CHAPTER 500 General Provisions

500.010. Title.

KRS Chapters 500 to 534 shall be known as the Kentucky Penal Code.

History. Enact. Acts 1974, ch. 406, § 1, effective January 1, 1975.

NOTES TO DECISIONS

Cited:

Hon v. Commonwealth, 670 S.W.2d 851, 1984 Ky. LEXIS 227 ( Ky. 1984 ), overruled in part, Martin v. Commonwealth, 13 S.W.3d 232, 1999 Ky. LEXIS 143 ( Ky. 1999 ), overruled, Johnson v. Commonwealth, 292 S.W.3d 889, 2009 Ky. LEXIS 209 ( Ky. 2009 ), overruled in part as stated, Whittle v. Commonwealth, 352 S.W.3d 898, 2011 Ky. LEXIS 141 ( Ky. 2011 ).

Research References and Practice Aids

Kentucky Bench & Bar.

Fortune, The Penal Code Project, Vol. 67, No. 6, Nov. 2003, Ky. Bench & Bar 29.

Kentucky Law Journal.

Kentucky Law Survey, Sellars, Criminal Law, 71 Ky. L.J. 355 (1982-83).

Cooper and Lawson, Self-Defense in Kentucky: A Need for Clarification or Revision, 76 Ky. L.J. 167 (1987-88).

500.020. Offenses defined by statute — Common law abolished.

  1. Common law offenses are abolished and no act or omission shall constitute a criminal offense unless designated a crime or violation under this code or another statute of this state.
  2. This provision shall not affect the power of a court to punish for contempt or to employ any sanction authorized by law for the enforcement of an order or a civil judgment or decree.

History. Enact. Acts 1974, ch. 406, § 2, effective January 1, 1975.

NOTES TO DECISIONS

1.Insurance Code Violations.

Since a fine is imposed by KRS 304.99-010 for a violation of KRS 304.9-400 constitutes a violation designated within the penal code, and is therefore an offense because of this designation, and because of the requirement of conviction under KRS 304.99-010 , and because that section is distinct from the insurance code’s “civil penalties” provision of KRS 304.99-020 , the offense is criminal in nature. Taylor v. Commonwealth, 799 S.W.2d 818, 1990 Ky. LEXIS 134 ( Ky. 1990 ).

Cited:

Hoskins v. Maricle, 150 S.W.3d 1, 2004 Ky. LEXIS 196 ( Ky. 2004 ).

Opinions of Attorney General.

Where a single woman moves in with a married couple and has sexual intercourse with the husband for the purpose of bearing children, such an act of sexual intercourse between the married man and single woman would not constitute the crime of fornication or adultery under this section. OAG 81-102 .

KRS 431.005 , KRS 431.060 , and this section must be read together, and such a reading reveals that a law-enforcement officer may only arrest without a warrant an individual who in the officer’s presence commits a misdemeanor, an offense punishable by confinement other than in the penitentiary whether or not a fine or other penalty may also be assessed. OAG 84-258 .

The limited definition of “peace officer” set forth in KRS 431.005(3) as affecting a special deputy sheriff (KRS 70.045 ) applies only in relation to an arrest that would be made without a warrant pursuant to KRS 431.005(2), in what might be termed the “domestic violence” circumstance. This limited definition does not restrict the authority of a special deputy sheriff, as a peace officer, to make an arrest without a warrant as required by KRS 403.760(2), for violation of a protective order issued under the provisions of KRS 403.740 or 403.750 pursuant to this section, KRS 403.715 , and 403.740 . OAG 92-140 .

Research References and Practice Aids

Kentucky Law Journal.

Cooper and Lawson, Self-Defense in Kentucky: A Need for Clarification or Revision, 76 Ky. L.J. 167 (1987-88).

Northern Kentucky Law Review.

Elder, Kentucky Criminal Libel Law and Public Officials — An Historical Anachronism, 8 N. Ky. L. Rev. 37 (1981).

500.030. Rule of construction.

All provisions of this code shall be liberally construed according to the fair import of their terms, to promote justice, and to effect the objects of the law.

History. Enact. Acts 1974, ch. 406, § 3, effective January 1, 1975.

NOTES TO DECISIONS

1.Construction.

Although the object of KRS 527.040 and KRS 532.080 is the same, to deter by putting a convicted felon on notice that he will be treated more harshly because of his status if he engages in activities such as possessing a handgun or committing another felony, to allow the state to use the status to enhance the penalty for first degree assault under KRS 508.010 would frustrate the object of this section which calls for liberal construction of the penal code to promote justice, and would offend traditional notions of fair play and substantial justice. Boulder v. Commonwealth, 610 S.W.2d 615, 1980 Ky. LEXIS 288 ( Ky. 1980 ), overruled, Dale v. Commonwealth, 715 S.W.2d 227, 1986 Ky. LEXIS 284 ( Ky. 1986 ).

2.Commentary.

The courts may use the commentary as an aid in interpreting the code, in spite of the language contained in the commentary expressing the view that what the statutes say is the authoritative statement and the commentary is not. Smith v. Commonwealth, 587 S.W.2d 266, 1979 Ky. App. LEXIS 466 (Ky. Ct. App. 1979).

Cited:

Calloway v. Commonwealth, 550 S.W.2d 501, 1977 Ky. LEXIS 427 ( Ky. 1977 ); Williams v. Commonwealth, 639 S.W.2d 786, 1982 Ky. App. LEXIS 255 (Ky. Ct. App. 1982); Barnett v. Wiley, 103 S.W.3d 17, 2003 Ky. LEXIS 68 ( Ky. 2003 ); Gomez v. Gomez, 254 S.W.3d 838, 2008 Ky. App. LEXIS 145 (Ky. Ct. App. 2008).

500.040. Restrictions on applicability.

  1. The provisions of this code shall not apply to any offense committed prior to January 1, 1975, notwithstanding the provisions of KRS 446.110 . Such an offense must be construed and punished according to the provisions of law existing at the time of the commission thereof in the same manner as if this code had not been enacted.
  2. This code shall not bar, suspend or otherwise affect any right or liability to damages, penalty, forfeiture or other remedy authorized by law to be recovered or enforced in a civil action.
  3. For purposes of this section, an offense shall be deemed to have been committed prior to January 1, 1975, if any element of the offense occurred prior thereto.

History. Enact. Acts 1974, ch. 406, § 4, effective January 1, 1975.

NOTES TO DECISIONS

1.Applicability of Former Law.

Where the principal offense of armed assault with intent to rob, on which the indictment as an habitual criminal was based, was committed prior to January 1, 1975, the effective date of KRS 532.080 , which provided for a bifurcated trial, the trial court properly applied the provisions of former KRS 431.190 (repealed), and so was not required to afford the defendant a bifurcated trial. Kimbrough v. Commonwealth, 550 S.W.2d 525, 1977 Ky. LEXIS 436 ( Ky. 1977 ), overruled in part, Ray v. Commonwealth, 611 S.W.3d 250, 2020 Ky. LEXIS 403 ( Ky. 2020 ).

2.Nonbifurcated Trial.

Since the penal code is not retroactive, defendant was not denied due process by reason of a nonbifurcated trial on charges of murder and being a habitual criminal. Cole v. Commonwealth, 553 S.W.2d 468, 1977 Ky. LEXIS 475 ( Ky. 1977 ).

3.Presentence Procedure.

Where the crime of which the defendant was convicted was committed prior to January 1, 1975, he was not entitled to be sentenced in accord with KRS 532.050 and 533.010 which were not then in effect. Kotas v. Commonwealth, 565 S.W.2d 445, 1978 Ky. LEXIS 353 ( Ky. 1978 ).

Cited:

Green v. Commonwealth, 556 S.W.2d 684, 1977 Ky. LEXIS 527 ( Ky. 1977 ); Gully v. Kunzman, 592 F.2d 283, 1979 U.S. App. LEXIS 17500 (6th Cir. 1979); Rutland v. Commonwealth, 590 S.W.2d 682, 1979 Ky. LEXIS 303 ( Ky. 1979 ); McRay v. Commonwealth, 675 S.W.2d 397, 1984 Ky. App. LEXIS 458 (Ky. Ct. App. 1984).

500.050. Time limitations.

  1. Except as otherwise expressly provided, the prosecution of a felony is not subject to a period of limitation and may be commenced at any time.
  2. Except as otherwise expressly provided, the prosecution of an offense other than a felony must be commenced within one (1) year after it is committed.
    1. For a misdemeanor sex offense when the victim is a minor at the time of the offense, the prosecution of the offense shall be commenced within ten (10) years after the victim attains the age of eighteen (18) years. (3) (a) For a misdemeanor sex offense when the victim is a minor at the time of the offense, the prosecution of the offense shall be commenced within ten (10) years after the victim attains the age of eighteen (18) years.
    2. As used in paragraph (a) of this subsection, “misdemeanor sex offense” means a misdemeanor offense in:
      1. KRS Chapter 510;
      2. KRS Chapter 531 involving a minor or depiction of a minor; or
      3. KRS 506.010 or 506.030 for attempt to commit or solicitation to commit:
        1. Any of the offenses described in subparagraphs 1. and 2. of this paragraph;
        2. Promoting prostitution under KRS 529.040 when the defendant advances or profits from the prostitution of a minor;
        3. Human trafficking involving commercial sexual activity under KRS 529.100 ;
        4. Promoting human trafficking involving commercial sexual activity under KRS 529.110 ; or
        5. Unlawful transaction with a minor in the first degree under KRS 530.064(1)(a).
  3. For purposes of this section, an offense is committed either when every element occurs, or if a legislative purpose to prohibit a continuing course of conduct plainly appears, at the time when the course of conduct or the defendant’s complicity therein is terminated.

History. Enact. Acts 1974, ch. 406, § 5, effective January 1, 1975; 1990, ch. 448, § 2, effective July 13, 1990; 2000, ch. 401, § 5, effective July 14, 2000; 2008, ch. 72, § 6, effective July 15, 2008; 2021 ch. 89, § 1, effective March 23, 2021.

Legislative Research Commission Notes.

(3/23/2021). 2021 Ky. Acts ch. 89, sec. 3 provides that the Act, which amended this statute and KRS 413.249 , “shall apply to causes of action accruing on or after [March 23, 2021], and to causes of action accruing before [March 23, 2021], if the applicable statute of limitations, as it existed prior to [March 23, 2021], has not yet run before [March 23, 2021].”

NOTES TO DECISIONS

1.Applicability.

With regard to defendant’s multiple convictions for incest, sodomy, and sexual abuse, four of the misdemeanor counts against defendant were reversed on appeal and dismissed since the actions taken by defendant against the victims occurred well over one year prior to the charges being brought against defendant. Gibbs v. Commonwealth, 208 S.W.3d 848, 2006 Ky. LEXIS 239 ( Ky. 2006 ), overruled in part, Padgett v. Commonwealth, 312 S.W.3d 336, 2010 Ky. LEXIS 71 ( Ky. 2010 ).

2.Felonies.

In felony cases there is no bar by limitation. (Decided under prior law) Taylor v. Commonwealth, 291 Ky. 625 , 165 S.W.2d 169, 1942 Ky. LEXIS 287 ( Ky. 1942 ).

No statute of limitations bars prosecution of felonies because the interest of the Commonwealth in the prosecution of crime outweighs the benefits normally associated with statutes of limitation. Reed v. Commonwealth, 738 S.W.2d 818, 1987 Ky. LEXIS 249 ( Ky. 1987 ).

3.Lesser Included Misdemeanors.

Where defendant requested lesser included offense instructions that would have caused the crimes to be misdemeanors rather than felonies, the limitations period under KRS 500.050(2) did not bar the instruction; a defendant being tried for a felony is entitled to a lesser included misdemeanor instruction even if the lesser offense was time barred. Oliver v. Commonwealth, 2006 Ky. App. LEXIS 126 (Ky. Ct. App. Apr. 28, 2006), aff'd, 253 S.W.3d 520, 2008 Ky. LEXIS 135 ( Ky. 2008 ).

If a criminal defendant requests a lesser-included-offense instruction on an expired misdemeanor, the trial court should give it, provided, of course, that the evidence supports the instruction. Absent a contrary indication in the record, the defendant’s request for such an instruction will operate as a waiver of his right to a statute of limitations defense. Commonwealth v. Oliver, 253 S.W.3d 520, 2008 Ky. LEXIS 135 ( Ky. 2008 ).

4.Penalties and Misdemeanors.

An action to recover a fine for violation of a provision of the law is a penal action to recover a penalty for violation of a penal statute and is barred by limitation in one (1) year from date the cause of action accrued. (Decided under prior law) Commonwealth v. Equitable Life Assurance Soc., 100 Ky. 341 , 38 S.W. 491, 18 Ky. L. Rptr. 778 , 1897 Ky. LEXIS 2 ( Ky. 1897 ).

The one (1) year statute of limitation operates as a bar to the prosecution of a misdemeanor and, to support a conviction, it is necessary to show affirmatively that the offense was committed within one (1) year before the finding of the indictment. (Decided under prior law) Skidmore v. Commonwealth, 57 S.W. 468, 22 Ky. L. Rptr. 409 , 1900 Ky. LEXIS 602 (Ky. Ct. App. 1900). See Duvall v. Commonwealth, 198 Ky. 609 , 249 S.W. 768, 1923 Ky. LEXIS 504 ( Ky. 1923 ); Bonds v. Commonwealth, 225 Ky. 109 , 7 S.W.2d 847, 1928 Ky. LEXIS 716 ( Ky. 1928 ).

A prosecution for contempt of court is for a misdemeanor, and a proceeding to recover a penalty therefor is limited to one (1) year after the right to the penalty accrued. Gordon v. Commonwealth, 141 Ky. 461 , 133 S.W. 206, 1911 Ky. LEXIS 25 ( Ky. 1911 ).

It was error to refuse to direct a verdict of acquittal where the evidence failed to show the offense was committed within the year preceding the date of indictment. (Decided under prior law) Meredith v. Commonwealth, 192 Ky. 378 , 233 S.W. 792, 1921 Ky. LEXIS 72 ( Ky. 1921 ). See Martin v. Commonwealth, 197 Ky. 191 , 246 S.W. 434, 1923 Ky. LEXIS 590 ( Ky. 1923 ).

Where prosecution failed to offer proof that alleged offense occurred within 12 months, conviction of selling whiskey in local option territory was reversed. (Decided under prior law) Bowling v. Commonwealth, 244 S.W.2d 475, 1951 Ky. LEXIS 1225 ( Ky. 1951 ).

The offense of indecent exposure is a misdemeanor and the date of the alleged offense is a material ingredient necessary in determining where the prosecution is barred by the one (1) year limitation. (Decided under prior law) Hunt v. Commonwealth, 378 S.W.2d 813, 1964 Ky. LEXIS 214 ( Ky. 1964 ).

Where an election law required prosecution to be commenced within two (2) years after an illegal corporate contribution to political organizations, the general one (1) year limitation statute for misdemeanors gave way to the two (2) year limitation statute and thus dismissal of an indictment for illegal contributions on the ground that prosecution was barred by limitation was improper. (Decided under prior law) Commonwealth v. James Municipal Equipment, Inc., 531 S.W.2d 517, 1975 Ky. LEXIS 43 ( Ky. 1975 ).

5.— Continuing Obligations.

Where a statute imposed a continuing obligation on a railroad, the railroad may be indicted for any violation occurring within 12 months prior to the indictment. (Decided under prior law) Commonwealth v. Illinois C. R. Co., 55 S.W. 10, 21 Ky. L. Rptr. 1342 , 1900 Ky. LEXIS 337 ( Ky. 1900 ).

6.— Second Offense Sentence.

The limitation on misdemeanor prosecutions in this section does not prevent a court imposing a sentence on a conviction for vagrancy from imposing a second offense sentence where the defendant had been convicted of vagrancy more than a year prior to the present conviction. (Decided under prior law) Adamson v. Hoblitzell, 279 S.W.2d 759, 1955 Ky. LEXIS 531 ( Ky. 1955 ).

7.— Arrest.

The arrest and binding over of defendant by an examining court do not suspend the running of the statute of limitations, and an indictment for a misdemeanor was too late unless found within a year of the commission of the offense. (Decided under prior law) Patrick v. Commonwealth, 196 Ky. 18 , 244 S.W. 72, 1922 Ky. LEXIS 451 ( Ky. 1922 ).

8.— Indictment.

Where date of offense set out in indictment shows its commission within one (1) year, no allegation to that effect is necessary. (Decided under prior law) Commonwealth v. C. B. Cook Co., 102 Ky. 288 , 43 S.W. 400, 19 Ky. L. Rptr. 1336 , 1897 Ky. LEXIS 96 ( Ky. 1897 ). See Ballou v. Commonwealth, 195 Ky. 722 , 243 S.W. 922, 1922 Ky. LEXIS 392 ( Ky. 1922 ).

Filing away an indictment with leave to reinstate without notice is merely an indefinite continuance, and in such case limitation did not run in favor of defendant. Commonwealth v. Bottoms, 105 Ky. 222 , 48 S.W. 974, 20 Ky. L. Rptr. 1159 , 1899 Ky. LEXIS 190 ( Ky. 1899 ).

An indictment for a misdemeanor must show that the offense was committed within the previous 12 months unless it is in lieu of a former indictment in which case it must show that the offense was committed within 12 months prior to the previous indictment or that the prosecution had begun within that time. (Decided under prior law) Commonwealth v. Elkins, 116 Ky. 303 , 76 S.W. 25, 25 Ky. L. Rptr. 485 , 1903 Ky. LEXIS 188 ( Ky. 1903 ).

An indictment for ordinary misdemeanor must show that the offense was committed within 12 months unless it is in lieu of a former indictment, in which case it must show that the offense was committed within a year before the former indictment and that the indictment was dismissed and prosecution resubmitted to the grand jury. (Decided under prior law) Combs v. Commonwealth, 119 Ky. 836 , 84 S.W. 753, 27 Ky. L. Rptr. 273 , 1905 Ky. LEXIS 39 ( Ky. 1905 ).

Where indictment was returned on a certain date alleging a sale of liquor on a date more than a year before but further alleged that the sale occurred within 12 months prior to indictment, and evidence showed a sale within 12 months of indictment, the inconsistent matter was not fatal. (Decided under prior law) Paul v. Commonwealth, 159 Ky. 848 , 169 S.W. 544, 1914 Ky. LEXIS 899 ( Ky. 1914 ).

Unless the indictment shows that the offense was committed on a day set out within a year, or that it occurred prior to and within a year before indictment was filed, it is bad on demurrer. (Decided under prior law) Stinnett v. Commonwealth, 200 Ky. 297 , 254 S.W. 920, 1923 Ky. LEXIS 85 ( Ky. 1923 ).

Where the law fixes a specific period of limitation, the indictment must allege that the offense was committed within that period, or fix a date within that time, and a prosecution within that time is not barred. (Decided under prior law) Commonwealth v. Dickerson, 258 Ky. 446 , 80 S.W.2d 540, 1935 Ky. LEXIS 182 ( Ky. 1935 ).

9.— — Demurrer.

The assertion that the statute of limitations is a bar to prosecution is a defense and cannot be raised by a demurrer to the indictment. (Decided under prior law) Commonwealth v. Beals, 119 S.W. 813 ( Ky. 1909 ). See Stinnett v. Commonwealth, 200 Ky. 297 , 254 S.W. 920, 1923 Ky. LEXIS 85 ( Ky. 1923 ).

If the indictment does not charge that the offense was committed on a day certain within 12 months before the indictment was filed, it is bad on demurrer. (Decided under prior law) Stinnett v. Commonwealth, 200 Ky. 297 , 254 S.W. 920, 1923 Ky. LEXIS 85 ( Ky. 1923 ).

10.Injunction.

Where an action was brought under KRS 313.360 (now KRS 313.022 ) within a year to enjoin the defendant from practicing dentistry and he was not prosecuted under KRS 313.990 , the criminal section, the action was not barred by law providing for limitation for prosecution for misdemeanors to one (1) year from date of offense. (Decided under prior law) Karr v. Kentucky State Board of Dental Examiners, 469 S.W.2d 545, 1971 Ky. LEXIS 300 ( Ky. 1971 ).

11.Quo Warranto Proceedings.

Fine imposed in qou warranto proceedings to forfeit charter of corporations is civil in character and not governed by one (1) year limitation statute. (Decided under prior law) Commonwealth v. Kentucky Jockey Club, 238 Ky. 739 , 38 S.W.2d 987, 1931 Ky. LEXIS 321 ( Ky. 1931 ).

Cited:

Woolfolk v. Commonwealth, 339 S.W.3d 411, 2011 Ky. LEXIS 64 ( Ky. 2011 ).

Opinions of Attorney General.

Infractions of a county planning and zoning ordinance, passed pursuant to KRS 100.201 to 100.347 and requiring building permits and certificates of occupancy, which are punishable under KRS 100.991 , are violations and not felonies under this section, the statute of limitations is one (1) year, which begins to run with regard to a building permit infraction, upon the completion of the structural improvements or alterations and, with regard to a certificate of occupancy infraction, on the last day of occupancy, since each day of occupancy is a separate offense. OAG 75-632 .

Since the controlling element in this section is the phrase “one (1) year after it is committed,” since the statute of limitation of one (1) year begins to run from the day the offense was actually committed, and since it is wholly irrelevant whether the offense was known or unknown to law enforcement officers during the elapsing one (1) year period, the lack of knowledge of the commission of a misdemeanor on the part of law enforcement officials can in no way toll the running of the limitational period of time. OAG 76-473 .

A criminal prosecution commences, in terms of subsection (2) of this section, when a complaint is executed pursuant to RCr 2.02, and the magistrate issues a warrant of arrest by placing the warrant in the hands of the officer for service. OAG 79-578 .

In cases involving a bad check where the value of property or services is less than $100, the prosecution of an offense must be commenced within one (1) year after it is committed. There is no statute of limitation in cases where the value of property or services is $100 or more. OAG 83-121 .

Research References and Practice Aids

Cross-References.

Limitation of actions, civil actions, KRS Ch. 413.

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., General Principles, Part. Matters of Substance, §§ 1.03, 1.11.

Petrilli, Kentucky Family Law, 1991 Supp., Actions, § 17.15.

500.060. Territorial applicability.

  1. Except as otherwise provided in this section, a person may be convicted under the law of this state of an offense committed by his own conduct or the conduct of another for which he is legally accountable when:
    1. Either the conduct or the result which is an element of the offense occurs within this state; or
    2. Conduct occurring outside the state is sufficient to constitute an attempt to commit an offense within the state; or
    3. Conduct occurring outside the state is sufficient to constitute a conspiracy to commit an offense within the state and an overt act in furtherance of the conspiracy occurs within the state; or
    4. Conduct occurring within this state establishes complicity in the commission of, or an attempt, solicitation or conspiracy to commit, an offense in another jurisdiction which is also an offense under the law of this state; or
    5. The offense consists of the omission to perform a legal duty imposed by the law of this state regardless of where that person is when the omission occurs; or
    6. The offense is a violation of a statute of this state that expressly prohibits conduct outside the state.
  2. Subsection (1)(a) does not apply if causing a particular result is an element of an offense and the result is caused by conduct occurring outside the state that would not constitute an offense if the result had occurred there, unless the actor intentionally or knowingly caused the result within the state.
  3. When the offense is homicide, either the death of the victim or the bodily impact causing death constitutes a “result” within the meaning of subsection (1)(a). If the body of a homicide victim is found within this state, it shall be prima facie evidence that the result occurred within the state.

History. Enact. Acts 1974, ch. 406, § 6, effective January 1, 1975.

NOTES TO DECISIONS

1.Jurisdiction.

The commission of a statutory offense in Kentucky gives rise to the authority, i.e., the “jurisdiction” of the courts of this state to preside over the prosecution of the case. Commonwealth v. Cheeks, 698 S.W.2d 832, 1985 Ky. LEXIS 280 ( Ky. 1985 ).

Kentucky jurisdiction was established pursuant to KRS 500.060 , as it was undisputed that a father, a Tennessee resident, failed to provide support to his minor children who, at all times relevant, were living in Graves County, Kentucky; this was an element of the crime of flagrant nonsupport. Also, under KRS 500.050 , he failed to perform a legal duty to provide child support that the Tennessee court ordered him to pay. Cleveland v. Commonwealth, 173 S.W.3d 626, 2005 Ky. App. LEXIS 194 (Ky. Ct. App. 2005).

2.— Distinguished from Venue.

The Circuit Courts of this state are never without “jurisdiction” to preside over the prosecution of offenses committed in Kentucky; rather, KRS 452.510 stipulates that “venue” is improper in the Circuit Court of a county other than that in which the offense has been committed. Commonwealth v. Cheeks, 698 S.W.2d 832, 1985 Ky. LEXIS 280 ( Ky. 1985 ).

3.Receiving Stolen Property.

A thief may be convicted of receiving stolen property any place where he is found with the stolen property in his possession, because the offense of receiving stolen property, under KRS 514.110 , is now expanded to include a person who “retains” such property. Hayes v. Commonwealth, 698 S.W.2d 827, 1985 Ky. LEXIS 277 ( Ky. 1985 ).

4.Theft.

Under KRS 514.030 , theft by unlawful taking is a completed offense when the taking has occurred, regardless of asportation. Therefore, where the defendant committed theft offenses in another state and brought the stolen property into Kentucky, the defendant should have been charged only with receiving stolen property under KRS 514.110 , because the Commonwealth did not have jurisdiction over the theft offenses committed in the other state. Hayes v. Commonwealth, 698 S.W.2d 827, 1985 Ky. LEXIS 277 ( Ky. 1985 ).

5.Conduct Outside State.

Because victim’s death (the result) occurred in Kentucky, conduct occurring outside of Kentucky of defendant, convicted of murder by complicity, could be considered in determining requisite mental state, because under this section a person can be convicted of an offense committed by her own conduct or the conduct of another for which she is legally accountable when either the conduct or the result, which is an element of the offense, occurs within the state. Chumbler v. Commonwealth, 905 S.W.2d 488, 1995 Ky. LEXIS 99 ( Ky. 1995 ).

Opinions of Attorney General.

Subsections (1)(a) or (e) of this section authorize a court in this state to exercise jurisdiction over a Kentucky resident who fails to provide support to his children even though the children reside outside of Kentucky. OAG 91-152 .

The order to pay support does not have to have been issued by a Kentucky court. OAG 91-152 .

Research References and Practice Aids

Cross-References.

Venue of actions, KRS Ch. 452.

500.070. Burden of proof — Defenses.

  1. The Commonwealth has the burden of proving every element of the case beyond a reasonable doubt, except as provided in subsection (3). This provision, however, does not require disproof of any element that is entitled a “defense,” as that term is used in this code, unless the evidence tending to support the defense is of such probative force that in the absence of countervailing evidence the defendant would be entitled to a directed verdict of acquittal.
  2. No court can require notice of a defense prior to trial time.
  3. The defendant has the burden of proving an element of a case only if the statute which contains that element provides that the defendant may prove such element in exculpation of his conduct.

History. Enact. Acts 1974, ch. 406, § 7, effective January 1, 1975.

NOTES TO DECISIONS

1.Due Process.

Defendant’s due process rights are not violated by requirements that defendant prove insanity to the satisfaction of the jury. McDonald v. Commonwealth, 554 S.W.2d 84, 1977 Ky. LEXIS 485 ( Ky. 1977 ).

2.Insanity.

The burden of proving insanity is on the accused. Helmes v. Commonwealth, 558 S.W.2d 162, 1977 Ky. LEXIS 548 ( Ky. 1977 ).

Where there was lay testimony to rebut the defendant’s proof of insanity, and the circumstances preceding the commission of the crime, the evidence regarding the circumstances surrounding its occurrence, and the activities of the accused thereafter when taken as a whole were sufficient to submit the issue of insanity to the jury, it was not clearly unreasonable for a jury to find against the defendant on the issue of insanity, regardless of the fact that all of the expert testimony was to the contrary. Ice v. Commonwealth, 667 S.W.2d 671, 1984 Ky. LEXIS 212 (Ky.), cert. denied, 469 U.S. 860, 105 S. Ct. 192, 83 L. Ed. 2d 125, 1984 U.S. LEXIS 3642 (U.S. 1984).

Because the applicable standard is whether it would be clearly unreasonable for a jury to find against the defendant on the issue of insanity, it was not clearly unreasonable for any jury to find that defendant, convicted of intentional murder but mentally ill, attempted murder but mentally ill and first-degree wanton endangerment but mentally ill, was not insane at the time of the incident where testimony of witnesses and police on scene was that he appeared to be in control and acted rationally. Port v. Commonwealth, 906 S.W.2d 327, 1995 Ky. LEXIS 79 ( Ky. 1995 ).

Defendant’s introduction of mental illness sufficient to raise issue of insanity as a defense, KRS 504.020 , did not require the Commonwealth to then disprove mental illness. KRS 500.070(3) laid out the burden of proof for insanity, which rested on the defendant. Biyad v. Commonwealth, 392 S.W.3d 380, 2013 Ky. LEXIS 8 ( Ky. 2013 ).

3.Extreme Emotional Disturbance.

A finding that a defendant acted under the influence of extreme emotional disturbance is a defense to the charge of murder because it mitigates the mens rea element of that offense; thus, although the Commonwealth must prove every element of murder beyond a reasonable doubt, the Commonwealth need not affirmatively disprove extreme emotional disturbance unless the evidence of extreme emotional disturbance is so overwhelming that it necessitates acquittal on the charge of murder. Spears v. Commonwealth, 30 S.W.3d 152, 2000 Ky. LEXIS 123 ( Ky. 2000 ).

4.Lesser Offense.

Evidence suggesting that a defendant was guilty of a lesser offense is, in fact and in principle, a defense against the higher charge although it is not a “defense” within the technical meaning of the term as used in the penal code. Brown v. Commonwealth, 555 S.W.2d 252, 1977 Ky. LEXIS 501 ( Ky. 1977 ).

5.Sufficiency of Proof.

Where the cross-examination of defendant’s psychiatrist sufficiently raised a factual issue as to whether the defendant was schizophrenic or in a state of remission on the night of the alleged murder, the evidence of emotional disturbance was not so substantial as to mandate a directed verdict of acquittal. Hayes v. Commonwealth, 625 S.W.2d 583, 1981 Ky. LEXIS 307 ( Ky. 1981 ).

Where, in prosecution for receiving stolen property worth more than $100, the Commonwealth failed to offer direct proof or sufficient descriptive testimony to enable the jury to make an informed conclusion as to value of stolen television sets, the Commonwealth failed to meet its burden of proving every element of its case beyond a reasonable doubt. Lee v. Commonwealth, 547 S.W.2d 792, 1977 Ky. App. LEXIS 639 (Ky. Ct. App. 1977).

Where, in a prosecution for theft by failure to make required disposition of property, the defendant was accused of selling property and retaining the monies from said sale, but the prosecution failed to show any evidence that the defendant had sold the property or realized any profit, the trial court properly granted judgment in favor of the defendant. Commonwealth v. Pevely, 759 S.W.2d 822, 1988 Ky. App. LEXIS 162 (Ky. Ct. App. 1988).

In prosecution for first-degree murder defendant’s assertion that he killed victim in self-defense and was thus entitled to a directed verdict of acquittal was not established by the evidence which showed that defendant had ample opportunity to avoid the confrontation for when he came upon victim’s car stopped on a bridge near defendant’s home, defendant armed himself, got out of his vehicle, told his wife to drive herself and their children away from the scene and witnesses testified that defendant shot victim from behind a building when victim’s arms were at his side. Brock v. Commonwealth, 947 S.W.2d 24, 1997 Ky. LEXIS 18 ( Ky. 1997 ).

Commonwealth failed to establish that stolen tools which had been in defendant’s possession actually met the $300 amount the receiving stolen property offense required since the evidence did not give a specific value for the actual items found in defendant’s possession and the owner of the stolen tools only discussed the value of all of the tools taken from him and not the value of the actual tools found in defendant’s possession. Commonwealth v. Reed, 57 S.W.3d 269, 2001 Ky. LEXIS 147 ( Ky. 2001 ).

The Commonwealth had the burden under KRS 500.070 to prove the elements of the crime; the proper time to determine whether a defendant’s alleged statements constituted terroristic threatening was only after a trial on the merits—it was premature for the district court to weigh the evidence before the trial to determine if the Commonwealth could or would meet its burden. Commonwealth v. Isham, 98 S.W.3d 59, 2003 Ky. LEXIS 19 ( Ky. 2003 ).

Defendant testified at trial that on the day before he was to appear in the district court for his preliminary hearing, he took a Percocet according to a prescription, overslept the next day, and missed his court appearance because of the drug’s effect on him; the evidence also showed that defendant was in another county on the night before the hearing, which was a violation of his probation on another charge. When defendant was charged with bail jumping in violation of KRS 520.070(2), the jury was not required to accept his defense of justification under KRS 500.070 ; the trial court did not err by denying his motion for a directed verdict. Williams v. Commonwealth, 2009 Ky. App. LEXIS 204 (Ky. Ct. App. Oct. 23, 2009).

Commonwealth’s closing argument did not impermissibly shift the burden of proof where the comments did not imply that the defense had to talk to the victims or had some obligation that they failed to meet. Mulazim v. Commonwealth, 600 S.W.3d 183, 2020 Ky. LEXIS 117 ( Ky. 2020 ).

6.Jury Instructions.

The judge’s statement of the law with respect to the burden of proof was in error; however, because the written instructions given to the jury at the conclusion of the case accurately stated the presumption of innocence and placed the burden of proof on the Commonwealth, the instructions cured any prejudice attributable to the judge’s remarks to the jury. Kirk v. Commonwealth, 6 S.W.3d 823, 1999 Ky. LEXIS 156 ( Ky. 1999 ).

7.Prosecutorial Misconduct.

In a sexual abuse case, appellant received an unfair trial when a prosecutor made a statement during closing argument that if the jury knew that appellant committed the crime, then the case was proven. Proof of appellant’s guilt was not overwhelming where it was primarily based upon the testimony of a victim, an objection was made, and the trial court’s admonition relating to the proper standard of proof was insufficient to cure the error. Rodgers v. Commonwealth, 314 S.W.3d 745, 2010 Ky. App. LEXIS 70 (Ky. Ct. App. 2010).

Cited:

Jewell v. Commonwealth, 549 S.W.2d 807, 1977 Ky. LEXIS 41 2 ( Ky. 1977 ), overruled, Payne v. Commonwealth, 623 S.W.2d 867, 1981 Ky. LEXIS 286 ( Ky. 1981 ), overruled in part, Payne v. Commonwealth, 623 S.W.2d 867, 1981 Ky. LEXIS 286 ( Ky. 1981 ); Adams v. Commonwealth, 551 S.W.2d 561, 1977 Ky. LEXIS 451 ( Ky. 1977 ); Turner v. Commonwealth, 562 S.W.2d 85, 1978 Ky. App. LEXIS 464 (Ky. Ct. App. 1978); Coomer v. Commonwealth, 694 S.W.2d 471, 1985 Ky. App. LEXIS 624 (Ky. Ct. App. 1985); Hardin v. Savageau, 906 S.W.2d 356, 1995 Ky. LEXIS 108 ( Ky. 1995 ); Carpenter v. Chapleau, 72 F.3d 1269, 1996 U.S. App. LEXIS 339 (6th Cir. 1996); Estep v. Commonwealth, 64 S.W.3d 805, 2002 Ky. LEXIS 5 ( Ky. 2002 ); Harp v. Commonwealth, 266 S.W.3d 813, 2008 Ky. LEXIS 323 ( Ky. 2008 ); Lapradd v. Commonwealth, 334 S.W.3d 88, 2011 Ky. LEXIS 41 ( Ky. 2011 ); Lemons v. Commonwealth, — S.W.3d —, 2012 Ky. App. LEXIS 98 (Ky. Ct. App. 2012).

Opinions of Attorney General.

The defense of immaturity established by KRS 504.010 (repealed) is available to a defendant only in a juvenile session of the county court and is not a complete defense or a bar to prosecution but if raised by a juvenile must be treated in accordance with this section. OAG 75-59 .

Research References and Practice Aids

Cross-References.

Defenses, motions, RCr 8.16 to 8.24.

Kentucky Bench & Bar.

Stephens, Defining Reasonable Doubt: An Elusive Constitutional Dilemma, Vol 76, No. 5, September 2012, Ky. Bench & Bar 19.

Kentucky Law Journal.

Comments, The Contemporaneous Objection Rule: Time for a Re-Examination, 67 Ky. L.J. 212 (1978-1979).

Kentucky Law Survey, Overstreet and Collier, Criminal Law, 68 Ky. L.J. 733 (1979-1980).

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Assaults and Restraints of Persons, Part 2 Homicide, §§ 3.25, 3.32.

Kentucky Instructions to Juries (Criminal), 5th Ed., Assaults and Restraints of Persons, Part 5 Kidnapping and Related Offenses, §§ 3.81, 3.82, 3.84.

Kentucky Instructions to Juries (Criminal), 5th Ed., Complicity and Inchoate Offenses, Part 1 Definitions, Inchoate Offenses, § 10.03.

Kentucky Instructions to Juries (Criminal), 5th Ed., Complicity and Inchoate Offenses, Part 3 Inchoate Offenses, § 10.26.

Kentucky Instructions to Juries (Criminal), 5th Ed., Controlled Substances, Part 2 Schedule Substances, § 9.11B.

Kentucky Instructions to Juries (Criminal), 5th Ed., Controlled Substances, Part 4 Miscellaneous KRS 218A Offenses, §§ 9.24A, 9.25, 9.30C, 9.31, 9.33, 9.34C.

Kentucky Instructions to Juries (Criminal), 5th Ed., Controlled Substances, Part 5 Alcoholic Beverages, §§ 9.37A, 9.37B, 9.39.

Kentucky Instructions to Juries (Criminal), 5th Ed., Damage to or Intrusion Upon Property, Part 3 Arson, §§ 5.17, 5.20.

Kentucky Instructions to Juries (Criminal), 5th Ed., Damage to or Intrusion Upon Property, Part 4 Criminal Mischief and Related Offenses, § 5.27.

Kentucky Instructions to Juries (Criminal), 5th Ed., Defenses, Part 2 Justification, §§ 11.07, 11.28.

Kentucky Instructions to Juries (Criminal), 5th Ed., Defenses, Part 3 Absence of Crminal Responsibility, §§ 11.31, 11.33.

Kentucky Instructions to Juries (Criminal), 5th Ed., Defenses, Part 4 Miscellaneous Defenses, §§ 11.34, 11.35.

Kentucky Instructions to Juries (Criminal), 5th Ed., General Principles, Part 1 Matters of Substance, §§ 1.01, 1.03.

Kentucky Instructions to Juries (Criminal), 5th Ed., Offenses Against Public and Judicial Administration, Part 2 Obstruction of Judicial Administration, §§ 7.14, 7.15.

Kentucky Instructions to Juries (Criminal), 5th Ed., Offenses Against Public and Judicial Administration, Part 3 Escape and Offenses Related to Custody, § 7.34.

Kentucky Instructions to Juries (Criminal), 5th Ed., Offenses Against Public and Judicial Administration, Part 4 Bribery and Related Offenses, § 7.39.

Kentucky Instructions to Juries (Criminal), 5th Ed., Offenses Against Public and Judicial Administration, Part 5 Perjury and Related Offenses, §§ 7.65, 7.71.

Kentucky Instructions to Juries (Criminal), 5th Ed., Offenses Against Public Order, Safety and Morals, Part 6 Gambling, §§ 8.76, 8.78, 8.81, 8.86, 8.88.

Kentucky Instructions to Juries (Criminal), 5th Ed., Offenses Against Public Order, Safety and Morals, Part 8 Family Offenses, §§ 8.98, 8.110.

Kentucky Instructions to Juries (Criminal), 5th Ed., Offenses Related to Sex and Pornography, Part 2 Rape, § 4.33.

Kentucky Instructions to Juries (Criminal), 5th Ed., Offenses Related to Sex and Pornography, Part 3 Sodomy, § 4.39.

Kentucky Instructions to Juries (Criminal), 5th Ed., Offenses Related to Sex and Pornography, Part 7 Prostitution, §§ 4.69, 4.70.

Kentucky Instructions to Juries (Criminal), 5th Ed., Offenses Related to Sex and Pornography, Part 9 Sexual Exploitation of Minors, §§ 4.91, 4.100.

Kentucky Instructions to Juries (Criminal), 5th Ed., Robbery, Theft and Related Offenses, Part 3 Theft, §§ 6.19, 6.46, 6.61.

500.080. Definitions for Kentucky Penal Code.

As used in the Kentucky Penal Code, unless the context otherwise requires:

  1. “Actor” means any natural person and, where relevant, a corporation or an unincorporated association;
  2. “Crime” means a misdemeanor or a felony;
  3. “Dangerous instrument” means any instrument, including parts of the human body when a serious physical injury is a direct result of the use of that part of the human body, article, or substance which, under the circumstances in which it is used, attempted to be used, or threatened to be used, is readily capable of causing death or serious physical injury;
  4. “Deadly weapon” means any of the following:
    1. A weapon of mass destruction;
    2. Any weapon from which a shot, readily capable of producing death or other serious physical injury, may be discharged;
    3. Any knife other than an ordinary pocket knife or hunting knife;
    4. Billy, nightstick, or club;
    5. Blackjack or slapjack;
    6. Nunchaku karate sticks;
    7. Shuriken or death star; or
    8. Artificial knuckles made from metal, plastic, or other similar hard material;
  5. “Felony” means an offense for which a sentence to a term of imprisonment of at least one (1) year in the custody of the Department of Corrections may be imposed;
  6. “Government” means the United States, any state, county, municipality, or other political unit, or any department, agency, or subdivision of any of the foregoing, or any corporation or other association carrying out the functions of government;
  7. “He” means any natural person and, where relevant, a corporation or an unincorporated association;
  8. “Law” includes statutes, ordinances, and properly adopted regulatory provisions. Unless the context otherwise clearly requires, “law” also includes the common law;
  9. “Minor” means any person who has not reached the age of majority as defined in KRS 2.015 ;
  10. “Misdemeanor” means an offense, other than a traffic infraction, for which a sentence to a term of imprisonment of not more than twelve (12) months can be imposed;
  11. “Offense” means conduct for which a sentence to a term of imprisonment or to a fine is provided by any law of this state or by any law, local law, or ordinance of a political subdivision of this state or by any law, order, rule, or regulation of any governmental instrumentality authorized by law to adopt the same;
  12. “Person” means a human being, and where appropriate, a public or private corporation, an unincorporated association, a partnership, a government, or a governmental authority;
  13. “Physical injury” means substantial physical pain or any impairment of physical condition;
  14. “Possession” means to have actual physical possession or otherwise to exercise actual dominion or control over a tangible object;
  15. “Serious physical injury” means physical injury which creates a substantial risk of death, or which causes serious and prolonged disfigurement, prolonged impairment of health, or prolonged loss or impairment of the function of any bodily organ. For a child twelve (12) years of age or less at the time of the injury, a serious physical injury includes but is not limited to the following:
    1. Bruising near the eyes, or on the head, neck, or lower back overlying the kidneys;
    2. Any bruising severe enough to cause underlying muscle damage as determined by elevated creatine kinase levels in the blood;
    3. Any bruising or soft tissue injury to the genitals that affects the ability to urinate or defecate;
    4. Any testicular injury sufficient to put fertility at risk;
    5. Any burn near the eyes or involving the mouth, airway, or esophagus;
    6. Any burn deep enough to leave scarring or dysfunction of the body;
    7. Any burn requiring hospitalization, debridement in the operating room, IV fluids, intubation, or admission to a hospital’s intensive care unit;
    8. Rib fracture;
    9. Scapula or sternum fractures;
    10. Any broken bone that requires surgery;
    11. Head injuries that result in intracranial bleeding, skull fracture, or brain injury;
    12. A concussion that results in the child becoming limp, unresponsive, or results in seizure activity;
    13. Abdominal injuries that indicate internal organ damage regardless of whether surgery is required;
    14. Any injury requiring surgery;
    15. Any injury that requires a blood transfusion; and
    16. Any injury requiring admission to a hospital’s critical care unit;
  16. “Unlawful” means contrary to law or, where the context so requires, not permitted by law. It does not mean wrongful or immoral;
  17. “Violation” means an offense, other than a traffic infraction, for which a sentence to a fine only can be imposed; and
  18. “Weapon of mass destruction” means:
    1. Any destructive device as defined in KRS 237.030 , but not fireworks as defined in KRS 227.700 ;
    2. Any weapon that is designed or intended to cause death or serious physical injury through the release, dissemination, or impact of toxic or poisonous chemicals or their precursors;
    3. Any weapon involving a disease organism; or
    4. Any weapon that is designed to release radiation or radioactivity at a level dangerous to human life.

HISTORY: Enact. Acts 1974, ch. 406, § 8, effective January 1, 1975; 1974, ch. 74, Art. V, § 24(14); 1978, ch. 78, § 1, effective June 17, 1978; 1986, ch. 331, § 56, effective July 15, 1986; 1990, ch. 282, § 1, effective July 13, 1990; 1992, ch. 211, § 130, effective July 14, 1992; 2001, ch. 113, § 7, effective June 21, 2001; 2017 ch. 171, § 4, effective June 29, 2017.

NOTES TO DECISIONS

1.In General.

The definitions within this section are persuasive authority in defining such terms even outside of the criminal law. Shepherd v. Suburban Motor Freight, Inc., 780 S.W.2d 633, 1989 Ky. App. LEXIS 97 (Ky. Ct. App. 1989).

Exclusions in a group insurance plan for injuries resulting from participation in a crime or from “legal (alcohol) intoxication as defined by Kentucky law” did not apply to the plaintiff, injured while drag racing with blood alcohol level at .21% because, according to the insured’s definitions of the ambiguous contract terms, the Kentucky Penal Code defines drag racing as a traffic offense, not a crime and because under the only statutory provision limited to alcohol intoxication, legal intoxication requires one to have been adjudicated guilty of a crime. KRS 501.010 is not applicable because it encompassed substances other than alcohol, whereas the insurance contract made a distinction between alcohol and other drugs; KRS 222.005 did not apply because it was enacted after the accident. Healthwise of Kentucky v. Anglin, 956 S.W.2d 213, 1997 Ky. LEXIS 150 ( Ky. 1997 ).

2.Dangerous Instrument.

An assault with one’s fists could not be considered an assault with a dangerous instrument so as to constitute assault in the first degree, where it was not clear whether the General Assembly intended that fists be considered to be a dangerous instrument as that term is used in KRS 508.010 . Roney v. Commonwealth, 695 S.W.2d 863, 1985 Ky. LEXIS 267 ( Ky. 1985 ).

Steel-toed work shoes and scissors were “dangerous instruments” where defendant kicked victim in side while he was wearing steel-toed work shoes and stabbed victim in the thigh and pelvic/vaginal area with the scissors. Commonwealth v. Potts, 884 S.W.2d 654, 1994 Ky. LEXIS 106 ( Ky. 1994 ), overruled in part, Doneghy v. Commonwealth, 410 S.W.3d 95, 2013 Ky. LEXIS 290 ( Ky. 2013 ).

Although a glass ashtray which defendant threw at victim was not a dangerous instrument per se; under this section it did constitute a dangerous instrument, as used by the defendant, since it placed the victim in danger of suffering a serious physical injury and therefore supported his conviction for first degree robbery. Binion v. Commonwealth, 891 S.W.2d 383, 1995 Ky. LEXIS 11 ( Ky. 1995 ).

Plain meaning of the statutory definition of “dangerous instrument” as “any instrument, including parts of the human body when a serious physical injury is a direct result of the use of that part of the human body” adds an additional element to establishing that a part of the human body is a dangerous instrument; where the instrument in question is a part of the human body, such as a fist or foot, it is not enough to show the risk of serious injury or death, but the Commonwealth must establish that serious physical injury actually occurred as a direct result of the use of that part of the human body. Davidson v. Commonwealth, 2006 Ky. App. LEXIS 32 (Ky. Ct. App. Feb. 3, 2006).

It was palpable error for a trial court to instruct a jury on second-degree assault on the theory that defendant’s fists were a dangerous instrument because there was no evidence that they actually caused serious physical injury to the victim, so they were not, as a matter of law, a dangerous instrument. Davidson v. Commonwealth, 2006 Ky. App. LEXIS 32 (Ky. Ct. App. Feb. 3, 2006).

It was error for a trial court to find, as a matter of law, that a crowbar allegedly used to assault a victim was a “dangerous instrument,” under KRS 500.080(3); this was a jury question, and the trial court’s failure to submit this to the jury was not harmless error. McCombs v. Commonwealth, 2006 Ky. App. LEXIS 397 (Ky. Ct. App. June 23, 2006).

Second-degree assault instruction including a knife as a deadly weapon or dangerous instrument was not palpable error because (1) including knives in the list of deadly weapons did not exclude a knife from being a dangerous instrument, (2) the instructions substantially used defendant's proffered definition of a dangerous instrument, and (3) whether a knife was a deadly weapon or dangerous instrument was a crime element for a jury to determine. Burke v. Commonwealth, 506 S.W.3d 307, 2016 Ky. LEXIS 631 ( Ky. 2016 ).

Trial court correctly convicted defendant of first-degree robbery because, while defendant testified that he did not plan to injure the victim, it was uncontested that he participated in the planned robbery of the victim, defense counsel did not object to the combining of the elements of first-and second-degree robbery where the jury instruction defined “dangerous instrument,” and the combining of the instructions did not fail to accurately state the law for the jury. Stine v. Commonwealth, 2018 Ky. App. LEXIS 312 (Ky. Ct. App. Dec. 21, 2018), review denied, ordered not published, 2019 Ky. LEXIS 132 (Ky. Apr. 11, 2019).

