagrant,' or if each of the following three conditions is satisfied:

(1) proof of the 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 the jury." 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 of commentary on the evidence. We see nothing

in the statement that rendered the trial fundamentally unfair, and since the

evidence of Appellant's guilt was overwhelming, we fail to see how the

prosecutor's comments adversely affected the verdict.

      We adhere to the long-settled standard of our predecessor court that "in

making their arguments to the jury, [prosecutors] should confine themselves to

the law and the evidence, and should not go outside of the record for the

purpose of bringing to the attention of the jury matters which have no bearing

whatever on the questions at issue, and which are conveyed to the jury for the

sole purpose of inflaming their passions and exciting their prejudice." Chicago,

St. L. & N.O.R. Co. v. Rowell, 151 S.W. 950, 955 (Ky. 1912) (citations omitted).

                                         3
 As with any matter, prosecutors may not include references to prisori in their

 closing arguments in order to inflame the passions and prejudices of the jury.

 However, we have no bright line rule similar to our rule against commenting on

 a defendant's right to remain silent that prohibits the mere mention of "prison"

 in a prosecutor's guilt-phase closing argument.

       In context, the prosecutor was plainly inferring from the evidence a

 plausible motive that might explain why Appellant would.try to conceal and

 retain some of the stolen cash after his arrest. We see nothing unfair or

 improper about the comment. Accordingly, we are persuaded that no error

 occurred.

       In any event, even if the comment were deemed to have crossed the

 bounds of propriety, it was harmless. Eye-witnesses allowed police to quickly

 identify and find Appellant and arrest him with some of the stolen money in

 hand, and more of the stolen money concealed on his person under

 circumstances that he could not plausibly refute. Furthermore, he admitted

 his guilt in a telephone call from the jail. In light of this overwhelming evidence

 of guilt, the prosecutor's fleeting reference to "prison" in Appellant's future

 could not possibly have swayed the verdict in this case. Evidentiary and other

 non-constitutional errors will be deemed harmless if we can say with fair

 assurance that the judgment was not substantially swayed by the error.

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




                                          4
      For the foregoing reasons, the judgment of the Kenton Circuit Court is

affirmed.

      All sitting. All concur.



COUNSEL FOR APPELLANT:

Linda Roberts Horsman
Assistant Public Advocate


COUNSEL FOR APPELLEE:

Andy Beshear
Attorney General of Kentucky

Kenneth Wayne Riggs
Assistant Attorney General




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