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Neukam v. Commonwealth11/14/2003
NOT TO BE PUBLISHED
OPINION AFFIRMING
Terry D. Neukam has appealed from the final judgment and sentence entered by the Henderson Circuit Court on May 1, 2002, finding him guilty pursuant to a jury verdict of the offense of theft by unlawful taking over $300.00 and sentencing him to prison for a term of three years. Having found no abuse of discretion on the part of the trial court in denying Neukam's motion for a mistrial, and having concluded that the use of Neukam's prior convictions for impeachment purposes during the guilt phase of his trial did not result in a manifest injustice warranting reversal under RCr 10.26, we affirm.
On October 12, 2001, at approximately 1:20 p.m., Wal-Mart Loss Prevention Officer Willie Bratcher observed Neukam remove a Sony Playstation 2 video game machine from a shelf located in the electronics department of a Wal-Mart department store located in Henderson County, Kentucky. According to Bratcher, Neukam took the video game machine to the end of the aisle and slide it through a gap in the wall, which led to an adjacent aisle located in a different department. Bratcher then witnessed Neukam repeat the process with a second machine, after which he left the electronics department with his companion, Catherine Helmerson. Shortly thereafter, Bratcher witnessed Neukam and Helmerson retrieve the two video game machines and place them in a shopping cart. According to Bratcher, Neukam covered the two video game machines with several rolls of toilet paper and proceeded to the lawn and garden section of the store. Once Neukam and Helmerson reached the outdoor area of the lawn and garden section, Bratcher watched Neukam slide the two video game machines under a chain-linked fence separating the outdoor portion of the store from the parking lot. At this point, Bratcher approached Neukam and identified himself as an employee of Wal-Mart. Bratcher then handcuffed Neukam and escorted him to a police substation located within the store. Shortly thereafter, Officer Todd Seibert, a police officer for the City of Henderson, arrived on the scene. Officer Seibert advised Neukam of his Miranda rights and placed him under arrest. Officer Seibert then spoke with Neukam's companion, Helmerson, who led him to a white van located in the Wal-Mart parking lot. According to Officer Seibert, Helmerson opened up the driver side door to the van and pulled out a white cardboard box. The box contained several items of drug paraphernalia and a small quantity of rock cocaine.
On November 14, 2001, a Henderson County grand jury returned an indictment against Neukam charging him with theft by unlawful taking over $300.00, possession of a controlled substance in the first degree (cocaine), possession of drug paraphernalia, and public intoxication. On April 4, 2002, Neukam filed a motion to suppress the contraband obtained from the van. Neukam claimed the contraband was procured in violation of the Fourth Amendment to the United States Constitution and Section 10 of the Kentucky Constitution. A hearing was conducted on the issue and Neukam's motion to suppress was denied. The case then proceeded to trial.
At trial, Bratcher, who was the first witness to testify, described in detail the events that transpired in the Wal-Mart store on the afternoon of October 12, 2001. Bratcher described the layout of the store and how he witnessed Neukam attempt to steal two Playstation 2 video game machines. Officer Seibert also testified on behalf of the Commonwealth and he described the contraband that was obtained from the van. Officer Seibert also noted that when Neukam was arrested he was not carrying any credit cards and that he had approximately $6.00 on his person. Offic
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