Trial court did not err by failing to instruct the jury on the lesser included offense of fourth-degree assault for defendant’s attacks on the two children because conspicuously absent from defendant’s tendered instruction was a required finding that defendant caused physical injury to them with a dangerous instrument as the first child testified that defendant cut her nose with a butter knife, and the second child told the first child that defendant had stabbed her; and no evidentiary basis existed upon which the jury could have had reasonable doubt that defendant did not use a dangerous instrument to inflict the girls’ physical injuries. Exantus v. Commonwealth, 612 S.W.3d 871, 2020 Ky. LEXIS 458 ( Ky. 2020 ).

For purposes of the second-degree assault convictions, the trial court’s failure to instruct on the definition of dangerous instrument was harmless error because the evidence was uncontroverted that defendant cut the first child’s nose with a butter knife and that he stabbed the second child with either a butcher knife or a butter knife, resulting in a laceration on her mid-back; and there was simply no basis upon which to conclude that being provided with the definition of dangerous instrument would have somehow changed the jury’s verdict. Exantus v. Commonwealth, 612 S.W.3d 871, 2020 Ky. LEXIS 458 ( Ky. 2020 ).

3.Deadly Weapon.

Rule that “any object” intended by its user to convince the victim that it is a pistol or other deadly weapon, and does so convince him, under Merritt v. Commonwealth, 386 S.W.2d 727, 1965 Ky. LEXIS 52 2 ( Ky. 1965 ), is overruled as being inapplicable to KRS 500.080 . To the extent that they apply Merritt over the statutes currently defining robbery committed with the use of a deadly weapon, Kennedy v. Commonwealth, 544 S.W.2d 219, 1976 Ky. LEXIS 18 ( Ky. 1977 ) and Helpenstine v. Commonwealth, 566 S.W.2d 415, 416, 1978 Ky. LEXIS 361 ( Ky. 1978 ), are overruled. Wilburn v. Commonwealth, 312 S.W.3d 321, 2010 Ky. LEXIS 52 ( Ky. 2010 ).

3.3.— Objects That Are Deadly Weapons.

Where the person using a sawed-off shotgun in a robbery of a store clearly intended to convince the employees that it was capable of causing death or other serious physical injury, and the store employees were in fact so convinced, the sawed-off shotgun would be a deadly weapon even if it were inoperable. Bishop v. Commonwealth, 549 S.W.2d 519, 1977 Ky. App. LEXIS 667 (Ky. Ct. App. 1977).

As a matter of law a sawed-off, double barreled shotgun is a “deadly weapon” and thus there is no reason to submit the question of whether such a weapon is a “deadly weapon” to the jury. Little v. Commonwealth, 550 S.W.2d 492, 1977 Ky. LEXIS 423 ( Ky. 1977 ).

The “utility knife” was in fact a knife as defined by statute, and because of it defendant was considered armed with a deadly weapon when he burglarized the hardware store and was guilty of burglary in the first degree. Stout v. Commonwealth, 33 S.W.3d 531, 2000 Ky. App. LEXIS 1 (Ky. Ct. App. 2000).

While instructions given to a jury improperly presupposed that the pistol defendant used in the course of a robbery was a deadly weapon, the error was harmless because there was no doubt that the jury itself would have found that the pistol was a deadly weapon. Wright v. Commonwealth, 239 S.W.3d 63, 2007 Ky. LEXIS 246 ( Ky. 2007 ).

KRS 500.080(4)(b) definition of “deadly weapon” is a reference generally to the class of weapons which may discharge a shot that is readily capable of producing death or serious physical injury. A .38 caliber revolver, operable or not, falls into that class of weapons; a toy gun or a water pistol does not. Wilburn v. Commonwealth, 312 S.W.3d 321, 2010 Ky. LEXIS 52 ( Ky. 2010 ).

Jury instruction for second-degree assault was not erroneous because the trial court did not determine that the knife was actually a deadly weapon but rather determined that if the knife used by defendant were to satisfy the listed elements of second-degree assault, it must be a deadly weapon rather than a dangerous instrument, and the jury was free to decide that the knife was not a deadly weapon. Doneghy v. Commonwealth, 410 S.W.3d 95, 2013 Ky. LEXIS 290 ( Ky. 2013 ).

3.6.— Objects That Are Not Deadly Weapons.

In light of the history and purpose of KRS 411.150 , a motor vehicle is not to be considered a deadly weapon. Shepherd v. Suburban Motor Freight, Inc., 780 S.W.2d 633, 1989 Ky. App. LEXIS 97 (Ky. Ct. App. 1989).

In comprising the list of deadly weapons in KRS 500.080(4), the General Assembly clearly and unmistakably signaled its intent that deadly weapons are those items that are quintessentially “weapons.” A crowbar is not quintessentially a weapon; its use is that of a tool. McCombs v. Commonwealth, 2006 Ky. App. LEXIS 180 (Ky. Ct. App. June 23, 2006), modified, 2007 Ky. App. LEXIS 3 (Ky. Ct. App. Jan. 12, 2007).

It was error for a trial court to find, as a matter of law, that a crowbar allegedly used to assault a victim was a “deadly weapon” under KRS 500.080(4); this was a jury question, and the trial court’s failure to submit this to the jury was not harmless error. McCombs v. Commonwealth, 2006 Ky. App. LEXIS 397 (Ky. Ct. App. June 23, 2006).

Insertion of the term “crowbar” in the jury instructions where the terms “deadly weapon” and “dangerous instrument” were used by the burglary and assault statutes (KRS 511.020 and 508.030 ) was harmless error as a deadly weapon included a billy, nightstick, or club under KRS 500.080(4)(d), and a crowbar was very similar to a nightstick or billyclub when wielded as a weapon; there was substantial evidence that defendant used the crowbar as a metal club in defendant’s attack on the victim. Commonwealth v. McCombs, 304 S.W.3d 676, 2009 Ky. LEXIS 61 ( Ky. 2009 ), modified, 2010 Ky. LEXIS 139 (Ky. Mar. 18, 2010).

4.Minor.

For purposes of the Penal Code, a person is “over the age of 18” from the first moment of the day on which his 18th birthday falls; accordingly, for purpose of applying the persistent felony offender statute there was no merit to the defendant’s argument that the language “over the age of 18” in KRS 532.080(3)(b) meant that the person had to be at least 19. Garrett v. Commonwealth, 675 S.W.2d 1, 1984 Ky. LEXIS 245 ( Ky. 1984 ).

5.Offense.

Since a fine is imposed by KRS 304.99-010 , violation of KRS 304.9-400 constitutes a violation designated within the penal code, and is therefore an offense and because of this designation, and because of the requirement of conviction under KRS 304.99-010 , and because that section is distinct from the insurance code’s “civil penalties” provision of KRS 304.99-020 , we must conclude that the offense is criminal in nature. Taylor v. Commonwealth, 799 S.W.2d 818, 1990 Ky. LEXIS 134 ( Ky. 1990 ).

For probation revocation purposes, someone who violates Unif. Code Mil. Justice art. 92, 10 U.S.C.S. § 892, also commits an “offense” under Kentucky law because a violation of Unif. Code Mil. Justice art. 92, 10 U.S.C.S. § 892, subjects the violator to up to two years’ imprisonment. Commonwealth v. Lopez, 292 S.W.3d 878, 2009 Ky. LEXIS 185 ( Ky. 2009 ).

6.Person.

A corporation could be indicted for second-degree manslaughter, a class C felony based on wanton conduct, under KRS 507.040 since the legislature has expanded the definition of “person” to include corporations under subsection (12) of this section to parallel the treatment of corporations in civil actions under KRS 446.010 , has extended liability for criminal offenses to conduct or non-conduct of corporate officers, directors and agents under KRS 502.050 , and has created a penalty structure providing for corporate fines for all classes of crimes under KRS 534.050 . Commonwealth v. Fortner LP Gas Co., 610 S.W.2d 941, 1980 Ky. App. LEXIS 416 (Ky. Ct. App. 1980).

A viable fetus is a “human being” for purposes of KRS 500.080(12) and the KRS Ch. 507 homicide statutes. Commonwealth v. Morris, 142 S.W.3d 654, 2004 Ky. LEXIS 153 ( Ky. 2004 ).

Where defendant and her newborn child tested positive for cocaine, since under KRS 500.080(12), all viable fetuses were “persons” protected under Kentucky’s penal statutes, the trial court erred in dismissing an indictment charging defendant with first degree wanton endangerment of her unborn child pursuant to KRS 508.060(1). Commonwealth v. Cochran, 2008 Ky. App. LEXIS 8 (Ky. Ct. App. Jan. 11, 2008), sub. op., 2008 Ky. App. Unpub. LEXIS 733 (Ky. Ct. App. Jan. 11, 2008), rev'd, 315 S.W.3d 325, 2010 Ky. LEXIS 157 ( Ky. 2010 ).

7.Physical Injury.

When a deadly weapon or dangerous instrument is used intentionally, the requirements of KRS 508.020(1)(b) are met when any injury results; the words “impairment of physical condition” in subsection (13) of this section simply mean “injury.” Meredith v. Commonwealth, 628 S.W.2d 887, 1982 Ky. App. LEXIS 201 (Ky. Ct. App. 1982).

Victim was struck in back with a ball bat which knocked the wind out of him and bruised his ribs. The requirements of KRS 508.020(1)(b) for assault in the second degree are met when any injury results. A victim is competent to testify about his own injuries and medical proof is not an absolute requisite to prove physical injury. Key v. Commonwealth, 840 S.W.2d 827, 1992 Ky. App. LEXIS 126 (Ky. Ct. App. 1992).

Where prison guard testified that he suffered a bruised face and a scratch below his eye and where he also testified that his injuries inflicted by an inmate caused him pain and required medical attention at the local hospital, there was sufficient proof to establish a “physical injury.” Covington v. Commonwealth, 849 S.W.2d 560, 1992 Ky. App. LEXIS 218 (Ky. Ct. App. 1992).

Because it is well established that expert testimony is not required to prove physical injury and victims of crime are competent to testify as to any injury sustained as a result of the crime, victim’s testimony as to the pain in her left hip both immediately following the robbery and thereafter was sufficient to establish that she suffered a physical injury as a result of defendant’s act. Hubbard v. Commonwealth, 932 S.W.2d 381, 1996 Ky. App. LEXIS 90 (Ky. Ct. App. 1996).

Trial court did not err by denying defendant’s directed verdict for second-degree assault because the Commonwealth presented more than a mere scintilla of evidence that a physical injury resulted from defendant’s intentional use of a deadly weapon or dangerous instrument where the sergeant testified that he felt a sharp trust under his arm and realized immediately that he had been cut and his medical records showed that he sustained a small wound. Doneghy v. Commonwealth, 410 S.W.3d 95, 2013 Ky. LEXIS 290 ( Ky. 2013 ).

Trial court did not abuse its discretion by failing to grant defendant’s motion for directed verdict for the second-degree assault of the first child because a butter knife was used to cut the first child’s nose, resulting in physical injury; and the butter knife was a dangerous instrument as it was used, attempted to be used, or threatened to be used in a way that was readily capable of causing death or serious physical injury. Exantus v. Commonwealth, 612 S.W.3d 871, 2020 Ky. LEXIS 458 ( Ky. 2020 ).

Trial court did not err by failing to grant defendant’s motion for directed verdict on the charge of second-degree assault against the second child because the second child’s injury was a physical injury as the second child told the first child that she had been stabbed; and a photograph introduced into evidence showed that the second child had a cut about an inch long and a half centimeter wide on her mid-back. Exantus v. Commonwealth, 612 S.W.3d 871, 2020 Ky. LEXIS 458 ( Ky. 2020 ).

8.Possession.

The definition of possession set forth in subsection (14) of this section is the proper definition to be contained in the jury instructions for cases arising under KRS Chapter 218A. Powell v. Commonwealth, 843 S.W.2d 908, 1992 Ky. App. LEXIS 239 (Ky. Ct. App. 1992), overruled, Houston v. Commonwealth, 975 S.W.2d 925, 1998 Ky. LEXIS 123 ( Ky. 1998 ).

Inmate was not erroneously charged with possession of stolen state property, where a can of tuna that was stolen from the kitchen was found in the inmate’s laundry bag; the inmate had possession of the laundry bag pursuant to KRS 500.080(14), as the laundry bag belonged to the inmate, and it was under the inmate’s control. Yates v. Fletcher, 120 S.W.3d 728, 2003 Ky. App. LEXIS 272 (Ky. Ct. App. 2003).

9.Serious Physical Injury.

Police officer who suffered from wounds caused from being shot in the chest was not injured so seriously as to support conviction of first-degree assault. Luttrell v. Commonwealth, 554 S.W.2d 75, 1977 Ky. LEXIS 482 ( Ky. 1977 ).

Where a rape victim was 74 years old and in poor health and suffered from a chronic pulmonary condition, and where preceding and during the rape, she was choked and extensively bruised, the physical injuries sustained were sufficient to support a conclusion that a substantial risk of death had been created. Cooper v. Commonwealth, 569 S.W.2d 668, 1978 Ky. LEXIS 386 ( Ky. 1978 ).

Medical proof is not an absolute requisite to prove serious physical injury, but this section sets a fairly strict level of proof which must be met by sufficient evidence of injury, medical and/or nonmedical, taken as a whole, before an instruction on first-degree assault may be given. Prince v. Commonwealth, 576 S.W.2d 244, 1978 Ky. App. LEXIS 656 (Ky. Ct. App. 1978).

It was error, in a prosecution for rape, to allow the prosecutor to argue to the jury that every rape is per se a “physical injury,” since that term is a term of art. Van Dyke v. Commonwealth, 581 S.W.2d 563, 1979 Ky. LEXIS 257 ( Ky. 1979 ).

The loss of an eye as a result of an assault is clearly a “serious physical injury” as defined in subdivision (15) in this section. Jones v. Commonwealth, 737 S.W.2d 466, 1987 Ky. App. LEXIS 574 (Ky. Ct. App. 1987).

The evidence supported a finding that victim sustained “serious physical injury” where victim suffered from a skull fracture, hemorrhaging blood which required a minimum of two (2) days’ round-the-clock observation and monitoring in the intensive care unit. Commonwealth v. Hocker, 865 S.W.2d 323, 1993 Ky. LEXIS 152 ( Ky. 1993 ).

Medical testimony is not an absolute requisite to establish serious physical injury or even physical injury. Commonwealth v. Hocker, 865 S.W.2d 323, 1993 Ky. LEXIS 152 ( Ky. 1993 ).

Although assault in the first degree is also a class B felony and requires proof of “serious physical injury,” it is not a violation of equal protection rights to convict on the class B felony of robbery on a showing of physical injury alone as opposed to serious physical injury; assault in the first degree only requires injury to the victim, robbery in the first degree requires both a theft and a physical injury, with the injury being an aggravating factor. Hubbard v. Commonwealth, 932 S.W.2d 381, 1996 Ky. App. LEXIS 90 (Ky. Ct. App. 1996).

Reasonable juror could find that the significant impairment of the use of an 11-month-old victim’s arm for a four-week period, because it was broken, constituted either “prolonged impairment of health” or “prolonged loss or impairment of the function of a bodily organ,” for purposes of a conviction of third degree criminal abuse, under the definition of “serious physical injury” in KRS 500.080(15). Clift v. Commonwealth, 105 S.W.3d 467, 2003 Ky. App. LEXIS 89 (Ky. Ct. App. 2003).

Trial court did not deny defendant his right to due process when it found that defendant was a violent offender and that the victim suffered serious physical injury; here, there was sufficient evidence to show that defendant inflicted wounds which subjected the victim to substantial risk of death and caused disfigurement. Brooks v. Commonwealth, 114 S.W.3d 818, 2003 Ky. LEXIS 213 ( Ky. 2003 ).

Pain is an “impairment of health”; if the pain is substantial, but not prolonged, it constitutes a “physical injury” under KRS 500.080(13), but if it is prolonged, then it is a “serious physical injury” under KRS 500.080(15). Thus, a trial judge did not err when it instructed the jury on both the Class C felony of assault 2nd (wanton), KRS 508.020(1)(c), and the Class A misdemeanor of assault in the fourth degree (wanton), KRS 508.030(1)(a), where the evidence established that the victim’s injuries resulted not only in headaches and neck pain, but also muscle spasms and numbness of her right arm and where the jury could have found that the duration of those effects constituted a “prolonged impairment of health.” Parson v. Commonwealth, 144 S.W.3d 775, 2004 Ky. LEXIS 158 ( Ky. 2004 ).

Defendant’s motion for a directed verdict on a charge of first degree assault under KRS 508.010 was properly denied because the evidence was sufficient to induce a reasonable juror to believe beyond a reasonable doubt that the victim had suffered “serious physical injury,” as that term was defined in KRS 500.080(15). Defendant, in assaulting a woman in a parking lot and struck her on the head with a hammer, and the woman suffered a concussion and a loss of blood, she needed five staples to close her wound she continued to suffer vertigo and dizziness, and she had a permanent dent in her head where her hair did not grow properly. Arnold v. Commonwealth, 192 S.W.3d 420, 2006 Ky. LEXIS 141 ( Ky. 2006 ).

Evidence was sufficient to sustain a conviction for first-degree criminal abuse because the victim was uninjured when defendant entered the victim’s room alone, he was the victim’s primary caregiver, and a doctor testified that defendant’s story did not match the type of fracture the victim suffered, and it was not common in a two-year old. Mason v. Commonwealth, 331 S.W.3d 610, 2011 Ky. LEXIS 3 ( Ky. 2011 ).

In defendant’s first-degree assault case, the court erred by failing to give a lesser included offense instruction on second-degree assault because the evidence established injuries that fell somewhere in the gray area between mere physical injury and serious physical injury. The decision as to which type of injury actually occurred required close observation of the victims’ behavior, attention to their testimony, and overall interpretation of the evidence; that function could only be carried out by the jury, not the judge. Swan v. Commonwealth, 2012 Ky. LEXIS 498 (Ky. Aug. 23, 2012).

Injury suffered by the victim after being shot did not amount to a “serious physical injury,” as the only proof was the victim’s testimony that it took “a couple of months” to get her hand back to full strength using a therapy ball, but she did not describe her exercises with any particularity or mention seeking a physical therapist. McDaniel v. Commonwealth, 415 S.W.3d 643, 2013 Ky. LEXIS 645 ( Ky. 2013 ).

Defendant's conviction for first-degree assault was reversed as the prosecution did not prove the serious physical injury prong of the assault charge because the Commonwealth only presented evidence through the victim's testimony that he had been shot, that he had headaches off and on, and that he had a small scar; although the Commonwealth presented evidence that the victim might suffer from twitchy and watery eyes from time to time, no evidence was presented establishing the frequency of the alleged eye twitch or watering, the amount of water that ran from his eye, or how he was affected by the eye twitching and watering; and there was no evidence presented connecting the headaches, eye watering, and eye twitching to the gunshot. Forte v. Commonwealth, 2016 Ky. App. LEXIS 182 (Ky. Ct. App. Nov. 4, 2016).

Defendant's first degree assault charge merged into defendant's reckless homicide charge because the evidence did not establish that the victim's head wound was a serious physical injury that could have formed the basis of defendant's first degree assault conviction, when defendant hit the victim in the head with a police baton, while one or both of defendant's co-perpetrators held the victim in a choke-hold, and the medical examiner testified that the cause of the victim's death was asphyxiation, most likely a result of the choke-hold. Hammond v. Commonwealth, 504 S.W.3d 44, 2016 Ky. LEXIS 626 ( Ky. 2016 ).

Trial court did not err in denying defendant's motion for directed verdict because it would be reasonable for a jury to find him guilty of first-degree wanton endangerment; Police officers' testimony that they broke off their pursuit during a high-speed chase because they felt unsafe driving at that speed on those roads was enlightening as to how dangerous defendant was driving, given that the trained officers considered it too dangerous to pursue him any further. Culver v. Commonwealth, 2017 Ky. App. LEXIS 534 (Ky. Ct. App. Sept. 22, 2017, sub. op., 2017 Ky. App. Unpub. LEXIS 952 (Ky. Ct. App. Sept. 22, 2017).

Defendant was not entitled to a directed verdict as to complicity to kidnapping because a reasonable jury could find defendant inflicted a stab wound causing the victim to suffer a potentially fatal punctured lung. Brown v. Commonwealth, 553 S.W.3d 826, 2018 Ky. LEXIS 283 ( Ky. 2018 ).

Cited:

McIntosh v. Commonwealth, 582 S.W.2d 54, 1979 Ky. App. LEXIS 412 (Ky. Ct. App. 1979); Williams v. Commonwealth, 639 S.W.2d 786, 1982 Ky. App. LEXIS 255 (Ky. Ct. App. 1982); Jordan v. Commonwealth, 703 S.W.2d 870, 1985 Ky. LEXIS 269 ( Ky. 1985 ); Commonwealth v. Lundergan, 847 S.W.2d 729, 1993 Ky. LEXIS 50 ( Ky. 1993 ); Kentucky Bar Ass’n v. Rogers, 895 S.W.2d 577, 1995 Ky. LEXIS 38 ( Ky. 1995 ); Kentucky Bar Ass’n v. Horn, 929 S.W.2d 191, 1996 Ky. LEXIS 98 ( Ky. 1996 ); Taylor v. Commonwealth, 995 S.W.2d 355, 1999 Ky. LEXIS 73 ( Ky. 1999 ); J.D.K. v. Commonwealth, 54 S.W.3d 174, 2001 Ky. App. LEXIS 589 (Ky. Ct. App. 2001); Ky. Bar Ass’n v. VanMeter, 111 S.W.3d 863, 2003 Ky. LEXIS 160 ( Ky. 2003 ); Gamble v. Commonwealth, 319 S.W.3d 375, 2010 Ky. LEXIS 212 ( Ky. 2010 ); Swan v. Commonwealth, 384 S.W.3d 77, 2012 Ky. LEXIS 111 ( Ky. 2012 ); Bartley v. Commonwealth, 400 S.W.3d 714, 2013 Ky. LEXIS 291 ( Ky. 2013 ); Commonwealth v. Kenley, 516 S.W.3d 362, 2017 Ky. App. LEXIS 51 (Ky. Ct. App. 2017).

Opinions of Attorney General.

Subdivisions (10) and (17) of this section specifically exempt traffic infractions from the general language of subsection (4) of KRS 532.020 . OAG 74-675 .

Infractions of a county planning and zoning ordinance, passed pursuant to KRS 100.201 to 100.347 and requiring building permits and certificates of occupancy, which are punishable under KRS 100.991 , are violations and not felonies, under KRS 500.050 , the statute of limitations is one (1) year, which begins to run, with regard to a building permit infraction, upon the completion of the structural improvement or alterations and, with regard to a certificate of occupancy infraction, on the last day of occupancy, since each day of occupancy is a separate offense. OAG 75-632 .

A nonprofit corporation, formed for exclusively charitable and educational purposes, and its directors would be considered “persons” within the meaning of subsection (12) of this section; accordingly, they would be subject to the provisions of the gambling statutes in KRS Chapter 528. OAG 81-352 .

Research References and Practice Aids

Cross-References.

Felonies and misdemeanors defined, KRS 431.060 .

Kentucky Law Journal.

Kentucky Law Survey, Brice and Taylor, Criminal Law, 67 Ky. L.J. 569 (1978-1979).

Comment, Feticide: Murder in Kentucky?, 71 Ky. L.J. 933 (1982-83).

Northern Kentucky Law Review.

Elder, Kentucky Criminal Libel Law and Public Officials — An Historical Anachronism, 8 N. Ky. L. Rev. 37 (1981).

Note — Criminal Law — Murder — Intentional Killing of Viable Fetus Not Murder, 11 N. Ky. L. Rev. 213 (1984).

Rankin and Muehlenkamp, 1993 Kentucky Criminal Law Update, 21 N. Ky. L. Rev. 311 (1994).

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Assaults and Restraints of Persons, Part 1 Definitions, §§ 3.08, 3.09, 3.12.

Kentucky Instructions to Juries (Criminal), 5th Ed., Assaults and Restraints of Persons, Part 3 Assault, § 3.32.

Kentucky Instructions to Juries (Criminal), 5th Ed., Controlled Substances, Part 1 Definitions, § 9.10B.

Kentucky Instructions to Juries (Criminal), 5th Ed., Controlled Substances, Part 5 Alcoholic Beverages, § 9.36E.

Kentucky Instructions to Juries (Criminal), 5th Ed., General Principles, Part 1 Matters of Substance, § 1.09.

Kentucky Instructions to Juries (Criminal), 5th Ed., Offenses Against Public Order, Safety and Morals, Part 1 Definitions, Offenses Relating to Firearms and Destructive Devices, § 8.12A.

Kentucky Instructions to Juries (Criminal), 5th Ed., Offenses Against Public Order, Safety and Morals, Part 2 Riot, Disorderly Conduct, and Related Offenses, §§ 8.38B, 8.39B.

Kentucky Instructions to Juries (Criminal), 5th Ed., Offenses Against Public Order, Safety and Morals, Part 4 Offenses Relating to Firearms and Destructive Devices, §§ 8.64A, 8.65F.

Kentucky Instructions to Juries (Criminal), 5th Ed., Penalty Phase Instructions, Part 4 Subsequent Offense Enhancement, § 12.25.

Kentucky Instructions to Juries (Criminal), 5th Ed., Theft and Related Offenses, Part 1 Definitions, §§ 6.03, 6.04, 6.14.

Petrilli, Kentucky Family Law, Support of the Family, § 16.16.

500.090. Forfeiture.

  1. Except as provided in KRS 500.092 , all property which is subject to forfeiture under any section of the Kentucky Penal Code shall be disposed of in accordance with this section.
    1. Property other than firearms which is forfeited under any section of this code may, upon order of the trial court, be destroyed by the sheriff of the county in which the conviction was obtained.
    2. Property other than firearms which is forfeited under any section of this code may, upon order of the trial court, be sold at public auction. The expenses of keeping and selling such property and the amount of all valid recorded liens that are established by intervention as being bona fide shall be paid out of the proceeds of the sale. The balance shall be paid to:
      1. The state, if the property was seized by an agency of the state or peace officer thereof;
      2. The county, if the property was seized by the sheriff or an agency or peace officer of the county;
      3. The Department of Fish and Wildlife Resources, if the property was seized by a peace officer of the Department of Fish and Wildlife or was seized by any other officer for violation of KRS Chapter 150;
      4. The city, if the property was seized by the city or by an agency or peace officer thereof and the property was delivered to the city property clerk;
      5. The city (ninety percent (90%) of the proceeds) and the sheriff (ten percent (10%) of the proceeds), if the property was seized by the city or by an agency or peace officer thereof and the property was delivered to the sheriff or the county police; or
      6. The state, if the property was seized by any combination of agencies listed above.
    3. Subject to the duty to return confiscated firearms and ammunition to innocent owners pursuant to this section, all firearms and ammunition confiscated by a state or local law enforcement agency, all firearms ordered forfeited by a court, and all abandoned firearms and ammunition coming into the custody of a state or local law enforcement agency and not retained for official use shall be transferred to the Department of Kentucky State Police for disposition as provided by KRS 16.220 . The transfer shall occur not more than ninety (90) days after the abandonment of the firearm or ammunition to the law enforcement agency or not more than ninety (90) days after its confiscation, unless a court requires the firearm or ammunition for use as evidence, in which case it shall be transferred to the Department of Kentucky State Police not more than ninety (90) days following the order of forfeiture by the court or after the court returns the firearm or ammunition from use as evidence. Prior to the sale of any firearm or ammunition, the law enforcement agency shall make a bona fide attempt to determine if the firearm or ammunition to be sold has been stolen or otherwise unlawfully obtained from an innocent owner and return the firearm and ammunition to its lawful innocent owner, unless that person is ineligible to purchase a firearm under federal law. This subsection relating to auction of firearms and ammunition shall not apply to firearms and ammunition auctioned by the Department of Fish and Wildlife that may be sold to individual purchasers residing in Kentucky who are eligible under federal law to purchase firearms and ammunition of the type auctioned.
    4. If property which is forfeited under any section of this code is determined by the trial court to be worthless, encumbered with liens in excess of its value, or otherwise a burdensome asset, the court may abandon any interest in such property. Property which is abandoned pursuant to this section shall be returned to the lawful claimant upon payment of expenses for keeping the property.
    5. Property which is forfeited under any section of this code may, upon order of the trial court, be retained for official use in the following manner. Property which has been seized by an agency of the state may be retained for official state use. Property which has been seized by an agency of county, city, or urban-county government may be retained for official use by the government whose agency seized the property or for official state use. Property seized by any other unit of government may be retained only for official state use. The expenses for keeping and transferring such property shall be paid by the unit of government by which the property is retained.
  2. Money which has been obtained or conferred in violation of any section of this code shall, upon conviction, be forfeited for the use of the state. This subsection shall not apply when, during the course of the proceeding in which the conviction is obtained, the person from whom said money was unlawfully acquired is identified.
  3. Property forfeited under any section of this code shall be disposed of in accordance with this section only after being advertised pursuant to KRS Chapter 424. This subsection shall not apply to property which is designed and suitable only for criminal use or to money forfeited under subsection (2) of this section.
  4. The trial court shall remit the forfeiture of property when the lawful claimant:
    1. Asserts his or her claim before disposition of the property pursuant to this section;
    2. Establishes his or her legal interest in the property; and
    3. Establishes that the unlawful use of the property was without his or her knowledge and consent. This subsection shall not apply to a lienholder of record when the trial court elects to dispose of the property pursuant to subsection (1)(b) of this section.
  5. For purposes of this section, “lawful claimant” means owner or lienholder of record.
  6. Before property which has had its identity obscured in violation of KRS 514.120 may be sold or retained for official use as provided in this section, the court shall cause a serial or other identifying number to be placed thereon, and a record of the number assigned shall be placed in the court order authorizing the sale or retention of the property. This number shall be assigned, whenever applicable, in consultation with the Department of Kentucky State Police and any other state or federal regulatory agency. The purchaser of the property shall be given a document stating that the property had been forfeited pursuant to law and that a number, shown on the document, has been assigned which shall be deemed as compliance of the owner with KRS 514.120 . When property is returned to an owner pursuant to this section and its identity has been obscured by another person in violation of KRS 514.120, the court shall provide a document to the owner relieving him or her of liability for its continued possession. This document shall serve as evidence of compliance with KRS 514.120 by the owner or any person to whom he or she lawfully disposes of the property. This section shall not apply to any person after property has been sold or returned in compliance with this section who violates the provisions of KRS 514.120 with respect to that property.
  7. Before forfeiture of any property under this section, it shall be the duty of the trial court to determine if a lawful owner or claimant to the property has been identified or is identifiable. If a lawful owner or claimant has been identified or is identifiable, the court shall notify the owner or claimant that the property is being held and specify a reasonable period of time during which the claim may be made or may, in lieu thereof, order the return of the property to the lawful owner or claimant. If the lawful owner or claimant does not assert his or her claim to the property after notification or if he or she renounces his or her claim to the property, the property shall be disposed of as provided in this section. It shall be the duty of all peace officers and other public officers or officials having knowledge of the lawful owner or claimant of property subject to forfeiture to report the same to the trial court before the act of forfeiture occurs.

History. Enact. Acts 1974, ch. 406, § 9, effective January 1, 1975; 1976 (Ex. Sess.), ch. 14, § 473, effective January 2, 1978; 1980, ch. 193, § 5; 1980, ch. 267, § 1, effective July 15, 1980; 1998, ch. 606, § 127, effective July 15, 1998; 2000, ch. 405, § 2, effective July 14, 2000; 2007, ch. 85, § 325, effective June 26, 2007; 2009, ch. 100, § 10, effective June 25, 2009.

Legislative Research Commission Note.

(6/26/2007). A technical correction has been made in subsection (4) of this section by the Reviser of Statutes pursuant to KRS 7.136 .

NOTES TO DECISIONS

1.In General.

Where cockfighting spectators sought the release of seized funds after a farm owner pled guilty to conspiracy to promote gambling, the funds were properly forfeited because the spectators failed to establish that they were innocent owners of the money and the money was automatically subject to forfeiture upon a finding that the funds were used in the commission or furtherance of the gambling operation, unlike forfeiture proceedings under KRS 218A.410 . Fall v. Commonwealth, 245 S.W.3d 812, 2008 Ky. App. LEXIS 22 (Ky. Ct. App. 2008).

2.Control of Seized Property.

Where stolen property and a large amount of cash were being transported in a van when the defendant was stopped and arrested for driving under the influence, and he was later charged with knowingly receiving stolen property, the Commonwealth was entitled to retain control over the van and the cash until proceedings against the defendant had been completed. Commonwealth v. Batchelor, 714 S.W.2d 158, 1986 Ky. App. LEXIS 1201 (Ky. Ct. App. 1986).

3.Discretion of Court.

Since the use of the word “shall” is mandatory, when a statute mandates forfeiture of property used in a criminal offense as does KRS 514.130(1), the forfeiture amounts to an additional penalty for the offense and the trial court has no discretion whether to order forfeiture; therefore, upon finding that defendant’s vehicle had been used in the furtherance of the offense for which he was convicted, or in the transportation of stolen property, the trial court had no discretion whether to order forfeiture of the vehicle. Commonwealth v. Fint, 940 S.W.2d 896, 1997 Ky. LEXIS 28 ( Ky. 1997 ).

4.Forfeiture Proper.

In prosecution for felony theft where plea agreement was silent on the issue of forfeiture and, at the sentencing hearing defense counsel admitted that the forfeiture was not discussed in the plea agreement, Commonwealth was not precluded from pursing forfeiture. Commonwealth v. Fint, 940 S.W.2d 896, 1997 Ky. LEXIS 28 ( Ky. 1997 ).

In prosecution for four counts of felony theft, forfeiture of truck valued at $1,874, which was used in commission or furtherance of the offenses, was not greatly disproportionate to the offense of theft of property valued at $18,000, nor more punitive than penalties imposed upon other convicted criminals in Kentucky, nor more punitive that penalties imposed for the commission of similar offenses in other jurisdictions, and thus such forfeiture did not violate the “excessive fines” clause of Ky. Const., § 17 nor the 8th Amendment of the U.S. Constitution.Commonwealth v. Fint, 940 S.W.2d 896, 1997 Ky. LEXIS 28 ( Ky. 1997 ).

Where cockfighting spectators sought the release of seized funds after a farm owner pled guilty to conspiracy to promote gambling, the funds were properly forfeited because the spectators failed to establish that they were innocent owners of the money since the funds represented the money that each spectator put forth to have his rooster fight other roosters, and the money was used in the commission or furtherance of the gambling operation. Fall v. Commonwealth, 245 S.W.3d 812, 2008 Ky. App. LEXIS 22 (Ky. Ct. App. 2008).

5.Procedure.

When faced with a KRS 514.130(1) issue, a finding of fact must first be made as to whether the property in question was used in commission of the offense or in the transportation of stolen property, if so, and if the owner raises a constitutional defense to the forfeiture, then additional finding must be made using the guidelines set out in Solem v. U.S. 277, 463 U.S. 277, 103 S. Ct. 3001, 77 L. Ed. 2d 637, 1983 U.S. LEXIS 93 (1983) in order to conclude whether application of the forfeiture statute would violate the “excessive fines” clauses of Ky. Const., § 17 and the 8th. Amendment of the U.S. Constitution and such findings will not be set aside on appeal unless clearly erroneous. Commonwealth v. Fint, 940 S.W.2d 896, 1997 Ky. LEXIS 28 ( Ky. 1997 ).

Opinions of Attorney General.

If the county sheriff has not had initial possession of weapons and contraband he cannot take possession of such evidence until after the trial court orders it forfeited and destroyed. OAG 75-276 .

Where an individual when arrested for drunken driving was carrying a concealed deadly weapon and was convicted of this offense under KRS 527.020 as well as convicted of drunken driving under KRS 189.520 , his possession of the weapon was an unlawful possession in the commission of the crime of carrying a concealed deadly weapon and the weapon was subject to forfeiture under KRS 527.060 and this section. OAG 75-381 .

Before the legitimate disposition of a deadly weapon can be effected it must be advertised in accordance with KRS Chapter 424 so as to afford the innocent owner or lienholder of record an opportunity to petition for remission of the forfeiture under subsection (4) of this section. OAG 75-585 .

In enacting the general forfeiture statute, the legislature literally designated the sheriff as the sole official destroyer in the forfeiture situation, therefore an amendment of this section would be necessary if additional officers are to be designated as official destroyers of forfeited property. OAG 75-712 .

Inasmuch as Chapter 218A of the Kentucky Revised Statutes, dealing with controlled substances, is not considered a part of the penal code, money used to further a violation of that chapter would not be subject to forfeiture for the use of the State under the authority of this section. OAG 77-734 .

All items subject to forfeiture under the penal code shall be disposed of, as the court shall order, only by the county sheriff. OAG 79-159 .

From a reading of subsection (1)(d) (now (1)(f)) of this section it appears that the date of forfeiture is the critical date with regard to the required disposition of forfeited property and not the date of seizure of the property or the date of conviction of an individual for illegal possession of it; in other words, the court should order the forfeiture of the property in accordance with the law in effect on the date of the court’s order. OAG 80-475 .

A court may not lawfully order a forfeited firearm released to an individual police officer for his own use but may order it released to the local or state government. OAG 80-550 .

Since the disposal of all forfeited property is limited to those methods specified in this section and none of the disposal methods allow confiscated weapons to be traded as credit on the purchase of new weapons, such procedure could not legally be followed; the weapons would have to be sold at public auction duly advertised as provided in KRS Chapter 424, and the money derived therefrom that the city would be entitled to retain could than be used for the purchase of new weapons. OAG 83-354 .

Research References and Practice Aids

Cross-References.

Cigarettes upon which tax unpaid, KRS 138.165 .

Eavesdropping and wiretapping devices, KRS 526.080 .

Forfeitures regarding alcoholic beverages, KRS 244.180 to 244.200 .

Gambling devices and records, KRS 528.100 .

Weapons, KRS 527.060 .

500.092. Forfeiture of personal property not used as a residence triggered by violation or attempted violation of certain offenses — Forfeiture of real and personal property associated with violation or attempted violation of KRS 531.310 or 531.320.

    1. Notwithstanding KRS 500.090 , all personal property which is not used as a permanent residence in this state which is used in connection with or acquired as a result of a violation or attempted violation of any of the statutes set out in subsection (3) of this section shall be subject to forfeiture under the same terms, conditions, and defenses and using the same process as set out in KRS 218A.405 to 218A.460 for property subject to forfeiture under that chapter. (1) (a) Notwithstanding KRS 500.090 , all personal property which is not used as a permanent residence in this state which is used in connection with or acquired as a result of a violation or attempted violation of any of the statutes set out in subsection (3) of this section shall be subject to forfeiture under the same terms, conditions, and defenses and using the same process as set out in KRS 218A.405 to 218A.460 for property subject to forfeiture under that chapter.
    2. Notwithstanding KRS 500.090, all real and personal property in this state which is used in connection with or acquired as a result of a violation or attempted violation of KRS 531.310 or 531.320 shall be subject to forfeiture under the same terms, conditions, and defenses and using the same process as set out in KRS 218A.405 to 218A.460 for property subject to forfeiture under that chapter.
  1. Administrative regulations promulgated under KRS 218A.420 shall govern expenditures derived from forfeitures under this section to the same extent that they govern expenditures from forfeitures under KRS 218A.405 to 218A.460 .
  2. The following offenses may trigger forfeiture of personal property under subsection (1)(a) of this section:
    1. KRS 17.546 ;
    2. KRS 508.140 and 508.150 involving the use of any equipment, instrument, machine, or other device by which communication or information is transmitted, including computers, the Internet or other electronic network, cameras or other recording devices, telephones or other personal communications devices, scanners or other copying devices, and any device that enables the use of a transmitting device;
    3. KRS 510.155 ;
    4. KRS 530.064(1)(a);
    5. KRS 531.030 ;
    6. KRS 531.040
    7. KRS 531.310 ;
    8. KRS 531.320 ;
    9. KRS 531.335 ;
    10. KRS 531.340 ;
    11. KRS 531.350 ;
    12. KRS 531.360 ; and
    13. KRS 531.370 .

History. Enact. Acts 2009, ch. 100, § 8, effective June 25, 2009; 2013, ch. 41, § 2, effective June 25, 2013.

500.093. Prohibition against court or law enforcement agency retaining firearms or ammunition to prevent their transfer or sale.

No court or law enforcement agency shall retain a firearm or ammunition for official use for the purpose of avoiding transfer of the firearm or ammunition to the Department of Kentucky State Police under KRS 237.090 or 500.090 , or other statute to avoid its being sold pursuant to KRS 16.220 .

History. Enact. Acts 2000, ch. 405, § 4, effective July 14, 2000; 2007, ch. 85, § 326, effective June 26, 2007.

500.095. Alternative sentence of community work.

  1. In every case in which a person pleads guilty to or is convicted of a crime punishable by imprisonment, the judge shall consider whether the person should be sentenced to a term of community service as an alternative to the prison term. The term of community service shall not be shorter than the length of the prison term nor longer than twice the length of the prison term. Failure to complete the prescribed term of community service shall be deemed a probation violation and shall subject the defendant to serve the prison service originally fixed by the court or jury.
  2. The clerk of the Circuit Court, under the direction of the Circuit Judges of the circuit and in cooperation with the Administrative Office of the Courts and the governmental units within the jurisdiction of the Circuit Court, shall maintain a schedule of community service work and projects for use by judges in setting alternative sentences. Any city, county, urban-county, or other governmental unit desiring to participate in alternative sentence community service work and projects shall submit to the clerk, on or before January 1, 1991, and every six (6) months thereafter, a list of community service work and projects it proposes for inclusion in the schedule.
  3. The Administrative Office of the Courts, under the direction of the Supreme Court, shall prepare a schedule of approved categories of alternative sentences which shall be disseminated to all judges and circuit clerks.

History. Enact. Acts 1990, ch. 497, § 3, effective July 13, 1990.

NOTES TO DECISIONS

1.Applicability.

This section does not overrule the sentencing prohibition set forth in KRS 532.045 enacted in 1984. Porter v. Commonwealth, 841 S.W.2d 166, 1992 Ky. LEXIS 169 ( Ky. 1992 ).

2.Sentencing.

Where the charges against defendant were no greater than Class D felonies, the trial court may and should have at least considered sentencing alternatives other than incarceration. Corman v. Commonwealth, 822 S.W.2d 421, 1991 Ky. App. LEXIS 143 (Ky. Ct. App. 1991).

Whereas defendant was sentenced under KRS 532.080 which prohibits the imposition of probation or conditional discharge, his appeal of his prison sentence under KRS 533.010 and this section, which allow for probation and community service respectively, if either statute were held to be controlling, would make a nullity out of KRS 532.080 and would produce an absurd and prohibited result. Renaker v. Commonwealth, 889 S.W.2d 819, 1994 Ky. App. LEXIS 156 (Ky. Ct. App. 1994).

3.Conviction for Use of Firearm.

The language in subsection (1) of this section is very specific when it directs that in every case the judge shall consider alternatives to prison, but KRS 533.060(1) is very specific when it directs that anyone convicted of using a firearm in the commission of a Class A, B, or C felony must be sentenced to a term in prison. Resolving this conflict, KRS 533.060(1) is controlling over this section. Williams v. Commonwealth, 829 S.W.2d 942, 1992 Ky. App. LEXIS 32 (Ky. Ct. App. 1992).

4.Alternative Sentence Disallowed.

Defendant’s convictions of trafficking in marijuana, driving under the influence and being a second degree persistent felony offender were of such a nature that to allow defendant to be sentenced to community service would produce an absurd or unreasonable result. Renaker v. Commonwealth, 889 S.W.2d 819, 1994 Ky. App. LEXIS 156 (Ky. Ct. App. 1994).

Research References and Practice Aids

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Penalty Phase Instructions, Part 4 Subsequent Offense Enhancement, § 12.25.

500.100. Effect of commentary.

The commentary accompanying this code may be used as an aid in construing the provisions of this code.

History. Enact. Acts 1974, ch. 406, § 10, effective January 1, 1975.

NOTES TO DECISIONS

1.Applicability.

The courts may use the commentary as an aid in interpreting the code, in spite of the language contained in the commentary expressing the view that what the statutes say is the authoritative statement and the commentary is not. Smith v. Commonwealth, 587 S.W.2d 266, 1979 Ky. App. LEXIS 466 (Ky. Ct. App. 1979).

While the commentary to the Penal Code is not binding upon the Court of Appeals, the Court is entitled to use the commentary as an aid in construing the provisions of the statute. Williams v. Commonwealth, 639 S.W.2d 786, 1982 Ky. App. LEXIS 255 (Ky. Ct. App. 1982).

Cited:

Cooper v. Commonwealth, 550 S.W.2d 478, 1977 Ky. LEXIS 418 ( Ky. 1977 ); Muse v. Commonwealth, 551 S.W.2d 564, 1977 Ky. LEXIS 452 ( Ky. 1977 ); Mayes v. Sowders, 621 F.2d 850, 1980 U.S. App. LEXIS 17004 (6th Cir. 1980); Commonwealth v. Crooks, 655 S.W.2d 475, 1983 Ky. LEXIS 289 ( Ky. 1983 ); Kruse v. Commonwealth, 704 S.W.2d 192, 1985 Ky. LEXIS 303 ( Ky. 1985 ); Commonwealth v. Simmons, 753 S.W.2d 872, 1988 Ky. App. LEXIS 26 (Ky. Ct. App. 1988); Fulton v. Commonwealth, 849 S.W.2d 553, 1992 Ky. App. LEXIS 203 (Ky. Ct. App. 1992); Whitaker v. Commonwealth, 895 S.W.2d 953, 1995 Ky. LEXIS 21 ( Ky. 1995 ).

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Brice and Taylor, Criminal Law, 67 Ky. L.J. 569 (1978-1979).

500.110. Trial of prisoner on untried indictment within 180 days after prisoner’s request for final disposition.

Whenever a person has entered upon a term of imprisonment in a penal or correctional institution of this state, and whenever during the continuance of the term of imprisonment there is pending in any jurisdiction of this state any untried indictment, information or complaint on the basis of which a detainer has been lodged against the prisoner, he shall be brought to trial within one hundred and eighty (180) days after he shall have caused to be delivered to the prosecuting officer and the appropriate court of the prosecuting officer’s jurisdiction written notice of the place of his imprisonment and his request for a final disposition to be made of the indictment, information or complaint; provided that for good cause shown in open court, the prisoner or his counsel being present, the court having jurisdiction of the matter may grant any necessary or reasonable continuance.

History. Enact. Acts 1978, ch. 78, § 7, effective June 17, 1978.

NOTES TO DECISIONS

1.In General.

This section provides for one who is imprisoned to receive a trial within 180 days after a request is made in order to eliminate the effect of a detainer in the event the person is found to be innocent. Johnson v. Commonwealth, 709 S.W.2d 838, 1986 Ky. App. LEXIS 1063 (Ky. Ct. App.), cert. denied, 479 U.S. 865, 107 S. Ct. 222, 93 L. Ed. 2d 150, 1986 U.S. LEXIS 4055 (U.S. 1986).

Although the interstate agreement on detainers (IAD), KRS 440.450 et seq., is similar to KRS 500.110 , they are not the same, and, therefore, cases interpreting the IAD may not always be helpful in construing KRS 500.110 , and it is not necessary to construe the respective statutes as if they were identical. Rosen v. Watson, 103 S.W.3d 25, 2003 Ky. LEXIS 78 ( Ky. 2003 ).

Supreme Court of Kentucky specifically declines to engraft KRS 440.460 of the interstate agreement on detainers (IAD), KRS 440.450 et seq., regarding the “appropriate court” (which is the Circuit Court of competent jurisdiction for purposes of the IAD) onto the language of KRS 500.110 with regard to what constitutes the appropriate court in which to file a KRS 500.110 request for final disposition of pending charges. Rosen v. Watson, 103 S.W.3d 25, 2003 Ky. LEXIS 78 ( Ky. 2003 ).

Phrase “prosecuting officer and the appropriate court of the prosecutor’s jurisdiction,” as found in KRS 500.110 , means the prosecutorial office which has lodged the detainer against a prisoner and the court in which the entered indictment, information, or complaint forming the basis for the detainer was pending when the detainer was lodged. Rosen v. Watson, 103 S.W.3d 25, 2003 Ky. LEXIS 78 ( Ky. 2003 ).

Intent of KRS 500.110 is that the 180 days for disposing of a pending charge begin to run once an otherwise proper request is made to the court in which the detainer charge was pending when lodged and to the normal prosecutor in that court; an indictment on the same charge in the Circuit Court subsequent to the lodging of the detainer in District Court would not require that the request be made to the Circuit Court and the Commonwealth’s Attorney unless the indictment had become the basis for the detainer. Rosen v. Watson, 103 S.W.3d 25, 2003 Ky. LEXIS 78 ( Ky. 2003 ).

Where a prisoner has submitted a KRS 500.110 motion to an appropriate District Court, the prisoner is not required to resubmit the motion to the Circuit Court in the event the case is transferred upon a grand jury indictment, as it is not an unreasonable burden to place on the county attorney to forward the request to the Commonwealth’s Attorney, and upon the District Court to forward the request to the Circuit Court; thus, where a detainer regarding an escape charge was lodged against appellee prisoner by the District Court and that was the only court where the escape charge was pending against the prisoner at the time when the prisoner filed in the District Court a KRS 500.110 request for a final disposition of the escape charge, the request was delivered to the prosecuting officer and the appropriate court of the prosecuting officer’s jurisdiction as required by KRS 500.110 and did not have to be resubmitted in the Circuit Court after a grand jury indictment was later issued and the case was removed to the Circuit Court. Rosen v. Watson, 103 S.W.3d 25, 2003 Ky. LEXIS 78 ( Ky. 2003 ).

Continuance of the joint trial requested by a defendant, so long as it is reasonable, is included within the scope of the “elastic” clause of this section, allowing extension of the statutory speedy-trial time period. In other words, a trial court is not to deny a defendant's motion for a continuance solely on the basis of protecting the codefendant's statutory right to a speedy trial. Darcy v. Commonwealth, 441 S.W.3d 77, 2014 Ky. LEXIS 433 ( Ky. 2014 ).

