James M. Aubrey v. Commonwealth of Kentucky
2020 CA 000130
Ky. Ct. App.Jul 8, 2021Background
- Early morning Feb. 9, 2019, at Huddle House in Radcliff, KY: employee Patricia Bivens saw James Aubrey retrieve what appeared to be a gun from his car trunk and enter the restaurant.
- Bivens and a co-worker hid in a walk-in freezer; Aubrey struck the freezer door and announced that "whoever was trying to rob [them] was gone."
- Police arrived shortly thereafter; officers observed Aubrey pacing and took him into custody. Bodycam and security footage were played at trial.
- After initially denying possession, Aubrey admitted he had an airsoft pistol; officers recovered the airsoft gun from between a booth and a wall (its orange tip had been painted black).
- Aubrey was charged with second-degree disorderly conduct, tampering with physical evidence (KRS 524.100), and persistent felony offender (second degree); a jury convicted him on all counts and he was sentenced to seven years.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence for tampering with physical evidence (concealment) | Commonwealth: evidence showed Aubrey concealed the airsoft pistol in a booth before police arrived, satisfying concealment with intent to impair availability | Aubrey: insufficient evidence; McGuire/James require police presence when contraband is discarded — mere abandonment in view of police is not tampering | Court: Affirmed. Evidence showed concealment occurred prior to officers’ arrival, distinguishing McGuire/James; denial of directed verdict proper |
| Challenge to persistent felony offender (PFO) second-degree charge | Commonwealth: PFO sentencing properly applied following convictions | Aubrey: argued PFO should be reversed and dismissed | Court: Moot (because tampering conviction affirmed), so no reversal required |
Key Cases Cited
- Commonwealth v. Benham, 816 S.W.2d 186 (Ky. 1991) (standard for directed verdict and sufficiency review)
- Commonwealth v. James, 586 S.W.3d 717 (Ky. 2019) (interpretation of tampering statute and its Model Penal Code origins)
- McGuire v. Commonwealth, 595 S.W.3d 90 (Ky. 2019) (abandoning drugs in view of police generally does not constitute tampering)