lMPORTANT NOT|CE
NOT TO BE PUBL|SHED OP|N|ON

TH|S OP|N|ON IS DES|GNATED ”NOT TO BE PUBL|SHED.”
PURSUANT TO THE RULES OF CIVlL PROCEDURE
PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(€),
TH|S OP|N|ON lS NOT TO BE PUBL|SHED AND SHALL NOT BE
ClTED OR USED AS BlND|NG PRECEDENT lN ANY OTHER
CASE lN ANY_COURT OF TH|S STATE; HOWEVER,
UNPUBL|SHED KENTUCKY APPELLATE DEC|S|ONS,
RENDERED AFTER JANUARY 1, 2003, MAY BE ClTED FOR
CONS|DERAT|ON BY THE COURT lF THERE lS NO PUBL|SHED
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BEFORE THE COURT. OP|N|ONS ClTED FOR CONS|DERAT|ON
BY THE COURT SHALL BE SET OUT AS AN UNPUBL|SHED
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DOCUMENT TO THE COURT AND ALL PART|ES TO THE
ACT|ON.

RENDERED: AUGUST 24, 2017

NOT TO BE PUBLISHED -
§upreme Tnuri of Be

“ NAL

DAT Efll¢y¢n e..;. ww.m

 

2016-SC-OO4 13-MR

BRlAN 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_ he 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.” Bames 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 prison 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 omitted).

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