Continuance requested by a codefendant falls within the scope of this section's elastic clause so long as the trial court concludes the movant has shown good cause and determines the continuance to be necessary or reasonable. Darcy v. Commonwealth, 441 S.W.3d 77, 2014 Ky. LEXIS 433 ( Ky. 2014 ).

2.Purpose.

The purpose of this section is not to ensure the speedy disposition of every charge, or even of those charges which potentially could form the basis for a detainer being lodged; its purpose is to provide for the speedy disposition only of such charges as have actually resulted in a detainer being lodged. Huddleston v. Jennings, 723 S.W.2d 381, 1986 Ky. App. LEXIS 1197 (Ky. Ct. App. 1986).

Purpose of KRS 500.110 is not to ensure the speedy disposition of every charge; its purpose is to provide for the speedy disposition only of such charges as have actually resulted in a detainer being lodged. Rosen v. Watson, 103 S.W.3d 25, 2003 Ky. LEXIS 78 ( Ky. 2003 ).

Kentucky General Assembly enacted KRS 500.110 for the ameliorative purpose of lessening the detrimental effect that detainers have on the prison population by requiring a court, upon request by a prisoner, to resolve untried indictments within 180 days so that the detainer may be lifted if the prisoner is found innocent of the charges. Rosen v. Watson, 103 S.W.3d 25, 2003 Ky. LEXIS 78 ( Ky. 2003 ).

3.Applicability.

The “triggering mechanism” which brings this section into play is the lodging of a detainer against a prisoner. Huddleston v. Jennings, 723 S.W.2d 381, 1986 Ky. App. LEXIS 1197 (Ky. Ct. App. 1986).

The statute applies only when a defendant is incarcerated for one offense and a detainer has been lodged against him to answer for another offense; it does not apply where a defendant is seeking a speedy trial of an offense for which he is being held in pre-trial incarceration. Gabow v. Commonwealth, 34 S.W.3d 63, 2000 Ky. LEXIS 136 ( Ky. 2000 ), cert. denied, 534 U.S. 832, 122 S. Ct. 80, 151 L. Ed. 2d 43, 2001 U.S. LEXIS 5753 (U.S. 2001).

It is the filing of a detainer (not, for example, the issuance of an indictment) against a prisoner that triggers the application of KRS 500.110 , and a request for a final disposition is not premature under KRS 500.110 so long as the prisoner files it after a detainer has been lodged against the prisoner; otherwise, the request is treated as a motion for a speedy trial under the United States Constitution and the Kentucky Constitution. Rosen v. Watson, 103 S.W.3d 25, 2003 Ky. LEXIS 78 ( Ky. 2003 ).

Prisoner’s KRS 500.110 request for a final disposition of a pending escape charge was not premature where it was filed after the District Court lodged a detainer against the prisoner regarding the escape charge; the prisoner did not have to wait for the issuance of an indictment, which occurred later. Rosen v. Watson, 103 S.W.3d 25, 2003 Ky. LEXIS 78 ( Ky. 2003 ).

Interstate agreement on detainers, KRS 440.450 et seq., applies to interstate detainers, i.e., detainers lodged by one state against prisoners incarcerated in another state, whereas KRS 500.110 applies to intrastate detainers, i.e. detainers lodged by Kentucky courts against in-state prisoners. Rosen v. Watson, 103 S.W.3d 25, 2003 Ky. LEXIS 78 ( Ky. 2003 ).

Definition of detainer as established by courts interpreting the Interstate Agreement on Detainers, KRS 440.450 et seq., applies to the definition of detainer under KRS 500.110 ; detainer means a request filed by a criminal justice agency with the institution in which a prisoner is incarcerated, asking that the prisoner be held for the agency, or that the agency be advised when the prisoner’s release is imminent. Donahoo v. Dortch, 128 S.W.3d 491, 2004 Ky. LEXIS 40 ( Ky. 2004 ).

Trial court abused its discretion by denying defendant's motion for a continuance without contemplating this section's elastic clause. The trial court's action was based on a seeming misinterpretation of the statute. Darcy v. Commonwealth, 441 S.W.3d 77, 2014 Ky. LEXIS 433 ( Ky. 2014 ).

4.Remedy Through Writ of Prohibition.

Where a trial date was not even set until 245 days after the defendant’s motion for speedy trial and he was not even informed of the fact until one (1) month before the trial, and where the trial judge failed to show good cause why any reasonable delay in the action was necessary, the court of appeals was directed to issue the writ of prohibition. Spivey v. Jackson, 602 S.W.2d 158, 1980 Ky. LEXIS 234 ( Ky. 1980 ).

Court of Appeals properly granted appellee prisoner’s petition for relief pursuant CR 76.36 and properly issued a writ of prohibition which prohibited the Circuit Court from continuing the prosecution of an escape charge that had been removed from the District Court to the Circuit Court after a grand jury issued an indictment against the prisoner, given that (1) the prisoner had filed in the District Court a KRS 500.110 request for a disposition within 180 days; (2) the request was properly filed in the District Court since that was the court which lodged a detainer against the prisoner and was the only court where the escape charge was pending at the time when the request was filed; (3) the request was not premature given that it was filed after the detainer was issued; (4) the request was not honored through timely action; and (5) the Circuit Court had denied the prisoner’s motion for dismissal, which was filed 219 days after the prisoner filed the request for final disposition. Rosen v. Watson, 103 S.W.3d 25, 2003 Ky. LEXIS 78 ( Ky. 2003 ).

5.Prosecuting Officer.

The phrase “the prosecuting officer and the appropriate court of the prosecutor’s jurisdiction” means the prosecutorial office which has lodged the detainer and the court in which the entered indictment, information, or complaint forming the basis for the detainer was pending when the detainer was lodged. Huddleston v. Jennings, 723 S.W.2d 381, 1986 Ky. App. LEXIS 1197 (Ky. Ct. App. 1986).

Prisoner’s KRS 500.110 request for a final disposition was not defective for an alleged failure to comply with the procedural requirements of CR 6.04(1) by not providing notice of the request to the Commonwealth’s Attorney, as KRS 500.110 only requires delivery to the “prosecuting officer,” and, at the time when the request was filed, the only charges pending against the prisoner were in the District Court and the only officer then prosecuting the prisoner was the county attorney. Rosen v. Watson, 103 S.W.3d 25, 2003 Ky. LEXIS 78 ( Ky. 2003 ).

The petitioner’s request for final disposition of the complaint was properly made to the District Court and the county attorney who was the normal prosecuting officer in that court, where the detainer was based upon an arrest warrant from the District Court issued upon a criminal complaint filed in that court. Huddleston v. Jennings, 723 S.W.2d 381, 1986 Ky. App. LEXIS 1197 (Ky. Ct. App. 1986).

6.Effect of Continuance Request.

Defendant, having asked for a continuance upon replacement of counsel, cannot now claim that the relief then sought violated his right to a speedy trial. Wells v. State, 892 S.W.2d 299, 1995 Ky. LEXIS 16 ( Ky. 1995 ).

7.Speedy Trial.

Defendant did not show that his speedy trial rights under the Sixth Amendment, U.S. Const. amend. VI, or KRS 500.110 were violated. Regarding the Sixth Amendment, application of the factors in Barker v. Wingo, 407 U.S. 514, 92 S. Ct. 2182, 33 L. Ed. 2d 101, 1972 U.S. LEXIS 34 (1972) did not show a violation, especially since defendant was in jail on a previous conviction while awaiting trial and defendant did not explain how he was prejudiced, and KRS 500.110 only applied where a detainer was filed and defendant received a speedy trial after an identified detainer was filed in the trial court. Miller v. Commonwealth, 283 S.W.3d 690, 2009 Ky. LEXIS 97 ( Ky. 2009 ).

Since there was no evidence that a detainer had been lodged against the defendant, who was incarcerated on other charges when he first demanded a speedy dispositon of charges against him, he had not yet acquired any right to proceed under either this section or KRS 440.450 and he was not denied the right to a speedy trial; it did not need to be decided which of these two substantially identical statutory provisions applied. Rushin v. Commonwealth, 931 S.W.2d 456, 1996 Ky. App. LEXIS 73 (Ky. Ct. App. 1996).

Because defendant had completed the sentence, he did not qualify under KRS 500.110 ; thus, defendant could not claim that the right to a speedy trial under that section was violated. Dunaway v. Commonwealth, 60 S.W.3d 563, 2001 Ky. LEXIS 201 ( Ky. 2001 ).

Defendant’s motion to dismiss on speedy trial grounds a criminal complaint alleging escape was properly denied because the arrest warrant and the criminal complaint clearly indicated that the escape charge was pending in a District Court, not a Circuit Court, defendant was required to make his request for final disposition of the criminal complaint to the District Court. Thacker v. Commonwealth, 115 S.W.3d 834, 2003 Ky. App. LEXIS 225 (Ky. Ct. App. 2003).

Inmate, who was indicted while incarcerated for another crime, was not entitled to a trial within 180 days of a request for trial on the indictment pursuant to KRS 500.110 ; no detainer was lodged against the inmate as there was no evidence that any criminal justice agency ever asked the facility in which the inmate was incarcerated to hold the inmate at the conclusion of the inmate’s sentence and/or to notify the agency when the inmate’s release was imminent, and the inmate failed to show that the inmate served the Commonwealth’s Attorney with the KRS 500.110 request for trial. Donahoo v. Dortch, 128 S.W.3d 491, 2004 Ky. LEXIS 40 ( Ky. 2004 ).

A District or Circuit Court can lodge a detainer pursuant to KRS 500.110 . Donahoo v. Dortch, 128 S.W.3d 491, 2004 Ky. LEXIS 40 ( Ky. 2004 ).

Although the two-year delay between the time defendant was indicted and the trial was presumptively prejudicial, defendant’s right to a speedy trial was not violated, since the delay was not occasioned by the Commonwealth’s deliberate attempt to delay the trial, there was no evidence that defendant suffered anxiety that extended beyond the normal levels associated with criminal trials, and defendant’s ability to mount a defense was not impeded. Cross v. Commonwealth, 2007 Ky. App. Unpub. LEXIS 90 (Ky. Ct. App. Apr. 27, 2007), review denied, ordered not published, 2008 Ky. LEXIS 198 (Ky. Apr. 16, 2008).

Trial court did not violate KRS 500.110 because trial began within 180 days of when defendant submitted written notice asserting his right to a speedy trial. Stacy v. Commonwealth, 396 S.W.3d 787, 2013 Ky. LEXIS 41 ( Ky. 2013 ).

Although the trial court exceeded slightly the Ky. Rev. Stat. Ann. § 500.110 deadline, defendant's right to prompt disposition was not violated as the need to ensure that defendant was tried by a jury unaffected by the trial court's mistake in reading the indictment and to accommodate defense counsel's schedule made the two-month postponement and one-month breach of the statutory limit reasonable. Goben v. Commonwealth, 503 S.W.3d 890, 2016 Ky. LEXIS 630 ( Ky. 2016 ).

Cited:

Robinson v. Karem, 675 S.W.2d 385, 1984 Ky. LEXIS 249 ( Ky. 1984 ).

Research References and Practice Aids

Kentucky Bench & Bar.

Wiederstein, Firm Hearing and Trial Dates: A Partial Answer to Reducing Delay in the Courts, Vol. 70, No. 3, May 2006, Ky. Bench & Bar 18.

500.120. Subpoena power of Attorney General and commissioner of Department of Kentucky State Police in cases involving use of an Internet service account in the exploitation of children and other cases.

    1. In any investigation relating to an offense involving KRS 510.155 , 530.064(1)(a), 531.030 , 531.040 , 531.310 , 531.320 , 531.335 , 531.340 , 531.350 , 531.360 , or 531.370 , and upon reasonable cause to believe that an Internet service account has been used in the exploitation or attempted exploitation of children, or in any investigation of a violation of KRS 17.546 , 508.140 , 508.150 , 525.070 , or 525.080 where there is reasonable cause to believe that an Internet service account has been used in the commission of the offense, the Attorney General may issue in writing and cause to be served a subpoena requiring the production and testimony described in subsection (2) of this section. (1) (a) In any investigation relating to an offense involving KRS 510.155 , 530.064(1)(a), 531.030 , 531.040 , 531.310 , 531.320 , 531.335 , 531.340 , 531.350 , 531.360 , or 531.370 , and upon reasonable cause to believe that an Internet service account has been used in the exploitation or attempted exploitation of children, or in any investigation of a violation of KRS 17.546 , 508.140 , 508.150 , 525.070 , or 525.080 where there is reasonable cause to believe that an Internet service account has been used in the commission of the offense, the Attorney General may issue in writing and cause to be served a subpoena requiring the production and testimony described in subsection (2) of this section.
    2. In any investigation relating to an offense involving KRS 510.155, 530.064(1)(a), 531.030, 531.040, 531.310, 531.320, 531.335, 531.340, 531.350, 531.360, or 531.370, and upon reasonable cause to believe that an Internet service account has been used in the exploitation or attempted exploitation of children, the commissioner of the Department of Kentucky State Police may issue in writing and cause to be served a subpoena requiring the production and testimony described in subsection (2) of this section.
  1. Except as provided in subsection (3) of this section, a subpoena issued under this section may require the production of any records or other documentation relevant to the investigation including:
    1. Electronic mail address;
    2. Internet username;
    3. Internet protocol address;
    4. Name of account holder;
    5. Billing and service address;
    6. Telephone number;
    7. Account status;
    8. Method of access to the Internet; and
    9. Automatic number identification records if access is by modem.
  2. The provider of electronic communication service or remote computing service shall not disclose the following pursuant to a subpoena issued under this section but shall disclose the information in obedience to a warrant:
    1. In-transit electronic communications;
    2. Account memberships related to Internet groups, newsgroups, mailing lists or specific areas of interest;
    3. Account passwords; and
    4. Account content including:
      1. Electronic mail in any form;
      2. Address books, contacts, or buddy lists;
      3. Financial records;
      4. Internet proxy content or Web surfing history; and
      5. Files or other digital documents stored with the account or pursuant to use of the account.
  3. At any time before the return date specified on the subpoena, the person summoned may, in the District Court in which the person resides or does business, petition for an order modifying or setting aside the subpoena, or a prohibition of disclosure by a court.
  4. A subpoena under this section shall describe the objects required to be produced and shall prescribe a return date with a reasonable period of time within which the objects can be assembled and made available.
  5. If no case or proceeding arises from the production of records or other documentation pursuant to this section within a reasonable time after those records or documentation is produced, the Attorney General shall either destroy the records and documentation or return them to the person who produced them.
  6. A subpoena issued under this section may be served by any person who is at least eighteen (18) years of age and who is designated in the subpoena to serve it. Service upon a natural person may be made by personal delivery of the subpoena to him. Service may be made upon a corporation or partnership or other unincorporated association which is subject to suit under its common name, by delivering the subpoena to an officer, to a managing or general agent, or to any other agent authorized by appointment or by law to receive service of process. The affidavit of the person serving the subpoena together with a true copy thereof shall be proof of service.
  7. Except as provided in this section any information, records or data reported or obtained pursuant to subpoena under this section shall remain confidential and shall not be further disclosed unless in connection with a criminal case related to the subpoenaed materials.

History. Enact. Acts 2009, ch. 100, § 11, effective June 25, 2009; 2013, ch. 41, § 3, effective June 25, 2013.

Legislative Research Commission Note.

(06-25-2009). Under the authority of KRS 7.136 , the Reviser of Statutes has renumbered the paragraphs of subsection (2) of this section.

Research References and Practice Aids

Kentucky Law Journal.

Note: The Facebook Frontier: Responding to the Changing Face of Privacy on the Internet, 97 Ky. L.J. 541 (2008/2009).

500.130. Treatment in criminal or civil proceeding or property or material portraying child pornography or a sexual performance by a minor.

  1. Except for unmanned aircraft systems operated by the United States Army, Navy, Marine Corps, Air Force, or Coast Guard, or a reserve component thereof, or by the Army National Guard or Air National Guard, unmanned aircraft systems may not be equipped with a lethal payload.
  2. Any business entity doing business lawfully within this state may use an unmanned aircraft system for business purposes, in compliance with 14 C.F.R. pt. 107.
  3. Any recreational user may operate an unmanned aircraft system within this state, in compliance with 14 C.F.R. pt. 101.
  4. Any institution of higher education, or school district, may use an unmanned aircraft system for educational, research, or testing purposes.
  5. No law enforcement agency, or agent thereof, shall use an unmanned aircraft system to conduct a search unless authorized under the Fourth Amendment to the United States Constitution and Section 10 of the Kentucky Constitution. If the search is conducted pursuant to a warrant, the warrant shall specifically authorize the use of an unmanned aircraft system.
  6. Except as limited by subsection (5) of this section, any government agency, including a law enforcement agency, may use an unmanned aircraft system for legitimate governmental purposes.
  7. When an unmanned aircraft system is used by law enforcement pursuant to subsections (5) and (6) of this section, it shall be operated in a lawful manner and shall minimize data collection on nonsuspects. Disclosure of such data shall be prohibited except by order of a court of competent jurisdiction.
  8. No evidence obtained or collected as the result of the use of an unmanned aircraft system shall be admissible as evidence in any civil, criminal, or administrative proceeding within this state for the purpose of enforcing state or local law, except for:
    1. Evidence collected as permitted by subsections (2) to (6) of this section; or
    2. Evidence which is offered against the owner or operator of an unmanned aircraft system to show misconduct.
  9. No law enforcement agency shall be required to operate unmanned aircraft systems.
  10. Operation of an unmanned aircraft system in violation of subsection (2) or (3) of this section shall be a violation for the first offense and a Class B misdemeanor for the second or subsequent offense.
  11. This section may be cited as the “Citizens’ Freedom from Unwarranted Surveillance Act.”

HISTORY: 2018 ch. 26, § 1, effective July 14, 2018.

Legislative Research Commission Notes.

(7/14/2018). Section 5 of 2018 Ky. Acts ch. 26 reads, “The General Assembly recognizes that the issue of unmanned aircraft system usage in the vicinity of critical infrastructure is a matter of national security, and recognizes that the Federal Aviation Administration and Department of Homeland Security are establishing a uniform nationwide process to identify critical infrastructure facilities for the purpose of implementing unmanned aircraft system-restricted airspace above those facilities.”

CHAPTER 501 General Principles of Liability

501.010. Definitions.

The following definitions apply in this chapter:

  1. “Culpable mental state” means “intentionally” or “knowingly” or “wantonly” or “recklessly,” as these terms are defined in KRS 501.020 .
  2. “Intoxication” means a disturbance of mental or physical capacities resulting from the introduction of substances into the body.
  3. “Voluntary act” means a bodily movement performed consciously as a result of effort or determination and includes the possession of property if the actor was aware of his physical possession or control thereof for a sufficient period to have been able to terminate it.
  4. “Voluntary intoxication” means intoxication caused by substances which the defendant knowingly introduces into his body, the tendency of which to cause intoxication he knows or ought to know, unless he introduces them pursuant to medical advice or under such duress as would afford a defense to a charge of crime.

History. Enact. Acts 1974, ch. 406, § 11, effective January 1, 1975.

NOTES TO DECISIONS

1.Applicability.

Exclusions in a group insurance plan for injuries resulting from participation in a crime or from “legal (alcohol) intoxication as defined by Kentucky law” did not apply to the plaintiff, injured while drag racing with blood alcohol level at .21% because, according to the insured’s definitions of the ambiguous contract terms, the Kentucky Penal Code defines drag racing as a traffic offense, not a crime and because under the only statutory provision limited to alcohol intoxication, legal intoxication requires one to have been adjudicated guilty of a crime. This section is not applicable because it encompassed substances other than alcohol, other drugs, whereas the insurance contract made a distinction between alcohol and other drugs; KRS 222.005 did not apply because it was enacted after the accident. Healthwise of Kentucky v. Anglin, 956 S.W.2d 213, 1997 Ky. LEXIS 150 ( Ky. 1997 ).

2.Intoxication.

Intoxication, whether voluntary or involuntary, is a defense to an intentional crime if the effect of the intoxication is to completely negate the element of intent; it causes the defendant’s mental state to equate with insanity. Voluntary intoxication does not negate culpability for a crime requiring a culpable mental state of wantonness or recklessness, but it does negate specific intent. McGuire v. Commonwealth, 885 S.W.2d 931, 1994 Ky. LEXIS 123 ( Ky. 1994 ).

A jury finding that defendant was voluntarily intoxicated so as to be unable to form the requisite intent for murder does not require acquittal, but rather could reduce the offense to second-degree manslaughter; the court’s failure to instruct the jury on second-degree manslaughter was therefore prejudicial error. Slaven v. Commonwealth, 962 S.W.2d 845, 1997 Ky. LEXIS 161 ( Ky. 1997 ).

After a motor vehicle fatality, defendant was charged with wanton murder under KRS 507.020(1)(b) and convicted of manslaughter in the second degree under KRS 507.040(1)(a); to establish that defendant was voluntarily intoxicated under KRS 501.010(4), the Commonwealth of Kentucky was permitted to admit expert testimony from two physicians who had counseled defendant about the effects of alcohol when mixed with narcotics and warned him not to drink alcohol. The physician’s testimony was admissible to show that defendant’s intoxication was not the result of an accident in mixing the drugs. Reed v. Commonwealth, 2009 Ky. App. LEXIS 171 (Ky. Ct. App. Sept. 18, 2009).

There was more than sufficient evidence from the testimony of witnesses and medical records that a driver of a school bus who was prescribed medication, was addicted to prescription medication, contrary to medical advice took prescription medication while operating the school bus was voluntarily intoxicated. Furthermore, the school bus departed the roadway and crashed into a ravine because of the effect of the driver's voluntary intoxication. Roach v. Wilson, 551 S.W.3d 450, 2017 Ky. App. LEXIS 576 (Ky. Ct. App. 2017).

3.— Drug Addiction.

The legislature has not intended that drug addiction arising from the voluntary ingestion of drugs, by itself, affords a defense to a criminal charge on the basis of mental illness. Commonwealth v. Tate, 893 S.W.2d 368, 1995 Ky. LEXIS 17 ( Ky. 1995 ).

4.Wantonly.

Wanton murder is not a lesser-included offense of intentional murder. It is simply murder committed with a different state of mental culpability; but murder, whether intentional or wanton, is a capital offense. It is not proper to instruct the jury on a wanton offense when all the evidence indicates that it would be unreasonable for the jury to believe that the defendant’s conduct was anything other than intentional. Foster v. Commonwealth, 827 S.W.2d 670, 1991 Ky. LEXIS 195 ( Ky. 1991 ), cert. denied, 506 U.S. 921, 113 S. Ct. 337, 121 L. Ed. 2d 254, 1992 U.S. LEXIS 6489 (U.S. 1992).

Cited:

Cruse v. Commonwealth, 712 S.W.2d 356, 1986 Ky. App. LEXIS 1122 (Ky. Ct. App. 1986); Taylor v. Commonwealth, — S.W.3d —, 2009 Ky. App. LEXIS 29 (Ky. Ct. App. 2009).

Research References and Practice Aids

Northern Kentucky Law Review.

Vaughn and Moore, Battered Spouse Defense In Kentucky, 10 N. Ky. L. Rev. 399 (1983).

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Assaults and Restraints of Persons, Part 1 Definitions, §§ 3.05, 3.06.

501.020. Definition of mental states.

The following definitions apply in the Kentucky Penal Code:

  1. “Intentionally” — A person acts intentionally with respect to a result or to conduct described by a statute defining an offense when his conscious objective is to cause that result or to engage in that conduct.
  2. “Knowingly” — A person acts knowingly with respect to conduct or to a circumstance described by a statute defining an offense when he is aware that his conduct is of that nature or that the circumstance exists.
  3. “Wantonly” — A person acts wantonly with respect to a result or to a circumstance described by a statute defining an offense when he is aware of and consciously disregards a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that disregard thereof constitutes a gross deviation from the standard of conduct that a reasonable person would observe in the situation. A person who creates such a risk but is unaware thereof solely by reason of voluntary intoxication also acts wantonly with respect thereto.
  4. “Recklessly” — A person acts recklessly with respect to a result or to a circumstance described by a statute defining an offense when he fails to perceive a substantial and unjustifiable risk that the result will occur or that the circumstance exists. The risk must be of such nature and degree that failure to perceive it constitutes a gross deviation from the standard of care that a reasonable person would observe in the situation.

History. Enact. Acts 1974, ch. 406, § 12, effective January 1, 1975.

NOTES TO DECISIONS

Analysis

1.Intentionally.

The “felony” referred to in the kidnapping statute, KRS 509.040(1)(b) is one requiring “intentional” or “knowing” states of mental culpability as those terms are defined in this section. Thomas v. Commonwealth, 567 S.W.2d 299, 1978 Ky. LEXIS 367 ( Ky. 1978 ), overruled in part, Ray v. Commonwealth, 611 S.W.3d 250, 2020 Ky. LEXIS 403 ( Ky. 2020 ).

KRS 503.120(1) does not preclude the assertion of self-protection and other KRS Chapter 503 justifications as defenses to charges of wanton murder, second-degree manslaughter, or reckless homicide (as well as to charges of wanton or reckless assault); reinstating holdings in Thompson v. Commonwealth, 652 S.W.2d 78, 1983 Ky. LEXIS 251 ( Ky. 1983 ) and Kohlheim v. Commonwealth, 618 S.W.2d 591, 1981 Ky. App. LEXIS 261 (Ky. Ct. App.), and, to the extent they hold otherwise, specifically overruling Shannon v. Commonwealth, 767 S.W.2d 548, 1988 Ky. LEXIS 80 ( Ky. 1989 ); Holbrook v. Commonwealth, 813 S.W.2d 811, 1991 Ky. LEXIS 85 ( Ky. 1991 ); Barbour v. Commonwealth, 824 S.W.2d 861, 1992 Ky. LEXIS 15 ( Ky. 1992 ); and Sizemore v. Commonwealth, 844 S.W.2d 397, 1992 Ky. LEXIS 177 ( Ky. 1992 ); and McGinnis v. Commonwealth, 875 S.W.2d 518, 1994 Ky. LEXIS 37 ( Ky. 1994 ).Elliott v. Commonwealth, 976 S.W.2d 416, 1998 Ky. LEXIS 114 ( Ky. 1998 ).

Randolph v. Commonwealth, 716 S.W.2d 253, 1986 Ky. LEXIS 291 ( Ky. 1986 ).

Evidence was sufficient to show that defendant did not intend to return on time to the detention center where he was serving his sentence where, when released from work due to weather, defendant did not return to the detention facility but instead drove around drinking beer, stayed in a motel room drinking beer for several more hours, and claimed that he was unable to then return due to a snowstorm; the fact that defendant eventually returned voluntarily did not preclude the conviction. Reynolds v. Commonwealth, 113 S.W.3d 647, 2003 Ky. App. LEXIS 198 (Ky. Ct. App. 2003).

Defendant’s convictions of second-degree manslaughter, KRS 507.040 , and second-degree assault, 508.010 , stemming from an automobile accident were affirmed; the trial court properly allowed a doctor to testify as to the effects of methadone and promethazine, which defendant had taken at the time of an automobile accident, as the doctor was qualified, the evidence was relevant under KRE 401, as the Commonwealth’s entire case was based on the argument that defendant was aware of and consciously disregarded, as defined in KRS 501.020 , the risk of driving while taking methadone and promethazine, the evidence of the risks and adverse effects of those drugs was not outweighed by any undue prejudice pursuant to KRE 403, and the expert opinion testimony would assist the trier of fact under KRE 702, as the effects of the drugs were not within the common knowledge of the jury. Smith v. Commonwealth, 181 S.W.3d 53, 2005 Ky. App. LEXIS 256 (Ky. Ct. App. 2005).

2.Knowingly.

KRS 218A.1411 contains no indication whatsoever that the legislature intended for the enhanced punishments to apply only if a drug trafficker knew that he was within 1,000 yards of a school; defendant’s attempt to impart a mens rea had no basis in the statutory language and KRS 501.020(2), 501.030 , 501.040 , and 501.050 did not require a contrary conclusion. Saxton v. Commonwealth, 315 S.W.3d 293, 2010 Ky. LEXIS 158 ( Ky. 2010 ).

Defendant was not entitled to a jury instruction on the affirmative defense of mistake where he failed to register as a sex offender. A mistake of fact did not excuse his failure to pre-register a change of residence, and it did not negate the “knowingly” mental state required for the offense. Lawson v. Commonwealth, 425 S.W.3d 912, 2014 Ky. App. LEXIS 37 (Ky. Ct. App. 2014).

Defendant was not entitled to a jury instruction on the affirmative defense of mistake where he failed to register as a sex offender, and it did not negate the “knowingly” mental state required for the offense. Defendant failed to show a mistaken belief of law based on his belief that he had to send in a new address when he received a form; defendant did not argue that he relied on something or someone official. Lawson v. Commonwealth, 425 S.W.3d 912, 2014 Ky. App. LEXIS 37 (Ky. Ct. App. 2014).

3.Wantonly.

Trial court did not abuse its discretion in instructing the jury on first-degree assault nor did it err in denying defendant's motion for a directed verdict on that charge because he acted wantonly when, by attempting to parallel park a vehicle while intoxicated, he hit the gas pedal rather than the brake, which caused the vehicle accelerated in reverse and crush an individual against a building, crushing his pelvis, breaking his femurs, and damaging his internal organs. McCargo v. Commonwealth, 551 S.W.3d 439, 2017 Ky. App. LEXIS 498 (Ky. Ct. App. 2017).

3.2.—Murder.

In prosecution for wanton murder, the defendant was not denied due process and equal protection when the lower court denied his motion for evaluation by an independent psychiatrist, in order to aid him in presenting a defense or mitigation through insanity, intoxication, or extreme emotional disturbance, because, irrespective of a psychiatric examination, intoxication would not have been a factor in his defense. Todd v. Commonwealth, 716 S.W.2d 242, 1986 Ky. LEXIS 290 ( Ky. 1986 ).

Since intent is not an element of wanton murder, the commission of the underlying offense does not supply the mens rea necessary to convict of intentional murder; however, the facts concerning the underlying felony and the defendant’s participation therein may satisfy the element of aggravated wantonness necessary to convict of wanton murder. Graves v. Commonwealth, 17 S.W.3d 858, 2000 Ky. LEXIS 4 (Ky.), cert. denied, 531 U.S. 982, 121 S. Ct. 435, 148 L. Ed. 2d 442, 2000 U.S. LEXIS 7391 (U.S. 2000).

Where a trial court failed to instruct the jury on voluntary intoxication, such was found to be harmless error pursuant to RCr 9.24 with respect to defendant’s conviction for wanton murder, in violation of KRS 507.020 , as the intoxication would not have negated the mens rea of “wantonness” pursuant to KRS 501.020(3); however, the failure to give the instruction caused reversible error for defendant’s conviction of assault under extreme emotional disturbance in violation of KRS 508.010 , as the intoxication would have negated the necessary element of specific intent. Nichols v. Commonwealth, 142 S.W.3d 683, 2004 Ky. LEXIS 148 ( Ky. 2004 ).

Evidence that defendant, while driving at a high rate of speed, ignored road conditions and other vehicles and made no effort to swerve or slow down before ramming another vehicle established defendant’s extreme indifference to human life, and provided a sufficient basis for the jury to find the state of mind necessary to support a conviction for wanton murder. Berryman v. Commonwealth, 237 S.W.3d 175, 2007 Ky. LEXIS 206 ( Ky. 2007 ).

Where the evidence, even construed in the Commonwealth’s favor, did not support a finding of guilt beyond a reasonable doubt that a defendant behaved wantonly as defined by KRS 501.020(3) with regard to a murder, the trial court erred in denying the defendant’s motion for a directed verdict. The appellate court determined that it was simply an impermissible leap of logic to conclude that a reasonable person engaging in the defendant’s conduct — that is, ordering another to remove a set of keys from the pocket of the resisting owner — would be or should be aware that death by heart attack might result. Turner v. Commonwealth, 153 S.W.3d 823, 2005 Ky. LEXIS 3 ( Ky. 2005 ), overruled in part, Padgett v. Commonwealth, 312 S.W.3d 336, 2010 Ky. LEXIS 71 ( Ky. 2010 ).

After a motor vehicle fatality, defendant was charged with wanton murder under KRS 507.020(1)(b) and convicted of manslaughter in the second degree under KRS 507.040(1)(a); to establish that defendant was voluntarily intoxicated for purposes of showing that he acted wantonly under KRS 501.020(3), the Commonwealth of Kentucky was permitted to admit expert testimony from two physicians who had counseled defendant about the effects of alcohol when mixed with narcotics and warned him not to drink alcohol. The physician’s testimony was admissible to show that defendant’s intoxication was not the result of an accident in mixing the drugs. Reed v. Commonwealth, 2009 Ky. App. LEXIS 171 (Ky. Ct. App. Sept. 18, 2009).

After a motor vehicle fatality, defendant was charged with wanton murder under KRS 507.020(1)(b); the Court of Appeals of Kentucky rejected defendant’s claim that the wanton murder statute was void for vagueness. The definition of wantonly had been given a statutory definition under KRS 501.020(3). Reed v. Commonwealth, 2009 Ky. App. LEXIS 171 (Ky. Ct. App. Sept. 18, 2009).

Evidence was sufficient to convict defendant of wanton murder of his girlfriend’s six-month-old child under KRS 508.100 and 507.020(1)(b) because the evidence that defendant was mildly retarded did not preclude the jury’s finding that he acted wantonly and sufficient evidence showed that defendant could understand the risk of death posed by severely striking an infant’s head. Rankin v. Commonwealth, 327 S.W.3d 492, 2010 Ky. LEXIS 287 ( Ky. 2010 ).

3.4.—Manslaughter.

In driving his vehicle while intoxicated, movant could be found to have acted wantonly in circumstances that caused the death of another person. Protection against constitutionally impermissible vagueness does not require that the accused know the consequences of his act when he ran his car into another one. Jones v. Commonwealth, 830 S.W.2d 877, 1992 Ky. LEXIS 47 ( Ky. 1992 ).

Evidence that a defendant was driving under the influence of five prescription drugs which would impair her ability to drive a car was sufficient evidence for a jury to convict her of wanton murder in that she had operated a motor vehicle under circumstances manifesting extreme indifference to human life. Estep v. Commonwealth, 957 S.W.2d 191, 1997 Ky. LEXIS 104 ( Ky. 1997 ).

If a defendant was so voluntarily intoxicated that he killed another without the intent to do so, the fact of his voluntary intoxication alone constitutes the element of wantonness necessary to convict of second-degree manslaughter. Fields v. Commonwealth, 12 S.W.3d 275, 2000 Ky. LEXIS 22 ( Ky. 2000 ).

Defendant was not entitled to have the trial court give the jury a first-degree manslaughter instruction pursuant to KRS 507.030 in a case where the defendant fatally injured the three-month old infant son of defendant’s girlfriend by engaging in unrestrained shaking of the infant after defendant became upset at the infant’s crying. Defendant engaged in wanton conduct, as contemplated by KRS 507.020(1)(b) and KRS 501.020(3), by disregarding a grave risk to the child’s life through the unrestrained shaking, and, thus, no reasonable juror could have believed that defendant meant to injure the child and was only guilty of a KRS 505.020 lesser included offense rather than the offense of wanton murder. Allen v. Commonwealth, 338 S.W.3d 252, 2011 Ky. LEXIS 85 ( Ky. 2011 ).

Trial court did not err by denying defendant’s motion for directed verdict on the second-degree manslaughter charge because Commonwealth presented sufficient evidence to show defendant’s wanton behavior, as defendant’s steering his vehicle toward other vehicles parked along the street created a risk of such a nature and degree that disregarding it was a gross deviation from the standard of conduct that a person would observe in the situation. Doneghy v. Commonwealth, 410 S.W.3d 95, 2013 Ky. LEXIS 290 ( Ky. 2013 ).

3.6.—Endangerment.

Where the defendant pointed a loaded firearm at two (2) Commonwealth police officers who were in the performance of their official duties, the trial court properly instructed the jury under both wanton endangerment statutes. Commonwealth v. Clemons, 734 S.W.2d 459, 1987 Ky. LEXIS 216 ( Ky. 1987 ).

Because wanton endangerment involves conduct that creates a substantial danger of death or serious physical injury, it necessarily involves a serious potential risk of violence akin to the level of risk associated with the listed crimes, and is categorically a “crime of violence” for purposes of U.S. Sentencing Guidelines Manual § 4B1.1. United States v. Meeks, 664 F.3d 1067, 2012 FED App. 0003P, 2012 U.S. App. LEXIS 159 (6th Cir. Ky. 2012 ).

Although defendant juvenile disregarded his restricted operator’s license, other than having too many passengers in his vehicle, there was no other evidence that he was acting wantonly or with indifference to human life, and his passengers made a conscious decision to enter his vehicle and ride unrestrained; defendant turned into a park with an S-curve, did not see the speed limit sign, which was not properly marked or sized, and a tragic accident occurred, but defendant was not criminally responsible for manslaughter based on a license infraction for which the punishment was to extend the restricted license to 180 days. B. B. v. Commonwealth, 2014 Ky. App. LEXIS 77 (Ky. Ct. App. May 16, 2014).

Because defendant juvenile’s conduct did not amount to wantonness, he was not criminally liable for assault or wanton endangerment; none of the passengers testified that defendant acted wantonly, and there was no evidence that violating a license restriction was wanton conduct. B. B. v. Commonwealth, 2014 Ky. App. LEXIS 77 (Ky. Ct. App. May 16, 2014).

Circuit court erred in denying defendant's motion for a directed verdict of acquittal on a wanton endangerment in the second degree charge where the sole instance of the child running ahead of defendant's mother was not similar to him escaping from the house while his mother and brother slept, thus not probative of the instant incident, and it was not a gross deviation from the standard of conduct for defendant to be sleeping while her child slept. Deville v. Commonwealth, 534 S.W.3d 802, 2017 Ky. App. LEXIS 383 (Ky. Ct. App. 2017).

Trial court did not err in denying defendant's motion for directed verdict because it would be reasonable for a jury to find him guilty of first-degree wanton endangerment; Police officers' testimony that they broke off their pursuit during a high-speed chase because they felt unsafe driving at that speed on those roads was enlightening as to how dangerous defendant was driving, given that the trained officers considered it too dangerous to pursue him any further. Culver v. Commonwealth, 2017 Ky. App. LEXIS 534 (Ky. Ct. App. Sept. 22, 2017, sub. op., 2017 Ky. App. Unpub. LEXIS 952 (Ky. Ct. App. Sept. 22, 2017).

4.Recklessly.

The gravamen of the offense of reckless homicide is the failure to perceive a substantial and unjustified risk when such failure is a gross deviation from the standard of care that a reasonable person would observe in the situation; thus no specific intent that the act or omission cause injury is required, nor is there any requirement to show a subjective realization on the part of the actor that his conduct creates a substantial risk. Robinson v. Commonwealth, 569 S.W.2d 183, 1978 Ky. App. LEXIS 557 (Ky. Ct. App. 1978).

An act claimed to be done in self defense is an intentional act; it is not a “reckless” act as that term is defined by this section. Baker v. Commonwealth, 677 S.W.2d 876, 1984 Ky. LEXIS 284 ( Ky. 1984 ), overruled, Shannon v. Commonwealth, 767 S.W.2d 548, 1988 Ky. LEXIS 80 ( Ky. 1988 ), overruled in part, Shannon v. Commonwealth, 767 S.W.2d 548, 1988 Ky. LEXIS 80 ( Ky. 1988 ). Overruled in part on other grounds as stated in Commonwealth v. Wolford, 4 S.W.3d 534, 1999 Ky. LEXIS 93 ( Ky. 1999 ).

No reasonable person could fail to perceive that a severe beating of an 80-year-old woman, such as was administered by the defendant, posed a substantial and totally unjustifiable risk that death would result; therefore, it was not error to refuse an instruction on reckless homicide. Adcock v. Commonwealth, 702 S.W.2d 440, 1986 Ky. LEXIS 222 ( Ky. 1986 ).

Defendant’s pretrial statement did not establish that he was not shooting at the murdered store clerk but merely that the pistol jerked his arm so that he shot higher than he intended. Shooting at a store clerk during the course of an armed robbery simply because an alarm sounded or the clerk moved his foot toward a floor alarm button clearly manifested extreme indifference to the value of human life as a matter of law. Accordingly, the trial judge was correct in declining to instruct on second-degree manslaughter or reckless homicide as lesser-included offenses. Crane v. Commonwealth, 833 S.W.2d 813, 1992 Ky. LEXIS 78 ( Ky. 1992 ), cert. denied, 506 U.S. 1069, 113 S. Ct. 1020, 122 L. Ed. 2d 167, 1993 U.S. LEXIS 351 (U.S. 1993).

Before defendants can be found guilty of either reckless homicide or manslaughter, there must exist a legal duty owed by the defendants to the victim; thus, because there was presented substantial evidence from which the jury could have concluded that the brother of 54-year-old disabled woman who died from conditions attributed to caretaker neglect assumed the duty of care and that he was acting in the capacity of “caretaker” as that term is defined by the provisions of KRS 209.020 , the trial court did not err by instructing the jury with respect to reckless homicide and complicity to reckless homicide and evidence was sufficient to support convictions of brother and his wife. West v. Commonwealth, 935 S.W.2d 315, 1996 Ky. App. LEXIS 179 (Ky. Ct. App. 1996).

A violation of the seat belt statute does not provide the mental state necessary for a reckless homicide conviction. Commonwealth v. Mitchell, 41 S.W.3d 434, 2001 Ky. LEXIS 10 ( Ky. 2001 ).

“Substantial” risk of injury under KRS 501.020(4) falls within the meaning of a “serious” risk of injury for purposes of defining a crime of violence under the U.S. Sentencing Guidelines Manual. United States v. Adams, 51 Fed. Appx. 507, 2002 U.S. App. LEXIS 22114 (6th Cir. Ky. 2002 ).

Defendant who caused an auto accident that killed three people and injured a third, and who tested positive for prescription drugs and marijuana in his urine, was improperly convicted of reckless homicide under KRS 507.050 . He did not drive erratically; there was no evidence he was under influence of drugs; and driving with excessively worn tires was insufficient evidence of recklessness. Ison v. Commonwealth, 271 S.W.3d 533, 2008 Ky. App. LEXIS 301 (Ky. Ct. App. 2008).

5.Instructions.

Defendant was not entitled to an instruction on third degree assault where the evidence as to the seriousness of the injury was that buckshot from the shotgun blast had gone through the victim’s elbow and forearm, requiring 29 days of hospitalization and five operations and the replacement of three inches of his bone by a steel plate, and where a result of the shot, he also sustained muscle and nerve damage and could not move his fingers. Trent v. Commonwealth, 606 S.W.2d 386, 1980 Ky. App. LEXIS 369 (Ky. Ct. App. 1980).

This case did not present a situation where a parent has placed a child in harm’s way with no particular desire that harm ensue; rather the evidence strongly indicates that father struck and injured child, and permitted step-mother to do so, with the conscious and express goal of inflicting severe pain. Accordingly, because the jury could not rationally find father guilty of second-degree criminal abuse yet not guilty of first-degree criminal abuse, the District Court did not err in denying father’s request for an instruction on second-degree criminal abuse. United States v. Phillip, 948 F.2d 241, 1991 U.S. App. LEXIS 25714 (6th Cir. Ky. 1991 ), cert. denied, 504 U.S. 930, 112 S. Ct. 1994, 118 L. Ed. 2d 590, 1992 U.S. LEXIS 3012 (U.S. 1992).

In prosecution for murder for death of baby where defendant who was convicted of manslaughter gave birth to child which she put into trash can placing the can in her bedroom closet where her mother later discovered the body, the court did not err by not giving an instruction on the crime of concealing the birth of an infant since there was absolutely no probable evidence that the baby was born dead and while defendant may have believed that the baby was dead, the evidence did not show that it was dead at birth and the fact that concealing the birth of an infant is not a lesser included offense of murder/homicide as different facts and elements are required to prove each crime. Cheser v. Commonwealth, 904 S.W.2d 239, 1994 Ky. App. LEXIS 151 (Ky. Ct. App. 1994), overruled in part, Walker v. Commonwealth, 127 S.W.3d 596, 2004 Ky. LEXIS 42 ( Ky. 2004 ).

As defendant testified he intentionally killed the victim in self-defense, there was no evidentiary basis for his “stand alone” instructions on second degree manslaughter or reckless homicide premised on a theory that he unintentionally killed the victim. Saylor v. Commonwealth, 144 S.W.3d 812, 2004 Ky. LEXIS 220 ( Ky. 2004 ).

Instruction in appellant’s first-degree assault trial permitted the jury to find that appellant acted intentionally, wantonly, or recklessly, for purposes of KRS 501.020 , and counsel was adamant that he did not believe the jury had to distinguish the specific state of mind under which the jury found appellant acted; thus, even if the instruction was erroneous and prevented appellant from receiving a unanimous verdict, case law precluded further analysis due to counsel’s waiver of the argument. Moran v. Commonwealth, 399 S.W.3d 35, 2013 Ky. App. LEXIS 71 (Ky. Ct. App. 2013).

Cited in:

Hamilton v. Commonwealth, 560 S.W.2d 539, 1977 Ky. LEXIS 56 8 ( Ky. 1977 ); Brown v. Commonwealth, 575 S.W.2d 451, 1978 Ky. LEXIS 449 ( Ky. 1978 ); Barmet of Kentucky, Inc. v. Sallee, 605 S.W.2d 29, 1980 Ky. App. LEXIS 362 (Ky. Ct. App. 1980); Malone v. Commonwealth, 636 S.W.2d 647, 1982 Ky. LEXIS 276 ( Ky. 1982 ); Ward v. Commonwealth, 695 S.W.2d 404, 1985 Ky. LEXIS 307 ( Ky. 1985 ); Smith v. Commonwealth, 734 S.W.2d 437, 1987 Ky. LEXIS 200 ( Ky. 1987 ); Smith v. Commonwealth, 737 S.W.2d 683, 1987 Ky. LEXIS 237 ( Ky. 1987 ); Davis v. Secretary of Health & Human Services, 867 F.2d 336, 1989 U.S. App. LEXIS 1510 (6th Cir. 1989); Carpenter v. Commonwealth, 771 S.W.2d 822, 1989 Ky. LEXIS 56 ( Ky. 1989 ); Mattingly v. Commonwealth, 878 S.W.2d 797, 1993 Ky. App. LEXIS 183 (Ky. Ct. App. 1993); United States v. Clark, — F.3d —, 2012 U.S. App. LEXIS 2215 (6th Cir. 2012); Pettway v. Commonwealth, 2015 Ky. LEXIS 1862 (Sept. 24, 2015); Cabinet for Health & Family Servs. v. J.M.G., 2015 Ky. LEXIS 2013 (Dec. 17, 2015).

Notes to Unpublished Decisions

1.Wantonly.
2.— Endangerment.

Unpublished decision: Defendant contended that the evidence was insufficient to support his conviction; however, the Commonwealth met its burden in proving each of the necessary elements of first degree wanton endangerment. Fister v. Commonwealth, 133 S.W.3d 480, 2003 Ky. App. LEXIS 170 (Ky. Ct. App. 2003).

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Ashdown, Criminal Law, 64 Ky. L.J. 337 (1975-76).

Kentucky Law Survey, Brice and Taylor, Criminal Law, 67 Ky. L.J. 569 (1978-1979).

Kentucky Law Survey, Overstreet and Collier, Criminal Law, 68 Ky. L.J. 733 (1979-1980).

Notes, Statutes Establishing a Duty to Report Crimes or Render Assistance to Strangers: Making Apathy Criminal, 72 Ky. L.J. 827 (1983-84).

West, Criminal Law, 74 Ky. L.J. 403 (1985-86).

Cooper and Lawson, Self-Defense in Kentucky: A Need for Clarification or Revision, 76 Ky. L.J. 167 (1987-88).

Northern Kentucky Law Review.

Comments, Criminal Law — Murder by Auto, Kentucky’s Hard Line Stance Against Drunken Drivers, 5 N. Ky. L. Rev. 279 (1978).

Hodge, Wanton Murder, Self-Defense, and Jury Instructions: Shannon v. Commonwealth is Revisited; But does it Remain?, 22 N. Ky. L. Rev. 435 (1995).

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Assaults and Restraints of Persons, Part 1 Definitions, §§ 3.01 — 3.04.

Kentucky Instructions to Juries (Criminal), 5th Ed., Assaults and Restraints of Persons, Part 2 Homicide, §§ 3.21, 3.28, 3.29.

Kentucky Instructions to Juries (Criminal), 5th Ed., Assaults and Restraints of Persons, Part 3 Assaults, §§ 3.34, 3.42.

Kentucky Instructions to Juries (Criminal), 5th Ed., Controlled Substances, Part 4 Miscellaneous KRS 218A Offenses, § 9.34C.

Kentucky Instructions to Juries (Criminal), 5th Ed., Complicity and Inchoate Offenses, Part 2 Complicity, § 10.14.

Kentucky Instructions to Juries (Criminal), 5th Ed., Damage to or Intrusion Upon Property, Part 4 Criminal Mischief and Related Offenses, § 5.32.

Kentucky Instructions To Juries (Criminal), 5th Ed., Defenses, Part 3 Absence of Criminal Responsibility, § 11.30.

Kentucky Instructions to Juries (Civil), 5th Ed., False Imprisonment, § 30.03.

Kentucky Instructions to Juries (Criminal), 5th Ed., Offenses Related to Sex and Pornography, Part 2 Rape, § 4.23.

Kentucky Instructions to Juries (Criminal), 5th Ed., Robbery, Theft and Related Offenses, Part 3 Theft, § 6.61.

501.030. Criminal liability.

A person is not guilty of a criminal offense unless:

  1. He has engaged in conduct which includes a voluntary act or the omission to perform a duty which the law imposes upon him and which he is physically capable of performing; and
  2. He has engaged in such conduct intentionally, knowingly, wantonly or recklessly as the law may require, with respect to each element of the offense, except that this requirement does not apply to any offense which imposes absolute liability, as defined in KRS 501.050 .

