Preview:

RENDERED: MAY 31, 2013; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals
NO. 2012-CA-000687-MR MARC STALEY APPELLANT

v.

APPEAL FROM CHRISTIAN CIRCUIT COURT HONORABLE JOHN L. ATKINS JUDGE ACTION NO. 11-CR-00058

COMMONWEALTH OF KENTUCKY

APPELLEE

OPINION AFFIRMING ** ** ** ** ** BEFORE: MAZE, STUMBO AND VANMETER, JUDGES. MAZE, JUDGE: Appellant, Marc Staley (hereinafter "Marc") appeals his 2012 conviction and sentence by the Christian Circuit Court for torture of an animal. Finding no error on the part of the trial court and no misconduct on the part of the Commonwealth during trial, we affirm.

Background In December of 2010, Marc and his wife, Ismelda, lived together and had four dogs, one of which was a Jack Russell named Baxter. One evening, while Marc and Baxter were playing, Baxter became agitated and bit Marc. In response, Marc picked the dog up by his neck and choked him. After Ismelda told him to stop choking the dog, Marc did so, but took the dog to the bathroom, ran water over him and chained him up outside. When Ismelda woke up the next day, Baxter was alive and in the home. Most of that day, Marc was home alone with Baxter while Ismelda worked. That evening, Marc was supposed to pick Ismelda up from work but failed to do so. When Ismelda arrived home, Marc smelled of alcohol and Baxter was missing. When she asked Marc where Baxter was, Marc was evasive. Finally, Marc brought Ismelda a black garbage bag with Baxter's deceased body inside of it. Marc told her that he had killed Baxter because he would not be quiet. After Marc left for work the next morning, Ismelda looked around the apartment and found small amounts of blood in the bathroom, which had been recently cleaned. Ismelda called police, who interviewed her and looked for other evidence. Officer Platero, the investigating officer, observed that Baxter had been skinned from the top of his scalp to the base of his tail. After Ismelda filed a report, authorities indicted Marc on one count of torture of a dog. At trial, Ismelda testified that due to a medical condition from which she suffered, it would be very difficult, if not impossible, for her to have -2-

children. For this reason, she stated that her relationship with her animals was closer "than most normal people." Officer Platero also testified to his observations of the scene and Baxter's injuries. Marc testified in his own defense that he choked Baxter because Baxter bit him again while Ismelda was at work. He stated that Baxter struggled against him but died as a result of the choking. Marc told the court that he panicked after he realized Baxter was dead and spent a few hours drinking and trying to decide what to do with the dog's body. Marc stated that he took the dog into the bathroom and placed him in the tub while trying to locate his micro-chip. Believing that the chip could be used to locate Baxter, Marc testified that he began cutting on Baxter to find and remove the chip. After failing to find it, Marc used the internet to research where the chip was and what it looked like. Marc then ceased his efforts to find the chip and placed Baxter in a garbage bag. Marc testified that Baxter was already dead when he began looking for the chip. Following the close of both the Commonwealth and the defense's case, Marc's attorney moved the court for a directed verdict, arguing that the Commonwealth failed to establish the necessary elements of torture, as defined in Kentucky law. The trial court overruled both motions. During its closing argument, the Commonwealth presented a lengthy anecdote regarding the origins of the term "man's best friend" and proceeded to show pictures of Baxter's body with the caption "A Bond Betrayed." The Commonwealth also reiterated Ismelda's testimony regarding her inability to have children and the close relationship she had with her animals. Finally, the Commonwealth informed the -3-

jury that they could find Marc guilty under two factual theories: (1) That Baxter was alive when Marc began skinning him, meeting the statutory definition of torture; or (2) that Baxter died as a result of Marc choking him, which also met the statutory definition of torture. Marc's attorney did not object to these portions of the Commonwealth's closing argument. After being instructed under Torture of a Dog or Cat, as well as the lesser-included offense of Cruelty to Animals, the jury found Marc guilty of the former and the court adopted the jury's recommended sentence of three years' imprisonment. On January 26, 2012, Marc's counsel filed a motion for a new trial, arguing that the trial court's ruling on his motion for directed verdict had been erroneous and that several parts of the Commonwealth's closing argument merely inflamed the jury's passions. The trial court overruled this motion and entered the final judgment of conviction on March 13, 2012. This appeal follows.

Analysis On direct appeal, Marc makes three primary allegations of error, two of which he acknowledges were unpreserved for appeal. Marc argues that the trial court erroneously overruled his motions for a directed verdict on the basis that the Commonwealth failed to prove the necessary elements of torture under KRS 525.135. This issue was preserved for appeal. Marc next argues that the Commonwealth presented alternative theories of his guilt during its closing -4-

argument which confused or misled the jury. Marc did not preserve this issue for appeal, but he argues that it constituted "palpable error" on the part of the trial court and therefore requires our review. Finally, Marc contends that the trial court erred in admitting irrelevant and otherwise inadmissible evidence, including the anecdote from the Commonwealth's closing argument, as well as Ismelda's testimony regarding, and the Commonwealth's reference to, her inability to have children. We address these issues in turn and under the lens of their respective standards of review. I. Marc's Motions for Directed Verdict

We first review the sole argument Marc preserved properly for appeal

Download 2012-ca-000687-mr.pdf

Kentucky Law