History. Enact. Acts 1974, ch. 406, § 13, effective January 1, 1975.

NOTES TO DECISIONS

1.Duty of Care.

Before defendants can be found guilty of either reckless homicide or manslaughter, there must exist a legal duty owed by the defendants to the victim; thus, because there was presented substantial evidence from which the jury could have concluded that the brother of 54-year-old disabled woman who died from conditions attributed to caretaker neglect assumed the duty of care and that he was acting in the capacity of “caretaker” as that term is defined by the provisions of KRS 209.020 , the trial court did not err by instructing the jury with respect to reckless homicide and complicity to reckless homicide and evidence was sufficient to support convictions of brother and his wife. West v. Commonwealth, 935 S.W.2d 315, 1996 Ky. App. LEXIS 179 (Ky. Ct. App. 1996).

Defendant who lost control of his car on a wet road and caused an auto accident that killed three people and injured a third was improperly convicted of reckless homicide under KRS 507.050 ; he was not speeding or driving erratically before his tires lost traction, and driving with excessively worn tires was not a violation of a duty of care imposed by law. Ison v. Commonwealth, 271 S.W.3d 533, 2008 Ky. App. LEXIS 301 (Ky. Ct. App. 2008).

2.Knowingly.

In prosecution for possession of stolen mail, the use of the language “knew or had reason to believe” in the jury instruction was proper since the phrase “or had reason to believe” is within the meaning of the term “knowingly” as used in this section and KRS 514.150 . Commonwealth v. Griffin, 759 S.W.2d 68, 1988 Ky. LEXIS 65 ( Ky. 1988 ).

KRS 218A.1411 does not require any mental state, just otherwise unlawful trafficking within a particular physical area or zone; given the absence of mention of any mental state in KRS 218A.1411 , KRS 501.030(2) cannot be read to require imputation of a knowing mental state. Saxton v. Commonwealth, 315 S.W.3d 293, 2010 Ky. LEXIS 158 ( Ky. 2010 ).

KRS 218A.1411 contains no indication whatsoever that the legislature intended for the enhanced punishments to apply only if a drug trafficker knew that he was within 1,000 yards of a school; defendant’s attempt to impart a mens rea had no basis in the statutory language and KRS 501.020(2), 501.030 , 501.040 , and 501.050 did not require a contrary conclusion. Saxton v. Commonwealth, 315 S.W.3d 293, 2010 Ky. LEXIS 158 ( Ky. 2010 ).

Cited:

Blanton v. Commonwealth, 562 S.W.2d 90, 1978 Ky. App. LEXIS 466 (Ky. Ct. App. 1978); Love v. Commonwealth, 55 S.W.3d 816, 2001 Ky. LEXIS 28 ( Ky. 2001 ); Reynolds v. Commonwealth, 113 S.W.3d 647, 2003 Ky. App. LEXIS 198 (Ky. Ct. App. 2003); Beaty v. Commonwealth, 125 S.W.3d 196, 2003 Ky. LEXIS 232 ( Ky. 2003 ), rehearing denied, 2004 Ky. LEXIS 53 ( Ky. 2004 ); Bartley v. Commonwealth, 400 S.W.3d 714, 2013 Ky. LEXIS 291 ( Ky. 2013 ).

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Overstreet and Collier, Criminal Law, 68 Ky. L.J. 733 (1979-1980).

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Assaults and Restraints of Persons, Part 1 Definitions, § 3.02.

Kentucky Instructions to Juries (Criminal), 5th Ed., Assaults and Restraints of Persons, Part 3 Assaults, §§ 3.49, 3.49B.

Kentucky Instructions to Juries (Criminal), 5th Ed., Controlled Substances, Part 4 Miscellaneous KRS 218A Offenses, §§ 9.29, 9.34C.

Kentucky Instructions to Juries (Criminal), 5th Ed., Damage To and Intrusion Upon Property, Part 3 Arson, § 5.17.

Kentucky Instructions to Juries (Criminal), 5th Ed., Offenses Against Public and Judicial Administration, Part 3 Escape and Offenses Related to Custody, § 7.23.

Kentucky Instructions to Juries (Criminal), 5th Ed., Offenses Against Public and Judicial Administration, Part 4 Bribery and Related Offenses, §§ 7.41, 7.48, 7.51, 7.59.

Kentucky Instructions to Juries (Criminal), 5th Ed., Offenses Against Public Order, Safety and Morals, Part 2 Riot, Disorderly Conduct and Related Offenses, § 8.48.

Kentucky Instructions to Juries (Criminal), 5th Ed., Offenses Against Public Order, Safety and Morals, Part 4 Offenses Related to Firearms and Destructive Devices, §§ 8.59B, 8.60, 8.60B, 8.63F — 8.63H.

Kentucky Instructions to Juries (Criminal), 5th Ed., Offenses Related to Sex and Pornography, Part 2 Rape, § 4.23.

Kentucky Instructions to Juries (Criminal), 5th Ed., Offenses Related to Sex and Pornography, Part 4 Sexual Abuse, § 4.47.

Kentucky Instructions to Juries (Criminal), 5th Ed., Offenses Related to Sex and Pornography, Part 7 Prostitution, § 4.74.

Kentucky Instructions to Juries (Criminal), 5th Ed., Offenses Related to Sex and Pornography, Part 8 Obscenity, §§ 4.81, 8.82.

Kentucky Instructions to Juries (Criminal), 5th Ed., Offenses Related to Sex and Pornography, Part 9 Sexual Exploitation of Minors, § 4.98.

Kentucky Instructions to Juries (Criminal), 5th Ed., Robbery, Theft and Related Offenses, Part 3 Theft, § 6.52.

Kentucky Instructions to Juries (Criminal), 5th Ed., Robbery, Theft and Related Offenses, Part 5 Business and Commercial Frauds, § 6.93B.

501.040. Culpability — Construction of statutes.

Although no culpable mental state is expressly designated in a statute defining an offense, a culpable mental state may nevertheless be required for the commission of such offense, or with respect to some or all of the material elements thereof, if the proscribed conduct necessarily involves such culpable mental state.

History. Enact. Acts 1974, ch. 406, § 14, effective January 1, 1975.

NOTES TO DECISIONS

1.Applicability.

The culpable mental state required for assault in the third degree is written into KRS 508.025(1)(b) by this section: a prison inmate confined in a detention facility must inflict physical injury upon an employee of the detention center which necessarily requires an inmate to intentionally or wantonly inflict physical injury upon a prison employee. Covington v. Commonwealth, 849 S.W.2d 560, 1992 Ky. App. LEXIS 218 (Ky. Ct. App. 1992).

KRS 218A.1411 contains no indication whatsoever that the legislature intended for the enhanced punishments to apply only if a drug trafficker knew that he was within 1,000 yards of a school; defendant’s attempt to impart a mens rea had no basis in the statutory language and KRS 501.020(2), 501.030 , 501.040 , and 501.050 did not require a contrary conclusion. Saxton v. Commonwealth, 315 S.W.3d 293, 2010 Ky. LEXIS 158 ( Ky. 2010 ).

Under KRS 218A.1411 , a defendant’s proximity to a school is not conduct and does not necessarily involve a culpable mental state where the prohibited conduct is illegal drug trafficking and the prohibited proximity to a school is a circumstance that can lead to harsher punishment for that illegal conduct regardless of a drug trafficker’s knowledge of a nearby school. Saxton v. Commonwealth, 315 S.W.3d 293, 2010 Ky. LEXIS 158 ( Ky. 2010 ).

2.Evidence.

Evidence was sufficient to show that defendant did not intend to return on time to the detention center where he was serving his sentence where, when released from work due to weather, defendant did not return to the detention facility but instead drove around drinking beer, stayed in a motel room drinking beer for several more hours, and claimed that he was unable to then return due to a snowstorm; the fact that defendant eventually returned voluntarily did not preclude the conviction. Reynolds v. Commonwealth, 113 S.W.3d 647, 2003 Ky. App. LEXIS 198 (Ky. Ct. App. 2003).

Cited:

Mattingly v. Commonwealth, 878 S.W.2d 797, 1993 Ky. App. LEXIS 183 (Ky. Ct. App. 1993).

Research References and Practice Aids

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Offenses Against Public and Judicial Administration, Part 3 Escape and Offenses Related to Custody, § 7.23.

Kentucky Instructions to Juries (Criminal), 5th Ed., Offenses Against Public and Judicial Administration, Part 4 Bribery and Related Offenses, §§ 7.41, 7.48, 7.51, 7.59.

Kentucky Instructions to Juries (Criminal), 5th Ed., Offenses Against Public Order, Safety and Morals, Part 2 Riot, Disorderly Conduct and Related Offenses, § 8.48.

Kentucky Instructions to Juries (Criminal), 5th Ed., Offenses Against Public Order, Safety and Morals, Part 4 Offenses Related to Firearms and Destructive Devices, §§ 8.59B, 8.60, 8.60B, 8.63G.

501.050. Absolute liability.

A person may be guilty of an offense without having one (1) of the culpable mental states defined in KRS 501.020 only when:

  1. The offense is a violation or a misdemeanor as defined in KRS 500.080 and no particular culpable mental state is included within the definition of the offense; or
  2. The offense is defined by a statute other than this Penal Code and the statute clearly indicates a legislative purpose to impose absolute liability for the conduct described.

History. Enact. Acts 1974, ch. 406, § 15, effective January 1, 1975.

NOTES TO DECISIONS

1.Absolute Liability.

KRS 218A.1411 contains no indication whatsoever that the legislature intended for the enhanced punishments to apply only if a drug trafficker knew that he was within 1,000 yards of a school; defendant’s attempt to impart a mens rea had no basis in the statutory language and KRS 501.020(2), 501.030 , 501.040 , and 501.050 did not require a contrary conclusion. Saxton v. Commonwealth, 315 S.W.3d 293, 2010 Ky. LEXIS 158 ( Ky. 2010 ).

KRS 218A.1411 is not an absolute liability statute because the culpable mental state is supplied by the drug trafficking statutes themselves, all of which require an actor to act knowingly and unlawfully. Saxton v. Commonwealth, 315 S.W.3d 293, 2010 Ky. LEXIS 158 ( Ky. 2010 ).

Cited:

Blanton v. Commonwealth, 562 S.W.2d 90, 1978 Ky. App. LEXIS 466 (Ky. Ct. App. 1978); Malone v. Commonwealth, 636 S.W.2d 647, 1982 Ky. LEXIS 276 ( Ky. 1982 ).

Research References and Practice Aids

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Complicity and Inchoate Offenses, Part 3 Inchoate Offenses, § 10.31.

Kentucky Instructions To Juries (Criminal), 5th Ed., Controlled Substances, Part 5 Alcoholic Beverages, § 9.36E.

Kentucky Instructions To Juries (Criminal), 5th Ed., Damage To or Intrusion Upon Property, Part 4 Criminal Mischief and Related Offenses, §§ 5.30, 5.32, 5.33.

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public Order, Safety and Morals, Part 4 Offenses Related to Firearms and Destructive Devices, §§ 8.59B, 8.64F, 8.65E.

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public Order, Safety and Morals, Part 5 Offenses Involving Operating/Manipulation of Watercraft, § 8.74N.

Kentucky Instructions To Juries (Criminal), 5th Ed., Robbery, Theft and Related Offenses, Part 3 Theft, § 6.42.

501.060. Causal relationships.

  1. Conduct is the cause of a result when it is an antecedent without which the result in question would not have occurred.
  2. When intentionally causing a particular result is an element of an offense, the element is not established if the actual result is not within the intention or the contemplation of the actor unless:
    1. The actual result differs from that intended or contemplated, as the case may be, only in the respect that a different person or different property is injured or affected or that the injury or harm intended or contemplated would have been more serious or more extensive; or
    2. The actual result involves the same kind of injury or harm as that intended or contemplated and occurs in a manner which the actor knows or should know is rendered substantially more probable by his conduct.
  3. When wantonly or recklessly causing a particular result is an element of an offense, the element is not established if the actual result is not within the risk of which the actor is aware or, in the case of recklessness, of which he should be aware unless:
    1. The actual result differs from the probable result only in the respect that a different person or different property is injured or affected or that the probable injury or harm would have been more serious or more extensive than that caused; or
    2. The actual result involves the same kind of injury or harm as the probable result and occurs in a manner which the actor knows or should know is rendered substantially more probable by his conduct.
  4. The question of whether an actor knew or should have known the result he caused was rendered substantially more probable by his conduct is an issue of fact.

History. Enact. Acts 1974, ch. 406, § 16, effective January 1, 1975.

NOTES TO DECISIONS

1.Transferred Intent.

Under the doctrine of transferred intent, a defendant is guilty of intentional murder if he intended to kill one person, but instead killed another. Phillips v. Commonwealth, 17 S.W.3d 870, 2000 Ky. LEXIS 19 (Ky.), cert. denied, 531 U.S. 1016, 121 S. Ct. 577, 148 L. Ed. 2d 494, 2000 U.S. LEXIS 7878 (U.S. 2000).

2.Transferred Wantonness.

Subsection (3) creates the concept of transferred wantonness, a theory of criminal liability unfamiliar to our common law. Phillips v. Commonwealth, 17 S.W.3d 870, 2000 Ky. LEXIS 19 (Ky.), cert. denied, 531 U.S. 1016, 121 S. Ct. 577, 148 L. Ed. 2d 494, 2000 U.S. LEXIS 7878 (U.S. 2000).

Where the evidence, even construed in the Commonwealth’s favor, did not support a finding of guilt beyond a reasonable doubt that a defendant behaved wantonly as defined by KRS 501.020(3) with regard to a murder, the trial court erred in denying the defendant’s motion for a directed verdict. The appellate court determined that it was simply an impermissible leap of logic to conclude that a reasonable person engaging in the defendant’s conduct — that is, ordering another to remove a set of keys from the pocket of the resisting owner — would be or should be aware that death by heart attack might result. Turner v. Commonwealth, 153 S.W.3d 823, 2005 Ky. LEXIS 3 ( Ky. 2005 ), overruled in part, Padgett v. Commonwealth, 312 S.W.3d 336, 2010 Ky. LEXIS 71 ( Ky. 2010 ).

Cited:

Smith v. Commonwealth, 734 S.W.2d 437, 1987 Ky. LEXIS 200 ( Ky. 1987 ), cert. denied, Smith v. Kentucky, 484 U.S. 1036, 108 S. Ct. 762, 98 L. Ed. 2d 778, 1988 U.S. LEXIS 425 (1988).

Research References and Practice Aids

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Assaults and Restraints of Persons, Part 2 Homicide, §§ 3.24, 2.28A.

Kentucky Instructions To Juries (Criminal), 5th Ed., Damage To or Intrusion Upon Property, Part 2 Burglary and Trespass, § 5.07.

501.070. Liability — Ignorance or mistake.

  1. A person’s ignorance or mistake as to a matter of fact or law does not relieve him of criminal liability unless:
    1. Such ignorance or mistake negatives the existence of the culpable mental state required for commission of an offense; or
    2. The statute under which he is charged or a statute related thereto expressly provides that such ignorance or mistake constitutes a defense or exemption; or
    3. Such ignorance or mistake is of a kind that supports a defense of justification as defined in this Penal Code.
  2. When ignorance or mistake relieves a person of criminal liability under subsection (1) but he would be guilty of another offense had the situation been as he supposed it was, he may be convicted of that other offense.
  3. A person’s mistaken belief that his conduct, as a matter of law, does not constitute an offense does not relieve him of criminal liability, unless such mistaken belief is actually founded upon an official statement of the law, afterward determined to be invalid or erroneous, contained in:
    1. A statute or other enactment; or
    2. A judicial decision, opinion or judgment; or
    3. An administrative order or grant of permission; or
    4. An official interpretation of the public officer or body charged by law with responsibility for the interpretation, administration or enforcement of the law defining the offense.

History. Enact. Acts 1974, ch. 406, § 17, effective January 1, 1975.

NOTES TO DECISIONS

1.Mistake of Fact.

In prosecution for death of baby where defendant who was convicted of manslaughter gave birth to child which she put into trash can placing the can in her bedroom closet where her mother later discovered the body, defendant was entitled to a mistake of fact instruction after she presented evidence that she believed that the child was dead at birth and that she had no intent to kill it and failure to give such instruction was not a harmless error as defendant was convicted of manslaughter. Cheser v. Commonwealth, 904 S.W.2d 239, 1994 Ky. App. LEXIS 151 (Ky. Ct. App. 1994), overruled in part, Walker v. Commonwealth, 127 S.W.3d 596, 2004 Ky. LEXIS 42 ( Ky. 2004 ).

Trial court did not err in not giving defendant’s mistake of fact instruction pursuant to KRS 501.070(1) as the totality of the evidence and defense counsel’s characterization of the alleged mistake as “delusional,” where defendant wanted to argue that he mistakenly believed that the murder victim was willing to have sexual intercourse with him, showed that the alleged mistake was patently unreasonable. Jacobs v. Commonwealth, 58 S.W.3d 435, 2001 Ky. LEXIS 187 ( Ky. 2001 ).

Defendant was not entitled to a jury instruction on the affirmative defense of mistake where he failed to register as a sex offender. A mistake of fact did not excuse his failure to pre-register a change of residence, and it did not negate the “knowingly” mental state required for the offense. Lawson v. Commonwealth, 425 S.W.3d 912, 2014 Ky. App. LEXIS 37 (Ky. Ct. App. 2014).

2.Mistake of Law.

When an Ohio bondsman was prosecuted under KRS 440.270(2), prohibiting a bondsman from arresting a fugitive without a warrant, his conduct was not excused as a mistake of law, under KRS 501.070(1)(a), because there was no evidence that the culpable mental states of recklessly arresting the fugitive or knowledge that no warrant for the fugitive had been issued by a Kentucky judicial officer was negated by his claimed mistake of law that his actions were legally authorized. Walker v. Commonwealth, 127 S.W.3d 596, 2004 Ky. LEXIS 42 ( Ky. 2004 ).

When an Ohio bondsman was prosecuted under KRS 440.270(2), prohibiting a bondsman from arresting a fugitive without a warrant, he was entitled to a jury instruction on mistake of law under KRS 501.070(3)(b) because he testified that he was unaware of the existence of KRS 440.270(2) and that he “actually believed” his actions were authorized by a United States Supreme Court decision, and he was entitled to apprise the jury of the decision on which he relied. Walker v. Commonwealth, 127 S.W.3d 596, 2004 Ky. LEXIS 42 ( Ky. 2004 ).

Defendant was not entitled to a jury instruction on the affirmative defense of mistake where he failed to register as a sex offender, and it did not negate the “knowingly” mental state required for the offense. Defendant failed to show a mistaken belief of law based on his belief that he had to send in a new address when he received a form; defendant did not argue that he relied on something or someone official. Lawson v. Commonwealth, 425 S.W.3d 912, 2014 Ky. App. LEXIS 37 (Ky. Ct. App. 2014).

Research References and Practice Aids

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Defenses, Part 3 Absence of Criminal Responsibility, §§ 11.30A, 11.30B.

501.080. Liability — Intoxication.

Intoxication is a defense to a criminal charge only if such condition either:

  1. Negatives the existence of an element of the offense; or
  2. Is not voluntarily produced and deprives the defendant of substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law.

History. Enact. Acts 1974, ch. 406, § 18, effective January 1, 1975.

NOTES TO DECISIONS

1.In General.

Drunkenness of defendant was a factor to be considered by jury in determining whether defendant acted with malice, so as to be guilty of felony. (Decided under prior law) Abbott v. Commonwealth, 305 Ky. 620 , 205 S.W.2d 348, 1947 Ky. LEXIS 901 ( Ky. 1947 ).

The exculpatory effect of intoxication clearly relates to the capacity to form an intent as well as the capacity to deliberate or premeditate. Jewell v. Commonwealth, 549 S.W.2d 807, 1977 Ky. LEXIS 412 ( Ky. 1977 ), overruled, Payne v. Commonwealth, 623 S.W.2d 867, 1981 Ky. LEXIS 286 ( Ky. 1981 ).

Intoxication, whether voluntary or involuntary, is a defense to an intentional crime if the effect of the intoxication is to completely negate the element of intent; it causes the defendant’s mental state to equate with insanity. Voluntary intoxication does not negate culpability for a crime requiring a culpable mental state of wantonness or recklessness, but it does negate specific intent. McGuire v. Commonwealth, 885 S.W.2d 931, 1994 Ky. LEXIS 123 ( Ky. 1994 ).

Despite evidence that a defendant’s blood alcohol level was 0.13 percent at the time of a fatal shooting, the trial court properly instructed the jury on intentional murder and first-degree manslaughter; whether defendant’s intoxication negated felonious intent was a jury question. Robertson v. Commonwealth, 2002 Ky. LEXIS 176 (Ky. Apr. 25, 2002).

2.Applicability.

Since the defendant denied that he fired the shot at the truck, there was no reason to instruct on the effect of drunkenness in its relation to willfulness and malice. (Decided under prior law) Chaney v. Commonwealth, 451 S.W.2d 671, 1970 Ky. LEXIS 421 ( Ky. 1970 ), overruled, Conner v. Denney, 521 S.W.2d 514, 1975 Ky. LEXIS 157 ( Ky. 1975 ), overruled in part, Conner v. Denney, 521 S.W.2d 514, 1975 Ky. LEXIS 157 ( Ky. 1975 ), overruled on other grounds, sub nom. Conner v. Denney, 521 S.W.2d 514, 1975 Ky. LEXIS 157 (Ky. 1975).

Voluntary intoxication constitutes a defense only to intentional and knowing offenses and does not provide a defense to unintentional offenses. Brown v. Commonwealth, 575 S.W.2d 451, 1978 Ky. LEXIS 449 ( Ky. 1978 ).

Statutory defenses such as intoxication do not apply to lesser included offenses involving recklessness or wantonness. Cheser v. Commonwealth, 904 S.W.2d 239, 1994 Ky. App. LEXIS 151 (Ky. Ct. App. 1994), overruled in part, Walker v. Commonwealth, 127 S.W.3d 596, 2004 Ky. LEXIS 42 ( Ky. 2004 ).

3.Drug Addiction.

The Legislature has not intended that drug addiction arising from the voluntary ingestion of drugs, by itself, affords a defense to a criminal charge on the basis of mental illness. Commonwealth v. Tate, 893 S.W.2d 368, 1995 Ky. LEXIS 17 ( Ky. 1995 ).

4.Evidence.

An accused is entitled to have the defense of intoxication submitted to the jury if his evidence is sufficient to indicate intoxication to a degree which would negate the existence of an element of the offense with which he is charged. Parido v. Commonwealth, 547 S.W.2d 125, 1977 Ky. LEXIS 394 ( Ky. 1977 ).

Mere drunkenness will not raise the defense of intoxication; there must be something in the evidence reasonably sufficient to support a doubt that the defendant knew what he was doing. Jewell v. Commonwealth, 549 S.W.2d 807, 1977 Ky. LEXIS 412 ( Ky. 1977 ), overruled, Payne v. Commonwealth, 623 S.W.2d 867, 1981 Ky. LEXIS 286 ( Ky. 1981 ).

The burden of proof to negate the intoxication defense is on the Commonwealth but, in order for the defense to be raised so as to call for an instruction placing the burden on the Commonwealth, there must be something in the evidence reasonably sufficient to support a doubt based on the defense in question and where there was no evidence, other than the fact that the defendant was using drugs on the night of the murder, to show that he did not have the capacity of forming a criminal intent, the trial court properly refused to give an instruction on the intoxication defense. Brown v. Commonwealth, 555 S.W.2d 252, 1977 Ky. LEXIS 501 ( Ky. 1977 ).

Where evidence showed that defendant had been drinking constantly since the day prior to shooting and had an alcohol level of 0.29 percent in his blood some three (3) hours after the shooting and where officers testified that defendant was drunk at time of arrest, defense of voluntary intoxication should have been submitted to jury in homicide trial. Brown v. Commonwealth, 575 S.W.2d 451, 1978 Ky. LEXIS 449 ( Ky. 1978 ).

Evidence in a murder prosecution was insufficient to require an instruction on the defense of intoxication where the defendant’s defense was not that she could not form the requisite intent to murder her husband because of intoxication, but that she killed him intentionally in self-protection because of what he had done to her and what he threatened to do to her daughter. Springer v. Commonwealth, 998 S.W.2d 439, 1999 Ky. LEXIS 56 ( Ky. 1999 ).

5.Instructions.

There was no error in refusing to give an instruction on voluntary drunkenness where drunkenness could only serve to lower the offense from murder to voluntary manslaughter and the latter offense had been included in the court’s instructions. (Decided under prior law) Chism v. Commonwealth, 286 Ky. 314 , 150 S.W.2d 694, 1941 Ky. LEXIS 252 ( Ky. 1941 ).

Where eyewitnesses in murder prosecution described defendant as drunk and defendant had blood-alcohol content of 0.11% four (4) or five (5) hours after the shooting, evidence was sufficient to require an instruction on intoxication. Jewell v. Commonwealth, 549 S.W.2d 807, 1977 Ky. LEXIS 412 ( Ky. 1977 ), overruled, Payne v. Commonwealth, 623 S.W.2d 867, 1981 Ky. LEXIS 286 ( Ky. 1981 ).

Where the evidence in a prosecution for murder did not even suggest that defendant was not fully in possession of faculties, an instruction on the defense of intoxication was not required. Meadows v. Commonwealth, 550 S.W.2d 511, 1977 Ky. LEXIS 431 ( Ky. 1977 ).

If the evidence shows intoxication sufficient to preclude formation of the requisite intent for a crime, the defendant is entitled to an instruction on this defense regardless of whether the intoxication was voluntary and, accordingly, where substantial evidence showed that a robbery defendant was on drugs at the time of the crime, the trial court erred in refusing to give such an instruction. Mishler v. Commonwealth, 556 S.W.2d 676, 1977 Ky. LEXIS 525 ( Ky. 1977 ).

Where evidence of defendant’s intoxication is sufficient to require defense of voluntary intoxication to be submitted to jury in homicide case involving intentional or knowing offense and lesser included unintentional offenses, it must be accompanied by instruction to the effect that, although the jury might otherwise find the defendant guilty of murder or first-degree manslaughter, if at the time of the murder defendant was so drunk that he did not have intention to commit crime, he must be found not guilty of those charges. Brown v. Commonwealth, 575 S.W.2d 451, 1978 Ky. LEXIS 449 ( Ky. 1978 ).

The circumstances surrounding an intentional murder case did not justify any instruction on intoxication. There were five (5) victims brutally killed over a period of approximately four (4)hours. The victims each were shot at short range (some being contact wounds), stabbed repeatedly, crushed by a car, and in some instances, burned. They were then left for dead at three (3)separate locations throughout the city. Defendant and her accomplice twice went to find additional bullets and once to repair a gun which they had been using to kill the victims. Defendant and her accomplice attempted to destroy evidence immediately before and after being arrested. No evidence of drug use on the day of the murders was presented. Defendant’s alcohol intoxication may have been at a level to support being arrested for public intoxication but still not be at a level where she did not know what she was doing. Foster v. Commonwealth, 827 S.W.2d 670, 1991 Ky. LEXIS 195 ( Ky. 1991 ), cert. denied, 506 U.S. 921, 113 S. Ct. 337, 121 L. Ed. 2d 254, 1992 U.S. LEXIS 6489 (U.S. 1992).

A jury finding that defendant was voluntarily intoxicated so as to be unable to form the requisite intent for murder does not require acquittal, but rather could reduce the offense to second-degree manslaughter; the court’s failure to instruct the jury on second-degree manslaughter was therefore prejudicial error. Slaven v. Commonwealth, 962 S.W.2d 845, 1997 Ky. LEXIS 161 ( Ky. 1997 ).

Trial court properly denied defendant’s request for a jury instruction on voluntary intoxication as, although defendant was delusional from drug abuse, he killed the victim intentionally. Lickliter v. Commonwealth, 142 S.W.3d 65, 2004 Ky. LEXIS 173 ( Ky. 2004 ).

Trial court properly denied defendant’s request for a jury instruction on second-degree manslaughter as defendant was not entitled to an instruction on voluntary intoxication. Lickliter v. Commonwealth, 142 S.W.3d 65, 2004 Ky. LEXIS 173 ( Ky. 2004 ).

Trial court properly refused to give the jury an instruction on voluntary intoxication as a defense to defendant’s criminal charges, as mere drunkenness was not sufficient to warrant such an instruction, and defendant had stated that he was as “cool as a cucumber” during the incident; there was no evidence that defendant was so intoxicated that he did not know what he was doing. Morgan v. Commonwealth, 189 S.W.3d 99, 2006 Ky. LEXIS 12 ( Ky. 2006 ), overruled, Shane v. Commonwealth, 243 S.W.3d 336, 2007 Ky. LEXIS 262 ( Ky. 2007 ), overruled in part, Roe v. Commonwealth, 2015 Ky. LEXIS 2080 (Ky. Sept. 24, 2015).

Trial court properly declined to issue a voluntary intoxication jury instruction where defendant admitted that he often drank heavily, an officer who took defendant’s statement about the events on the night of the murder testified that he smelled alcohol on defendant’s breath, but that he did not appear to be intoxicated, defendant’s statements to the police indicated that he remembered the events and circumstances clearly, and thus, his actions were not those of a man so intoxicated that he did not know what he was doing. Fredline v. Commonwealth, 241 S.W.3d 793, 2007 Ky. LEXIS 261 ( Ky. 2007 ).

Defendant was not entitled to a voluntary intoxication instruction under KRS 501.080(1) because, even construed favorably to defendant, the evidence showed only that, although he had drunk heavily that afternoon, at least an hour-and-a-half before the offense he understood his son-in-law’s request to borrow money, he was in sufficient control of himself and was aware enough of his circumstances to join to other men’s excursion with the victim, and after returning from the excursion he not only remembered the killing but boasted of it. Harris v. Commonwealth, 313 S.W.3d 40, 2010 Ky. LEXIS 110 ( Ky. 2010 ).

In a death penalty case, the court properly rejected an intoxication instruction because, although petitioner had been drinking alcohol and smoking both marijuana and crack cocaine on the evening of the murders, there was no evidence that petitioner was so intoxicated that he did not know what he was doing. To the contrary, petitioner was able to operate an automobile, purchase items at a convenient store, and play cards with his friends. Wheeler v. Simpson, 2011 U.S. Dist. LEXIS 161135 (W.D. Ky. Jan. 12, 2011).

In defendant’s drug trafficking case, the court properly refused an instruction on intoxication because, although defendant was intoxicated, his overall conduct and other evidence showed that he was not so impaired that he did not know what he was doing. A detective testified that defendant approached his car when he pulled up, and stated, when asked, “I’ve got nothing.” Wilson v. Commonwealth, 2012 Ky. App. LEXIS 27 (Ky. Ct. App. Feb. 10, 2012).

Defendant was not entitled to an intoxication instruction because defendant's conduct clearly manifested the ability to form the intent required to govern defendant's behavior and act in accordance with defendant's intentions in the assault upon the victim. Hammond v. Commonwealth, 504 S.W.3d 44, 2016 Ky. LEXIS 626 ( Ky. 2016 ).

Court declined to grant a certificate of appealability as to the jury-instruction claims because although there was evidence that the applicant had used crack cocaine and could have consumed alcohol as well, there was no evidence to suggest that she did not know what she was doing. Caudill v. Conover, 2016 U.S. App. LEXIS 24161 (6th Cir. May 11, 2016).

Trial court did not abuse its discretion by declining to give defendant’s tendered voluntary intoxication instruction because her testimony was not corroborated by evidence admitted at trial. Brafman v. Commonwealth, 612 S.W.3d 850, 2020 Ky. LEXIS 455 ( Ky. 2020 ).

Circuit court properly convicted defendant, based on a jury verdict, of murder, first-degree assault, and first-degree wanton endangerment of a child because the proof did not establish a dramatic, triggering event supporting jury instructions on self-defense, extreme emotional disturbance, and voluntary intoxication since there was no sign of choking or other fresh injury to defendant’s neck, his words did not describe an explosion of violence as a result of some triggering event, the proof did not show that he was so drunk he did not know what he was doing, and the Miranda warning he received at the police department. Hargroves v. Commonwealth, 615 S.W.3d 1, 2021 Ky. LEXIS 6 ( Ky. 2021 ).

6.Specific Offenses.
7.— Arson.

Where the defendant was so intoxicated that he did not knowingly, willfully and with felonious intent commit the act of burning, he is not guilty, and an instruction should be given on that defense, if evidence authorized it. (Decided under prior law) Kehoe v. Commonwealth, 149 Ky. 400 , 149 S.W. 818, 1912 Ky. LEXIS 619 ( Ky. 1912 ).

8.— Burglary.

Voluntary drunkenness or a temporary insanity produced by it is not an excuse, but may be considered with respect to intent, where intent is an essential ingredient of the crime charged. (Decided under prior law) Patterson v. Commonwealth, 251 Ky. 395 , 65 S.W.2d 75, 1933 Ky. LEXIS 879 ( Ky. 1933 ). See Kidd v. Commonwealth, 273 Ky. 300 , 116 S.W.2d 636, 1938 Ky. LEXIS 630 ( Ky. 1938 ).

Intent to steal is element of crime of “housebreaking”; evidence of drunkenness is admissible to show absence of intent, and where evidence justifies it, failure to charge that if accused was too drunk to have any intent, he should be acquitted, is error. (Decided under prior law) Allen v. Commonwealth, 277 Ky. 168 , 125 S.W.2d 1013, 1939 Ky. LEXIS 620 ( Ky. 1939 ).

In prosecution for storehouse breaking, had defendant been too drunk to have had an intent to steal, he could not have been guilty of storehouse breaking. (Decided under prior law) Hall v. Commonwealth, 310 Ky. 718 , 221 S.W.2d 652, 1949 Ky. LEXIS 999 ( Ky. 1949 ).

Where there was evidence that the defendant was a heavy drinker and that he was drunk on the night of the crime and remembered nothing that happened, an instruction on intoxication and its effect on intent should have been given. (Decided under prior law) Ray v. Commonwealth, 284 S.W.2d 76, 1955 Ky. LEXIS 11 ( Ky. 1955 ).

Trial court abused its discretion in excluding during the guilt phase of a first-degree burglary trial expert testimony relevant to a defense under KRS 501.080 that voluntary intoxication rendered defendant unable to form the specific-intent element of burglary; it was error to relegate the expert testimony to the penalty phase only. Weaver v. Commonwealth, 298 S.W.3d 851, 2009 Ky. LEXIS 328 ( Ky. 2009 ).

9.— Criminal Mischief.

Drunkenness does not furnish a defense for an offense under law that provided a penalty for damaging railroad equipment. (Decided under prior law) Conley v. Commonwealth, 98 Ky. 125 , 32 S.W. 285, 17 Ky. L. Rptr. 678 , 1895 Ky. LEXIS 20 ( Ky. 1895 ).

10.— Forcible Rape and Sodomy.

The drafters of the Penal Code did not intend to inject the elements of intent or knowledge, as they are defined in KRS 501.020 , into the crimes of forcible rape and sodomy so as to make voluntary intoxication available as a defense. Malone v. Commonwealth, 636 S.W.2d 647, 1982 Ky. LEXIS 276 ( Ky. 1982 ).

11.— Larceny.

The taking of a vehicle without the owner’s consent was a statutory form of larceny and, as felonious intent was not required, a failure to give an instruction on drunkenness as it affects intent was not error. (Decided under prior law) Murphy v. Commonwealth, 279 S.W.2d 767, 1955 Ky. LEXIS 534 ( Ky. 1955 ).

In a prosecution for operating a motor vehicle without the consent of the owner, wherein the evidence clearly established that at the time the automobile was taken the appellant was drunk to the point of being “physically incapable” of committing or participating in the crime charged, the appellant was entitled to a directed verdict. (Decided under prior law) Murphy v. Commonwealth, 279 S.W.2d 767, 1955 Ky. LEXIS 534 ( Ky. 1955 ).

Assuming that the evidence was sufficient to raise the defense of drunkenness to charge of grand larceny, defendant was not entitled to a directed verdict but he was entitled to an instruction covering such defense. (Decided under prior law) Hazel v. Commonwealth, 371 S.W.2d 635, 1963 Ky. LEXIS 107 ( Ky. 1963 ).

Where the defendant who was riding in an automobile in which stolen property was found, was drunk at the time of his arrest, and he asserted such drunkenness as a defense and an instruction was properly given on this defense, but he was nevertheless convicted, the evidence was sufficient to sustain a conviction. (Decided under prior law) Hazel v. Commonwealth, 371 S.W.2d 635, 1963 Ky. LEXIS 107 ( Ky. 1963 ).

12.— Malicious Assault.

The evidence of drunkenness was admissible to show lack of intent and to defeat a conviction for malicious assault, but it constituted no defense to the shooting in sudden affray and without previous malice on which the jury was instructed solely because of the defense of drunkenness. (Decided under prior law) Blackburn v. Commonwealth, 200 Ky. 638 , 255 S.W. 99, 1923 Ky. LEXIS 122 ( Ky. 1923 ).

Where there are lower degrees of the offense contained in the indictment, some of which do not contain the element of intent or malicious purpose, the fact of defendant’s intoxication should not be singled out in a separate instruction. (Decided under prior law) Slone v. Commonwealth, 238 Ky. 727 , 38 S.W.2d 709, 1931 Ky. LEXIS 309 ( Ky. 1931 ).

Specific instruction as to effect of drunkenness need not be given in prosecutions for malicious assault, since evidence of drunkenness would not tend to acquit accused, but would only tend to reduce the offense to that described in law that provided a criminal penalty for shooting, wounding or cutting in sudden affray or heat of passion. (Decided under prior law) Rice v. Commonwealth, 288 Ky. 152 , 155 S.W.2d 757, 1941 Ky. LEXIS 68 ( Ky. 1941 ).

Where, in prosecution for malicious cutting and wounding, the evidence was that defendant was drunk at the time of the offense, and the court gave instructions both on the felony of malicious cutting and wounding in heat or passion without previous malice, it was not error for the court to also give instruction that drunkenness was not a defense but could only be considered in mitigation. The drunkenness instruction was not necessary, in view of the giving of the misdemeanor instruction, but it did not, as defendant contended, unduly emphasize evil of defendant’s drunken condition. (Decided under prior law) Abbott v. Commonwealth, 305 Ky. 620 , 205 S.W.2d 348, 1947 Ky. LEXIS 901 ( Ky. 1947 ).

In prosecution for maliciously shooting and wounding another with intent to kill, where drinking of accused was for relief of pain occasioned by an infirmity rather than voluntary intoxication, giving of an instruction combining the two (2) elements was necessary, and giving alone the instruction on drunkenness was improper as serving to emphasize the fact of drunkenness without any relation to the malady from which the accused was suffering. (Decided under prior law) Teeters v. Commonwealth, 310 Ky. 546 , 221 S.W.2d 85, 1949 Ky. LEXIS 965 ( Ky. 1949 ).

Intoxication is usually not a defense to a crime but may render a person incapable of possessing malice to the extent necessary for a conviction under the statute denouncing willful and malicious shooting. (Decided under prior law) Cummins v. Commonwealth, 344 S.W.2d 611, 1961 Ky. LEXIS 238 ( Ky. 1961 ).

13.— Murder.

In murder prosecution, where court covered entire case in instructions on murder and manslaughter, it erred in accused’s favor in instructing upon drunkenness, since evidence of drunkenness was permissible to show lack of intent and defeat conviction under instruction on murder, but was no defense to killing of victim in sudden affray and without previous malice. (Decided under prior law) Richardson v. Commonwealth, 284 Ky. 319 , 144 S.W.2d 492, 1940 Ky. LEXIS 478 ( Ky. 1940 ).

Temporary impairments of reason when under influence of liquor do not constitute degree of insanity relieving one from willful crimes, since, being only temporary, they are voluntarily produced by one aware of consequences of consuming alcohol. (Decided under prior law) Smiddy v. Commonwealth, 287 Ky. 276 , 152 S.W.2d 949, 1941 Ky. LEXIS 532 ( Ky. 1941 ).

If a crime is committed when the accused is in a state of voluntary intoxication, the utmost effect that may be given to his condition in such circumstances will be to ameliorate his punishment where the crime charged consists of degrees. (Decided under prior law) Horn v. Commonwealth, 292 Ky. 587 , 167 S.W.2d 58, 1942 Ky. LEXIS 129 ( Ky. 1942 ).

The fact that the defendant was in a state of voluntary drunkenness at the time the offense was committed would not entitle him to an acquittal, but could only have the effect of reducing his crime from murder to voluntary manslaughter. (Decided under prior law) Henson v. Commonwealth, 314 S.W.2d 197, 1958 Ky. LEXIS 285 ( Ky. 1958 ).

Where a breathalyzer test taken an hour after a murder showed the defendant to have a blood-alcohol content of .015, but there was no evidence before the jury of defendant’s intoxication at the time he allegedly committed the murder, there was insufficient evidence of intoxication to require an instruction on voluntary manslaughter based on the theory that his drinking prevented defendant from having killed with malice aforethought. (Decided under prior law) Cox v. Commonwealth, 491 S.W.2d 834, 1973 Ky. LEXIS 607 (Ky.), cert. denied, 414 U.S. 862, 94 S. Ct. 81, 38 L. Ed. 2d 112, 1973 U.S. LEXIS 759 (U.S. 1973).

14.— Perjury.

Where there is sufficient evidence that the defendant was so intoxicated from the use of cocaine or whiskey as to incapacitate him to understand the testimony he gave or to willingly and knowingly swear falsely, he was entitled to an instruction authorizing his acquittal if the jury believed the evidence. (Decided under prior law) Williams v. Commonwealth, 113 Ky. 652 , 68 S.W. 871, 24 Ky. L. Rptr. 465 , 1902 Ky. LEXIS 95 ( Ky. 1902 ).

The fact that there was evidence that the defendant was drunk when he made gestures with a pistol toward another person does not authorize an instruction regarding intoxication as a defense to the charge that the defendant made false statements with regard to his use of the pistol. (Decided under prior law) Shepherd v. Commonwealth, 240 Ky. 261 , 42 S.W.2d 311, 1931 Ky. LEXIS 385 ( Ky. 1931 ).

15.— Robbery.

An instruction that the accused was to be acquitted if he was by reason of drunkenness in such a mental condition that he did not know what he was doing or did not know the nature of his acts and was not capable of forming a felonious intent to rob his victim was proper. (Decided under prior law) Johnson v. Commonwealth, 302 S.W.2d 585, 1957 Ky. LEXIS 200 ( Ky. 1957 ).

16.— Voluntary Manslaughter.

Upon a trial for murder, evidence showing accused was drunk at the time he did the killing, being admissible to show want of malice, is sufficient to entitle accused to an instruction as to voluntary manslaughter. (Decided under prior law) Bishop v. Commonwealth, 109 Ky. 558 , 60 S.W. 190, 22 Ky. L. Rptr. 1161 , 1901 Ky. LEXIS 16 ( Ky. 1901 ).

While defendant testified he was not drunk, and his testimony indicated he had sufficient mind and memory to give a connected narrative of circumstances, drunkenness instruction was not required. (Decided under prior law) Zeutzius v. Commonwealth, 280 Ky. 455 , 133 S.W.2d 746, 1939 Ky. LEXIS 162 ( Ky. 1939 ).

In a prosecution for voluntary manslaughter, the defendant was not entitled to an instruction on drunkenness where the defendant had testified that he had not been drinking and the only evidence as to the defendant’s intoxication was introduced by the prosecution. (Decided under prior law) Jones v. Commonwealth, 311 S.W.2d 190, 1958 Ky. LEXIS 181 ( Ky. 1958 ).

In a case where defendant denied inflicting the fatal wound on the deceased stating that he was too drunk to have been capable of doing harm, it was not error for the court to fail to give instructions of lesser degrees of homicide and on drunkenness where instructions were given on murder and voluntary manslaughter. (Decided under prior law) Henson v. Commonwealth, 314 S.W.2d 197, 1958 Ky. LEXIS 285 ( Ky. 1958 ).

Where a breathalyzer test taken an hour after a murder showed the defendant to have a blood-alcohol content of .015, but there was no evidence before the jury of defendant’s intoxication at the time he allegedly committed the murder, there was insufficient evidence of intoxication to require an instruction on voluntary manslaughter based on the theory that defendant’s drinking prevented him from having killed with malice aforethought. (Decided under prior law) Cox v. Commonwealth, 491 S.W.2d 834, 1973 Ky. LEXIS 607 (Ky.), cert. denied, 414 U.S. 862, 94 S. Ct. 81, 38 L. Ed. 2d 112, 1973 U.S. LEXIS 759 (U.S. 1973).

Cited:

Callison v. Commonwealth, 706 S.W.2d 434, 1986 Ky. App. LEXIS 1073 (Ky. Ct. App. 1986).

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Ashdown, Criminal Law, 64 Ky. L.J. 337 (1975-76).

Kentucky Law Survey: Quick, Criminal Procedure, 66 Ky. L.J. 605 (1977-1978).

Northern Kentucky Law Review.

Vaughn and Moore, Battered Spouse Defense In Kentucky, 10 N. Ky. L. Rev. 399 (1983).

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Defenses, Part 3 Absence of Criminal Responsibility, § 11.30.

Kentucky Instructions To Juries (Criminal), 5th Ed., General Principles, Part 1 Matters of Substance, § 1.03.

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Related to Sex and Pornography, Part 2 Rape, § 4.23.

501.090. Liability — Duress.

  1. In any prosecution for an offense other than an intentional homicide, it is a defense that the defendant engaged in the proscribed conduct because he was coerced to do so by the use of, or a threat of the use of, unlawful physical force against him or another person which a person in his situation could not reasonably be expected to resist.
  2. The defense provided by subsection (1) is unavailable if the defendant intentionally or wantonly placed himself in a situation in which it was probable that he would be subjected to coercion.

History. Enact. Acts 1974, ch. 406, § 19, effective January 1, 1975.

NOTES TO DECISIONS

1.Evidence.

The court erred when it failed to instruct the jury with regard to duress based on the defendant’s testimony that the codefendant threatened to kill him if he did not take the victim’s truck, notwithstanding that the factual predicate for such claim was implausible at best; however, given the implausibility of the claim and the fact that the jury exonerated the defendant from his involvement in such crime, the error was harmless. Taylor v. Commonwealth, 995 S.W.2d 355, 1999 Ky. LEXIS 73 ( Ky. 1999 ).

Defendant’s claim that he escaped from custody because before leaving for court he received a threat that after his return he would be forced to perform oral sex on other inmates did not justify a coercion instruction. Bates v. Commonwealth, 145 S.W.3d 845, 2004 Ky. App. LEXIS 272 (Ky. Ct. App. 2004).

2.Intentional Murder.

Because duress was not a defense to intentional murder under KRS 501.090 , it was reasonable trial strategy by defendant’s trial counsel to present such evidence at the penalty stage instead of the guilt/innocence phase. Halvorsen v. Commonwealth, 258 S.W.3d 1, 2007 Ky. LEXIS 177 ( Ky. 2007 ).

3.Jury Instructions.

In a prosecution on a charge of robbery in the first degree, the trial court did not err in refusing to give a duress instruction because once the acquaintance had dropped her off at the bank, defendant was no longer exposed to his threat and it was reasonable to have expected her not to follow through with the robbery, but to seek help from bank personnel or the police. Lawless v. Commonwealth, 323 S.W.3d 676, 2010 Ky. LEXIS 179 ( Ky. 2010 ).

Defendant was entitled to a duress instruction, based upon defendant's theory that co-perpetrators had intimidated defendant into committing the crimes against the victim, because it was abundantly reasonable to expect a person in the situation which defendant claimed to resist the co-perpetrators' alleged coercive tactics when defendant had easy opportunities to extract defendant from the situation and to save the victim's life. Hammond v. Commonwealth, 504 S.W.3d 44, 2016 Ky. LEXIS 626 ( Ky. 2016 ).

Research References and Practice Aids

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Assaults and Restraints of Persons, Part 1 Definitions, § 3.06.

Kentucky Instructions To Juries (Criminal), 5th Ed., Defenses, Part 3 Absence of Criminal Responsibility, § 11.29.

501.100. Offense against a vulnerable victim.

  1. As used in this section, “offense against a vulnerable victim” means any violation of:
    1. KRS 508.100 ;
    2. KRS 508.110 ;
    3. KRS 508.120 ;
    4. KRS 510.040 , 510.050 , 510.060 , 510.070 , 510.080 , 510.090 , 510.110 , 510.120 , or 530.020 , if the victim is under the age of fourteen (14), or if the victim is an individual with an intellectual disability, physically helpless, or mentally incapacitated, as those terms are defined in KRS 510.010 ;
    5. KRS 529.100 or 529.110 if the victim is a minor;
    6. KRS 530.064(1)(a);
    7. KRS 531.310 ;
    8. KRS 531.320 ; or
    9. Any felony in KRS Chapter 209.
  2. A person may be charged with committing an offense against a vulnerable victim in a continuing course of conduct if the unlawful act was committed against the same person two (2) or more times over a specified period of time.
  3. If a person is charged as committing the crime in a continuing course of conduct, the indictment shall clearly charge that the crime was committed in a continuing course of conduct.
  4. To convict a person of an offense against a vulnerable victim in a continuing course of conduct, the jury shall unanimously agree that two (2) or more acts in violation of the same statute occurred during the specified period of time. The jury need not agree on which specific acts occurred.
  5. If a person is convicted of an offense against a vulnerable victim in a continuing course of conduct, that person may not also be convicted of charges based on the individual unlawful acts that were part of the continuing course of conduct.
  6. The penalty, probation and parole eligibility, and other consequences of an offense charged under this section shall be the same as for the offense when charged based on an individual act.
  7. The applicability of this section shall be governed by the age of the victim at the time of the offense.

HISTORY: 2016 ch. 83, § 1, effective April 9, 2016.

501.110. Offense committed with the aid of an unmanned aircraft system.

A person is guilty of an offense committed with the aid of an unmanned aircraft system if the unmanned aircraft system is under his or her control and the conduct would have given rise to criminal liability for the offense if performed directly by the person, unless the conduct consists solely of flying the unmanned aircraft system through navigable airspace in the normal course of operation of a legally registered unmanned aircraft system.

HISTORY: 2018 ch. 26, § 2, effective July 14, 2018.

CHAPTER 502 Parties to Offenses: Accountability

502.010. Liability for conduct of innocent or irresponsible person.

  1. A person is guilty of an offense committed by an innocent or irresponsible person when he:
    1. Acts with the culpability that is sufficient for commission of that offense; and
    2. Causes that innocent or irresponsible person to engage in conduct constituting the offense.
  2. As used in this section, an “innocent or irresponsible person” includes anyone who is not guilty of the offense in question, despite his participation, because of:
    1. Criminal irresponsibility or other legal incapacity or exemption; or
    2. Unawareness of the criminal nature of the conduct in question or the defendant’s criminal purpose; or
    3. Any other factor precluding the mental state sufficient for the commission of the offense in question.

History. Enact. Acts 1974, ch. 406, § 20, effective January 1, 1975.

Research References and Practice Aids

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Complicity and Inchoate Offenses, Part 2 Complicity, § 10.08.

502.020. Liability for conduct of another — Complicity.

  1. A person is guilty of an offense committed by another person when, with the intention of promoting or facilitating the commission of the offense, he:
    1. Solicits, commands, or engages in a conspiracy with such other person to commit the offense; or
    2. Aids, counsels, or attempts to aid such person in planning or committing the offense; or
    3. Having a legal duty to prevent the commission of the offense, fails to make a proper effort to do so.
  2. When causing a particular result is an element of an offense, a person who acts with the kind of culpability with respect to the result that is sufficient for the commission of the offense is guilty of that offense when he:
    1. Solicits or engages in a conspiracy with another person to engage in the conduct causing such result; or
    2. Aids, counsels, or attempts to aid another person in planning, or engaging in the conduct causing such result; or
    3. Having a legal duty to prevent the conduct causing the result, fails to make a proper effort to do so.

History. Enact. Acts 1974, ch. 406, § 21, effective January 1, 1975.

NOTES TO DECISIONS

1.Constitutionality.

At the time the defendant committed the offense of wanton murder by complicity, she had fair warning that her failure to make a proper effort to protect her child from her husband’s assaults violated her legal duty to do so and, therefore, her conviction did not result in an ex post facto violation. Tharp v. Commonwealth, 40 S.W.3d 356, 2000 Ky. LEXIS 200 ( Ky. 2000 ), cert. denied, 534 U.S. 928, 122 S. Ct. 289, 151 L. Ed. 2d 213, 2001 U.S. LEXIS 7122 (U.S. 2001).

Defendant’s retrial on burglary in the third degree under KRS 511.040 was barred by double jeopardy pursuant to Ky. Const., § 13; the jury was called on to consider two (2) distinct offenses, complicity to burglary and burglary in the third degree, and the jury convicted defendant of complicity to burglary, thereby necessarily acquitting defendant of burglary in the third degree. McKenzie v. Commonwealth, 2005 Ky. App. LEXIS 54 (Ky. Ct. App. Mar. 4, 2005), rev'd, 214 S.W.3d 306, 2007 Ky. LEXIS 22 ( Ky. 2007 ).

2.Accessory Before the Fact.

A defendant charged as an accessory before the fact may be convicted though the principals, even though indicted, were not in custody nor out on bail as long as the guilt of the principals is established during the defendant’s trial. (Decided under prior law) Begley v. Commonwealth, 82 S.W. 285, 26 Ky. L. Rptr. 598 , 1904 Ky. LEXIS 394 (Ky. Ct. App. 1904); Tucker v. Commonwealth, 145 Ky. 84 , 140 S.W. 73, 1911 Ky. LEXIS 801 ( Ky. 1911 ); Commonwealth v. Lawson, 165 Ky. 4 , 176 S.W. 359, 1915 Ky. LEXIS 471 ( Ky. 1915 ).

Evidence that defendant, accused of aiding and abetting another in assault with intent to rob, was in place where robbery was committed immediately before the robbery, appeared nervous, and was seen in vacant house with accomplice immediately after robbery and could give no valid reason for being there was sufficient corroboration of accomplice’s testimony implicating defendant. (Decided under prior law) Fife v. Commonwealth, 279 Ky. 14 , 129 S.W.2d 983, 1939 Ky. LEXIS 224 ( Ky. 1939 ).

Where the proof adduced constitutes defendant both accessory before and after the fact, if not a principal, he is equally guilty with the principal though the principal is not taken or tried. (Decided under prior law) Miller v. Commonwealth, 285 Ky. 251 , 147 S.W.2d 394, 1941 Ky. LEXIS 364 ( Ky. 1941 ).

An accessory before the fact is one who was not present, actually or constructively, when the crime was committed but who counseled, incited, instigated, procured or commanded the one who did the act to do it. He is distinguished from an aider and abettor by the fact that the latter must be present at the commission of the offense. (Decided under prior law) Sams v. Commonwealth, 294 Ky. 393 , 171 S.W.2d 989, 1943 Ky. LEXIS 450 ( Ky. 1943 ).

The guilt of an aider and abettor is determinable by his motives and actual participation, while the guilt of an accessory before the fact is determinable by his influence over the actual perpetrator of the crime. (Decided under prior law) Sams v. Commonwealth, 294 Ky. 393 , 171 S.W.2d 989, 1943 Ky. LEXIS 450 ( Ky. 1943 ).

A person cannot be an accessory before the fact to a killing in sudden heat and passion. (Decided under prior law) Sams v. Commonwealth, 294 Ky. 393 , 171 S.W.2d 989, 1943 Ky. LEXIS 450 ( Ky. 1943 ).

An accessory may be tried and convicted independently of the principal and, even though the principal be acquitted, the state must nevertheless prove that someone other than the accessory was guilty of the actual commission of the crime. (Decided under prior law) Sams v. Commonwealth, 294 Ky. 393 , 171 S.W.2d 989, 1943 Ky. LEXIS 450 ( Ky. 1943 ).

Lack of motive for principal to involve accessory coupled with motive for crime on part of accessory and knowledge and willingness on part of accessory that crime is to be committed may be considered in determining whether there is sufficient corroboration of testimony of principal accusing accessory. (Decided under prior law) Sams v. Commonwealth, 294 Ky. 393 , 171 S.W.2d 989, 1943 Ky. LEXIS 450 ( Ky. 1943 ).

Where defendant’s husband was killed by defendant’s paramour, evidence that the pistol used in the killing was in possession of defendant before and after the killing, that she made statements after the killing indicating belief that a murder had been committed, that she had talked with paramour about killing her husband, and that she concealed important facts was sufficient to corroborate paramour’s testimony that she urged and commanded the killing. (Decided under prior law) Sams v. Commonwealth, 294 Ky. 393 , 171 S.W.2d 989, 1943 Ky. LEXIS 450 ( Ky. 1943 ).

An “accomplice” is one who participates in the commission of a crime along with another as principal, aider, abettor or accessory before the fact and who could be convicted as principal upon evidence heard against accused; but an accessory after the fact is not an “accomplice.” (Decided under prior law) Hall v. Commonwealth, 248 S.W.2d 417, 1952 Ky. LEXIS 740 ( Ky. 1952 ).

An “accomplice” is one who knowingly, voluntarily and with common intent unites with the principal in the commission of the offense either by being present and joining in the criminal act as an aider and abettor or, if absent, by advising and encouraging in its commission. (Decided under prior law) Chaney v. Commonwealth, 307 S.W.2d 770, 1957 Ky. LEXIS 112 ( Ky. 1957 ).

An “accomplice” is one who knowingly, voluntarily and with common intent unites with the principal in the perpetration of the crime either by being present and joining in the criminal act, by aiding and abetting in its commission, or, if not present, by advising and encouraging the performance of the act. (Decided under prior law) Head v. Commonwealth, 310 S.W.2d 285, 1958 Ky. LEXIS 388 ( Ky. 1958 ).

A familiar definition of an “accomplice” is one who participates in the commission of a crime whether as a principal, aider and abettor, or an accessory before the fact, and the usual test is whether or not witness could be convicted of the crime with which accused is charged. (Decided under prior law) Warren v. Commonwealth, 333 S.W.2d 766, 1960 Ky. LEXIS 208 ( Ky. 1960 ).

Cooperative activities of two (2) persons made one (1) of them as guilty as the other of robbery committed at such time. (Decided under prior law) Montgomery v. Commonwealth, 346 S.W.2d 479, 1961 Ky. LEXIS 308 ( Ky. 1961 ).

“An accomplice in the meaning of the law is one of several equally concerned in the commission of a crime, either as principal or one who aids or abets in the commission of the crime.” (Decided under prior law) Rue v. Commonwealth, 347 S.W.2d 74, 1961 Ky. LEXIS 344 ( Ky. 1961 ).

Telephone records offered through testimony of a telephone official showing calls made between the parties within the pertinent time served to corroborate the evidence of the person accused of performing the abortion and the person on whom the abortion was performed against the defendant accused of being an accessory before the fact to abortion. (Decided under prior law) Brown v. Commonwealth, 440 S.W.2d 520, 1969 Ky. LEXIS 342 ( Ky. 1969 ).

Where the jury was instructed to find the defendant guilty of being an accessory before the fact of grand larceny but by mistake found him guilty of grand larceny, since the defendant failed to show that he was prejudiced, or that he made any effort in the trial court to correct the judgment, he was not entitled to relief on appeal. (Decided under prior law) Allee v. Commonwealth, 454 S.W.2d 336, 1970 Ky. LEXIS 272 ( Ky. 1970 ), cert. dismissed, 401 U.S. 950, 91 S. Ct. 1186, 28 L. Ed. 2d 234, 1971 U.S. LEXIS 2792 (U.S. 1971).

3.Accomplices.

An abettor before the fact is equally guilty with the principal and subject to the same punishment. (Decided under prior law) Long v. Commonwealth, 288 Ky. 83 , 155 S.W.2d 246, 1941 Ky. LEXIS 42 ( Ky. 1941 ).

When defendant was convicted as accessory before the fact, the fact that his codefendant later pleaded guilty as accessory did not alter defendant’s situation. (Decided under prior law) Smith v. Commonwealth, 288 Ky. 831 , 157 S.W.2d 79, 1941 Ky. LEXIS 163 ( Ky. 1941 ).

When certain evidence indicated that defendant committed the murder but defendant admitted to being an accessory before the fact and was convicted as an accessory, it was immaterial who actually did the slaying, since the law provided the same penalty for both. (Decided under prior law) Smith v. Commonwealth, 288 Ky. 831 , 157 S.W.2d 79, 1941 Ky. LEXIS 163 ( Ky. 1941 ).

Where a witness in a prosecution for armed assault with intent to rob overheard robbery plans being formulated but was in another place at the time the offense was committed, the mere fact that she had associated with the defendants prior to the offense is not sufficient to make her an accomplice where there is no evidence that she aided or encouraged any of the defendants in the commission of the crime. (Decided under prior law) Head v. Commonwealth, 310 S.W.2d 285, 1958 Ky. LEXIS 388 ( Ky. 1958 ).

Mere association with the accused or mere presence at time of commission of the offense does not make one an accomplice. (Decided under prior law) Warren v. Commonwealth, 333 S.W.2d 766, 1960 Ky. LEXIS 208 ( Ky. 1960 ).

Guilt may not be established by proof of association of an accused with the perpetrators of a crime before and after its commission. (Decided under prior law) Commonwealth v. Truglio, 371 S.W.2d 648, 1963 Ky. LEXIS 112 ( Ky. 1963 ).

An acceptable test of whether a witness was an accomplice for the purposes of RCr 9.62 was whether he could have been convicted as an aider and abettor, a principal, or an accessory before the fact. (Decided under prior law) Mouser v. Commonwealth, 491 S.W.2d 821, 1973 Ky. LEXIS 604 ( Ky. 1973 ).

While it is true that, under Kentucky law, one accomplice can be liable for the unintended acts of the other, they must first, using the principals of complicity, be accomplices in the initial crime. Bennett v. Commonwealth, 2003 Ky. App. Unpub. LEXIS 433 (Ky. Ct. App. Apr. 11, 2003).

Where the Oxford English Dictionary defines accomplice as a “partner or helper” and complicity as “partnership in a crime or wrongdoing,” but the jury instructions did not define “accomplice” or “complicity” and actually misstated what the law required, the trial court’s answer to the jury question over defendant’s objection was error as it encouraged the jury to speculate on what was required to convict defendant. Bennett v. Commonwealth, 2003 Ky. App. Unpub. LEXIS 433 (Ky. Ct. App. Apr. 11, 2003).

4.Aiding and Abetting.
5.— Escape.

Under law that provided a penalty for aiding another to escape from jail or custody the guilt or innocence of those whose escape was effected did not enter into the consideration of the case; the only question was, was the prisoner charged with a misdemeanor and was he in lawful custody of an officer. (Decided under prior law) Fluty v. Commonwealth, 105 S.W. 138, 32 Ky. L. Rptr. 89 (1907); Whitaker v. Commonwealth, 188 Ky. 95 , 221 S.W. 215, 1920 Ky. LEXIS 238 ( Ky. 1920 ).

If the person aided to escape is not confined on a charge of felony, the offense is only a misdemeanor, and the intent to facilitate the escape of one confined on conviction or charge of felony is of the essence of the offense to make it a felony. This must be set out in the instructions. (Decided under prior law) Edwards v. Commonwealth, 145 Ky. 560 , 140 S.W. 1046, 1911 Ky. LEXIS 916 ( Ky. 1911 ).

Law providing a penalty for aiding another to escape from jail or from custody applied to aiding a person who had already been convicted of an offense as well as to aiding a person charged with an offense. (Decided under prior law) Bailey v. Commonwealth, 200 Ky. 271 , 254 S.W. 897, 1923 Ky. LEXIS 68 ( Ky. 1923 ).

If a prisoner is confined on a felony charge and his escape is effected, the one aiding him to escape is guilty of a felony. (Decided under prior law) Gross v. Commonwealth, 221 Ky. 168 , 298 S.W. 376, 1927 Ky. LEXIS 672 ( Ky. 1927 ).

If the prisoner does not escape or if he is confined on a misdemeanor charge, the offense of aiding him is a misdemeanor. (Decided under prior law) Gross v. Commonwealth, 221 Ky. 168 , 298 S.W. 376, 1927 Ky. LEXIS 672 ( Ky. 1927 ).

The fact that defendant, accused of aiding a fellow prisoner to escape, also left the jail is some circumstantial evidence of his guilt. (Decided under prior law) Manning v. Commonwealth, 281 Ky. 737 , 137 S.W.2d 404, 1940 Ky. LEXIS 103 ( Ky. 1940 ).

In a prosecution for aiding a prisoner to escape from jail, defendant was not entitled to peremptory instruction on his mere allegation that the witnesses against him were his accomplices. Whether or not the witnesses were his accomplices was a question for the jury. (Decided under prior law) Manning v. Commonwealth, 281 Ky. 737 , 137 S.W.2d 404, 1940 Ky. LEXIS 103 ( Ky. 1940 ).

Law that provided a penalty for aiding another to escape from jail or custody did not cover a prisoner’s own escape. (Decided under prior law) Rader v. Commonwealth, 300 Ky. 827 , 190 S.W.2d 557, 1945 Ky. LEXIS 664 ( Ky. 1945 ).

Where a prisoner, confined in jail on a misdemeanor charge, was indicted under law that provided a penalty for aiding another to escape jail on the ground that he procured hacksaw blades to be conveyed into the jail and used them to saw bars in order to facilitate escape of a cell mate who was in jail on a felony charge, it was error for the court to instruct that defendant could be found guilty if he procured and used the blades to facilitate “escape of prisoners then and there confined in said jail and being detained in said jail on a charge of felony or otherwise aid any persons to escape,” since such instruction would authorize conviction even if the jury believed, as claimed by defendant, that his sole purpose was to make his own escape and not that of the cell mate. (Decided under prior law) Rader v. Commonwealth, 300 Ky. 827 , 190 S.W.2d 557, 1945 Ky. LEXIS 664 ( Ky. 1945 ).

6.— Murder.

If what the accused did is sufficient to constitute him an aider and abettor, as being actually present and participating in the commission of a felony, it is not essential that there should have been a pre-arranged planning or concert of action. (Decided under prior law) Simpson v. Commonwealth, 293 Ky. 831 , 170 S.W.2d 869, 1943 Ky. LEXIS 717 ( Ky. 1943 ).

Where two (1) or more persons conspire or combine to commit an unlawful act, each is criminally responsible for what his associate does in furtherance or prosecution of the common design and if a homicide results in pursuance of the common purpose all parties participating are responsible in the same degree even though the killing was not a part of the pre-arranged plan. (Decided under prior law) Simpson v. Commonwealth, 293 Ky. 831 , 170 S.W.2d 869, 1943 Ky. LEXIS 717 ( Ky. 1943 ).

Where defendant was indicted for murder along with several alleged accomplices, but on the trial there was absolutely no evidence introduced connecting the others with the crime, it was prejudicial error for court to give instruction authorizing conviction of defendant as an aider and abettor of the others. (Decided under prior law) Napier v. Commonwealth, 306 Ky. 75 , 206 S.W.2d 53, 1947 Ky. LEXIS 944 ( Ky. 1947 ).

The statement of one (1) of the defendants that he was present at the murder and that it was a needless killing, but that he did not do it, and the finding of a wallet belonging to the deceased in the bedroom of the other defendant constituted sufficient evidence corroborating the connection of the defendants with the commission of the crime as required by RCr 9.62, to sustain their conviction. (Decided under prior law) Caine v. Commonwealth, 491 S.W.2d 824, 1973 Ky. LEXIS 605 (Ky.), cert. denied, 414 U.S. 876, 94 S. Ct. 80, 38 L. Ed. 2d 121, 1973 U.S. LEXIS 885 (U.S. 1973).

7.— Malicious Assault.

In malicious assault prosecution, if defendant willfully and maliciously shot at and wounded another he was guilty, or if he aided, counseled, or advised another to do so he was likewise guilty. (Decided under prior law) Spillman v. Commonwealth, 48 S.W. 978, 20 Ky. L. Rptr. 1125 (1899).

Conviction of aiding and abetting in malicious shooting was sustained by evidence that immediately preceding shooting accused secretly communicated with principal urging him to exercise nerve in some prospective undertaking, handed him pistol, and, according to practically all the testimony, was present when shooting occurred. (Decided under prior law) McKinney v. Commonwealth, 284 Ky. 16 , 143 S.W.2d 745, 1940 Ky. LEXIS 433 ( Ky. 1940 ).

One jointly indicted with another as principal only may be convicted as aider and abettor. (Decided under prior law) McKinney v. Commonwealth, 284 Ky. 16 , 143 S.W.2d 745, 1940 Ky. LEXIS 433 ( Ky. 1940 ).

Where indictment of defendant accused him alone of having committed offense of shooting into the dwelling of another, and no mention was made of his aiding and abetting his father as principal, nor was his father jointly indicted with him as a principal, and evidence authorized defendant’s conviction only of aiding and abetting his father, conviction of defendant under instruction on aiding and abetting alone was reversible error. (Decided under prior law) Stacy v. Commonwealth, 301 Ky. 379 , 192 S.W.2d 94, 1946 Ky. LEXIS 480 ( Ky. 1946 ).

To constitute one an aider and abettor, he must share criminal intent or purpose of principal. (Decided under prior law) Helton v. Commonwealth, 244 S.W.2d 762, 1951 Ky. LEXIS 1248 ( Ky. 1951 ).

Where malice and willfulness and an intent to kill are condition of guilt of principal, same predicate must be laid down, or same condition must be found, in order to convict an aider and abettor. (Decided under prior law) Helton v. Commonwealth, 244 S.W.2d 762, 1951 Ky. LEXIS 1248 ( Ky. 1951 ).

In prosecution on charge of aiding and abetting, under law that provided a penalty for the malicious and willful shooting, cutting or poisoning another, mere presence at scene of crime was not sufficient to attach guilt to the accused, but other facts and circumstances had to be shown connecting accused with the affray in order to justify submission of case to the jury. (Decided under prior law) Moore v. Commonwealth, 282 S.W.2d 613, 1955 Ky. LEXIS 252 ( Ky. 1955 ).

Mere acquiescence in, or approval of the criminal act, without cooperation or agreement to cooperate in its commission, is not sufficient to constitute one an aider and abettor. (Decided under prior law) Moore v. Commonwealth, 282 S.W.2d 613, 1955 Ky. LEXIS 252 ( Ky. 1955 ).

To constitute one an “aider and abettor,” he must not only be on the ground, and by his presence aid, encourage or incite the principal to commit the crime, but he must share the criminal intent or purpose of the principal. (Decided under prior law) Moore v. Commonwealth, 282 S.W.2d 613, 1955 Ky. LEXIS 252 ( Ky. 1955 ).

5.Conspiracy.

Defendant’s conviction for conspiracy to manufacture methamphetamine obtained in the second forum county had to be vacated, as defendant earlier had been convicted in the first forum county for attempted manufacturing of methamphetamine after being indicted under the same statutes, KRS 218A.1432 and KRS 502.020 . As a result, the second conviction violated double jeopardy principles not only under Ky. Const. § 13, but also the codification of double jeopardy principles, KRS 505.030 . Beeler v. Commonwealth, 2011 Ky. App. LEXIS 39 (Ky. Ct. App. Mar. 4, 2011, sub. op., 2011 Ky. App. Unpub. LEXIS 991 (Ky. Ct. App. Mar. 4, 2011).

8.Complicity.

Because defendant provided transportation for a robbery where a murder occurred, the evidence was sufficient to find defendant guilty of complicity to commit both first-degree robbery and wanton murder under KRS 502.020(1), 515.020 , 507.020 ; evidence of defendant’s child-support arrearage was relevant under KRE 404(b) to show defendant’s motive for the robbery. Meredith v. Commonwealth, 164 S.W.3d 500, 2003 Ky. LEXIS 303 ( Ky. 2005 ).

Where the Oxford English Dictionary defines accomplice as a “partner or helper” and complicity as “partnership in a crime or wrongdoing,” but the jury instructions did not define “accomplice” or “complicity” and actually misstated what the law required, the trial court’s answer to the jury question over defendant’s objection was error as it encouraged the jury to speculate on what was required to convict defendant. Bennett v. Commonwealth, 2003 Ky. App. Unpub. LEXIS 433 (Ky. Ct. App. Apr. 11, 2003).

Evidence supported defendant’s conviction for complicity to manufacture and possess methamphetamine and complicity to use/possess drug paraphernalia under KRS 218A.1432 , 281A.1415, 218A.500 and 502.020 as: (1) defendant climbed out a window of a trailer and attempted to flee when officers arrived; (2) defendant was unseasonably dressed when defendant was apprehended; (3) there was a strong odor of ammonia on the clothes of defendant; (4) defendant and codefendant led the officers to believe the trailer was defendant’s home; and (5) the written consent form defendant signed allowing officers to search the trailer clearly indicated defendant was giving the officers consent to search the home of defendant. Cantrell v. Commonwealth, 288 S.W.3d 291, 2009 Ky. LEXIS 162 ( Ky. 2009 ).

Where defendant provided the handguns that he and co-defendant used to commit a robbery, where both men fired their handguns at witnesses to the robbery, and where a bullet from co-defendant’s gun struck and killed a victim, the evidence was sufficient to support defendant’s conviction of complicity to murder because the evidence showed that defendant possessed the requisite culpability under KRS 507.020(1)(b) to make him an accomplice to the result under KRS 502.020(2) where defendant participated in, if not led, the armed robbery. Based upon the evidence, it would not be unreasonable for the jury to conclude that defendant acted as an accomplice in the murder of the victim with wantonness, creating a grave risk of death under circumstances manifesting an extreme indifference to human life. Beaumont v. Commonwealth, 295 S.W.3d 60, 2009 Ky. LEXIS 325 ( Ky. 2009 ).

In a controlled drug buy, an informant approached a car occupied by defendant and a passenger; the informant gave defendant money and defendant handed the informant an oxycodone tablet but the informant was unsure whether defendant handed the passenger the money or if the passenger handed defendant the pill. While defendant was originally indicted for trafficking in a controlled substance in violation of KRS 218A.1412(1) as a principal actor, RCr P. 6.16 permitted the indictment to be amended to charge her under a complicity theory of guilt under KRS 502.020(1); defendant was not prejudiced by the amendment, because both the complicity and principal actor theories of guilt were supported by the evidence. Commonwealth v. Combs, 316 S.W.3d 877, 2010 Ky. LEXIS 112 ( Ky. 2010 ).

Evidence was sufficient to support defendant’s conviction of first-degree complicity to trafficking in a controlled substance in violation of KRS 502.020 , 218A.1412 (a) because it showed that defendant took both phone calls from the informant, discussed with him the availability and sale of the drugs, arranged the sale, drove herself and the person who had the drugs to the meeting place, and took $ 100 from the informant. Childers v. Commonwealth, 2010 Ky. LEXIS 285 (Ky. Dec. 16, 2010), sub. op., 332 S.W.3d 64, 2010 Ky. LEXIS 306 ( Ky. 2010 ).

Evidence was sufficient to support defendant’s conviction of complicity to trafficking in a controlled substance in the first degree under KRS 502.020 and KRS 218A.1412 (a) because it showed that defendant took two phone calls from the buyer, who was acting as a confidential informant for the police; discussed with the buyer the availability and sale of the drugs, including type, quantity and price; located the Oxycodone for the buyer; arranged the sale; drove herself and the person allegedly in possession of the drugs to the meeting place in order for the buy to occur; and took the $100 buy money from the buyer. Further, the forensic examination confirmed that the pills were Oxycodone, a Schedule II controlled substance. Childers v. Commonwealth, 332 S.W.3d 64, 2010 Ky. LEXIS 30 6 ( Ky. 2010 ), overruled in part, Allen v. Commonwealth, 395 S.W.3d 451, 2013 Ky. LEXIS 30 ( Ky. 2013 ).

Although the complicity (accessory) jury instructions for burglary and robbery did not properly appraise the jury of the specific intent or knowledge required under KRS 502.020(1), defendant had not preserved the issue for appeal, and manifest injustice under RCr P. 10.26 was not shown. Smith v. Commonwealth, 370 S.W.3d 871, 2012 Ky. LEXIS 96 ( Ky. 2012 ).

In a murder case involving two defendants, the complicity instruction was proper because the evidence adequately supported a reasonable juror’s conclusion that defendant participated directly in the brutal beating of the child and/or lent aid to the co-defendant’s beating of the child; therefore, the trial court’s combination principal/complicitor instruction was not improper. Peacher v. Commonwealth, 391 S.W.3d 821, 2013 Ky. LEXIS 11 ( Ky. 2013 ).

It was not clearly unreasonable for a jury to find that defendant intended to flee from police and was thus complicit with his co-defendant in fleeing or evading because the Commonwealth presented evidence to establish that defendant and his co-defendant burglarized and left the victim’s trailer together in a vehicle and that the vehicle did not yield to police commands to stop. McCleery v. Commonwealth, 410 S.W.3d 597, 2013 Ky. LEXIS 407 ( Ky. 2013 ) sub. nom.Darcy v. Commonwealth, 441 S.W.3d 77, 2014 Ky. LEXIS 433 ( Ky. 2014 ).

Sufficient evidence supported adjudicating a juvenile because (1) the juvenile’s specific intent or complicitors’ express pact was not required to show the juvenile’s complicity to the result to commit second-degree criminal mischief, (2) the juvenile admitted active involvement in the group that committed the crime, and (3) the evidence supported the juvenile’s presumed knowledge and disregard of the risk of probable resulting damage. R.S. v. Commonwealth, 423 S.W.3d 178, 2014 Ky. LEXIS 6 ( Ky. 2014 ).

Defendant's right to an unanimous verdict was not violated because the evidence consisted of only one criminal act on which liability could be found for robbery and one criminal act on which liability could be found for burglary as the Commonwealth presented evidence that defendant assisted in the planning and execution of the robbery; the Commonwealth clearly supported alternative theories that defendant acted as either a principle or an accomplice as to both the robbery and burglary charges; and the instructions were not so confusing or misleading as to lead the jury to believe that more than one criminal act was committed and that it could find guilt based on either one. Forte v. Commonwealth, 2016 Ky. App. LEXIS 182 (Ky. Ct. App. Nov. 4, 2016).

9.Conspiracy.

Conspiracy merely constitutes the factual basis supporting the agency relationship which imposes criminal liability upon a defendant for the conduct of his partners in crime. Tribbett v. Commonwealth, 561 S.W.2d 662, 1978 Ky. LEXIS 328 ( Ky. 1978 ).

Prisoner need not have possession of the contraband to be convicted of a conspiracy to introduce contraband into the jail. Fulton v. Commonwealth, 849 S.W.2d 553, 1992 Ky. App. LEXIS 203 (Ky. Ct. App. 1992).

An indictment was sufficient to charge the felony offense of promoting contraband in the first degree where it indicated that the offense was accomplished by conspiring to introduce dangerous contraband into a county jail. Fulton v. Commonwealth, 849 S.W.2d 553, 1992 Ky. App. LEXIS 203 (Ky. Ct. App. 1992).

A conspiracy, as envisioned by the statute, does not necessarily require detailed planning and a concomitant lengthy passage of time. Commonwealth v. Wolford, 4 S.W.3d 534, 1999 Ky. LEXIS 93 ( Ky. 1999 ).

10.Elements of Offense.

Distinction between third degree burglary and complicity to third degree burglary was the sort which prohibited an amendment of the indictment at trial because it involved a modification at trial in the elements of the crime charged and was prejudicial per se; a trial court erred in giving a complicity instruction where defendant had been charged with third degree burglary, but not with complicity to that crime, since such an amendment improperly modified the elements of the crime charged at trial. McKenzie v. Commonwealth, 2004 Ky. App. LEXIS 276 (Ky. Ct. App. Sept. 17, 2004), op. withdrawn, 2005 Ky. App. LEXIS 53 (Ky. Ct. App. Mar. 4, 2005), sub. op., 2005 Ky. App. LEXIS 54 (Ky. Ct. App. Mar. 4, 2005).

Commonwealth erred in charging defendant under Ky. Rev. Stat. Ann. § 502.020 (b) where the legislature had tied aggravated wantonness in Ky. Rev. Stat. Ann. § 507.040(1)(b) to the death of a child under eight wantonly left in a vehicle, the second-degree manslaughter statute was more specific, and thus, the prosecution could not elect which statute to apply. Shouse v. Commonwealth, 481 S.W.3d 480, 2015 Ky. LEXIS 1852 ( Ky. 2015 ).

11.Evidence.

Where defendant, indicted as conspirator, participated in planning and carrying out armed robbery in the course of which victim was killed by conspirators, it was not error to admit detailed evidence as to condition of scene of the crime, although defendant was not present at time of the killing. (Decided under prior law) Baxter v. Commonwealth, 292 Ky. 204 , 166 S.W.2d 24, 1942 Ky. LEXIS 45 ( Ky. 1942 ).

Where member of one (1) party of men shot and killed a member of another party after an altercation arising from a drinking bout in a roadhouse in which all had engaged, the facts that other members of the killer’s party were present at the time of the killing and that one (1) or more of them had engaged in minor altercations with members of the victim’s party during the evening were not sufficient to establish aiding and abetting or a conspiracy. (Decided under prior law) Mills v. Commonwealth, 294 Ky. 92 , 171 S.W.2d 38, 1943 Ky. LEXIS 403 ( Ky. 1943 ).

As a general rule, the existence of a common purpose between persons participating in a crime and the joint character of the undertaking may be inferred from the circumstances accompanying the act. (Decided under prior law) Taylor v. Commonwealth, 301 Ky. 109 , 190 S.W.2d 1003, 1945 Ky. LEXIS 698 ( Ky. 1945 ).

Where the testimony and evidence showed that a Jane Brown was an accessory before the fact to abortion, the question of whether or not the Jane Brown on trial was the same person was a question of fact to be submitted to the jury. (Decided under prior law) Brown v. Commonwealth, 440 S.W.2d 520, 1969 Ky. LEXIS 342 ( Ky. 1969 ).

Where a defendant testified that he was unaware that his friend possessed a pistol or had committed a robbery while the defendant was waiting in his car, the jury was not compelled to believe such testimony and a guilty verdict was supported by the evidence. Mishler v. Commonwealth, 556 S.W.2d 676, 1977 Ky. LEXIS 525 ( Ky. 1977 ).

Where a defendant was positively identified in court by a witness who saw him near the scene of a homicide, the court did not err in submitting the case to the jury which found the defendant guilty of aiding and abetting the murder. Garrett v. Commonwealth, 560 S.W.2d 805, 1977 Ky. LEXIS 575 ( Ky. 1977 ).

Where the defendant and codefendant were together shortly after the theft offense was committed, and the defendant was in possession of a portion of the stolen property, the evidence was sufficient to support a finding of complicity. Slone v. Commonwealth, 677 S.W.2d 894, 1984 Ky. App. LEXIS 515 (Ky. Ct. App. 1984).

Since there was ample evidence sufficient to support conviction of burglary by complicity, in that defendant intended to promote or facilitate the commission of the crime, and acting on that intention, conspired with or aided the others in planning and/or committing the offense, trial court did not err in denying his motion for directed verdict. Skinner v. Commonwealth, 864 S.W.2d 290, 1993 Ky. LEXIS 149 ( Ky. 1993 ).

Evidence was sufficient to establish intent in a prosecution for murder and first degree robbery where (1) the defendant drove three (3) coperpetrators to a river boat casino in her car; (2) she knew that one (1) coperpetrator had two (2) pistols with him and that he had given the pistols to another coperpetrator to examine; (3) she made first contact with the victim; (4) she agreed to give the victim a ride; (5) she was present when the victim was shot and killed; (6) she received part of the money taken from the victim’s wallet; (7) she drove her coperpetrators away from the crime scene; and (8) the murder weapon and another pistol were left in her car, and were never retrieved by the coperpetrators. Harper v. Commonwealth, 43 S.W.3d 261, 2001 Ky. LEXIS 83 ( Ky. 2001 ).

Evidence was sufficient to find that defendant aided or conspired with another person so as to present a jury issue regarding accomplice liability under the complicity statute because (1) defendant was more than merely present at the scene of the crime; (2) a witness testified that when he awoke at the crime scene, defendant and the other person were together outside the vehicle accosting the deceased victim and demanding that he give them everything he had, which would include his large sum of money; (3) the witness also testified that, when defendant and the person realized that he was awake, the other person immediately attacked him, and a scuffle ensued - defendant and the other person against the deceased victim and the witness; and (4) while the other person kept the witness occupied, defendant shot the deceased victim. Rogers v. Commonwealth, 315 S.W.3d 303, 2010 Ky. LEXIS 141 ( Ky. 2010 ).

Evidence was sufficient to sustain a robbery conviction under KRS 502.020 because defendant acknowledged being present at the home when the robbery occurred, and defendant drove the co-defendant to and from the scene; defendant was not a mere bystander at the robbery, but he shared the purpose of obtaining drugs. Quisenberry v. Commonwealth, 336 S.W.3d 19, 2011 Ky. LEXIS 30 ( Ky. 2011 ), limited, Ellison v. Commonwealth, 2014 Ky. Unpub. LEXIS 110 (Ky. Dec. 18, 2014).

12.Felony Murder.

KRS 507.020 and this section have substantially altered the concept of the felony murder doctrine; the culpability of the defendant for the killing of the deceased must now be measured by the degree of wantonness or recklessness reflected by the extent of his participation in the underlying robbery rather than by the implication of intent to murder from the intent to participate in the robbery. Kruse v. Commonwealth, 704 S.W.2d 192, 1985 Ky. LEXIS 303 ( Ky. 1985 ).

13.Forgery.

Where defendant selected merchandise which was purchased by another using stolen credit cards, drove the person to all of the stores where the purchases were made and carried the merchandise in her car, she was aiding, counseling and attempting to aid the other person to commit forgery and is guilty of committing forgery by complicity under this section where other person was convicted of forgery in the second degree under KRS 516.030 ; thus it was error for trial judge to dismiss indictment against defendant on the grounds that no specific statutory penalty is provided for violation of this section since defendant was guilty of forgery in the second-degree offense itself through this section, and KRS 516.030 does provide a penalty. Commonwealth v. Caswell, 614 S.W.2d 253, 1981 Ky. App. LEXIS 231 (Ky. Ct. App. 1981).

14.Furnishing Weapon.

Defendant, who handed his codefendant a gun when told to shoot a police officer, is guilty of the substantive offense by complicity if he furnished the means of committing the crime intending to aid in the commission of the crime. Luttrell v. Commonwealth, 554 S.W.2d 75, 1977 Ky. LEXIS 482 ( Ky. 1977 ).

15.Indictment.

An indictment which gave a first name different from that of the person allegedly suborned was not objectionable as containing a fatal variance where it also amply identified the offense so as to preclude the defendant from being misled or surprised and to bar any second prosecution for the same offense. (Decided under prior law) Henderson v. Commonwealth, 122 Ky. 296 , 91 S.W. 1141, 28 Ky. L. Rptr. 1212 , 1906 Ky. LEXIS 57 ( Ky. 1906 ).

The principal actor, the aider and abettor, and the accessory before the fact are all principals in the first degree and may be accused and convicted as such. (Decided under prior law) Commonwealth v. Hargis, 124 Ky. 356 , 99 S.W. 348, 30 Ky. L. Rptr. 510 , 1907 Ky. LEXIS 205 ( Ky. 1907 ).

Upon a joint indictment against two (2) persons, one (1) charged as principal and the other as aider and abettor, the one (1) charged as principal may be found guilty of aiding and abetting and the one (1) charged as aider and abettor may be found guilty as principal. (Decided under prior law) Watkins v. Commonwealth, 227 Ky. 100 , 12 S.W.2d 329, 1928 Ky. LEXIS 495 ( Ky. 1928 ).

Under an indictment as a principal, either defendant may be convicted as a principal or as aider and abettor, though indictment does not charge aiding and abetting. (Decided under prior law) Short v. Commonwealth, 240 Ky. 477 , 42 S.W.2d 696, 1931 Ky. LEXIS 427 ( Ky. 1931 ). See Sumner v. Commonwealth, 256 Ky. 139 , 75 S.W.2d 790, 1934 Ky. LEXIS 370 ( Ky. 1934 ).

An indictment for subornation of perjury must sufficiently charge that the person suborned was guilty of the crime which he was induced to commit. (Decided under prior law) Strader v. Commonwealth, 240 Ky. 559 , 42 S.W.2d 736, 1931 Ky. LEXIS 446 ( Ky. 1931 ).

An indictment which alleged that the statements were made before a notary public after the notary had administered the oath was sufficient. (Decided under prior law) Strader v. Commonwealth, 240 Ky. 559 , 42 S.W.2d 736, 1931 Ky. LEXIS 446 ( Ky. 1931 ).

Where two (2) or more persons are accused of the same crime, one (1) may be indicted as a principal and the others as aiders and abettors or all of them may be indicted as principals. (Decided under prior law) Commonwealth v. Bain, 240 Ky. 749 , 43 S.W.2d 8, 1931 Ky. LEXIS 492 ( Ky. 1931 ).

An indictment for subornation of perjury alleging that false testimony was given prior to finding of indictment was not demurrable on the ground that it failed to allege the specific date on which false testimony was given. (Decided under prior law) Bradley v. Commonwealth, 245 Ky. 101 , 53 S.W.2d 215, 1932 Ky. LEXIS 548 ( Ky. 1932 ).

Accessories before the fact are subject to the same punishment as principals and, in a joint indictment charging a felony, either of the defendants may be convicted as principal or as aider and abettor, although the indictment charges neither with aiding and abetting. (Decided under prior law) Gambrel v. Commonwealth, 283 Ky. 816 , 143 S.W.2d 514, 1940 Ky. LEXIS 419 ( Ky. 1940 ). See Reed v. Commonwealth, 289 Ky. 173 , 158 S.W.2d 380, 1942 Ky. LEXIS 516 ( Ky. 1942 ).

The principal actor, aider and abettor, and accessory before the fact are parties in the first degree and may be so indicted. (Decided under prior law) Nolan v. Commonwealth, 290 Ky. 482 , 161 S.W.2d 593, 1942 Ky. LEXIS 403 ( Ky. 1942 ).

Either defendant in a joint indictment for a felony may be convicted as a principal or as an aider or abettor, though neither was indicted as an aider or abettor. (Decided under prior law) Murphy v. Commonwealth, 279 S.W.2d 767, 1955 Ky. LEXIS 534 ( Ky. 1955 ).

Where an indictment charged robbery “by using and displaying a .22-caliber pistol” but the jury instructions used the language “threatened the use of immediate force by pointing a pistol,” there was no material variance which prejudiced a defendant convicted of being an accomplice to robbery. Mishler v. Commonwealth, 556 S.W.2d 676, 1977 Ky. LEXIS 525 ( Ky. 1977 ).

Where defendant mother was charged with a violation of this section and the indictment as returned by the grand jury was sufficient to give defendant mother notice of the charge that she would need to defend against, if defendant believed it was necessary that the charges be more specific, she could have filed a motion for a bill of particulars and as she declined to do so she waived the issue. Lane v. Commonwealth, 956 S.W.2d 874, 1997 Ky. LEXIS 68 ( Ky. 1997 ), modified, 1997 Ky. LEXIS 97 (Ky. Sept. 4, 1997), cert. denied, 522 U.S. 1123, 118 S. Ct. 1067, 140 L. Ed. 2d 127, 1998 U.S. LEXIS 1074 (U.S. 1998).

Where defendant was initially charged with third-degree burglary in violation of KRS 511.040 and the indictment was later amended to add complicity to burglary pursuant to KRS 502.020(1), complicity was not a new offense; therefore, complicity was not an additional offense, and RCr 6.16 did not prohibit, on the ground that it was a new offense, the amendment of the indictment to add complicity. McKenzie v. Commonwealth, 2005 Ky. App. LEXIS 54 (Ky. Ct. App. Mar. 4, 2005), rev'd, 214 S.W.3d 306, 2007 Ky. LEXIS 22 ( Ky. 2007 ).

Amendment of the indictment following the presentation of all evidence at trial to include complicity to burglary pursuant to KRS 502.020(1) in addition to third-degree burglary in violation of KRS 511.040 prejudiced defendant’s substantial rights in violation of RCr 6.16; defendant was not given proper notice of the amendment and was not prepared to defend complicity to the crime. McKenzie v. Commonwealth, 2005 Ky. App. LEXIS 54 (Ky. Ct. App. Mar. 4, 2005), rev'd, 214 S.W.3d 306, 2007 Ky. LEXIS 22 ( Ky. 2007 ).

When the Commonwealth, at the close of its evidence at trial, amended an indictment charging defendant with third degree burglary to include a charge of committing third degree burglary by complicity, under KRS 502.020 or 502.030 , this did not violate defendant’s substantial rights because (1) he had notice that the Commonwealth intended to present testimony that he was, at the very least, an accomplice, (2) the Commonwealth did not change its theory of the case mid-trial, (3) it did not allege charges the evidence did not substantiate, and (4) an allegation that he was guilty by complicity did not constitute charging an additional or different offense. Commonwealth v. McKenzie, 214 S.W.3d 306, 2007 Ky. LEXIS 22 ( Ky. 2007 ).

16.Intent.

Before one can be an accomplice he must intend to participate in the promotion, facilitation or commission of the offense. Dowdle v. Commonwealth, 554 S.W.2d 92, 1977 Ky. App. LEXIS 755 (Ky. Ct. App. 1977).

If the commission of the offense of robbery was intended, the lack of intent of an aggravating circumstance, such as the use of a gun, will not act to lessen criminal liability for the higher degree of the same offense. Commonwealth v. Yeager, 599 S.W.2d 458, 1980 Ky. LEXIS 221 ( Ky. 1980 ).

The crime of complicity contains the element of intent. Parsley v. Kentucky Farm Bureau Mut. Ins. Co., 32 S.W.3d 103, 2000 Ky. App. LEXIS 110 (Ky. Ct. App. 2000).

The intent of the principal actor need not be shown in a prosecution for liability based on complicity; a finding by the jury that the principal actor is equally guilty of the same offense is not a condition precedent to a conviction of an offense by complicity. Tharp v. Commonwealth, 40 S.W.3d 356, 2000 Ky. LEXIS 200 ( Ky. 2000 ), cert. denied, 534 U.S. 928, 122 S. Ct. 289, 151 L. Ed. 2d 213, 2001 U.S. LEXIS 7122 (U.S. 2001).

Defendant’s intent that the victims would be killed during the course of a crime, inferred from his prior statement that he did not want to be present when the victims were killed, allowed his murder conviction as a complicitor. Marshall v. Commonwealth, 60 S.W.3d 513, 2001 Ky. LEXIS 202 ( Ky. 2001 ), cert. denied, 535 U.S. 1024, 122 S. Ct. 1622, 152 L. Ed. 2d 633, 2002 U.S. LEXIS 2953 (U.S. 2002).

Main difference between facilitation and complicity is the state of mind; complicity requires the complicitor to “intend” that the crime take place. Bennett v. Commonwealth, 2003 Ky. App. Unpub. LEXIS 433 (Ky. Ct. App. Apr. 11, 2003).

18.Instructions.

Kentucky Supreme Court had not found that complicity required proof of the intent of the principal and the accomplice, and instead, a person could be guilty of complicity to the result without the intent that the principal's act cause the criminal result, but with a state of mind that equated with culpability regarding the result; in this case, the jury instruction properly complied with this case law, and thus there was no error, palpable or otherwise. Smith v. Commonwealth, 481 S.W.3d 510, 2016 Ky. App. LEXIS 1 (Ky. Ct. App. 2016).

19.— Under Prior Law.

Where the defendants were jointly indicted as principals, it was proper to submit instructions on aiding and abetting. (Decided under prior law) Hogan v. Commonwealth, 230 Ky. 680 , 20 S.W.2d 710, 1929 Ky. LEXIS 153 ( Ky. 1929 ); Handy v. Commonwealth, 240 Ky. 432 , 42 S.W.2d 532, 1931 Ky. LEXIS 419 ( Ky. 1931 ); Alder v. Commonwealth, 277 Ky. 136 , 125 S.W.2d 986, 1939 Ky. LEXIS 613 ( Ky. 1939 ).

Where principals and accessories are tried in the same proceeding, the question of guilt or innocence must be submitted to the jury without favor or prejudice to any one of the defendants. (Decided under prior law) Moore v. Commonwealth, 266 Ky. 514 , 99 S.W.2d 715, 1936 Ky. LEXIS 703 ( Ky. 1936 ).

In prosecution for unlawful arrest and imprisonment, an instruction submitting the issue of accused aiding and abetting the persons who actually made the arrest was justified under evidence which showed that accused was present at time of the arrest and drove the automobile in which prisoners were transported to county jail, even if it did not show that accused actually participated in making the arrest. (Decided under prior law) Roberts v. Commonwealth, 284 Ky. 365 , 144 S.W.2d 811, 1940 Ky. LEXIS 498 ( Ky. 1940 ).

In prosecution of defendant as principal and accessory for murder, where instructions as to liability as principal correctly used the words “willfully, feloniously,” with regard to striking and wounding deceased, omission of such words in latter part of instruction as to liability as accessory was not error where court, in such instruction, used “so” before “strike and wound.” (Decided under prior law) Combs v. Commonwealth, 292 Ky. 1 , 165 S.W.2d 832, 1942 Ky. LEXIS 17 ( Ky. 1 942 ).

Where court instructed the jury that they could not find the accessory guilty unless they believed she advised and commanded principal to commit crime and that crime was induced thereby, and gave another instruction absolving accessory if jury believed that she had countermanded or withdrawn her advice or command, it was not necessary to instruct the jury to absolve accessory if they believed the killing was done independently of accessory’s advice or procurement. (Decided under prior law) Sams v. Commonwealth, 294 Ky. 393 , 171 S.W.2d 989, 1943 Ky. LEXIS 450 ( Ky. 1943 ).

Where evidence was that defendant urged and counseled paramour to kill her husband, she was not entitled to a voluntary manslaughter instruction notwithstanding paramour’s testimony that killing was in self-defense, since defendant was either guilty of murder or not guilty of any crime; in such case, instruction to find defendant guilty if the jury believed she encouraged or commanded the killing and that killing was not in self-defense was proper. (Decided under prior law) Sams v. Commonwealth, 294 Ky. 393 , 171 S.W.2d 989, 1943 Ky. LEXIS 450 ( Ky. 1943 ).

Where evidence sustained conviction of defendant as a principal under law that provided a penalty for the malicious and willful cutting or stabbing of another with intent to kill, refusal to confine instructions to an issue of guilt as aider and abettor of another was not error. (Decided under prior law) Vogg v. Commonwealth, 308 Ky. 212 , 214 S.W.2d 86, 1948 Ky. LEXIS 895 ( Ky. 1948 ).

In prosecution for willfully and maliciously shooting and wounding another with intent to kill him, where defendant and his father testified that the father did not fire a shot, but evidence for Commonwealth was that he did so, and that there were 15 or 20 shots fired in the melee, both pistol and shotgun, instruction on aiding and abetting father was properly given, but it contained a vital error in failing to require that the jury believe from the evidence, beyond a reasonable doubt, that either the father unlawfully, willfully, feloniously, maliciously or in sudden affray, or in sudden heat of passion did shoot and wound named person or that defendant was present and willfully, feloniously and maliciously aided and abetted the principal, his father. (Decided under prior law) Couch v. Commonwealth, 313 Ky. 596 , 233 S.W.2d 88, 1950 Ky. LEXIS 925 ( Ky. 1950 ).

In joint indictment for malicious striking and wounding with a deadly weapon with intent to kill, evidence did not warrant giving instruction authorizing conviction of defendant, who was tried alone after his brother left the state, for aiding and abetting his brother in wrongful striking with deadly weapon with intent to kill, where there was nothing to show the brother’s obtention of the gun had any bearing on or connection with defendant’s action, and there was no proof that defendant ever asked his brother to come to his assistance, or that defendant did anything other than to resist an arrest and all the striking was done by the brother apparently for reasons of his own. (Decided under prior law) Smiddy v. Commonwealth, 240 S.W.2d 565, 1951 Ky. LEXIS 974 ( Ky. 1951 ).

In prosecutions for maliciously striking and wounding another with a deadly weapon with the intent to kill him, portion of instructions submitting alternative condition of guilt as an aider and abettor of an unknown principal which did not require belief that defendant acted maliciously and willfully in aiding principal, nor that jury should believe beyond a reasonable doubt that he had so aided was erroneous, and, although another instruction cured the error, instruction was prejudicially erroneous for failure to submit essential elements of malice and willfulness. (Decided under prior law) Helton v. Commonwealth, 244 S.W.2d 762, 1951 Ky. LEXIS 1248 ( Ky. 1951 ).

In prosecution of defendant, who was jointly indicted with two (2) brothers for malicious shooting with intent to kill, but tried separately, instruction on aiding and abetting constituted prejudicial error in view of lack of evidence that any of the brothers were acting in concert with the other two (2) or had any previous notice or knowledge that a shot was going to be fired. (Decided under prior law) Moore v. Commonwealth, 282 S.W.2d 613, 1955 Ky. LEXIS 252 ( Ky. 1955 ).

An instruction of aiding and abetting was proper even though the defendant alleged that he had not started shooting at deceased until after two (2) others convicted of the same murder had ceased shooting, as there was no evidence that more than a brief moment separated the shootings and where it appears that the intent of the defendant was to aid the other persons who had begun shooting at the deceased. (Decided under prior law) Asher v. Commonwealth, 275 S.W.2d 416, 1955 Ky. LEXIS 351 ( Ky. 1955 ).

In prosecution for aiding and abetting in malicious cutting and wounding with intent to kill, instruction, that jury should find defendant guilty only if it believed that he was “present and did at said time and place willfully and maliciously aid, assist, abet, advise, counsel or encourage principal to cut, stab, and wound,” showed that defendant to be found guilty must have had the required criminal intent of an aider or abettor. (Decided under prior law) Haley v. Commonwealth, 286 S.W.2d 525, 1956 Ky. LEXIS 418 ( Ky. 1956 ).

20.—Under Current Law.

Since in view of all the evidence a reasonable juror could not have acquitted defendant of both second degree burglary and burglary by complicity, and still have found him guilty of criminal facilitation, failure to give instruction on criminal facilitation as a lesser included offense of complicity was not error. Skinner v. Commonwealth, 864 S.W.2d 290, 1993 Ky. LEXIS 149 ( Ky. 1993 ).

Instruction that permitted conviction upon determination that one or more of the defendants committed burglary in the second degree and that defendant aided and assisted the other defendants in so doing by otherwise standing in readiness to aid and assist the other defendants in the commission of the crime, though irregular, was not erroneous or unfairly prejudicial. Skinner v. Commonwealth, 864 S.W.2d 290, 1993 Ky. LEXIS 149 ( Ky. 1993 ).

Where a separate instruction on first degree burglary was given as to each defendant and for conviction the jury was required to find in each case that the defendant himself was armed with a deadly weapon, not that any participant was so armed, and where instruction on first degree by complicity required for conviction that defendant intended that another defendant would commit first degree burglary, it was consistent for the jury to find that defendant was armed with a deadly weapon and thus guilty of first degree burglary, while his codefendants were unarmed and unaware that defendant was armed and thus were guilty of second degree burglary. Skinner v. Commonwealth, 864 S.W.2d 290, 1993 Ky. LEXIS 149 ( Ky. 1993 ).

It was not error for the court to instruct the jury that a defendant “is guilty of an offense committed by another person” if the defendant fails in his duty to make a proper effort to prevent the other person’s conduct; such instruction was properly based on the title of the statute, the language of subsection (2)(c), and the official commentary to the statute. Tharp v. Commonwealth, 40 S.W.3d 356, 2000 Ky. LEXIS 200 ( Ky. 2000 ), cert. denied, 534 U.S. 928, 122 S. Ct. 289, 151 L. Ed. 2d 213, 2001 U.S. LEXIS 7122 (U.S. 2001).

In a prosecution for murder and first-degree robbery, the trial court should have instructed the jury with regard to first degree manslaughter as the evidence presented would have allowed the jury to believe that a coperpetrator shot the victim with the intent to cause him serious physical injury which thereby killed him and that the defendant, by her actions, intended that the coperpetrator shoot the victim with the intent of causing him serious physical injury. Harper v. Commonwealth, 43 S.W.3d 261, 2001 Ky. LEXIS 83 ( Ky. 2001 ).

The trial court committed reversible error when it failed to include the element of intent in complicity to murder and first-degree robbery instructions. Harper v. Commonwealth, 43 S.W.3d 261, 2001 Ky. LEXIS 83 ( Ky. 2001 ).

Trial court committed reversible error by failing to properly instruct the jury, and failing to properly answer the jury’s questions, regarding accomplices and the need for defendant to have acted in complicity with defendant’s friend in a theft underlying a first-degree robbery charge against defendant where defendant and the friend claimed that the friend started to rob the victim in defendant’s presence without defendant’s prior knowledge. Bennett v. Commonwealth, 2003 Ky. App. Unpub. LEXIS 433 (Ky. Ct. App. Apr. 11, 2003).

Jury instructions failed to provide that defendant, charged as an accomplice under KRS 502.020(1)(a) and (b) to robbery under KRS 515.020(1)(c), had to have intended that the principal commit the robbery; a more accurate instruction would have stated that a person is guilty of an offense committed by another person when, with the intention of promoting or facilitating the commission of the offense, he solicits, commands, or engages in a conspiracy with such other person to commit the offense, or aids, counsels, or attempts to aid such person in planning or committing the offense. Crawley v. Commonwealth, 107 S.W.3d 197, 2003 Ky. LEXIS 148 ( Ky. 2003 ).

A KRS 506.080 facilitation instruction need not always accompany a KRS 502.020 complicity instruction; rather, a lesser-included instruction, such as facilitation, may be given only when supported by the evidence, and since facilitation and complicity require different mental states, an instruction on facilitation is necessary only if the evidence supports the existence of both mental states. A defendant is not entitled to a lesser-included offense instruction, such as facilitation, simply because the defendant wants the jury to have the option to convict the defendant of a less serious offense. Dixon v. Commonwealth, 263 S.W.3d 583, 2008 Ky. LEXIS 138 ( Ky. 2008 ).

During defendant’s murder trial, defense counsel did not allow the case to be submitted to the jury with flawed instructions; the definition of complicity given by the trial court mirrored both KRS 502.020(1)(a) and (b) and a pattern instruction. . Bratcher v. Commonwealth, 406 S.W.3d 865, 2012 Ky. App. LEXIS 230 (Ky. Ct. App. 2012).

Where defendant, acting alone or in complicity with others, stabbed the victim with a knife following a heated telephone argument and washed the blood evidence from the knife to prevent the police from using it as evidence, he was convicted of second-degree assault and tampering with physical evidence. Defendant was precluded from seeking reversal of his conviction on the basis of an alleged improper jury instruction regarding self defense, as he tendered proposed instructions that included the identical language used by the trial court. Spencer v. Commonwealth, 2013 Ky. App. LEXIS 123 (Ky. Ct. App. Aug. 9, 2013), review denied, ordered not published, 2014 Ky. LEXIS 268 (Ky. June 19, 2014).

Refusing to give a facilitation instruction was not error as the evidence clearly established that appellant’s participation in the robbery went far beyond engaging in conduct which knowingly provided his co-defendant with means or opportunity for the commission of the crime. Appellant was not only present at the robbery, but actively participated in the crime. Goff v. Commonwealth, 618 S.W.3d 503, 2020 Ky. App. LEXIS 85 (Ky. Ct. App. 2020).

21.Legal Duty.

KRS 620.010 creates an affirmative duty for the parent or guardian of a child to protect the child from abuse or assault; a parent or guardian who fails to fulfill that duty may be convicted of complicity to assault under the legal duty theory of subsection (1)(c) of this section. Lane v. Commonwealth, 1997 Ky. LEXIS 97 (Ky. Sept. 4, 1997).

In order to be found guilty of liability by complicity, it is not necessary for the Commonwealth to establish that the defendant was physically capable of performing her duty to prevent the conduct of the principal actor; the statute does not anticipate courage or heroism, but requires only a proper, i.e., reasonable, effort. Tharp v. Commonwealth, 40 S.W.3d 356, 2000 Ky. LEXIS 200 ( Ky. 2000 ), cert. denied, 534 U.S. 928, 122 S. Ct. 289, 151 L. Ed. 2d 213, 2001 U.S. LEXIS 7122 (U.S. 2001).

22.Lesser Included Offenses.

Receiving stolen property is a separate offense and not a lesser included offense of burglary; an individual may be convicted of both of these crimes if he is charged with them in the indictment. Macklin v. Commonwealth, 687 S.W.2d 540, 1984 Ky. App. LEXIS 616 (Ky. Ct. App. 1984).

Where the defendant first started beating the victim and eventually the co-defendant started beating the victim with a lug wrench while defendant threatened to kill the victim and encouraged the co-defendant to get the victim’s wallet, the later assault is the action for which defendant was charged with complicity; a jury could not reasonably have found that defendant was not guilty of complicity to the second degree assault, but guilty of only the preceding fourth degree assault, and, thus, the jury instruction on lesser-included offenses was properly denied. Fields v. Commonwealth, 219 S.W.3d 742, 2007 Ky. LEXIS 92 ( Ky. 2007 ).

Because the complicity charge required proof that co-defendant caused the victim’s physical injury, and the fourth degree assault instruction required an inconsistent finding that defendant caused the physical injury, defendant’s fourth degree assault could not be a lesser-included charge of complicity to assault in the second degree. Thus, a lesser-included offense jury instruction was properly denied. Fields v. Commonwealth, 219 S.W.3d 742, 2007 Ky. LEXIS 92 ( Ky. 2007 ).

Defendant was not entitled to a lesser-included offense instruction on facilitation. Since facilitation under KRS 506.080 and complicity under KRS 502.020 required different mental states, an instruction on facilitation was necessary only if the evidence supported the existence of both mental states, and there was no evidence that defendant was wholly indifferent to the commission of the rape and robbery. Dixon v. Commonwealth, 263 S.W.3d 583, 2008 Ky. LEXIS 138 ( Ky. 2008 ).

23.Mere Knowledge of Crime.

Mere knowledge and concealment or perhaps passive acquiescence and sanction of another’s intention to commit a murder does not make one an accessory. (Decided under prior law) Sams v. Commonwealth, 294 Ky. 393 , 171 S.W.2d 989, 1943 Ky. LEXIS 450 ( Ky. 1943 ).

Individual who was present when plan to commit crime was formulated is under no legal duty to prevent its execution; mere knowledge that crime is to occur is not enough to make one guilty of a crime. Dowdle v. Commonwealth, 554 S.W.2d 92, 1977 Ky. App. LEXIS 755 (Ky. Ct. App. 1977).

24.Prejudicial Error.

In murder prosecution where accused relied on alibi and there was no evidence that any person other than accused had been with victim on fatal night, instruction that accused might be convicted of aiding and abetting was prejudicially erroneous. (Decided under prior law) Sewell v. Commonwealth, 284 Ky. 183 , 144 S.W.2d 223, 1940 Ky. LEXIS 469 ( Ky. 1940 ).

Where during the opening statement, in prosecution for theft by unlawful taking and accomplice to theft by unlawful taking, the jury was informed that one of the other defendants had previously entered a guilty plea to the theft charge, the defendant’s substantial rights were highly prejudiced, and her convictions were reversed. Linder v. Commonwealth, 714 S.W.2d 154, 1986 Ky. LEXIS 280 ( Ky. 1986 ), overruled, Mayse v. Commonwealth, 422 S.W.3d 223, 2013 Ky. LEXIS 457 ( Ky. 2013 ), abrogated, Mayse v. Commonwealth, 2013 Ky. LEXIS 700 (Ky. Oct. 24, 2013).

25.Rape.

The mother of the rape victim had no legal duty to make an effort to prevent the rape by the stepfather. Knox v. Commonwealth, 735 S.W.2d 711, 1987 Ky. LEXIS 229 ( Ky. 1987 ), overruled, Lane v. Commonwealth, 956 S.W.2d 874, 1997 Ky. LEXIS 68 ( Ky. 1997 ).

The defendant’s intent to facilitate the rapes could be inferred from her conduct and her statements to her daughters, including evidence of bringing the desired daughter to the boyfriend for sex; encouraging her daughters not to reveal the abuse, thus ensuring that it could continue; telling her daughters that the boyfriend’s conduct toward them was a natural happening between a man and a woman; and responses to their protests, which had the effect of discouraging resistance. Waters v. Kassulke, 916 F.2d 329, 1990 U.S. App. LEXIS 17427 (6th Cir. Ky. 1990 ).

Defendant’s convictions of complicity to commit third-degree rape were improper in a case arising from sexual contact between defendant’s boyfriend and her minor daughter because, in a separate appeal, the Supreme Court of Kentucky found that the marriage between the boyfriend and the daughter was merely voidable and reversed the boyfriend’s third-degree rape conviction; thus there was no underlying offense as required by KRS 502.020 . Robinson v. Commonwealth, 2007 Ky. App. LEXIS 319 (Ky. Ct. App. Aug. 31, 2007).

26.Separate Offenses.

Where the defendant took property and aided the others in taking property, her conviction as an accomplice to theft by unlawful taking in addition to her conviction of theft by unlawful taking did not violate the United States constitutional guarantee against double jeopardy, because the proof for each offense was completely different, and none of the facts proving one offense was necessary to prove the other. Linder v. Commonwealth, 714 S.W.2d 154, 1986 Ky. LEXIS 280 ( Ky. 1986 ), overruled, Mayse v. Commonwealth, 422 S.W.3d 223, 2013 Ky. LEXIS 457 ( Ky. 2013 ), abrogated, Mayse v. Commonwealth, 2013 Ky. LEXIS 700 (Ky. Oct. 24, 2013).

27.Subornation of Perjury.

A defendant was properly charged for subornation of perjury though the party suborned was guilty of false swearing, because procuring false swearing under law that provided a penalty for false swearing was an offense under the law that provided for subornation of perjury. (Decided under prior law) Henderson v. Commonwealth, 122 Ky. 296 , 91 S.W. 1141, 28 Ky. L. Rptr. 1212 , 1906 Ky. LEXIS 57 ( Ky. 1906 ).

Law that provided a penalty for subornation of perjury created an offense separate and distinct from either perjury or false swearing. (Decided under prior law) Henderson v. Commonwealth, 122 Ky. 296 , 91 S.W. 1141, 28 Ky. L. Rptr. 1212 , 1906 Ky. LEXIS 57 ( Ky. 1906 ); Conn v. Commonwealth, 234 Ky. 153 , 27 S.W.2d 702, 1930 Ky. LEXIS 140 ( Ky. 1930 ).

The Commonwealth could prove conspiracy between suborned and suborner without a specific charge of conspiracy. (Decided under prior law) Conn v. Commonwealth, 234 Ky. 153 , 27 S.W.2d 702, 1930 Ky. LEXIS 140 ( Ky. 1930 ).

A person was not guilty under law that provided a penalty for subornation of perjury unless the person suborned actually committed an offense of false swearing or perjury. (Decided under prior law) Conn v. Commonwealth, 234 Ky. 153 , 27 S.W.2d 702, 1930 Ky. LEXIS 140 ( Ky. 1930 ).

The testimony of one (1) witness to the fact of subornation will take the case to the jury. (Decided under prior law) Bradley v. Commonwealth, 245 Ky. 101 , 53 S.W.2d 215, 1932 Ky. LEXIS 548 ( Ky. 1932 ).

A person could not be convicted under law that provided a penalty for subornation of perjury where there was not sufficient evidence of false swearing by the person who was allegedly suborned. (Decided under prior law) Booth v. Commonwealth, 419 S.W.2d 739, 1967 Ky. LEXIS 182 ( Ky. 1967 ).

Cited in:

McIntosh v. Commonwealth, 582 S.W.2d 54, 1979 Ky. App. LEXIS 412 (Ky. Ct. App. 1979); Adkins v. Commonwealth, 647 S.W.2d 502, 1982 Ky. App. LEXIS 286 (Ky. Ct. App. 1982); United States v. Cissell, 700 F.2d 338, 1983 U.S. App. LEXIS 30170 (6th Cir. 1983); Commonwealth v. Reed, 680 S.W.2d 134, 1984 Ky. App. LEXIS 605 (Ky. Ct. App. 1984); Commonwealth v. McFerron, 680 S.W.2d 924, 1984 Ky. LEXIS 274 ( Ky. 1984 ); Kentucky v. Long, 637 F. Supp. 1150, 1986 U.S. Dist. LEXIS 23269 (W.D. Ky. 1986 ); Carpenter v. Commonwealth, 771 S.W.2d 822, 1989 Ky. LEXIS 56 ( Ky. 1989 ); Gilbert v. Commonwealth, 838 S.W.2d 376, 1991 Ky. LEXIS 155 ( Ky. 1991 ); Mills v. Commonwealth, 44 S.W.3d 366, 2001 Ky. LEXIS 85 ( Ky. 2001 ); K.R. v. Commonwealth, 360 S.W.3d 179, 2012 Ky. LEXIS 4 ( Ky. 2012 ); Darcy v. Commonwealth, 2014 Ky. LEXIS 4 33 (Sept. 18, 2014).

Research References and Practice Aids

Cross-References.

Venue, accessory in one county, offense committed in another, KRS 452.570 .

Kentucky Law Journal.

West, Criminal Law, 74 Ky. L.J. 403 (1985-86).

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Assaults and Restraints of Persons, Part 1 Definitions, § 3.03.

Kentucky Instructions to Juries (Criminal), 5th Ed., Assaults and Restraints of Persons, Part 2 Homicide, §§ 3.25, 3.28, 3.29.

Kentucky Instructions to Juries (Criminal), 5th Ed., Complicity and Inchoate Offenses, Part 1 Definitions, § 10.01.

Kentucky Instructions to Juries (Criminal), 5th Ed., Complicity and Inchoate Offenses, Part 2 Complicity, §§ 10.09 — 10.16.

Kentucky Instructions to Juries (Criminal), 5th Ed., Complicity and Inchoate Offenses, Part 3 Inchoate Offenses, § 10.24.

Kentucky Instructions to Juries (Criminal), 5th Ed., General Principles, Part 1 Matters of Substance, § 1.13.

Kentucky Instructions to Juries (Criminal), 5th Ed., Robbery, Theft and Related Offenses, Part 2 Robbery, § 6.14.

502.030. Liability for conduct of another — No defense.

In any prosecution for an offense in which the criminal liability of the accused is based upon the conduct of another person pursuant to KRS 502.010 and 502.020 , it is no defense that:

  1. Such other person has not been prosecuted for or convicted of any offense based on the conduct in question, or has previously been acquitted thereof, or has been convicted of a different offense, or has an immunity to prosecution or conviction for such conduct; or
  2. The offense in question, as defined, can be committed only by a particular class or classes of persons, and the accused, not belonging to such class or classes, is for that reason legally incapable of committing the offense in an individual capacity.

History. Enact. Acts 1974, ch. 406, § 22, effective January 1, 1975.

NOTES TO DECISIONS

1.Indictment.

When the Commonwealth, at the close of its evidence at trial, amended an indictment charging defendant with third degree burglary to include a charge of committing third degree burglary by complicity, under KRS 502.020 or 502.030 , this did not violate defendant’s substantial rights because (1) he had notice that the Commonwealth intended to present testimony that he was, at the very least, an accomplice, (2) the Commonwealth did not change its theory of the case mid-trial, (3) it did not allege charges the evidence did not substantiate, and (4) an allegation that he was guilty by complicity did not constitute charging an additional or different offense. Commonwealth v. McKenzie, 214 S.W.3d 306, 2007 Ky. LEXIS 22 ( Ky. 2007 ).

2.Underlying Offense.

Defendant’s convictions of complicity to commit third-degree rape were improper in a case arising from sexual contact between defendant’s boyfriend and her minor daughter because, in a separate appeal, the Supreme Court of Kentucky found that the marriage between the boyfriend and the daughter was merely voidable and reversed the boyfriend’s third-degree rape conviction; thus there was no underlying offense as required by KRS 502.020 . Robinson v. Commonwealth, 2007 Ky. App. LEXIS 319 (Ky. Ct. App. Aug. 31, 2007).

Research References and Practice Aids

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Complicity and Inchoate Offenses, Part 1 Definitions, § 10.01.

Kentucky Instructions to Juries (Criminal), 5th Ed., Controlled Substances, Part 5 Alcoholic Beverages, § 9.37A.

Kentucky Instructions to Juries (Criminal), 5th Ed., General Principles, Part 1 Matters of Substance, § 1.13.

502.040. Liability for conduct of another — Exemptions.

A person is not guilty under KRS 502.010 or 502.020 for an offense committed by another person when:

  1. The offense is so defined that his conduct is inevitably incident to its commission; or
  2. Prior to the commission of the offense, he manifests a voluntary and complete renunciation, as defined in KRS 506.060 , of his criminal purposes and:
    1. Deprives his prior effort of its effectiveness in such commission; or
    2. Gives timely warning to the proper law enforcement authorities or otherwise makes proper effort to prevent commission of the offense.

History. Enact. Acts 1974, ch. 406, § 23, effective January 1, 1975.

NOTES TO DECISIONS

1.Renunciation.

Where evidence in a prosecution for murder indicated that defendant financed the trip to the decedent’s town and encouraged his companions in a conspiracy to commit the murder and where the defendant made no effort to prevent the crime, evidence did not support his claim of renunciation of criminal purposes. Walker v. Commonwealth, 561 S.W.2d 656, 1977 Ky. LEXIS 578 ( Ky. 1977 ).

Research References and Practice Aids

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Complicity and Inchoate Offenses, Part 1 Definitions, § 10.03.

502.050. Corporate liability.

  1. A corporation is guilty of an offense when:
    1. The conduct constituting the offense consists of a failure to discharge a specific duty imposed upon corporations by law; or
    2. The conduct constituting the offense is engaged in, authorized, commanded or wantonly tolerated by the board of directors or by a high managerial agent acting within the scope of his employment in behalf of the corporation; or
    3. The conduct constituting the offense is engaged in by an agent of the corporation acting within the scope of his employment and in behalf of the corporation and:
      1. The offense is a misdemeanor or violation; or
      2. The offense is one defined by a statute which clearly indicates a legislative intent to impose such criminal liability on a corporation.
  2. As used in this section:
    1. “Agent” means any officer, director, servant or employee of the corporation or any other person authorized to act in behalf of the corporation.
    2. “High managerial agent” means an officer of a corporation or any other agent of a corporation who has duties of such responsibility that his conduct reasonably may be assumed to represent the policy of the corporation.

History. Enact. Acts 1974, ch. 406, § 24, effective January 1, 1975.

NOTES TO DECISIONS

1.Bad Checks.

Where the owner of a seed company issued several postdated checks to the sellers of soybeans and all of the checks were dishonored when presented for payment, instructions to the jury on a charge of corporate liability under this section must be based on an intent to defraud existing at the time the owner received the soybeans, so that the convictions of both the individual owner and the corporation were reversed. Rice v. Commonwealth, 621 S.W.2d 911, 1981 Ky. LEXIS 280 ( Ky. 1981 ).

2.Manslaughter.

A corporation could be indicted for second-degree manslaughter, a class C felony based on wanton conduct, under KRS 507.040 since the legislature under subsection (12) of KRS 500.080 has expanded the definition of “person” to include corporations to parallel the treatment of corporations in civil actions under KRS 446.010 , has extended liability for criminal offenses to conduct or non-conduct of corporate officers, directors and agents under this section, and has created a penalty structure providing for corporate fines for all classes of crimes under KRS 534.050 . Commonwealth v. Fortner LP Gas Co., 610 S.W.2d 941, 1980 Ky. App. LEXIS 416 (Ky. Ct. App. 1980).

Cited:

Commonwealth v. Hillhaven Corp., 687 S.W.2d 545, 1984 Ky. App. LEXIS 638 (Ky. Ct. App. 1984).

Research References and Practice Aids

Kentucky Bench & Bar.

Reed and Wicker, Keeping the Corporation Clean: Criminal Liability and Compliance After Enron, Vol. 67, No. 3, May 2003, Ky. Bench & Bar 25.

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Complicity and Inchoate Offenses, Part 2 Complicity, §§ 10.18, 10.19.

502.060. Individual liability for corporate conduct.

A person is criminally liable for conduct constituting an offense which he performs or causes to be performed in the name of or in behalf of a corporation to the same extent as if the conduct were performed in his own name or behalf.

History. Enact. Acts 1974, ch. 406, § 25, effective January 1, 1975.

NOTES TO DECISIONS

1.Purpose.

The purpose of this section of the Penal Code is to prevent an individual from hiding behind a corporation to avoid criminal liability for his conduct. Butts v. Commonwealth, 581 S.W.2d 565, 1979 Ky. LEXIS 258 ( Ky. 1979 ).

Research References and Practice Aids

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Assaults and Restraints of Persons, Part 2 Homicide, § 3.24.

CHAPTER 503 General Principles of Justification

503.010. Definitions for chapter.

The following definitions apply in this chapter unless the context otherwise requires:

  1. “Deadly physical force” means force which is used with the purpose of causing death or serious physical injury or which the defendant knows to create a substantial risk of causing death or serious physical injury.
  2. “Dwelling” means a building or conveyance of any kind, including any attached porch, whether the building or conveyance is temporary or permanent, mobile or immobile, which has a roof over it, including a tent, and is designed to be occupied by people lodging therein at night.
  3. “Imminent” means impending danger, and, in the context of domestic violence and abuse as defined by KRS 403.720 , belief that danger is imminent can be inferred from a past pattern of repeated serious abuse.
  4. “Physical force” means force used upon or directed toward the body of another person and includes confinement.
  5. “Residence” means a dwelling in which a person resides either temporarily or permanently or is visiting as an invited guest.
  6. “Vehicle” means a conveyance of any kind, whether or not motorized, which is designed to transport people or property.

History. Enact. Acts 1974, ch. 406, § 26, effective January 1, 1975; 1992, ch. 173, § 1, effective July 14, 1992; 2006, ch. 192, § 1, effective July 12, 2006.

NOTES TO DECISIONS

1.Jury Instructions.

Failure to instruct the jury on self-protection, imperfect self-protection, second-degree manslaughter, and reckless homicide was not error as defendant never believed that the threat from the victim was imminent. Lickliter v. Commonwealth, 142 S.W.3d 65, 2004 Ky. LEXIS 173 ( Ky. 2004 ).

2.Imminent.

Defendant was not entitled to a “choice of evils” instruction under KRS 503.030 in his trial for escape. The danger of being seriously injured or killed by other residents of a halfway house was not “imminent,” as defined in KRS 503.010(3) as defendant waited hours after an attack to leave the halfway house and never reported prior attacks. Burke v. Commonwealth, 322 S.W.3d 71, 2010 Ky. LEXIS 235 ( Ky. 2010 ).

Research References and Practice Aids

Northern Kentucky Law Review.

Vaughn and Moore, Battered Spouse Defense In Kentucky, 10 N. Ky. L. Rev. 399 (1983).

Lotz, A Survey of Criminal Law Statutes Enacted in 1992, 20 N. Ky. L. Rev. 745 (1993).

Hodge, Wanton Murder, Self-Defense, and Jury Instructions: Shannon v. Commonwealth is Revisited; But does it Remain?, 22 N. Ky. L. Rev. 435 (1995).

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Defenses, Part 1 Definitions, §§ 11.01 — 11.03, 11.06.

Kentucky Instructions to Juries (Criminal), 5th Ed., Defenses, Part 2 Justification, §§ 11.18, 11.22.

503.020. Justification — A defense.

In any prosecution for an offense, justification, as defined in this chapter, is a defense.

History. Enact. Acts 1974, ch. 406, § 27, effective January 1, 1975.

NOTES TO DECISIONS

Cited:

Thompson v. Commonwealth, 652 S.W.2d 78, 1983 Ky. LEXIS 251 ( Ky. 1983 ), overruled, Shannon v. Commonwealth, 767 S.W.2d 548, 1988 Ky. LEXIS 80 ( Ky. 1988 ), overruled in part, Shannon v. Commonwealth, 767 S.W.2d 548, 1988 Ky. LEXIS 80 ( Ky. 1988 ); Lapradd v. Commonwealth, 334 S.W.3d 88, 2011 Ky. LEXIS 41 ( Ky. 2011 ); Jones v. Commonwealth, 366 S.W.3d 376, 2011 Ky. LEXIS 133 ( Ky. 2011 ).

Research References and Practice Aids

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Defenses, Part 2 Justification, § 11.28.

503.030. Choice of evils.

  1. Unless inconsistent with the ensuing sections of this code defining justifiable use of physical force or with some other provisions of law, conduct which would otherwise constitute an offense is justifiable when the defendant believes it to be necessary to avoid an imminent public or private injury greater than the injury which is sought to be prevented by the statute defining the offense charged, except that no justification can exist under this section for an intentional homicide.
  2. When the defendant believes that conduct which would otherwise constitute an offense is necessary for the purpose described in subsection (1), but is wanton or reckless in having such belief, or when the defendant is wanton or reckless in bringing about a situation requiring the conduct described in subsection (1), the justification afforded by this section is unavailable in a prosecution for any offense for which wantonness or recklessness, as the case may be, suffices to establish culpability.

History. Enact. Acts 1974, ch. 406, § 28, effective January 1, 1975.

NOTES TO DECISIONS

1.Contemporaneousness.

The option provided by this section must be a choosing on the part of the defendant which is sufficiently contemporaneous with the offense sought to be justified so as to be considered a part of the res gestae. Duvall v. Commonwealth, 593 S.W.2d 884, 1979 Ky. App. LEXIS 510 (Ky. Ct. App. 1979).

The affirmative defense of choice of evils does not provide a convicted felon the right to arm himself in anticipation of a shootout. Senay v. Commonwealth, 650 S.W.2d 259, 1983 Ky. LEXIS 247 ( Ky. 1983 ).

2.Justifiable Conduct.

Justifiable conduct on the part of an offender is conditioned upon at least four (4) different contingencies, namely, that the person believes the necessity of his action is mandated by his subjective value judgment as weighed by the reasonableness standard; that such action must be contemporaneous with the danger of injury sought to be avoided; that the injury is imminent, requiring an immediate choice if it is to be avoided; and that the danger or injury sought to be avoided must be greater than the penalty or offending charge occasioned by the action chosen by the party. Beasley v. Commonwealth, 618 S.W.2d 179, 1981 Ky. App. LEXIS 250 (Ky. Ct. App. 1981), overruled in part, LaPradd v. Commonwealth, 334 S.W.3d 88, 2011 Ky. LEXIS 41 ( Ky. 2011 ).

For the choice of evils defense to be available in justification of any act which is otherwise condemned by the Criminal Code, it must be shown that defendant’s conduct was necessitated by a specific and imminent threat of injury to his person under circumstances which left him no reasonable and viable alternative, other than the violation of the law for which he stands charged. The danger presented to the defendant must be compelling and imminent, constituting a set of circumstances which affords him little or no alternative other than the commission of the act which otherwise would be unlawful. Senay v. Commonwealth, 650 S.W.2d 259, 1983 Ky. LEXIS 247 ( Ky. 1983 ).

3.Specific and Imminent Threat.

Under this section there must be a showing of a specific and imminent threat to defendant’s person in order to justify the giving of an instruction. Damron v. Commonwealth, 687 S.W.2d 138, 1985 Ky. LEXIS 251 ( Ky. 1985 ).

Where inmates argued, as their sole defense, that they were compelled to escape from prison because they were suspected by fellow inmates of being responsible for assaults committed against two (2) other inmates, and were about to be released from protective custody into the general prison population in circumstances where they would either kill or be killed by friends of these two (2) inmates who were threatening their lives, inmate’s proof was insufficient to establish that injury was so “imminent” as to require the giving of a “choice of evils” jury instruction. Montgomery v. Commonwealth, 819 S.W.2d 713, 1991 Ky. LEXIS 154 ( Ky. 1991 ).

4.— Physical Injury.

“Choice of evil” defense applies to an imminent physical injury, not to a financial or property injury. Greer v. Commonwealth, 748 S.W.2d 674, 1988 Ky. App. LEXIS 66 (Ky. Ct. App. 1988).

5.Evidence.

Where the evidence was clear that defendant came into actual, physical custody and control of the deadly weapon at least two (2) days prior to the altercation, and at such time, defendant could not have known there would be a subsequent altercation or the necessity of exercising the choice of self-defense, thus, he was precluded from the option provided by “choice of evils.” Duvall v. Commonwealth, 593 S.W.2d 884, 1979 Ky. App. LEXIS 510 (Ky. Ct. App. 1979).

Where a defendant indicted on burglary and theft charges jumped bail because he felt that he would be unable to get a fair trial in the county in which he was indicted because he lived in another county, he could not rely upon this section as a defense in light of the fact that the original charges of burglary and theft, which were class D felonies, were not greater than the first-degree bail jumping charge, which was also a class D felony; accordingly, this section did not apply. Beasley v. Commonwealth, 618 S.W.2d 179, 1981 Ky. App. LEXIS 250 (Ky. Ct. App. 1981), overruled in part, LaPradd v. Commonwealth, 334 S.W.3d 88, 2011 Ky. LEXIS 41 ( Ky. 2011 ).

Testimony of defendant that he escaped from jail because it was a “matter of life or death,” in that he was ill while in jail, lost weight, suffered severe chest pains, had been denied medical attention and felt that “it was serious enough that my life was in jeopardy,” was not sufficient to invoke the provisions of this section. Damron v. Commonwealth, 687 S.W.2d 138, 1985 Ky. LEXIS 251 ( Ky. 1985 ).

In a prosecution for marijuana cultivation, the trial court properly refused to instruct the jury with regard to the choice of evils defense where the defendant asserted that he cultivated and smoked marijuana as a treatment for depression and to alleviate his pain from headaches, but there was no showing that an injury was imminent or that there were no reasonable alternatives to cultivating marijuana as a means of medical treatment for such physical ailments. Peak v. Commonwealth, 34 S.W.3d 80, 2000 Ky. App. LEXIS 149 (Ky. Ct. App. 2000), overruled in part, LaPradd v. Commonwealth, 334 S.W.3d 88, 2011 Ky. LEXIS 41 ( Ky. 2011 ).

6.Instructions.

Where a defendant fails to produce evidence which would support him in choosing the commission of an otherwise unlawful act over other lawful means of protecting himself, the trial court is not required to instruct the jury on the choice of evils defense. Consequently, where the convicted felon showed no direct threat of injury to himself or imminent peril necessitating the possession of a hand gun but asserted only a general fear posed by a single threat communicated through a third person, the possession of the hand gun over a two (2) month period was unlawful, and the trial court properly refused to give the tendered instruction on the choice of evils defense. Senay v. Commonwealth, 650 S.W.2d 259, 1983 Ky. LEXIS 247 ( Ky. 1983 ).

Where inmate who was charged with promoting contraband testified that his entire course of conduct was aimed at getting zip gun out of the hands of a fellow inmate and into the hands of the authorities, the inmate presented sufficient evidence at trial to allow reasonable minds to conclude that he was justified in his actions under either subsection (1) of this section or subdivision (2)(b) of KRS 503.040 , and the trial court erred in refusing to instruct the jury on a justification defense. Poteete v. Commonwealth, 701 S.W.2d 416, 1985 Ky. App. LEXIS 706 (Ky. Ct. App. 1985).

Defendant was not entitled to a “choice of evils” instruction under KRS 503.030 in his trial for escape. The danger of being seriously injured or killed by other residents of a halfway house was not “imminent,” as defined in KRS 503.010(3) as defendant waited hours after an attack to leave the halfway house and never reported prior attacks. Burke v. Commonwealth, 322 S.W.3d 71, 2010 Ky. LEXIS 235 ( Ky. 2010 ).

Trial court was not required to give the “choice of evils” instruction that defendant requested in a case where defendant was charged with operating a motor vehicle while under the influence of alcohol and defendant claimed it was necessary to do so in defendant’s role as a security guard in order to stop an auto theft. While such a defense was recognized under KRS 503.030 , defendant was not entitled to an instruction because defendant in initially calling police reported that a hit-and-run accident had occurred and did not say anything about stopping a theft. Cromer v. Commonwealth, 2011 Ky. App. LEXIS 186 (Ky. Ct. App. Aug. 19, 2011), review denied, ordered not published, 2014 Ky. LEXIS 590 (Ky. Dec. 10, 2014).

Cited:

Thompson v. Commonwealth, 652 S.W.2d 78, 1983 Ky. LEXIS 251 ( Ky. 1983 ), overruled, Shannon v. Commonwealth, 767 S.W.2d 548, 1988 Ky. LEXIS 80 ( Ky. 1988 ), overruled in part, Shannon v. Commonwealth, 767 S.W.2d 548, 1988 Ky. LEXIS 80 ( Ky. 1988 ); Price v. Commonwealth, 734 S.W.2d 491, 1987 Ky. App. LEXIS 522 (Ky. Ct. App. 1987).

Research References and Practice Aids

Kentucky Law Journal.

Comment, The Not Guilty by Reason of Insanity Verdict: Should Juries be Informed of its Consequences?, 72 Ky. L.J. 207 (1983-84).

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Defenses, Part 2 Justification, § 11.28.

503.040. Execution of public duty.

  1. Unless inconsistent with the ensuing sections of this code defining justifiable use of physical force or with some other provisions of law, conduct which would otherwise constitute an offense is justifiable when it is required or authorized by a provision of law imposing a public duty or by a judicial decree.
  2. The justification afforded by subsection (1) applies when:
    1. The defendant believes his conduct to be required or authorized by the judgment or direction of a competent court or tribunal or in the lawful execution of legal process, notwithstanding lack of jurisdiction of the court or defect in the legal process; or
    2. The defendant believes his conduct to be required or authorized to assist a public officer in the performance of his duties, notwithstanding that the officer exceeded his legal authority.

History. Enact. Acts 1974, ch. 406, § 29, effective January 1, 1975.

NOTES TO DECISIONS

1.Evidence.

Where the defendant admitted his possession of a handgun even though he was a convicted felon, the trial court properly admitted the testimony of one of the arresting police officers to the effect that the handgun was loaded when taken from the defendant, as it was relevant to the validity of his defense of justification. Baird v. Commonwealth, 709 S.W.2d 458, 1986 Ky. App. LEXIS 1102 (Ky. Ct. App. 1986).

2.Federal Officers.

Under this section federal officers conducting an eavesdropping operation pursuant to a valid federal wiretap order are not in violation of state law. Basham v. Commonwealth, 675 S.W.2d 376, 1984 Ky. LEXIS 229 ( Ky. 1984 ), cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814, 1985 U.S. LEXIS 1383 (U.S. 1985).

3.Instructions.

Where inmate who was charged with promoting contraband testified that his entire course of conduct was aimed at getting zip gun out of the hands of a fellow inmate and into the hands of the authorities, the inmate presented sufficient evidence at trial to allow reasonable minds to conclude that he was justified in his actions under either subsection (1) of KRS 503.030 or subdivision (2)(b) of this section, and the trial court erred in refusing to instruct the jury on a justification defense. Poteete v. Commonwealth, 701 S.W.2d 416, 1985 Ky. App. LEXIS 706 (Ky. Ct. App. 1985).

Where the defendant at trial admitted his possession of a handgun even though he had the status of a convicted felon, but he then sought to exonerate himself of that crime on the grounds that his actions were justified under subdivision (2)(b) of this section, a position which was at least partially corroborated by the testimony of a police officer, that evidence was sufficient to effectively raise the defense of justification, and the trial court erred in refusing to grant the defendant’s request for an instruction on that issue. Baird v. Commonwealth, 709 S.W.2d 458, 1986 Ky. App. LEXIS 1102 (Ky. Ct. App. 1986).

When an Ohio bondsman was prosecuted under KRS 440.270(2), prohibiting a bondsman from arresting a fugitive without a warrant, he was not entitled to a jury instruction that he believed his actions were legally authorized but for a court’s lack of jurisdiction or a defect in legal process, under KRS 503.040(2)(a), because the warrant on which he relied was valid. Walker v. Commonwealth, 127 S.W.3d 596, 2004 Ky. LEXIS 42 ( Ky. 2004 ).

Opinions of Attorney General.

It is improper for nursing personnel in a public hospital to take a blood sample at the direction of the police officer where the patient refuses to give his or her consent to the taking of the blood sample. OAG 87-51 , modifying OAG 84-379 .

Research References and Practice Aids

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Defenses, Part 2 Justification, § 11.21.

503.050. Use of physical force in self-protection — Admissibility of evidence of prior acts of domestic violence and abuse.

  1. The use of physical force by a defendant upon another person is justifiable when the defendant believes that such force is necessary to protect himself against the use or imminent use of unlawful physical force by the other person.
  2. The use of deadly physical force by a defendant upon another person is justifiable under subsection (1) only when the defendant believes that such force is necessary to protect himself against death, serious physical injury, kidnapping, sexual intercourse compelled by force or threat, felony involving the use of force, or under those circumstances permitted pursuant to KRS 503.055 .
  3. Any evidence presented by the defendant to establish the existence of a prior act or acts of domestic violence and abuse as defined in KRS 403.720 by the person against whom the defendant is charged with employing physical force shall be admissible under this section.
  4. A person does not have a duty to retreat prior to the use of deadly physical force.

History. Enact. Acts 1974, ch. 406, § 30, effective January 1, 1975; 1992, ch. 173, § 2, effective July 14, 1992; 2006, ch. 192, § 3, effective July 12, 2006.

NOTES TO DECISIONS

Analysis

1.Constitutionality.

In a case where an inmate sought a declaration that Kentucky’s self-defense statutes, as they existed at the time of his 1991 trial, were unconstitutional under Ky. Const. § 1, relief was not appropriate because no actual controversy was pled. The constitutionality of the self-defense statutes had no foreseeable application to the inmate, who was under six death sentences. Foley v. Commonwealth, 306 S.W.3d 28, 2010 Ky. LEXIS 53 ( Ky. 2010 ).

2.In General.

One who is without fault, is excused for slaying an antagonist, if he in good faith believes upon reasonable grounds, that he is in danger of death or great bodily harm at the hands of the antagonist, and there appears to him in the exercise of a reasonable judgment no other safe way to avoid the danger or apparent danger, except to kill, although the danger may be only apparent and no real danger is imminent. (Decided under prior law) Banks v. Commonwealth, 196 Ky. 639 , 245 S.W. 296, 1922 Ky. LEXIS 580 ( Ky. 1922 ).

A plea of self-defense, to an indictment under law that provided a penalty for maiming was good only where it was shown that the act was done in order to save accused’s life or prevent great bodily harm to himself, and the resistance was in proportion to the injury threatened. (Decided under prior law) Coleman v. Commonwealth, 280 Ky. 410 , 133 S.W.2d 555, 1939 Ky. LEXIS 144 ( Ky. 1939 ).

Where one has provoked assault, he may not regain right of self-defense merely by backing away from the assailant. (Decided under prior law) Toncray v. Commonwealth, 291 Ky. 471 , 165 S.W.2d 8, 1942 Ky. LEXIS 261 ( Ky. 1942 ).

Where persons voluntarily enter a mutual affray with intention of each participant to kill the other or do him great bodily harm, and that results, neither is entitled to acquittal on ground of “self-defense.” (Decided under prior law) Toler v. Commonwealth, 295 Ky. 105 , 173 S.W.2d 822, 1943 Ky. LEXIS 200 ( Ky. 1943 ).

Where deceased made a vicious and unwarranted assault on defendant’s companion, striking him with the butt of a pistol, the defendant was justified in killing the attacker, who was in the same act of pointing his pistol at the companion when defendant killed him. (Decided under prior law) Adkins v. Commonwealth, 293 Ky. 329 , 168 S.W.2d 1008, 1943 Ky. LEXIS 612 ( Ky. 1943 ).

Where the deceased had threatened the defendant, the defendant was nevertheless the aggressor where he armed himself with a club and went out to where the deceased was and struck the deceased from behind, and, therefore, the defendant’s use of the club was not in self-defense. (Decided under prior law) Delk v. Commonwealth, 308 Ky. 579 , 215 S.W.2d 109, 1948 Ky. LEXIS 981 ( Ky. 1948 ).

Among the factors that qualify or enter into the legal right of self-defense are reasonableness of the defendant’s belief of imminent danger of great bodily injury or loss of life, the necessity or reasonable judgment of necessity to shoot to avert that danger, real or apparent, and the absence of aggression by defendant. (Decided under prior law) Taul v. Commonwealth, 249 S.W.2d 45, 1952 Ky. LEXIS 793 ( Ky. 1952 ).

What constitutes self-defense is a question of law for the court, but whether killing was committed in self-defense is for jury to determine where there is evidence, with rational inferences to the effect that it is not so committed. (Decided under prior law) Taul v. Commonwealth, 249 S.W.2d 45, 1952 Ky. LEXIS 793 ( Ky. 1952 ).

The law of self-defense is the law of necessity, and in absence of need to defend, such principle should not be applied. (Decided under prior law) McDaniels v. Commonwealth, 249 S.W.2d 546, 1952 Ky. LEXIS 831 ( Ky. 1952 ).

Where defendant and deceased had been engaged in an altercation prior to the killing, the question of whether the defendant left the scene of the dispute in anger and returned with a gun in order to engage in mortal combat or returned merely to retrieve property he had left at the scene, and thereafter shot the deceased in self-defense, was for the jury to determine. (Decided under prior law) McDaniels v. Commonwealth, 249 S.W.2d 546, 1952 Ky. LEXIS 831 ( Ky. 1952 ).

Where the defendant admits shooting and wounding another, but attempts to justify it on the grounds of self-defense, it is incumbent on the accused to convince the jury that he acted in self-defense in a situation which caused the accused reasonably to believe that injury to himself could be prevented only by the immediate infliction of injury upon the other. (Decided under prior law) Bowling v. Commonwealth, 279 S.W.2d 238, 1955 Ky. LEXIS 515 ( Ky. 1955 ).

Doctrine of right of self-defense does not depend on whether danger to accused is apparent to the jury but whether such danger is apparent to accused in the exercise of a reasonable judgment. (Decided under prior law) Chinn v. Commonwealth, 310 S.W.2d 65, 1957 Ky. LEXIS 154 ( Ky. 1957 ).

The right of self-defense does not depend on whether danger to accused was apparent to the jury, but whether such danger was apparent to accused in the exercise of a reasonable judgment. (Decided under prior law) Chinn v. Commonwealth, 310 S.W.2d 65, 1957 Ky. LEXIS 154 ( Ky. 1957 ).

When the defendant admits the intentional killing of deceased, but asserts that it was done in justifiable self-defense, the jury need not accept the excuse and may convict for murder or voluntary manslaughter. (Decided under prior law) Barnett v. Commonwealth, 403 S.W.2d 40, 1966 Ky. LEXIS 323 ( Ky. 1966 ).

3.Burden of Proof.

Where accused pleads self-defense to homicide prosecution, burden is on accused to convincingly show that killing is in defense of life. (Decided under prior law) Terrill v. Commonwealth, 277 Ky. 155 , 125 S.W.2d 1015, 1939 Ky. LEXIS 621 ( Ky. 1939 ).

When accused admits, or it be shown beyond doubt, that he fired the fatal shot, it becomes his duty to demonstrate to the jury that his act was in self-defense. (Decided under prior law) Banks v. Commonwealth, 277 Ky. 647 , 126 S.W.2d 1122, 1939 Ky. LEXIS 710 ( Ky. 1939 ).

Accused, seeking to excuse homicide on ground of self-defense, must satisfy jury that killing was excusable and convincingly establish that it was in self-defense. (Decided under prior law) Newsome v. Commonwealth, 287 Ky. 447 , 153 S.W.2d 949, 1941 Ky. LEXIS 568 ( Ky. 1941 ).

Where a defendant pleads self-defense it is incumbent upon him to convince the jury of the truth of his evidence. (Decided under prior law) Satterfield v. Commonwealth, 288 Ky. 758 , 157 S.W.2d 89, 1941 Ky. LEXIS 166 ( Ky. 1941 ).

When an accused admits firing the shot that resulted in the death of his victim, and attempts to justify his conduct on the ground of self-defense, it is incumbent upon him to satisfy the jury that the homicide was excusable on that ground. This rule is modified to the extent that while neither the court nor the jury is required to accept defendant’s explanation of homicide in the absence of eyewitnesses, nevertheless, if the physical facts in evidence corroborate the testimony of defendant, and the proven circumstances are more consistent with innocence than with guilt, it is the duty of the court to instruct the jury to return a verdict of not guilty. (Decided under prior law) Foster v. Commonwealth, 301 Ky. 225 , 191 S.W.2d 220, 1945 Ky. LEXIS 713 ( Ky. 1945 ).

In a homicide prosecution, where defendant does not deny doing act causing death, only question for jury is whether defendant committed act in self-defense, and defendant must convince jury that act was excusable. (Decided under prior law) Barker v. Commonwealth, 304 Ky. 13 , 199 S.W.2d 713, 1947 Ky. LEXIS 570 ( Ky. 1947 ).

Where a defendant admits or is shown to have committed a homicide and attempts to justify it on grounds of self-defense or of defense of another, he must satisfy jury that killing was excusable and such defense must be convincingly established. (Decided under prior law) Fields v. Commonwealth, 310 Ky. 162 , 219 S.W.2d 991, 1949 Ky. LEXIS 851 ( Ky. 1949 ).

Where accused admitted that he fired the shots which took the life of the deceased, it was incumbent upon him to prove that his act was excusable under all the facts and circumstances of the case, and the only question to be decided by the jury was whether or not accused successfully sustained such burden of proof. (Decided under prior law) Baker v. Commonwealth, 311 Ky. 410 , 224 S.W.2d 433, 1949 Ky. LEXIS 1154 ( Ky. 1949 ), cert. denied, 339 U.S. 915, 70 S. Ct. 561, 94 L. Ed. 1340, 1950 U.S. LEXIS 2286 (U.S. 1950).

Where the accused admits the killing of a person it is incumbent on him to satisfy the jury that he was at the time acting in his self-defense, but he cannot avail himself of that defense if he was the aggressor, or started the difficulty and did not abandon it in good faith. (Decided under prior law) Lewis v. Commonwealth, 312 Ky. 191 , 226 S.W.2d 934, 1950 Ky. LEXIS 615 ( Ky. 1950 ).

Where, in homicide cases, the Commonwealth proves and defendant admits the act of homicide, and accused produces testimony to show excuse therefor, whether the act of shooting and killing deceased was in self-defense is a question for the jury. (Decided under prior law) White v. Commonwealth, 312 Ky. 480 , 228 S.W.2d 25, 1950 Ky. LEXIS 680 ( Ky. 1950 ).

Where the defendant was shown to have committed the act of killing, and he pled self-defense, it was incumbent upon him to establish justification unless the evidence presented by the prosecution showed a state of facts justifying the acts. (Decided under prior law) Taul v. Commonwealth, 249 S.W.2d 45, 1952 Ky. LEXIS 793 ( Ky. 1952 ).

Where a defendant admits killing but relies upon self-defense, burden is upon him to establish that he acted in self-defense. (Decided under prior law) Ward v. Commonwealth, 287 S.W.2d 601, 1956 Ky. LEXIS 470 ( Ky. 1956 ).

Trial court erred by denying defendant’s motion to dismiss the indictment charging him with manslaughter based on his claim of self-defense pursuant to KRS 503.085 . Although defendant fled the scene, disposed of the knife, and initially denied any involvement in the stabbing, his behavior and statements were not sufficient to meet the Commonwealth’s burden of showing probable cause to believe that defendant’s use of deadly force was unlawful under KRS 503.050(2). Lemons v. Commonwealth, 2012 Ky. App. LEXIS 98 (Ky. Ct. App. June 22, 2012).

4.Directed Verdict for Defendant.

Where the defendant admits the killing, but relies on self-defense, he is not entitled to a directed verdict even though the evidence is as consistent with his claim of self-defense as it is with Commonwealth’s claim of unjustifiable homicide. (Decided under prior law) Caudill v. Commonwealth, 292 Ky. 761 , 166 S.W.2d 1011, 1942 Ky. LEXIS 125 ( Ky. 1942 ).

Where testimony of all witnesses indicated that deceased was advancing upon defendant with evident purpose of making a violent assault upon him, and deceased had made a similar assault earlier in the day, court was not justified in denying directed verdict merely because size of gunshot wound in deceased’s body furnished basis for speculation that deceased was considerable distance from defendant when shot was fired. (Decided under prior law) Mason v. Commonwealth, 291 Ky. 538 , 165 S.W.2d 24, 1942 Ky. LEXIS 266 ( Ky. 1942 ).

Testimony of accused and his wife, who were only eyewitnesses, that deceased attacked accused with a knife after initiating an argument, was sufficient to entitle accused to a directed verdict of acquittal, where physical evidence supported accused’s story. (Decided under prior law) Cecil v. Commonwealth, 294 Ky. 44 , 170 S.W.2d 882, 1943 Ky. LEXIS 372 ( Ky. 1943 ).

Defendant’s motion for directed verdict, on ground of self-defense, was properly overruled where defendant’s claim that deceased was advancing towards defendant with left arm extended in front of him, holding pistol pointed at defendant, when defendant shot and killed deceased with shotgun, was contradicted by fact that deceased’s left arm and hand did not bear any shotgun wounds, while entire front and left side of deceased’s body were peppered with gunshot. (Decided under prior law) Foster v. Commonwealth, 301 Ky. 225 , 191 S.W.2d 220, 1945 Ky. LEXIS 713 ( Ky. 1945 ).

Defendant was not entitled to directed verdict on claim of self-defense, where course and range of bullet, position of victim’s body, and defendant’s conduct after the killing, contradicted defendant’s story as to how killing occurred. (Decided under prior law) Wilson v. Commonwealth, 305 Ky. 652 , 205 S.W.2d 319, 1947 Ky. LEXIS 890 ( Ky. 1947 ).

When an accused admits a homicide, the burden is on him to satisfy the jury that it was committed in self-defense; however, where there are no eyewitnesses, and the physical facts in evidence corroborate the testimony of the defendant, and the proven circumstances are more consistent with innocence than with guilt, the defendant is entitled to a directed verdict. (Decided under prior law) Wilson v. Commonwealth, 305 Ky. 652 , 205 S.W.2d 319, 1947 Ky. LEXIS 890 ( Ky. 1947 ).

Only where evidence of self-defense or defense of another is so consistent with that of the prosecution, or is so overwhelming in probative value or effect as to afford no real issue of fact, should a directed verdict of acquittal be given. (Decided under prior law) Fields v. Commonwealth, 310 Ky. 162 , 219 S.W.2d 991, 1949 Ky. LEXIS 851 ( Ky. 1949 ).

In homicide cases where the defendant admits the killing and relies upon the plea of self-defense, defense of another, or of his home, supported by uncontradicted evidence, it is the duty of the trial court to direct the acquittal of the defendant or to set aside a verdict of conviction, and it is the further duty of the Court of Appeals to reverse such conviction. (Decided under prior law) Holcomb v. Commonwealth, 280 S.W.2d 499, 1955 Ky. LEXIS 159 ( Ky. 1955 ).

Where a defendant admitted the killing but claimed self-defense, and there was conflicting evidence as to whether the defendant did in fact act in self-defense, the defendant was not entitled to a directed verdict of acquittal. (Decided under prior law) Brannon v. Commonwealth, 400 S.W.2d 680, 1966 Ky. LEXIS 447 ( Ky. 1966 ).

Defendant convicted of first degree involuntary manslaughter was not entitled to a directed verdict as a result of his claim of self-defense where he did not testify that his actions were motivated by the necessity to protect himself from danger to his life or from bodily harm nor that the force he used was believed necessary by him to avert any such danger. (Decided under prior law) Alsip v. Commonwealth, 482 S.W.2d 571, 1972 Ky. LEXIS 194 ( Ky. 1972 ).

Rarely is a defendant relying upon self-defense entitled to a directed verdict; only in the unusual case where the evidence conclusively establishes justification and all of the elements of self-defense are present is it proper to direct a verdict of not guilty. West v. Commonwealth, 780 S.W.2d 600, 1989 Ky. LEXIS 72 ( Ky. 1989 ).

5.Domestic Violence and Abuse.

If sufficient competent evidence is introduced to create a jury issue that a defendant was a victim of domestic violence and abuse and killed or assaulted his or her abuser under a belief that there was an “impending danger” of being subjected to unlawful physical force at the hands of the abuser, that defendant is entitled to an instruction on self-protection, regardless of whether the defendant is charged as a principal or an accomplice. Springer v. Commonwealth, 998 S.W.2d 439, 1999 Ky. LEXIS 56 ( Ky. 1999 ).

A defendant could be retried for the murder of her husband without offending the principle of double jeopardy after she presented character evidence against the victim regarding his abuse of her and her children but then failed to present any evidence toward a self-defense theory, which would make such character evidence admissible, instead relying solely on the defense of accident. Grimes v. McAnulty, 957 S.W.2d 223, 1997 Ky. LEXIS 118 ( Ky. 1997 ), cert. denied, 525 U.S. 824, 119 S. Ct. 70, 142 L. Ed. 2d 55, 1998 U.S. LEXIS 4948 (U.S. 1998).

6.Evidence.

Evidence that accused attacked deceased without provocation justified instruction that he could not be acquitted on ground of self-defense if he brought on the difficulty by assaulting and striking deceased. (Decided under prior law) Elschide v. Commonwealth, 280 Ky. 690 , 134 S.W.2d 600, 1939 Ky. LEXIS 197 ( Ky. 1939 ).

Evidence was sufficient to sustain conviction, as against plea of self-defense, where it showed that victim, in obviously intoxicated condition, approached accused, offered him a drink, and on being refused asked to see accused’s pistol and placed his hand upon his shoulder, but without display of belligerency, whereupon accused backed away and shot victim. (Decided under prior law) Farley v. Commonwealth, 284 Ky. 536 , 145 S.W.2d 100, 1940 Ky. LEXIS 534 ( Ky. 1940 ).

Evidence that deceased was backing away at time accused fired, was sufficient for finding that killing was not in self-defense and to sustain a conviction of manslaughter in view of rule that accused must convince jury that consummated act was in real self-defense, giving jury right to consider not only necessity of act, but also whether accused exercised more force than was necessary to defend himself from attack. (Decided under prior law) Turner v. Commonwealth, 287 Ky. 499 , 153 S.W.2d 927, 1941 Ky. LEXIS 560 ( Ky. 1941 ).

In prosecution for maliciously and willfully shooting and wounding another with intent to kill, the question of self-defense was for the jury and verdict of guilty was not contrary to the law and the evidence, where defendant relied upon self-defense but evidence other than his own did not show that he had cause to believe he was in immediate danger of great bodily harm since he was armed, his victim was weaponless and four (4) witnesses testified defendant was the aggressor. (Decided under prior law) Dehart v. Commonwealth, 287 S.W.2d 618, 1956 Ky. LEXIS 477 ( Ky. 1956 ).

Where prosecution witness had ridden on a horse to a home of a third party, not knowing defendant was there, and defendant came out in response to a call, and prosecuting witness, holding a two (2) year old child, remained seated on the horse and after a conversation concerning a horse that had been running loose, prosecuting witness said “Don’t get smart with me, young man,” the words spoken by prosecuting witness furnished no justification for an assault and battery. (Decided under prior law) Charles v. Commonwealth, 321 S.W.2d 253, 1959 Ky. LEXIS 274 ( Ky. 1959 ).

It was prejudicial error to exclude defendant’s proffered evidence of four specific violent acts committed by the victim of which the defendant had knowledge where his defense was based upon self-protection which in turn must be based upon his belief in the necessity of using deadly force. Wilson v. Commonwealth, 880 S.W.2d 877, 1994 Ky. App. LEXIS 2 (Ky. Ct. App. 1994).

7.Instructions.

Words “and not in self-defense” were to be included in instructions only where such words were used in statute defining offense charged. (Decided under prior law) Williams v. Commonwealth, 210 Ky. 518 , 276 S.W. 497, 1925 Ky. LEXIS 719 ( Ky. 1925 ).

Use of words “avert danger” in self-defense instruction was not error. (Decided under prior law) Fields v. Commonwealth, 275 Ky. 136 , 120 S.W.2d 1021, 1938 Ky. LEXIS 378 ( Ky. 1938 ).

Qualification of instruction which told jury that accused was not guilty if, while acting in self-defense against other participants in fight, he accidentally shot victim, an innocent bystander, by provision that accused did not unnecessarily start fight, was not error where there was evidence that he entered affray of own accord and when not attacked. (Decided under prior law) Bowman v. Commonwealth, 284 Ky. 103 , 143 S.W.2d 1051, 1940 Ky. LEXIS 447 ( Ky. 1940 ).

Instruction on self-defense which told jury to acquit, if they believed that when accused cut victim he believed, and had reasonable grounds to believe, that he and his brother were in danger of death or serious bodily harm from accused, being more favorable to accused than usual self-defense instruction, did not prejudice his substantial rights. (Decided under prior law) Smith v. Commonwealth, 284 Ky. 468 , 145 S.W.2d 51, 1940 Ky. LEXIS 517 ( Ky. 1940 ).

Where defendant did not rely on self-defense but made a complete denial, the court should not instruct on self-defense. (Decided under prior law) Edwards v. Commonwealth, 289 Ky. 318 , 158 S.W.2d 377, 1941 Ky. LEXIS 29 ( Ky. 1941 ).

Failure to define term “self-defense” in instruction was not error, where evidence, though conflicting, was so plain and self-defense instruction so easily understood that there was no apparent need for defining term. (Decided under prior law) Pack v. Commonwealth, 287 Ky. 192 , 152 S.W.2d 600, 1941 Ky. LEXIS 520 ( Ky. 1941 ).

Reversible error occurred where no mention of self-defense was made in the instruction under which the defendant was convicted and there was no separate instruction given on self-defense. (Decided under prior law) Medley v. Commonwealth, 450 S.W.2d 811, 1970 Ky. LEXIS 460 ( Ky. 1970 ).

Where evidence showed that defendant arrived at a house where a poker game was being played and after his brother, one (1) of five (5) people present at the game, told defendant he was barred from playing, defendant responded by pulling a .22 caliber pistol from his trouser pocket, threatened several players, and then pointed the gun at victim and said, “I ought to shoot you” or “I’ve got it in for you,” to which victim said, “here I am,” and that when defendant stepped back lowering the gun to his side, a struggle began for the gun between victim and defendant and five (5) shots were fired before the scuffle ended with victim dead and defendant’s brother wounded, qualifying instruction stating that if defendant provoked victim to use physical force, while intending to cause death or serious injury to victim, then defendant’s use of force for his own protection was unlawful, was not in error. Charles v. Commonwealth, 634 S.W.2d 407, 1982 Ky. LEXIS 257 ( Ky. 1982 ).

Where defendant’s testimony was that he choked victim, not to avoid being forced to perform a sexual act, but to avoid being “hurt,” and he stated that he knew that the victim was going to “hurt” him whether he performed the act or not, from the context of his testimony, the “hurt” which defendant wanted to avoid was the immediate and no doubt acute pain which the victim was inflicting upon him from the manner in which he was holding defendant, and some future hurt of an unexplained nature, which the victim might later inflict upon defendant. An instruction on self-protection from compelled sexual intercourse was not warranted. Boyle v. Commonwealth, 694 S.W.2d 711, 1985 Ky. App. LEXIS 546 (Ky. Ct. App. 1985).

Where in the self-protection instruction, the trial court used the words “then and there about to use physical force” instead of the statutory language of “use or imminent use of unlawful physical force” the instruction was proper and not overly restrictive as both phrases connote an immediacy or close proximity in time during which the defendant was allowed under the circumstances to use physical force. Henson v. Commonwealth, 812 S.W.2d 718, 1991 Ky. LEXIS 95 ( Ky. 1991 ).

There was no error in refusing to instruct on self-defense since there was no evidence that the appellant acted out of any need for self-protection; at most was her testimony that the victim might have “jumped” at her or verbally abused her.” No one could seriously contend that her use of deadly physical force was necessary at that time to protect herself against death or serious physical injury. Cecil v. Commonwealth, 888 S.W.2d 669, 1994 Ky. LEXIS 124 ( Ky. 1994 ).

In conviction of the murder of two officers who were trying to arrest him pursuant to an outstanding out-of-state warrant, the state trial court properly refused to instruct the jury on imperfect self-defense because, under KRS 503.050(2), if the police used more force than was reasonably necessary to effect an arrest, then a suspect resisting arrest could claim self-defense, but the jury implicitly found that defendant initiated the gunfire, so that the claim of self-defense was inapplicable as justification for resisting arrest where the officer was using reasonable force. Baze v. Parker, 371 F.3d 310, 2004 FED App. 0173P, 2004 U.S. App. LEXIS 11312 (6th Cir. Ky. 2004 ), cert. denied, 544 U.S. 931, 125 S. Ct. 1670, 161 L. Ed. 2d 495, 2005 U.S. LEXIS 2606 (U.S. 2005).

Failure to instruct the jury on self-protection, imperfect self-protection, second-degree manslaughter, and reckless homicide was not error as defendant never believed that the threat from the victim was imminent. Lickliter v. Commonwealth, 142 S.W.3d 65, 2004 Ky. LEXIS 173 ( Ky. 2004 ).

When defendant was convicted of manslaughter, his counsel was not ineffective for not seeking a jury instruction on the use of deadly force in protection against burglary, under KRS 503.080(2)(b), because counsel presented strong evidence of self-protection justifying defendant’s use of deadly force when he believed deadly force was necessary to protect himself against death or serious physical injury, under KRS 503.050(2), and (2) the issue would have required the jury to determine whether defendant believed the victim was about to commit burglary. Fuston v. Commonwealth, 217 S.W.3d 892, 2007 Ky. App. LEXIS 70 (Ky. Ct. App. 2007).

Defendant was not entitled to an instruction on self protection because police found no rifle at the scene of the shooting to support defendant’s theory, and the victim was a convicted felon who was ineligible to possess a rifle. Smith v. Commonwealth, 410 S.W.3d 160, 2013 Ky. LEXIS 404 ( Ky. 2013 ).

In convicting defendant of second-degree wanton endangerment, the jury rejected defendant's claim that he was acting in self-defense and never reached the question of whether his claimed belief was a mistaken one. Accordingly, even if the trial court erred in instructing the jury on the wantonless danger charge, the error was harmless based on the circumstances of this case and the jury's finding that defendant was not acting in self-protection. Yaden v. Commonwealth, 2016 Ky. App. LEXIS 66 (Ky. Ct. App. Apr. 29, 2016), review denied, ordered not published, 2016 Ky. LEXIS 538 (Ky. Oct. 13, 2016).

8.— Malicious Assault.

An instruction under law that provided a penalty for the cutting in sudden affray or heat of passion without previous malice or in self-defense omitting the requirement that the cutting must not have been in self-defense was erroneous. (Decided under prior law) Brown v. Commonwealth, 79 S.W. 1193, 25 Ky. L. Rptr. 2076 (1904).

An instruction that if accused sought the difficulty and willingly engaged in it with intent to do the injured person bodily harm, the jury should not acquit him on the ground of self-defense, was erroneous, when accused sought the injured person for purpose of an explanation, since jury may misconstrue the seeking for explanation as seeking for a difficulty. (Decided under prior law) Ward v. Commonwealth, 103 S.W. 719, 31 Ky. L. Rptr. 807 (1907).

Instruction on self-defense which omitted the words “whether it endangered life or not,” which qualify the imminent danger which would excuse the defendant for reasonably assuming he was in danger and was justified in using the means he did to save himself, but which did not limit to real dangers only defendant’s right to act in self-defense, but also from danger which he had reasonable grounds to believe was present, was not prejudicial to defendant. (Decided under prior law) Turner v. Commonwealth, 260 S.W.2d 646, 1953 Ky. LEXIS 978 ( Ky. 1953 ).

9.—— Cutting.

In prosecution for cutting and stabbing another with a knife, failure to give instruction on defendant’s right to defend himself if he was pursued by victim after he abandoned original affray instigated by him, was not prejudicial, where rights of defendant were fairly protected under correctly given self-defense and reasonable doubt instructions, and particularly where the court had not qualified the self-defense instruction by a “bringing on the difficulty” clause excluding the right of self-defense if defendant had started the affray. (Decided under prior law) Williams v. Commonwealth, 304 Ky. 359 , 200 S.W.2d 926, 1947 Ky. LEXIS 653 ( Ky. 1947 ).

In prosecution for malicious cutting and wounding with intent to kill, in absence of evidence showing beyond a reasonable doubt that the accused provoked the difficulty or mutually entered into the affray, he was entitled to a self-defense instruction. (Decided under prior law) Lawson v. Commonwealth, 309 Ky. 458 , 218 S.W.2d 41, 1949 Ky. LEXIS 741 ( Ky. 1949 ).

In prosecution for malicious cutting and wounding of a police officer, failure to instruct that if arrest was illegal defendant had right to stab officer in resisting it, was not error where defendant had already submitted to arrest and his actions could not be characterized as resisting arrest, and court did fairly submit to the jury the defendant’s right to repel an assault and battery by the officer, and also the right to stab officer in self-defense. (Decided under prior law) Patton v. Commonwealth, 273 S.W.2d 841, 1954 Ky. LEXIS 1216 ( Ky. 1954 ).

Where, in prosecution for maliciously cutting and wounding another with intent to kill, jury had before it Commonwealth’s version, which placed defendant as the aggressor from time of first encounter until victim was cut, and defendant’s version, showing that he had abandoned the affray when he pulled victim off a third party and that he did not cut victim until after the latter had struck him with a piece of two-by-four, the self-defense instruction given by the trial court was adequate even though it did not take cognizance of his abandonment of the affray and that he was thereafter acting in his own self-defense when the cutting occurred. (Decided under prior law) Woosley v. Commonwealth, 282 S.W.2d 625, 1955 Ky. LEXIS 257 ( Ky. 1955 ).

In a prosecution for malicious cutting and wounding with a knife, an instruction which presented the right of the accused to kill in self-defense, if necessary, in whatever manner the difficulty may have arisen, without the qualification that if the jury believed beyond a reasonable doubt that the defendant brought on the difficulty he could not excuse himself on the ground of self-defense, was favorable to the defendant. (Decided under prior law) Shepherd v. Commonwealth, 277 S.W.2d 42, 1955 Ky. LEXIS 461 ( Ky. 1955 ).

In prosecution for malicious cutting and wounding with knife, qualification on instruction sought by defendant that if jury believed from evidence that prosecuting witness sought or brought on difficulties, then defendant had right to resist him to extent of taking prosecuting witness’ life, would have doubly stressed defendant’s right of self-defense by giving undue prominence to fact that prosecuting witness sought or brought on difficulty, and would have been more than he was due. (Decided under prior law) Shepherd v. Commonwealth, 277 S.W.2d 42, 1955 Ky. LEXIS 461 ( Ky. 1955 ).

In prosecution for maliciously cutting and striking, where the evidence was conflicting, the court properly qualified the usual self-defense instruction by an instruction that if jury believed one (1) of the defendants was the aggressor in the difficulty, then right of self-defense was not available. (Decided under prior law) Adkins v. Commonwealth, 309 S.W.2d 165, 1958 Ky. LEXIS 337 ( Ky. 1958 ).

10.—— Shooting.

A reference to an instruction defining self-defense, in an instruction defining malicious shooting with intent to kill, was not prejudicial error. (Decided under prior law) Williams v. Commonwealth, 210 Ky. 518 , 276 S.W. 497, 1925 Ky. LEXIS 719 ( Ky. 1925 ).

Instruction under law that provided a penalty for shooting, wounding or cutting in sudden affray or heat of passion without previous malice and not in self-defense was not prejudicial for using word “apparently” immediately preceding words “necessary self-defense,” since such use merely emphasized defendant’s right to act on appearances and was more favorable than he was entitled to. (Decided under prior law) Hensley v. Commonwealth, 264 Ky. 718 , 95 S.W.2d 564, 1936 Ky. LEXIS 387 ( Ky. 1936 ).

Where instructions were given both on shooting in sudden passion and on self-defense, jury was not deprived of right to weigh evidence on both issues, and, hence, it cannot be said that it did not properly weigh proof of shooting in sudden affray or self-defense. (Decided under prior law) Smith v. Commonwealth, 284 Ky. 80 , 143 S.W.2d 859, 1940 Ky. LEXIS 441 ( Ky. 1940 ).

In prosecution for willfully and maliciously shooting and wounding with intent to kill, omission of clause, that shooting was not in self-defense or in defense of defendant’s father, from primary instruction submitting question of defendant’s guilt as a principal was not erroneous where instructions as a whole, particularly the self-defense instruction made it clear that conviction could not be had if shooting was done in self-defense. (Decided under prior law) Couch v. Commonwealth, 313 Ky. 596 , 233 S.W.2d 88, 1950 Ky. LEXIS 925 ( Ky. 1950 ).

Instruction which submitted the question of guilt of shooting in sudden heat of passion or in sudden affray, a misdemeanor under law that provided a penalty for such shooting without malice and not in self-defense and a lesser degree of willfully and maliciously shooting and wounding another with intent to kill, under law which did not contain such provision, was erroneous in that it left jury to determine whether act of shooting was actually in self-defense rather than as it appeared at time to accused person to be, where defendant claimed that his father was in danger and that he shot in his own defense and in defense of his father. The instruction should have contained the clause or provision “not in his own apparently necessary self-defense or apparently necessary defense of his father . . . . . ” (Decided under prior law) Couch v. Commonwealth, 313 Ky. 596 , 233 S.W.2d 88, 1950 Ky. LEXIS 925 ( Ky. 1950 ).

Instruction which submitted question of shooting in sudden heat of passion or in sudden affray, and which left jury to determine whether act of shooting was actually in self-defense rather than as it appeared at time to accused person to be, was error, as defendant claimed that his father was in danger and that he shot in his own defense and in defense of his father, instruction should have contained provisions “not in his own apparently necessary self-defense or apparently necessary defense of his father.” (Decided under prior law) Couch v. Commonwealth, 313 Ky. 596 , 233 S.W.2d 88, 1950 Ky. LEXIS 925 ( Ky. 1950 ).

In prosecution for shooting and wounding with pistol, self-defense instruction and other instructions given were correct exposition of law of case. (Decided under prior law) Mills v. Commonwealth, 300 S.W.2d 787, 1957 Ky. LEXIS 471 ( Ky. 1957 ).

11.— Murder.

When evidence in a murder prosecution tends to entitle accused to instruction on law as to self-defense or defense of home, or both, trial court must give instruction defining law of such defenses. (Decided under prior law) Williams v. Commonwealth, 254 Ky. 277 , 71 S.W.2d 626, 1934 Ky. LEXIS 73 ( Ky. 1934 ).

Where instruction on murder or voluntary manslaughter contained negation, “not in his necessary or apparently necessary self-defense as self-defense is defined in instruction No. 3,” and instruction No. 3 submitted right of self-defense as against victim, an innocent bystander, and instruction No. 4 extended that right as against others, participants in fight, and told jury that accused was not guilty if victim was accidentally shot while accused was acting in self-defense against participants, fact that above-quoted words of negation did not relate to accused’s rights under instruction No. 4 as well as under instruction No. 3 was not prejudicial to accused when all instructions were read together, as against contention that there was prejudicial limitation of his right of self-defense. (Decided under prior law) Bowman v. Commonwealth, 284 Ky. 103 , 143 S.W.2d 1051, 1940 Ky. LEXIS 447 ( Ky. 1940 ).

Where defendant testifies to fact showing how killing occurred and where there is no room for any possible theory except he is guilty of murder or he is innocent, there is no reason for court to give the manslaughter and self-defense instructions. (Decided under prior law) Davenport v. Commonwealth, 285 Ky. 628 , 148 S.W.2d 1054, 1941 Ky. LEXIS 444 ( Ky. 1941 ).

Where evidence was not wholly circumstantial, and there was no evidence of a struggle preceding the killing, it was not error to deny instructions on self-defense and all the degrees of homicide. (Decided under prior law) Ferguson v. Commonwealth, 291 Ky. 222 , 163 S.W.2d 449, 1942 Ky. LEXIS 197 ( Ky. 1942 ).

Evidence that defendant, with gun in his possession, went to place where deceased was and commenced conversation resulting in altercation in which deceased was killed, justified instruction that plea of self-defense was not available if defendant “sought out” deceased for purpose of bringing on or engaging in a difficulty and killing or injuring him, notwithstanding testimony of defendant that he went to see deceased to apologize for previous misunderstanding. (Decided under prior law) Toncray v. Commonwealth, 291 Ky. 471 , 165 S.W.2d 8, 1942 Ky. LEXIS 261 ( Ky. 1942 ).

Mere presence of the defendant at the place of the homicide or even a seeking out of the deceased by the defendant is not sufficient to justify qualification of self-defense instruction; there must be an overt act or hostile demonstration which provoked the other party. (Decided under prior law) Toncray v. Commonwealth, 291 Ky. 471 , 165 S.W.2d 8, 1942 Ky. LEXIS 261 ( Ky. 1942 ).

Self-defense instruction should not be qualified in absence of evidence upon which qualification can be based. (Decided under prior law) Toncray v. Commonwealth, 291 Ky. 471 , 165 S.W.2d 8, 1942 Ky. LEXIS 261 ( Ky. 1942 ).

Where there was no evidence to indicate that defendant had used angry or insulting language to provoke controversy, instruction qualifying right of self-defense if jury found that defendant had used such language was prejudicial error, although technically such instruction was favorable to defendant. (Decided under prior law) Toncray v. Commonwealth, 291 Ky. 471 , 165 S.W.2d 8, 1942 Ky. LEXIS 261 ( Ky. 1942 ).

An “eyewitness” is not limited to one who obtains knowledge of an act through the sense of sight alone; one who is able to recognize a person by his voice, but is unable to see him because of absence of light, is nevertheless an eyewitness, within the meaning of the rule that an instruction on self-defense is required where there is evidence of a struggle and there is no eyewitness. (Decided under prior law) Anderson v. Commonwealth, 291 Ky. 727 , 166 S.W.2d 30, 1942 Ky. LEXIS 333 ( Ky. 1942 ).

An instruction of self-defense is erroneous if it does not include the right of the defendant to protect himself from the deceased and others, acting in concert, where the proof tends to show that the assault is a concerted action. (Decided under prior law) Martin v. Commonwealth, 299 Ky. 1 , 184 S.W.2d 234, 1944 Ky. LEXIS 1024 ( Ky. 1 944).

Where defendant’s evidence was that deceased, his sister and their dog started to pursue defendant after meeting him on highway, the deceased throwing rocks and the sister having a blackjack, and that he was required to shoot deceased in self-defense, defendant was entitled to instruction as to right to defend himself against deceased’s sister and dog as well as deceased. (Decided under prior law) Martin v. Commonwealth, 299 Ky. 1 , 184 S.W.2d 234, 1944 Ky. LEXIS 1024 ( Ky. 1 944).

Ordinarily, where no eyewitness testifies, the court should instruct on self-defense; however, where the physical facts are such as to preclude the idea that there was a struggle or any resistance by the deceased, an instruction on self-defense may be refused. (Decided under prior law) Thorpe v. Commonwealth, 301 Ky. 541 , 191 S.W.2d 572, 1945 Ky. LEXIS 739 ( Ky. 1945 ).

Where defendant denied having done the killing and did not raise issue of self-defense, and there was no evidence to indicate a struggle or resistance by the deceased, it appearing that deceased was deliberately murdered for purpose of robbery, it was not error for court to fail to give a self-defense instruction. (Decided under prior law) Thorpe v. Commonwealth, 301 Ky. 541 , 191 S.W.2d 572, 1945 Ky. LEXIS 739 ( Ky. 1945 ).

Where the only issue is as to whether defendant did the killing, an instruction on self-defense is improper. (Decided under prior law) Thorpe v. Commonwealth, 301 Ky. 541 , 191 S.W.2d 572, 1945 Ky. LEXIS 739 ( Ky. 1945 ).

Where there was no evidence that any other person was acting with defendant at time of killing, it was error to use words “or any other person then and there present and acting with him” in self-defense instruction. (Decided under prior law) Smith v. Commonwealth, 301 Ky. 364 , 192 S.W.2d 92, 1946 Ky. LEXIS 479 ( Ky. 1946 ).

Where there was no evidence that prior to the killing, the deceased and the accused had any agreement or mutuality of desire to engage in combat, it was error to qualify self-defense instruction with a mutual combat theory. (Decided under prior law) Smith v. Commonwealth, 301 Ky. 364 , 192 S.W.2d 92, 1946 Ky. LEXIS 479 ( Ky. 1946 ).

In murder prosecution, self-defense instruction was properly omitted where none of defendants testified or contended that injuries inflicted upon deceased were in self-defense. (Decided under prior law) Witt v. Commonwealth, 305 Ky. 31 , 202 S.W.2d 612, 1947 Ky. LEXIS 730 ( Ky. 1947 ).

In murder prosecution arising out of death of deceased from pistol wound following altercation with defendant, self-defense instruction was properly refused where defendant denied shooting deceased and admitted that he was the immediate aggressor. (Decided under prior law) Delk v. Commonwealth, 308 Ky. 579 , 215 S.W.2d 109, 1948 Ky. LEXIS 981 ( Ky. 1948 ).

Self-defense instruction in murder prosecution that defendant “had no other safe or to him apparently safe means of avoiding the danger except to shoot” is not prejudicial because of the use of the word “avoiding” instead of “averting” although the latter is the better word to use. (Decided under prior law) Perkins v. Commonwealth, 311 Ky. 304 , 223 S.W.2d 997, 1949 Ky. LEXIS 1121 ( Ky. 1949 ).

A self-defense instruction was properly qualified by stating that the defendant could not have acted in self-defense if he returned to the scene of the dispute after having obtained a gun and had no reasonable grounds to believe that he and his wife were in danger of death or great bodily harm and brought about any danger from the deceased by the defendant’s own actions. (Decided under prior law) McDaniels v. Commonwealth, 249 S.W.2d 546, 1952 Ky. LEXIS 831 ( Ky. 1952 ).

Instruction qualifying the right of self-defense should have referred to the facts appearing in the evidence which may have constituted the bringing on of the difficulty and failure to do so was reversible error. (Decided under prior law) Burke v. Commonwealth, 249 S.W.2d 764, 1952 Ky. LEXIS 859 ( Ky. 1952 ).

Omission of phrase “or to him” preceding “apparent necessary self-defense” in instruction on self-defense was not error. (Decided under prior law) Hughes v. Commonwealth, 249 S.W.2d 786, 1952 Ky. LEXIS 866 ( Ky. 1952 ).

Where the defendant in a murder trial and his victim were both armed and engaged in a “shoot-out,” the trial court properly gave a self-protection instruction with a qualification on deadly force and the defendant’s tendered instruction which contained no qualifications was improper. Long v. Commonwealth, 559 S.W.2d 482, 1977 Ky. LEXIS 555 ( Ky. 1977 ).

Where the defendant alleged that the victim was killed when the victim attempted to sodomize the defendant, the failure of the court to grant the defendant’s motion to instruct the jury upon the use of force under the circumstances provided under subsection (2) of this section was reversible error. (Decided under prior law) Rasmussen v. Commonwealth, 705 S.W.2d 914, 1986 Ky. LEXIS 236 ( Ky. 1986 ).

12.— Voluntary Manslaughter.

The word “escape” in connection with the words “avert a danger” in a self-defense instruction is erroneous and prejudicial when used in reference to a person accused of homicide, particularly when the defendant is assaulted in his own yard and near to his own dwelling house. (Decided under prior law) Eversole v. Commonwealth, 95 Ky. 623 , 26 S.W. 816, 16 Ky. L. Rptr. 143 , 1894 Ky. LEXIS 72 ( Ky. 1894 ).

An instruction of self-defense was not erroneous by reason of its failure to tell the jury that defendant had the right, if necessary to secure himself from immediate danger, to pursue his adversary. (Decided under prior law) Wilson v. Commonwealth, 68 S.W. 121, 24 Ky. L. Rptr. 185 , 1902 Ky. LEXIS 481 (Ky. Ct. App. 1902).

While the omission of the phrase “from the evidence” in a self-defense instruction was a technical error it did not constitute reversible error where all of the other instructions required the jury to believe the issues submitted in them “from the evidence.” (Decided under prior law) Ellison v. Commonwealth, 272 Ky. 364 , 114 S.W.2d 130, 1937 Ky. LEXIS 700 ( Ky. 1937 ).

Where entire evidence showed that defendant was the aggressor, a self-defense instruction was not authorized. (Decided under prior law) Flowers v. Commonwealth, 278 Ky. 518 , 128 S.W.2d 961, 1939 Ky. LEXIS 458 ( Ky. 1939 ).

Instruction on self-defense that required jury to believe from the evidence, beyond a reasonable doubt, that defendant believed, and had reasonable grounds to believe, that he was in danger of death or great bodily harm at the hands of deceased, was erroneous. (Decided under prior law) Baker v. Commonwealth, 281 Ky. 45 , 134 S.W.2d 997, 1939 Ky. LEXIS 17 ( Ky. 1939 ).

Where defendant’s evidence was to effect that deceased started fighting, other evidence was that defendant started fight, and there was no evidence of an agreement or mutual desire to fight, an instruction qualifying the self-defense instruction by stating that the defense was not available in the case of mutual affray or combat was erroneous. (Decided under prior law) Taylor v. Commonwealth, 281 Ky. 442 , 136 S.W.2d 544, 1940 Ky. LEXIS 48 ( Ky. 1940 ).

Self-defense instruction, although error where there was no supporting evidence, was not prejudicial to accused, but beneficial. (Decided under prior law) Roberts v. Commonwealth, 284 Ky. 377 , 144 S.W.2d 1043, 1940 Ky. LEXIS 507 ( Ky. 1940 ).

In self-defense instruction use of words directing acquittal if accused had “no other safe means of averting the danger” was not objectionable, because the safety of the means is made applicable to that which so appeared to accused in the exercise of his reasonable judgment in the immediate circumstances. (Decided under prior law) Farley v. Commonwealth, 284 Ky. 536 , 145 S.W.2d 100, 1940 Ky. LEXIS 534 ( Ky. 1940 ).

A person in apparent danger, at the hands of others acting in concert, has the right to use such means as is necessary, or reasonably appears to him to be necessary, to avert the danger and to fire in his own defense at any of his assailants and when the evidence tends to establish that condition the court should so instruct the jury. It is error to limit the exercise of his right of self-defense only against the person who is killed or wounded as the case may be. (Decided under prior law) Scott v. Commonwealth, 289 Ky. 436 , 159 S.W.2d 13, 1942 Ky. LEXIS 578 ( Ky. 1942 ).

Defendant, on trial for killing an innocent bystander during an affray, is entitled to self-defense instruction unless he unlawfully brought on the affray and unjustifiably assaulted his adversary, thereby inviting or bringing about the danger he claims to have apprehended. (Decided under prior law) Noe v. Commonwealth, 290 Ky. 194 , 160 S.W.2d 600, 1942 Ky. LEXIS 369 ( Ky. 194 2 ).

Where there was some evidence that fatal shooting occurred in a scuffle between victim and defendant, it was not error to give an instruction on self-defense, notwithstanding that defendant claimed the shooting was accidental. (Decided under prior law) Amburgy v. Commonwealth, 300 Ky. 261 , 188 S.W.2d 437, 1945 Ky. LEXIS 528 ( Ky. 1945 ).

In prosecution for homicide, arising out of a fist fight, in which neither party was armed, and in which defendant’s adversary died as a result of a blow from the fist of defendant, where the circumstances were such that defendant was entitled to an instruction on involuntary manslaughter, he was also entitled to a self-defense instruction clearly stating his right to use no more force than necessary or apparently necessary to defend himself if he believed he was about to be “assaulted” or was in danger of “bodily harm,” and his rights were not adequately protected by a general self-defense instruction which conditioned his right of defense on belief that he was in danger of “death” or “great bodily harm.” (Decided under prior law) Sikes v. Commonwealth, 304 Ky. 429 , 200 S.W.2d 956, 1947 Ky. LEXIS 662 ( Ky. 1947 ), overruled, White v. Commonwealth, 360 S.W.2d 198, 1962 Ky. LEXIS 214 ( Ky. 1962 ).

Trial court erred in homicide prosecution by failing to include in self-defense instruction defendant’s right of self-defense against victim’s stepson, who, defendant testified, had pointed shotgun at him. (Decided under prior law) Lee v. Commonwealth, 305 Ky. 734 , 205 S.W.2d 509, 1947 Ky. LEXIS 916 ( Ky. 1947 ).

Giving of self-defense instruction was not prejudicial, where evidence warranted it, notwithstanding that defense was an alibi. (Decided under prior law) Brown v. Commonwealth, 308 Ky. 486 , 214 S.W.2d 1018, 1948 Ky. LEXIS 972 ( Ky. 1948 ).

In prosecution for voluntary manslaughter, where there was evidence justifying a self-defense or defense of third person instruction, instruction limiting defensive act to that which accused believed was “only reasonably safe means of protecting himself” or others, was not prejudicial because of use of word “reasonably,” although Court of Appeals did not approve of the instruction. (Decided under prior law) Brown v. Commonwealth, 308 Ky. 486 , 214 S.W.2d 1018, 1948 Ky. LEXIS 972 ( Ky. 1948 ).

In homicide prosecution, where evidence showed that deceased was the aggressor, accused was entitled to a straight-out, unqualified, self-defense instruction. (Decided under prior law) Crigger v. Commonwealth, 311 Ky. 682 , 225 S.W.2d 113, 1949 Ky. LEXIS 1222 ( Ky. 1949 ).

In prosecution for homicide defendant was not entitled to instruction as to defendant’s right to use necessary force to eject deceased from defendant’s office where there was no claim of an attempt to eject at the time difficulty arose and self-defense instruction was given fully presenting defendant’s defense to jury. (Decided under prior law) Durham v. Commonwealth, 248 S.W.2d 709, 1952 Ky. LEXIS 750 ( Ky. 1952 ).

Trial court erred in voluntary manslaughter prosecution by giving, as counterpart of involuntary manslaughter instruction, self-defense instruction predicated upon the idea that the accused could defend himself if he believed he was in danger of death or other bodily harm. (Decided under prior law) Burton v. Commonwealth, 262 S.W.2d 190, 1953 Ky. LEXIS 1079 ( Ky. 1953 ).

13.— Shooting at House.

In prosecution for willfully and maliciously shooting at or into dwelling house, an instruction on defendant’s right to defend himself against the dog of prosecuting witness would have been wholly irrelevant. (Decided under prior law) Lewis v. Commonwealth, 357 S.W.2d 31, 1962 Ky. LEXIS 106 ( Ky. 1962 ).

14.More Force Than Necessary.

Jury was entitled to find that accused used more force than was necessary to defend himself under his right of self-defense, where evidence showed that although victim may have shot first, he was lying on ground unarmed and helpless when accused beat him on head numerous times with butt of pistol, crushing his skull. (Decided under prior law) Thomas v. Commonwealth, 284 Ky. 548 , 145 S.W.2d 37, 1940 Ky. LEXIS 511 ( Ky. 1940 ).

When there was question of fact as to whether defendant used more force than was necessary for his self-protection, he was not entitled to a directed verdict of acquittal under this section. Stepp v. Commonwealth, 608 S.W.2d 371, 1980 Ky. LEXIS 267 ( Ky. 1980 ).

Use of deadly force plainly fell within scope of police officers’ authority under Kentucky law and thus, for purposes of qualified immunity, the burden shifted to plaintiff to establish that those acts were not performed in good faith. Plaintiff did not meet first prong of that test, as court found that officers did not violate decedent’s constitutional right to be free from excessive force and, even if they did, unlawfulness of their conduct was not clearly established at time; nor did she satisfy second prong, as she never argued that officers willfully or maliciously intended to harm decedent or acted with corrupt intentions. Reich v. City of Elizabethtown, 945 F.3d 968, 2019 FED App. 303P, 2019 U.S. App. LEXIS 37712 (6th Cir. Ky. 2019 ), cert. denied, 141 S. Ct. 359, 208 L. Ed. 2d 88, 2020 U.S. LEXIS 4706 (U.S. 2020).

15.Necessity.

Failure to instruct on self-defense was not reversible error in the absence of any claim of, or proof tending to show grounds for, necessary or apparently necessary self-defense. (Decided under prior law) Turner v. Commonwealth, 267 Ky. 74 , 101 S.W.2d 214, 1937 Ky. LEXIS 284 ( Ky. 1937 ).

Accused cannot excuse himself on ground of necessity of self-defense by exercising unreasonable judgment would have shown no necessity. (Decided under prior law) Farley v. Commonwealth, 284 Ky. 536 , 145 S.W.2d 100, 1940 Ky. LEXIS 534 ( Ky. 1940 ).

In an action where plaintiffs brought an assault and battery claim against a state trooper under Kentucky state law for the shooting and killing of an individual, the trooper was entitled to dismissal under Kentucky’s justification statutes, including KRS 503.050 , 503.060 , 503.070 , and 503.085 , because the evidence showed that the trooper knew that the individual had a propensity towards violence, was being served with an emergency protective order, and had previously shot at law enforcement. In addition, immediately prior to the shooting, the individual was threatening the officers with his gun by raising and pointing it in their direction. King v. Taylor, 803 F. Supp. 2d 659, 2011 U.S. Dist. LEXIS 79235 (E.D. Ky. 2011 ).

16.Question for Jury.

Question of whether defendant was merely firing back in self-defense was for the jury. (Decided under prior law) Hall v. Commonwealth, 265 Ky. 516 , 97 S.W.2d 29, 1936 Ky. LEXIS 518 ( Ky. 1936 ).

Where instructions were given both on shooting in sudden passion and on self-defense, jury was not deprived of right to weigh evidence on both issues, and, hence, it cannot be said that it did not properly weigh proof of shooting in sudden affray or self-defense. (Decided under prior law) Smith v. Commonwealth, 284 Ky. 80 , 143 S.W.2d 859, 1940 Ky. LEXIS 441 ( Ky. 1940 ).

Submission of case to jury was proper, where evidence as to who started shooting and whether accused shot in self-defense was conflicting, with witnesses numerically favoring accused’s accused’s testimony in parts. (Decided under prior law) Bradley v. Commonwealth, 284 Ky. 340 , 144 S.W.2d 819, 1940 Ky. LEXIS 501 ( Ky. 1940 ).

In a prosecution for malicious shooting and wounding of another with intent to kill, where the testimony was in conflict as to whether defendant shot in self-defense, it was a question for the jury to decide. (Decided under prior law) Chaffins v. Commonwealth, 275 S.W.2d 52, 1955 Ky. LEXIS 342 ( Ky. 1955 ).

In prosecution for malicious cutting and wounding with a knife, where defendant’s claim of self-defense was contradicted, question of self-defense was for the jury. (Decided under prior law) Shepherd v. Commonwealth, 277 S.W.2d 42, 1955 Ky. LEXIS 461 ( Ky. 1955 ).

Question of self-defense should be left to jury on all facts under usual self-defense instruction, with qualification, where evidence warrants, that if jury believes beyond reasonable doubt that defendant brought on difficulty he cannot excuse himself on ground of self-defense. (Decided under prior law) Shepherd v. Commonwealth, 277 S.W.2d 42, 1955 Ky. LEXIS 461 ( Ky. 1955 ).

Where evidence was conflicting as to how shooting occurred, and the proof for the prosecution fully established an unjustified shooting, while defendant sought to prove self-defense, it was within the province of the jury to believe either set of witnesses and return an appropriate verdict. (Decided under prior law) Newsome v. Commonwealth, 311 S.W.2d 572, 1958 Ky. LEXIS 213 ( Ky. 1958 ).

The conflict in proof as to whether officers had time to inform the defendant of the reason for his arrest made it proper for the court to overrule the motion for a directed verdict and to permit the jury to consider the issue under the self-defense instruction which was given for the benefit of the defendant. (Decided under prior law) Clemons v. Commonwealth, 462 S.W.2d 919, 1971 Ky. LEXIS 562 ( Ky. 1971 ).

The question of self-protection against multiple aggressors acting in concert, when supported by sufficient evidence, should be given to the jury. Hayes v. Commonwealth, 870 S.W.2d 786, 1993 Ky. LEXIS 172 ( Ky. 1993 ).

17.Sexual Intercourse.

The term “sexual intercourse,” as used in this section, is intended to include both “sexual intercourse” and “deviate sexual intercourse” as defined in KRS 510.010 . Boyle v. Commonwealth, 694 S.W.2d 711, 1985 Ky. App. LEXIS 546 (Ky. Ct. App. 1985); Rasmussen v. Commonwealth, 705 S.W.2d 914, 1986 Ky. LEXIS 236 ( Ky. 1986 ).

Notes to Unpublished Decisions

1.Evidence.

Unpublished decision: Defendant maintained the application of the four level enhancement under U.S. Sentencing Guidelines Manual § 2K2.1(b)(6) was not appropriate because he propounded a viable defense, but the district court did not err in the application of the sentencing enhancement when considering: (1) defendant was 15 to 20 feet from an assailant when he aimed the loaded shotgun, (2) the assailant had uttered a verbal threat to kill defendant and his family, (3) no weapon was brandished by the assailant, (4) defendant admitted to being intoxicated, and (5) a police officer had to repeatedly order defendant to drop the firearm. United States v. Wagers, 438 Fed. Appx. 428, 2011 FED App. 0605N, 2011 U.S. App. LEXIS 17698 (6th Cir. Mich. 2011).

Research References and Practice Aids

Kentucky Law Journal.

Cooper and Lawson, Self-Defense in Kentucky: A Need for Clarification or Revision, 76 Ky. L.J. 167 (1987-88).

McClure, The Battered Woman Syndrome and the Kentucky Criminal Justice System: Abuse Excuse or Legitimate Mitigation?, 85 Ky. L.J. 169 (1997).

Northern Kentucky Law Review.

Vaughn and Moore, Battered Spouse Defense In Kentucky, 10 N. Ky. L. Rev. 399 (1983).

Lotz, A Survey of Criminal Law Statutes Enacted in 1992, 20 N. Ky. L. Rev. 745 (1993).

Hodge, Wanton Murder, Self-Defense, and Jury Instructions: Shannon v. Commonwealth is Revisited; But does it Remain?, 22 N. Ky. L. Rev. 435 (1995).

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Assaults and Restraints of Persons, Part 2 Homicide, § 3.20A.

Kentucky Instructions to Juries (Criminal), 5th Ed., Defenses, Part 2 Justification, §§ 11.07 — 11.10, 11.18, 11.26.

503.055. Use of defensive force regarding dwelling, residence, or occupied vehicle — Exceptions.

  1. A person is presumed to have held a reasonable fear of imminent peril of death or great bodily harm to himself or herself or another when using defensive force that is intended or likely to cause death or great bodily harm to another if:
    1. The person against whom the defensive force was used was in the process of unlawfully and forcibly entering or had unlawfully and forcibly entered a dwelling, residence, or occupied vehicle, or if that person had removed or was attempting to remove another against that person’s will from the dwelling, residence, or occupied vehicle; and
    2. The person who uses defensive force knew or had reason to believe that an unlawful and forcible entry or unlawful and forcible act was occurring or had occurred.
  2. The presumption set forth in subsection (1) of this section does not apply if:
    1. The person against whom the defensive force is used has the right to be in or is a lawful resident of the dwelling, residence, or vehicle, such as an owner, lessee, or titleholder, and there is not an injunction for protection from domestic violence or a written pretrial supervision order of no contact against that person;
    2. The person sought to be removed is a child or grandchild, or is otherwise in the lawful custody or under the lawful guardianship of the person against whom the defensive force is used;
    3. The person who uses defensive force is engaged in an unlawful activity or is using the dwelling, residence, or occupied vehicle to further an unlawful activity; or
    4. The person against whom the defensive force is used is a peace officer, as defined in KRS 446.010 , who enters or attempts to enter a dwelling, residence, or vehicle in the performance of his or her official duties, and the officer identified himself or herself in accordance with any applicable law or the person using force knew or reasonably should have known that the person entering or attempting to enter was a peace officer.
  3. A person who is not engaged in an unlawful activity and who is attacked in any other place where he or she has a right to be has no duty to retreat and has the right to stand his or her ground and meet force with force, including deadly force, if he or she reasonably believes it is necessary to do so to prevent death or great bodily harm to himself or herself or another or to prevent the commission of a felony involving the use of force.
  4. A person who unlawfully and by force enters or attempts to enter a person’s dwelling, residence, or occupied vehicle is presumed to be doing so with the intent to commit an unlawful act involving force or violence.

History. Enact. Acts 2006, ch. 192, § 2, effective July 12, 2006.

NOTES TO DECISIONS

1.Prospective Application.

Because KRS 503.055 was a substantive change in the law of self-defense and justification, it could not be applied retroactively; defendant was entitled to immunity from civil liability for assault and battery only if his actions conformed to the statute in effect at the time he acted. Hawes v. LaPointe, 2009 Ky. App. LEXIS 202 (Ky. Ct. App. Oct. 16, 2009).

2.Application.

KRS ch. 503 as a whole is meant to apply to the conduct of the person who is subject to criminal prosecution as a result of the use of force, and not the victim of such force. Therefore, a trial court should not have given a “no duty to retreat” instruction in a murder case because KRS 503.055(3) was not intended to apply to the victim’s conduct, but only to appellant’s conduct relative to his claim of self-defense. Jones v. Commonwealth, 366 S.W.3d 376, 2011 Ky. LEXIS 133 ( Ky. 2011 ).

Trial court erred in issuing a no-duty-to-retreat instruction where none of the circumstances at the victim's apartment suggested that defendant had an available rout for retreat or other opportunity to avoid the confrontation, and thus, Ky. Rev. Stat. Ann. § 503.055(3) was not implicated. Ragland v. Commonwealth, 476 S.W.3d 236, 2015 Ky. LEXIS 2015 ( Ky. 2015 ).

Trial court did not err by failing to give the jury a no duty to retreat jury instruction because defendant was engaged in an unlawful activity when he shot the victim, namely being a felon in possession of a firearm. Curry v. Commonwealth, 620 S.W.3d 563, 2020 Ky. LEXIS 179 ( Ky. 2020 ).

3.Chance to Retreat.

In a reckless homicide prosecution, evidence of defendant’s chance to retreat was inadmissible because it was only relevant to show defendant’s response to defendant’s belief the victim was about to kill defendant was not defendant’s only alternative, but such evidence undermined KRS 503.055(3)’s “stand your ground” provision. Commonwealth v. Hasch, 421 S.W.3d 349, 2013 Ky. LEXIS 393 ( Ky. 2013 ).

When the elements of an offense require the Commonwealth to establish that a defendant did not act under the justification of self-defense, or when a defendant raises self-defense as a justification to an otherwise criminal act, evidence that the defendant may have avoided the necessity of using force by escaping or retreating from a perceived attacker is not admissible, except when unavoidably intertwined with other evidence, in which cases, and upon the request of a party, a trial court shall include among the jury instructions an instruction embodying the “no duty to retreat” rule codified in KRS 503.055 . Commonwealth v. Hasch, 421 S.W.3d 349, 2013 Ky. LEXIS 393 ( Ky. 2013 ).

4.Castle Doctrine.

Trial court did not err in entering a Domestic Violence Order (DVO) as appellant made serious threats of domestic violence against appellee because appellant did not have the right to protect himself under the castle doctrine as appellant granted appellee permission to pick up their child's shoes from his house within 48 hours of the incident; appellant was not threatened or intimidated by appellee to the point that he felt he needed to use deadly force to protect himself; his text message that she had no right to be on his property and that he would shoot her if she ever came back constituted an imminent threat of domestic violence; and serious threats of physical violence were made and could continue to be made by appellant. Gibson v. Campbell-Marletta, 503 S.W.3d 186, 2016 Ky. App. LEXIS 185 (Ky. Ct. App. 2016).

Cited:

Worley v. Commonwealth, — S.W.3d —, 2008 Ky. App. LEXIS 209 (Ky. Ct. App. 2008); Foley v. Commonwealth, 306 S.W.3d 28, 2010 Ky. LEXIS 53 ( Ky. 2010 ); Caudill v. Commonwealth, 374 S.W.3d 301, 2012 Ky. LEXIS 116 ( Ky. 2012 ).

Research References and Practice Aids

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Defenses, Part 2 Justification, § 11.07.

503.060. Improper use of physical force in self-protection.

Notwithstanding the provisions of KRS 503.050 , the use of physical force by a defendant upon another person is not justifiable when:

  1. The defendant is resisting an arrest by a peace officer, recognized to be acting under color of official authority and using no more force than reasonably necessary to effect the arrest, although the arrest is unlawful; or
  2. The defendant, with the intention of causing death or serious physical injury to the other person, provokes the use of physical force by such other person; or
  3. The defendant was the initial aggressor, except that his use of physical force upon the other person under this circumstance is justifiable when:
    1. His initial physical force was nondeadly and the force returned by the other is such that he believes himself to be in imminent danger of death or serious physical injury; or
    2. He withdraws from the encounter and effectively communicates to the other person his intent to do so and the latter nevertheless continues or threatens the use of unlawful physical force.

History. Enact. Acts 1974, ch. 406, § 31, effective January 1, 1975.

NOTES TO DECISIONS

1.Defendant as Aggressor.

One may not shelter under his right of self-defense when he himself brought on the immediate difficulty in which the alleged danger to himself occurred. (Decided under prior law) Johnson v. Commonwealth, 285 Ky. 374 , 147 S.W.2d 1048, 1941 Ky. LEXIS 392 ( Ky. 1941 ).

Though accused might have availed himself of the right of self-defense if he acted earlier in the melee, yet if his antagonist abandoned that immediate difficulty and was later attacked by defendant in circumstances authorizing the deceased to himself become the aggressor in exercising his right of self-defense, then the crime committed by defendant may not be justified under his like right. (Decided under prior law) Johnson v. Commonwealth, 285 Ky. 374 , 147 S.W.2d 1048, 1941 Ky. LEXIS 392 ( Ky. 1941 ).

2.Instructions.

Where evidence indicated that there were two (2) encounters between defendant and the victim, the second resulting in the shooting death of the victim, the trial judge erred in qualifying the instructions on self-defense with provocation and initial aggressor limitations and defendant was entitled to a new trial. Stepp v. Commonwealth, 608 S.W.2d 371, 1980 Ky. LEXIS 267 ( Ky. 1980 ).

Where evidence showed that defendant arrived at a house where a poker game was being played and after his brother, one of five people present at the game, told defendant he was barred from playing, defendant responded by pulling a .22 caliber pistol from his trouser pocket, threatened several players, then pointed the gun at victim and said, “I ought to shoot you” or “I’ve got it in for you,” to which victim said, “here I am,” and that when defendant stepped back lowering the gun to his side, a struggle began for the gun between victim and defendant and five shoots were fired before the scuffle ended with victim dead and defendant’s brother wounded, qualifying instruction stating that if defendant provoked victim to use physical force, while intending to cause death or serious injury to victim, the defendant’s use of force for his own protection was unlawful, was not in error. Charles v. Commonwealth, 634 S.W.2d 407, 1982 Ky. LEXIS 257 ( Ky. 1982 ).

A judge’s instruction to the jury that the defendant’s belief that the existence of criminal charges against him was “legally irrelevant” did not deny the defendant his right to a defense or a meaningful opportunity to present his defense. Under KRS 520.090(1) and subsection (1) of this section, a person may not legally resist arrest if he knows that the arresting officers act under color of law, even if he believes that the charges against him are false or that the arrest is in some other way unlawful. Baze v. Commonwealth, 965 S.W.2d 817, 1997 Ky. LEXIS 40 ( Ky. 1997 ), cert. denied, 523 U.S. 1083, 118 S. Ct. 1536, 140 L. Ed. 2d 685, 1998 U.S. LEXIS 2686 (U.S. 1998).

In conviction of the murder of two officers who were trying to arrest him pursuant to an outstanding out-of-state warrant, the state trial court properly refused to instruct the jury on imperfect self-defense because, under KRS 503.060(1), the use of deadly force was not justifiable for resisting an arrest by a peace officer. Baze v. Parker, 371 F.3d 310, 2004 FED App. 0173P, 2004 U.S. App. LEXIS 11312 (6th Cir. Ky. 2004 ), cert. denied, 544 U.S. 931, 125 S. Ct. 1670, 161 L. Ed. 2d 495, 2005 U.S. LEXIS 2606 (U.S. 2005).

While defendant was slashing the victim’s tires, an altercation ensued between defendant, the victim, and his roommate in which defendant shot the victim to death. During defendant’s trial for manslaughter, the language of the provocation qualifier of the self-defense instruction was fatally flawed because it lacked the statutory element set forth in KRS 503.060(2) which required the jury to find that defendant provoked the victim with the intent to cause death or serious physical injury; by removing the intent element from the instruction, the court effectively stripped defendant of his self-protection defense. Barker v. Commonwealth, 341 S.W.3d 112, 2011 Ky. LEXIS 88 ( Ky. 2011 ).

Mere intent to make someone angry out of revenge, in and of itself, was not sufficient to warrant a provocation-qualification instruction, as it did not constitute an intent to harm or kill. Barker v. Commonwealth, 477 S.W.3d 583, 2015 Ky. LEXIS 2011 ( Ky. 2015 ).

Trial court properly denied defendant’s motion for a self-protection jury instruction where the undisputed facts were that defendant attacked another prisoner without provocation, a correctional officer entered the cell and attempted to pull defendant off the prisoner, and thus, the officer was intervening in an unprovoked attack on an inmate and was privileged under Ky. Rev. Stat. Ann. § 503.070(1) to use physical force in lawful protection of another. Randolph v. Commonwealth, 566 S.W.3d 576, 2018 Ky. App. LEXIS 295 (Ky. Ct. App. 2018).

Trial court did not err by instructing the jury on provocation and initial aggressor qualifications to self-defense because the jury could have reasonably determined that defendant provoked the victim, or was the initial aggressor, when he picked up the gun and pistol-whipped the victim while the victim had his back to him. Downs v. Commonwealth, 2020 Ky. LEXIS 222 (Ky. July 9, 2020).

3.Reasonable force.

One struck by another with fist had right to use only such force as was reasonably or apparently necessary to repel such attack. (Decided under prior law) Jones v. Commonwealth, 313 Ky. 827 , 233 S.W.2d 1007, 1950 Ky. LEXIS 997 ( Ky. 1950 ).

No evidence justified a wanton or reckless self-defense instruction in a case in which the defendant shot two (2) arresting officers he knew to be acting under color of official authority and using no more force than was necessary. Baze v. Commonwealth, 965 S.W.2d 817, 1997 Ky. LEXIS 40 ( Ky. 1997 ), cert. denied, 523 U.S. 1083, 118 S. Ct. 1536, 140 L. Ed. 2d 685, 1998 U.S. LEXIS 2686 (U.S. 1998).

In an action where plaintiffs brought an assault and battery claim against a state trooper under Kentucky state law for the shooting and killing of an individual, the trooper was entitled to dismissal under Kentucky’s justification statutes, including KRS 503.050 , 503.060 , 503.070 , and 503.085 , because the evidence showed that the trooper knew that the individual had a propensity towards violence, was being served with an emergency protective order, and had previously shot at law enforcement. In addition, immediately prior to the shooting, the individual was threatening the officers with his gun by raising and pointing it in their direction. King v. Taylor, 803 F. Supp. 2d 659, 2011 U.S. Dist. LEXIS 79235 (E.D. Ky. 2011 ).

4.Resisting Arrest.

Because defendant knew that officers, seeking to serve him with felony fugitive warrants, were acting under color of official authority, defendant was not entitled to resist the arrest, and therefore could not claim justification for his actions in shooting officers. Baze v. Commonwealth, 965 S.W.2d 817, 1997 Ky. LEXIS 40 ( Ky. 1997 ), cert. denied, 523 U.S. 1083, 118 S. Ct. 1536, 140 L. Ed. 2d 685, 1998 U.S. LEXIS 2686 (U.S. 1998).

Defendant was not entitled to a self-protection instruction in a prosecution for attempted murder of a police officer while he was resisting arrest on the basis that he thought that the officer was using more force than reasonably necessary to effect the arrest. Prince v. Commonwealth, 987 S.W.2d 324, 1997 Ky. App. LEXIS 103 (Ky. Ct. App. 1997).

Where defendant struck the police officer while defendant was being placed under arrest, defendant was not entitled to a qualified self-protection instruction under KRS 503.120(1), as the language of KRS 503.060(1) precluded the application of KRS 503.120(1) to situations where a police officer used no more force than reasonably necessary to arrest, and defendant was aware that defendant was being placed under arrest. Hightower v. Commonwealth, 2003 Ky. App. Unpub. LEXIS 214 (Ky. Ct. App. May 23, 2003).

5.Withdrawal.

One who provokes a fight with the intent to kill or seriously injure may claim self-protection if the conditions in subsection (3)(b) of this section are met by the evidence. Charles v. Commonwealth, 634 S.W.2d 407, 1982 Ky. LEXIS 257 ( Ky. 1982 ).

Cited:

Earl v. Commonwealth, 569 S.W.2d 686, 1978 Ky. App. LEXIS 563 (Ky. Ct. App. 1978); Campbell v. Commonwealth, 732 S.W.2d 878, 1987 Ky. LEXIS 225 ( Ky. 1987 ).

Research References and Practice Aids

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Defenses, Part 2 Justification, §§ 11.11 — 11.13, 11.18.

Kentucky Instructions to Juries (Criminal), 5th Ed., Offenses Against Public and Judicial Administration, Part 3 Escape and Offenses Related to Custody, § 7.35.

503.070. Protection of another.

  1. The use of physical force by a defendant upon another person is justifiable when:
    1. The defendant believes that such force is necessary to protect a third person against the use or imminent use of unlawful physical force by the other person; and
    2. Under the circumstances as the defendant believes them to be, the person whom he seeks to protect would himself have been justified under KRS 503.050 and 503.060 in using such protection.
  2. The use of deadly physical force by a defendant upon another person is justifiable when:
    1. The defendant believes that such force is necessary to protect a third person against imminent death, serious physical injury, kidnapping, sexual intercourse compelled by force or threat, or other felony involving the use of force, or under those circumstances permitted pursuant to KRS 503.055 ; and
    2. Under the circumstances as they actually exist, the person whom he seeks to protect would himself have been justified under KRS 503.050 and 503.060 in using such protection.
  3. A person does not have a duty to retreat if the person is in a place where he or she has a right to be.

History. Enact. Acts 1974, ch. 406, § 32, effective January 1, 1975; 2006, ch. 192, § 4, effective July 12, 2006.

NOTES TO DECISIONS

1.Evidence.

Although all eyewitnesses testified on trial that defendant shot in defense of his mother’s life, this did not justify directed verdict for defendant, where eyewitnesses had told arresting officers that deceased had committed suicide, defendant on being arrested had denied the shooting, and there were other contradictions. (Decided under prior law) Hamilton v. Commonwealth, 292 Ky. 307 , 167 S.W.2d 56, 1942 Ky. LEXIS 128 ( Ky. 1942 ).

Facts that will excuse a killing in defense of self will likewise excuse a killing in defense of another. (Decided under prior law) Adkins v. Commonwealth, 293 Ky. 329 , 168 S.W.2d 1008, 1943 Ky. LEXIS 612 ( Ky. 1943 ).

In prosecution for maliciously shooting and wounding another with the intent to kill, instructions which failed to instruct the jury that the defendant had the right to shoot in defense of two members of his family, who were jointly indicted with him, was not erroneous, where the defendant did not testify that he fired in defense of them but in defense of himself and his son, and the instructions given adequately covered that situation. (Decided under prior law) Turner v. Commonwealth, 260 S.W.2d 646, 1953 Ky. LEXIS 978 ( Ky. 1953 ).

An intentional killing in defense of another can be justified only if defendant believed and had reasonable ground to believe that deceased was about to kill or do great bodily harm to the other person. (Decided under prior law) White v. Commonwealth, 333 S.W.2d 521, 1960 Ky. LEXIS 197 ( Ky. 1960 ).

The defendant’s rights of defense of his brother were the same as if his actions had been in his own defense. (Decided under prior law) White v. Commonwealth, 333 S.W.2d 521, 1960 Ky. LEXIS 197 ( Ky. 1960 ).

In an action where plaintiffs brought an assault and battery claim against a state trooper under Kentucky state law for the shooting and killing of an individual, the trooper was entitled to dismissal under Kentucky’s justification statutes, including KRS 503.050 , 503.060 , 503.070 , and 503.085 , because the evidence showed that the trooper knew that the individual had a propensity towards violence, was being served with an emergency protective order, and had previously shot at law enforcement. In addition, immediately prior to the shooting, the individual was threatening the officers with his gun by raising and pointing it in their direction. King v. Taylor, 803 F. Supp. 2d 659, 2011 U.S. Dist. LEXIS 79235 (E.D. Ky. 2011 ).

2.Instructions.

A “defense of another” instructions is not required unless the evidence justifies it, or tends to show, that defendant acted in self-defense of another, and has the right to do so. (Decided under prior law) Williams v. Commonwealth, 276 Ky. 754 , 125 S.W.2d 221, 1939 Ky. LEXIS 576 ( Ky. 1939 ).

Where self-defense instruction properly stated defendant’s rights to defense of himself and adult woman, failure to include right to defense woman’s children was not error in absence of evidence that children were in danger. (Decided under prior law) Lowder v. Commonwealth, 281 Ky. 615 , 136 S.W.2d 1055, 1940 Ky. LEXIS 80 ( Ky. 1940 ).

Where defendant is charged with murder for striking the deceased when deceased seemed about to enter a fight in which the defendant’s brother was involved, defendant was entitled to an instruction to the effect that if he believed, and had reasonable grounds to believe, that his brother was then and there being, or about to be, assaulted or was in danger of bodily harm about to be inflicted upon him by deceased, and defendant used no more force than was necessary, or appeared to him in the exercise of a reasonable judgment to be necessary, to repel such assault or, in so doing, to protect himself from injury at the hands of deceased, he should be found not guilty. (Decided under prior law) White v. Commonwealth, 333 S.W.2d 521, 1960 Ky. LEXIS 197 ( Ky. 1960 ).

Trial court properly denied defendant’s motion for a self-protection jury instruction where the undisputed facts were that defendant attacked another prisoner without provocation, a correctional officer entered the cell and attempted to pull defendant off the prisoner, and thus, the officer was intervening in an unprovoked attack on an inmate and was privileged under Ky. Rev. Stat. Ann. § 503.070(1) to use physical force in lawful protection of another. Randolph v. Commonwealth, 566 S.W.3d 576, 2018 Ky. App. LEXIS 295 (Ky. Ct. App. 2018).

Trial court properly instructed the jury because any error in the instructions on the defense of imperfect protection of another was harmless where, by finding defendant guilty of murder, the jury did not reach the second-degree manslaughter and reckless homicide instructions that contained the errors. Clark v. Commonwealth, 567 S.W.3d 565, 2019 Ky. LEXIS 62 ( Ky. 2019 ).

Research References and Practice Aids

Kentucky Law Journal.

Cooper and Lawson, Self-Defense in Kentucky: A Need for Clarification or Revision, 76 Ky. L.J. 167 (1987-88).

Northern Kentucky Law Review.

Vaughn and Moore, Battered Spouse Defense In Kentucky, 10 N. Ky. L. Rev. 399 (1983).

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Defenses, Part 2 Justification, §§ 11.18, 11.26.

503.080. Protection of property.

  1. The use of physical force by a defendant upon another person is justifiable when the defendant believes that such force is immediately necessary to prevent:
    1. The commission of criminal trespass, robbery, burglary, or other felony involving the use of force, or under those circumstances permitted pursuant to KRS 503.055 , in a dwelling, building or upon real property in his possession or in the possession of another person for whose protection he acts; or
    2. Theft, criminal mischief, or any trespassory taking of tangible, movable property in his possession or in the possession of another person for whose protection he acts.
  2. The use of deadly physical force by a defendant upon another person is justifiable under subsection (1) only when the defendant believes that the person against whom such force is used is:
    1. Attempting to dispossess him of his dwelling otherwise than under a claim of right to its possession; or
    2. Committing or attempting to commit a burglary, robbery, or other felony involving the use of force, or under those circumstances permitted pursuant to KRS 503.055 , of such dwelling; or
    3. Committing or attempting to commit arson of a dwelling or other building in his possession.
  3. A person does not have a duty to retreat if the person is in a place where he or she has a right to be.

History. Enact. Acts 1974, ch. 406, § 33, effective January 1, 1975; 2006, ch. 192, § 5, effective July 12, 2006.

NOTES TO DECISIONS

1.Defense of Home.

An owner has no right to kill another for merely trespassing on his property, though he may do so if necessary to prevent an unlawful forcible entry into his dwelling. Johnson v. Commonwealth, 279 Ky. 753 , 132 S.W.2d 72, 1939 Ky. LEXIS 351 ( Ky. 1939 ) (decided under prior law).

The right to act in defense of the home arises only where the security or sanctity of the home, as such, is invaded or threatened. Sizemore v. Commonwealth, 285 Ky. 499 , 148 S.W.2d 341, 1941 Ky. LEXIS 411 ( Ky. 1941 ) (decided under prior law).

A mere trespass on the premises of another will not justify the owner in shooting the trespasser unless the trespass is accompanied by acts that amount to an assault such as would justify the owner shooting in self-defense, but the owner has the right to investigate and inquire as to the purpose of the trespass and warn the offender to desist. Fore v. Commonwealth, 291 Ky. 34 , 163 S.W.2d 48, 1942 Ky. LEXIS 178 ( Ky. 1942 ) (decided under prior law).

In a prosecution for murder, defendant had a right to protect his premises, a roadhouse, whether it was his habitation or place of business, and he was entitled to an instruction on his right to use reasonable force short of inflicting great bodily harm to prevent deceased from entering his premises, and if he had reasonable grounds for believing his life in danger to use such force necessary to protect himself or his guests even to the taking of the life of the deceased. Stephens v. Commonwealth, 295 Ky. 542 , 175 S.W.2d 5, 1943 Ky. LEXIS 298 ( Ky. 1943 ) (decided under prior law).

The “defense-of-castle doctrine” ordinarily does not apply to killing of guests in home. Baker v. Commonwealth, 305 Ky. 88 , 202 S.W.2d 1010, 1947 Ky. LEXIS 765 ( Ky. 1947 ).

To entitle one accused of willful murder to an instruction on right to defend his home, there must be at least an attempted forcible entry or an attack or attempted attack with firearms or other weapons. Gross v. Commonwealth, 308 Ky. 682 , 215 S.W.2d 571, 1948 Ky. LEXIS 1018 ( Ky. 1948 ) (decided under prior law).

No man assaulted and mistreated in his own home is required to retreat or seek another place of safety. Taul v. Commonwealth, 249 S.W.2d 45, 1952 Ky. LEXIS 793 ( Ky. 1952 ) (decided under prior law).

The right of defense of habitation extends to anything within the curtilage. Davis v. Commonwealth, 252 S.W.2d 9, 1952 Ky. LEXIS 960 ( Ky. 1952 ) (decided under prior law).

Even if trespass is made with actual force, right to take life does not arise until owner in possession of realty is assaulted by trespasser and has reasonable grounds to believe that it is necessary to kill or wound in order to protect life or prevent great bodily harm. Shepperd v. Commonwealth, 322 S.W.2d 115, 1959 Ky. LEXIS 297 ( Ky. 1959 ) (decided under prior law).

Owner in possession of realty is entitled to use such means as in the exercise of a reasonable judgment are necessary to protect premises from forcible invasion and prevent forcible attempt to divest owner of possession of his property, and in defense of such rights, an assault and battery upon a trespasser will be justified, but in no case is the taking of life or infliction of great bodily harm permissible where the invasion is made without actual force even though forcible in law. Shepperd v. Commonwealth, 322 S.W.2d 115, 1959 Ky. LEXIS 297 ( Ky. 1959 ) (decided under prior law).

2.Instructions.

In prosecution for murder, instruction that defendant had right to defend his home and its inhabitants, and to prevent the entry of a person intending to commit a felony, was properly rejected, where evidence showed that only the defendant and those with him were in danger, the only felony which could have been intended was the infliction of death or great bodily harm, and the instruction actually given covered the points of self-defense, defense of those with defendant, and apparent necessity to kill in such defense. Johnson v. Commonwealth, 279 Ky. 753 , 132 S.W.2d 72, 1939 Ky. LEXIS 351 ( Ky. 1939 ) (decided under prior law).

Instruction that accused had right to use force necessary or apparently necessary, to eject victim from accused’s premises and need not retreat, was properly refused where evidence did not show victim was on accused’s premises when shot. Gulley v. Commonwealth, 284 Ky. 98 , 143 S.W.2d 1059, 1940 Ky. LEXIS 451 ( Ky. 1940 ) (decided under prior law).

Where defendant’s defense was that he shot deceased in self-defense when deceased threatened him with a rock, at a time when defendant was pursuing deceased to determine reason for deceased’s attempt to break into defendant’s house, it was error to give jury instruction qualifying right of defendant to defend his home, since defense of home was not involved and such instruction gave jury erroneous impression as to defendant’s right to approach deceased to inquire as to attempted housebreaking or trespass. Fore v. Commonwealth, 291 Ky. 34 , 163 S.W.2d 48, 1942 Ky. LEXIS 178 ( Ky. 1942 ) (decided under prior law).

Where sole defense, in voluntary manslaughter prosecution, was that defendant was trying to prevent decedent from killing husband, and court instructed fully on such defense, no instruction on defendant’s right to kill in defense of home was required. Baker v. Commonwealth, 305 Ky. 88 , 202 S.W.2d 1010, 1947 Ky. LEXIS 765 ( Ky. 1947 ) (decided under prior law).

In prosecution for voluntary manslaughter, failure to include “defense of home” instruction along with instruction on self-defense was not error, where evidence failed to show victim threatened defendant’s home or made any kind of assault thereon, or that anyone was in defendant’s home at time of killing, and where only defense claimed by defendant was that of his person. Gadd v. Commonwealth, 305 Ky. 318 , 204 S.W.2d 215, 1947 Ky. LEXIS 808 ( Ky. 1947 ) (decided under prior law).

There was no basis for an instruction on defense of home where the shooting took place in a house in which both the defendant and the deceased lived, and the evidence indicated that the killing resulted from a personal fight between the two (2) men who were almost, if not altogether, drunk. Davis v. Commonwealth, 310 Ky. 360 , 220 S.W.2d 844, 1949 Ky. LEXIS 919 ( Ky. 1949 ).

Where there was evidence indicating that the defendant had shot the decedent to save the defendant’s own life it was not error for the court to refuse to instruct on defense of home even though the shooting occurred on the porch of the defendant’s home. Combs v. Commonwealth, 306 S.W.2d 269, 1957 Ky. LEXIS 30 ( Ky. 1957 ) (decided under prior law).

Evidence did not warrant instruction on defense of home and family, in view of evidence that the defendant was not perturbed at abusive treatment of his mistress by decedent earlier in evening, had not commanded decedent to leave and was relying solely on self-defense. Jones v. Commonwealth, 311 S.W.2d 190, 1958 Ky. LEXIS 181 ( Ky. 1958 ) (decided under prior law).

In prosecution for malicious cutting and wounding where the prosecution resulted from a family fight, the facts did not require an instruction on “defense of habitation” or home and family. Medley v. Commonwealth, 450 S.W.2d 811, 1970 Ky. LEXIS 460 ( Ky. 1970 ) (decided under prior law).

Protection against burglary instruction tendered by defendant should have been given to the jury because, from the testimony of defendant and his friend, the jury could have reasonably believed that the victim had entered or remained in defendant’s home with the intent to assault him, thereby committing burglary, and that defendant shot the victim, believing it was necessary to prevent the burglary. Mondie v. Commonwealth, 158 S.W.3d 203, 2005 Ky. LEXIS 94 ( Ky. 2005 ).

When defendant was convicted of manslaughter, his counsel was not ineffective for not seeking a jury instruction on the use of deadly force in protection against burglary, under KRS 503.080(2)(b), because counsel presented strong evidence of self-protection justifying defendant’s use of deadly force when he believed deadly force was necessary to protect himself against death or serious physical injury, under KRS 503.050(2), and (2) the issue would have required the jury to determine whether defendant believed the victim was about to commit burglary. Fuston v. Commonwealth, 217 S.W.3d 892, 2007 Ky. App. LEXIS 70 (Ky. Ct. App. 2007).

Cited:

Richardson v. Commonwealth, 559 S.W.2d 738, 1977 Ky. App. LEXIS 871 (Ky. Ct. App. 1977).

Opinions of Attorney General.

Subsection (1) of this section does not require a contractual, bailor-bailee, agent or fiduciary relationship between the parties before a person is justified in the use of force in the protection of the property of another. OAG 80-644 .

The language of subsection (1) of this section permitting a person to use physical force to protect property in his possession or “in the possession of another person for whose protection he acts” allows a person other than the owner or possessor to use force in protection of property. OAG 80-644 .

Research References and Practice Aids

Northern Kentucky Law Review.

Vaughn and Moore, Battered Spouse Defense In Kentucky, 10 N. Ky. L. Rev. 399 (1983).

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Defenses, Part 2 Justification, §§ 11.14 — 11.17.

503.085. Justification and criminal and civil immunity for use of permitted force — Exceptions.

  1. A person who uses force as permitted in KRS 503.050 , 503.055 , 503.070 , and 503.080 is justified in using such force and is immune from criminal prosecution and civil action for the use of such force, unless the person against whom the force was used is a peace officer, as defined in KRS 446.010 , who was acting in the performance of his or her official duties and the officer identified himself or herself in accordance with any applicable law, or the person using force knew or reasonably should have known that the person was a peace officer. As used in this subsection, the term “criminal prosecution” includes arresting, detaining in custody, and charging or prosecuting the defendant.
  2. A law enforcement agency may use standard procedures for investigating the use of force as described in subsection (1) of this section, but the agency may not arrest the person for using force unless it determines that there is probable cause that the force that was used was unlawful.
  3. The court shall award reasonable attorney’s fees, court costs, compensation for loss of income, and all expenses incurred by the defendant in defense of any civil action brought by a plaintiff, if the court finds that the defendant is immune from prosecution as provided in subsection (1) of this section.

History. Enact. Acts 2006, ch. 192, § 6, effective July 12, 2006.

NOTES TO DECISIONS

1.Applicability.

Because defendant testified that the gun was accidentally discharged, self-defense and accident were mutually exclusive defenses; therefore, defendant was not entitled to claim legal justification under KRS 503.085 . Worley v. Commonwealth, 2008 Ky. App. LEXIS 209 (Ky. Ct. App. July 3, 2008), review denied, ordered not published, 2009 Ky. LEXIS 230 (Ky. Aug. 19, 2009), cert. denied, 559 U.S. 1013, 130 S. Ct. 1898, 176 L. Ed. 2d 377, 2010 U.S. LEXIS 2718 (U.S. 2010).

In an action where plaintiffs brought an assault and battery claim against a state trooper under Kentucky state law for the shooting and killing of an individual, the trooper was entitled to dismissal under Kentucky’s justification statutes, including KRS 503.050 , 503.060 , 503.070 , and 503.085 , because the evidence showed that the trooper knew that the individual had a propensity towards violence, was being served with an emergency protective order, and had previously shot at law enforcement. In addition, immediately prior to the shooting, the individual was threatening the officers with his gun by raising and pointing it in their direction. King v. Taylor, 803 F. Supp. 2d 659, 2011 U.S. Dist. LEXIS 79235 (E.D. Ky. 2011 ).

Summary judgment in favor of a state trooper who had been involved in a deadly shooting based on his defense of immunity pursuant to KRS 503.085(1) was reversed because a jury could have found, based upon the forensic evidence, expert testimony, and common sense, that the decedent did not threaten the officers by pointing a gun at them just before he was shot. King v. Taylor, 694 F.3d 650, 2012 FED App. 0326P, 2012 U.S. App. LEXIS 19109 (6th Cir. Ky. 2012 ), cert. denied, 568 U.S. 1195, 133 S. Ct. 1473, 185 L. Ed. 2d 365, 2013 U.S. LEXIS 1677 (U.S. 2013).

Defendant was not entitled to immunity from prosecution under Ky. Rev. Stat. Ann. § 503.085 where defendant never reported being attacked by the victim or fearing for his life, it appeared defendant had moved the victim's body into the closet, after first striking him with the frying pan in the living room, and that extensive blood spatter indicated that he continued to strike the victim repeatedly once in the closet, defendant's disposal of his bloody clothes and footwear in attempting to hide his involvement in the victim's death was inconsistent with acting in self-defense, and the evidence indicating that the victim had been strangled in addition to being badly beaten was not self-defense-type behavior. Ragland v. Commonwealth, 476 S.W.3d 236, 2015 Ky. LEXIS 2015 ( Ky. 2015 ).

Evidence supported the conclusion that defendant’s actions were fully justified and he was entitled to immunity, showing that defendant was in a place he had a right to be and thus had no duty to retreat, defendant acted in a way that he believed protected himself and third parties from injury at the hands of a person who had a gun in his hand, and the person with the gun pointed it directly at defendant and shot in defendant’s direction prior to the person’s brother grabbing for the gun. Commonwealth v. Albright, 2018 Ky. App. LEXIS 115 (Ky. Ct. App. Apr. 13, 2018, sub. op., 2018 Ky. App. Unpub. LEXIS 713 (Ky. Ct. App. Apr. 13, 2018).

Trial court properly determined that defendant was not entitled to immunity because conflicting evidence existed as to whether his use of deadly force was justified, the victims had gunshot wounds to the head, defendant had gunshot residue on his hands and no injuries, and a witness stated that defendant told him that he shot the victims. Truss v. Commonwealth, 560 S.W.3d 865, 2018 Ky. LEXIS 356 ( Ky. 2018 ).

Circuit court erred in denying a motion filed by a gun store and its owner for a judgment on the pleadings and finding that the owner was statutorily immune from criminal prosecution because the statute at issue created a unique situation where collateral estoppel could apply between civil and criminal issues and the criminal court previously addressed the issue of whether the owner was entitled to immunity and explained that the Commonwealth did not meet its burden of establishing probable cause to believe the owner was not acting in self-protection, and/or protection of others. Albright v. Childers, 2018 Ky. App. LEXIS 316 (Ky. Ct. App. Dec. 21, 2018).

Circuit court properly denied defendant’s motion for immunity because there was evidence indicating that the victim had never been armed at the scene, defendant’s decision to flee the scene, his disposal of the weapon following the shooting, and his initial denial of involvement in the shooting provided additional support for the finding of probable cause, defendant expressly conceded that the Commonwealth’s proof was sufficient to support a conviction for the offenses of second-degree manslaughter or reckless homicide, and defense counsel’s argument that defendant’s injuries were serious enough to cause him to be in fear of great bodily harm entitled the Commonwealth to argue that defendant’s injuries were not so severe as to put him in fear for his life or serious physical injury. Taylor v. Commonwealth, 567 S.W.3d 610, 2018 Ky. App. LEXIS 313 (Ky. Ct. App. 2018).

When a business owner was found immune from criminal prosecution for a shooting, the owner and the owner’s business were civilly immune from litigation based on the same facts because (1) collateral estoppel applied, as identity of the issues was met, since the identical issue was statutory immunity, the criminal court finally decided the issue, and, while the parties were not identical, the statute made clear the liability standard was the same in both cases, and the Commonwealth’s interest in the criminal case was the same as survivors in the civil case such that the survivors were not prevented from a full and fair opportunity to present the survivors’ case, and, (2) without relying on collateral estoppel, the legislature’s intent to prevent someone found criminally immune from being sued civilly was clear from the statute. Albright v. Childers, 2019 Ky. App. LEXIS 45 (Ky. Ct. App. Mar. 29, 2019).

If an individual is found to be criminally immune from prosecution under Ky. Rev. Stat. Ann. § 503.085 , providing immunity from criminal prosecution and civil liability for the use of force to protect self or others, that individual is also immune from civil litigation on the same facts. Albright v. Childers, 2019 Ky. App. LEXIS 45 (Ky. Ct. App. Mar. 29, 2019).

2.Retroactivity.

Since KRS 503.085 did not contain any language mitigating penalties since persons affected by the amended statute would never face prosecution and, thus, possible conviction and punishment, and it lacked language specifying its retroactive application, defendant could not avail himself of the immunity because it was not in force at the time he committed his offense. Worley v. Commonwealth, 2008 Ky. App. LEXIS 209 (Ky. Ct. App. July 3, 2008), review denied, ordered not published, 2009 Ky. LEXIS 230 (Ky. Aug. 19, 2009), cert. denied, 559 U.S. 1013, 130 S. Ct. 1898, 176 L. Ed. 2d 377, 2010 U.S. LEXIS 2718 (U.S. 2010).

Defendant’s claim of immunity under newly enacted KRS 503.085 , which applied only prospectively, was properly denied. Rodgers v. Commonwealth, 285 S.W.3d 740, 2009 Ky. LEXIS 163 ( Ky. 2009 ).

3.Timeliness.

A defendant may be heard by raising the issue of the broad immunity from prosecution afforded by KRS 503.085(1) within a reasonable time prior to trial. Lemons v. Commonwealth, 2012 Ky. App. LEXIS 98 (Ky. Ct. App. June 22, 2012).

Where a grand jury returned an indictment charging defendant with manslaughter after a fight resulted in a stabbing death, defendant filed a motion to dismiss 16 months later after the second indictment was returned. The Court of Appeals of Kentucky held that defendant’s motion to dismiss based on immunity under KRS 503.085(1) was not untimely and the trial court properly considered it on the merits. Lemons v. Commonwealth, 2012 Ky. App. LEXIS 98 (Ky. Ct. App. June 22, 2012).

4.Commonwealth’s Burden of Proof.

By its enactment of KRS 503.085 , the general assembly has firmly required the Commonwealth to bear the initial burden of going forward with evidence establishing probable cause that the defendant’s use of force was unlawful to defeat an immunity claim. The Commonwealth cannot meet this burden simply by asserting that a jury could reject the defendant’s version of the facts; rather, the Commonwealth must now present affirmative evidence to establish probable cause on the issue. Lemons v. Commonwealth, 2012 Ky. App. LEXIS 98 (Ky. Ct. App. June 22, 2012).

5.Commonwealth’s Burden of Proof Not Met.

Trial court erred by denying defendant’s motion to dismiss the indictment charging him with manslaughter based on his claim of self-defense pursuant to KRS 503.085 . Although defendant fled the scene, disposed of the knife, and initially denied any involvement in the stabbing, his behavior and statements were not sufficient to meet the Commonwealth’s burden of showing probable cause to believe that defendant’s use of deadly force was unlawful. Lemons v. Commonwealth, 2012 Ky. App. LEXIS 98 (Ky. Ct. App. June 22, 2012).

Circuit court erred in denying defendant's assertion of immunity from prosecution under Ky. Rev. Stat. Ann. § 503.085 where her statements to officers who arrived on the scene of the stabbing, an eyewitness's statements about the victim's intimidating actions and comments, and the victim's violence against defendant did not meet the Commonwealth's burden of showing probable cause that the use of deadly force was not justified. Wigginton v. Commonwealth, 2015 Ky. App. LEXIS 151 (Ky. Ct. App. Nov. 6, 2015), review denied, ordered not published, 2016 Ky. LEXIS 306 (Ky. June 8, 2016).

6.Appeal.

Interlocutory appeal was properly taken from the circuit court’s order denying immunity from prosecution based on justifiable self-defense under KRS 503.085(1). Farmer v. Commonwealth, 2013 Ky. App. LEXIS 37 (Ky. Ct. App. Feb. 15, 2013).

Because justifiable self-defense under KRS 503.085(1) does not merely provide a defense to criminal charges, but is intended to protect against the burdens of prosecution and trial at the earliest stage of the proceeding, an interlocutory appeal is permissible. Farmer v. Commonwealth, 2013 Ky. App. LEXIS 37 (Ky. Ct. App. Feb. 15, 2013).

Appellate court was not authorized by the Kentucky Constitution or statute to consider an appeal from an interlocutory order denying defendant immunity under this section because this section did not include a provision for allowing such an appeal. Commonwealth v. Farmer, 423 S.W.3d 690, 2014 Ky. LEXIS 17 ( Ky. 2014 ).

Collateral order exception to the finality doctrine did not create a right of immediate review of an interlocutory order denying immunity in a criminal prosecution because defendant’s interest in asserting immunity and avoiding prosecution was purely personal in nature and the immunity determination by the trial court was inextricably part of the merits of the case as it went directly to defendant’s criminal culpability. Commonwealth v. Farmer, 423 S.W.3d 690, 2014 Ky. LEXIS 17 ( Ky. 2014 ).

When defendant sought dismissal for self-defense immunity, under Ky. Rev. Stat. Ann. § 503.085 , a trial court set an evidentiary hearing on the motion, and the Commonwealth sought a writ, when considering whether the trial court acted outside of the trial court's jurisdiction, the trial court had jurisdiction to set the hearing because the court had jurisdiction to set aside a prior judge's denial of dismissal. Commonwealth v. Eckerle, 470 S.W.3d 712, 2015 Ky. LEXIS 1864 ( Ky. 2015 ).

When defendant sought dismissal for self-defense immunity, under Ky. Rev. Stat. Ann. § 503.085 , and a trial court set an evidentiary hearing on the motion, if the trial court erred, there was no adequate appellate remedy, and the orderly judicial administration exception applied, because (1) testimony at an unauthorized pretrial evidentiary hearing could not be undone, (2) there was no authority to subpoena a witness or victim to testify at a pretrial proceeding about an indictment's facts, and (3) orderly judicial administration was followed by holding a trial. Commonwealth v. Eckerle, 470 S.W.3d 712, 2015 Ky. LEXIS 1864 ( Ky. 2015 ).

When defendant sought dismissal for self-defense immunity, under Ky. Rev. Stat. Ann. § 503.085 , and a trial court set an evidentiary hearing on the motion, the trial court erred because the trial court had to consider the evidence of record in making a probable cause determination on a such a motion, which was part of the orderly administration of justice when the issue was raised. Commonwealth v. Eckerle, 470 S.W.3d 712, 2015 Ky. LEXIS 1864 ( Ky. 2015 ).

Cited:

Hawes v. Lapointe, — S.W.3d —, 2009 Ky. App. LEXIS 202 (Ky. Ct. App. 2009); Jones v. Commonwealth, 366 S.W.3d 376, 2011 Ky. LEXIS 133 ( Ky. 2011 ).

503.090. Use of physical force in law enforcement.

  1. The use of physical force by a defendant upon another person is justifiable when the defendant, acting under official authority, is making or assisting in making an arrest, and he:
    1. Believes that such force is necessary to effect the arrest;
    2. Makes known the purpose of the arrest or believes that it is otherwise known or cannot reasonably be made known to the person to be arrested; and
    3. Believes the arrest to be lawful.
  2. The use of deadly physical force by a defendant upon another person is justifiable under subsection (1) only when:
    1. The defendant, in effecting the arrest, is authorized to act as a peace officer; and
    2. The arrest is for a felony involving the use or threatened use of physical force likely to cause death or serious physical injury; and
    3. The defendant believes that the person to be arrested is likely to endanger human life unless apprehended without delay.
  3. The use of physical force, including deadly physical force, by a defendant upon another person is justifiable when the defendant is preventing the escape of an arrested person and when the force could justifiably have been used to effect the arrest under which the person is in custody, except that a guard or other person authorized to act as a peace officer is justified in using any force, including deadly force, which he believes to be necessary to prevent the escape of a person from jail, prison, or other institution for the detention of persons charged with or convicted of a crime.

History. Enact. Acts 1974, ch. 406, § 34, effective January 1, 1975.

NOTES TO DECISIONS

1.Applicability.

Police officer, under trial for shooting of person whom he was about to arrest for being drunk or disorderly, was entitled to instruction on self-defense and also on his right to resist by force any attempt by third parties to interfere with the arrest. (Decided under prior law) Sizemore v. Commonwealth, 279 Ky. 190 , 130 S.W.2d 31, 1939 Ky. LEXIS 249 ( Ky. 1939 ).

Instructions that if person was drunk in public place in officer’s presence, officer had right to arrest and that if one sought by force to rescue prisoner, officer could overcome such force even to extent of killing rescuer was erroneous in predicating officer’s right to prevent rescue by force upon fact that prisoner was actually guilty of offense. (Decided under prior law) Woods v. Commonwealth, 287 Ky. 312 , 152 S.W.2d 997, 1941 Ky. LEXIS 545 ( Ky. 1941 ).

Accused was not entitled to instruction permitting jury to find that arrest was lawful if victim’s car was wrongfully parked, where accused did not claim that he made arrest, which led to scuffle and to the shooting of victim, because victim’s car was wrongfully parked. (Decided under prior law) Hatfield v. Commonwealth, 287 Ky. 467 , 153 S.W.2d 892, 1941 Ky. LEXIS 550 ( Ky. 1941 ).

Police officer’s actions in using his Taser to break up a fight between two (2) men and thereafter to arrest them for disorderly conduct were clearly discretionary acts within the scope of his authority as a police officer; therefore he was entitled to qualified immunity on state law claims for assault and battery because one of the arrestees could not prove bad faith. Woosley v. City of Paris, 591 F. Supp. 2d 913, 2008 U.S. Dist. LEXIS 97663 (E.D. Ky. 2008 ).

There was no evidence that a police officer gratuitously stunned the arrestee and, more to the point, the use of the Taser was both necessary and objectively reasonable to stop the arrestee’s assault on the smaller man. The officer’s actions were clearly discretionary acts within the scope of his authority; therefore, he was entitled to qualified immunity under KRS 503.090 since the arrestee had not proven bad faith. Woosley v. City of Paris, 2008 U.S. Dist. LEXIS 98252 (E.D. Ky. Dec. 4, 2008).

2. Construction.

The language of KRS 503.090 does not appear to regulate conduct. While it does address the conduct of law enforcement officers, the statute merely provides a defense against a claim of excessive force and sets forth the elements of that defense. Clark v. Kentucky, 229 F. Supp. 2d 718, 2002 U.S. Dist. LEXIS 21261 (E.D. Ky. 2002 ).

3.Evidence.

No meritorious claim was presented under the statute as, in light of the events that led to the plaintiff’s arrest and the manner in which the plaintiff exited his vehicle and approached the defendant, the purpose of the arrest was clear to the plaintiff, the arrest was lawful as probable cause existed, and force was necessary to effectuate the arrest. Tapp v. Banks, 72 F. Supp. 2d 739, 1999 U.S. Dist. LEXIS 16227 (E.D. Ky. 1999 ).

4.Killing of Misdemeanant.

An officer is never justified in killing merely to effect an arrest or prevent an escape after arrest where the offense is a misdemeanor, and the officer who kills under such circumstances is guilty of murder; or, if he does not intend to cause death, he is guilty of manslaughter. (Decided under prior law) Siler v. Commonwealth, 280 Ky. 830 , 134 S.W.2d 945, 1939 Ky. LEXIS 219 ( Ky. 1939 ).

Research References and Practice Aids

Cross-References.

Manner of arrest, unnecessary force prohibited, KRS 431.025 .

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Defenses, Part 2 Justification, §§ 11.19, 11.26.

503.100. Prevention of a suicide or crime.

  1. The use of physical force by a defendant upon another person is justifiable when the defendant believes that such force is immediately necessary to prevent such other person from:
    1. Committing suicide or inflicting serious physical injury upon himself; or
    2. Committing a crime involving or threatening serious physical injury to person, substantial damage to or loss of property, or any other violent conduct.
  2. The use of deadly physical force by a defendant upon another person is justifiable under subsection (1)(b) only when the defendant believes that the person whom he seeks to prevent from committing a crime is likely to endanger human life.
  3. The limitations imposed on the justifiable use of force in self-protection by KRS 503.050 and 503.060 , for the protection of others by KRS 503.070 , for the protection of property by KRS 503.080 , and for the effectuation of an arrest or the prevention of an escape by KRS 503.090 apply notwithstanding the criminality of the conduct against which such force is used.

History. Enact. Acts 1974, ch. 406, § 35, effective January 1, 1975.

Research References and Practice Aids

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Defenses, Part 2 Justification, §§ 11.20, 11.22.

503.110. Use of force by person with responsibility for care, discipline, or safety of others.

  1. The use of physical force by a defendant upon another person is justifiable when the defendant is a parent, guardian, or other person entrusted with the care and supervision of a minor or an incompetent person or when the defendant is a teacher or other person entrusted with the care and supervision of a minor, for a special purpose, and:
    1. The defendant believes that the force used is necessary to promote the welfare of a minor or mentally disabled person or, if the defendant’s responsibility for the minor or mentally disabled person is for a special purpose, to further that special purpose or maintain reasonable discipline in a school, class, or other group; and
    2. The force that is used is not designed to cause or known to create a substantial risk of causing death, serious physical injury, disfigurement, extreme pain, or extreme mental distress.
  2. The use of physical force by a defendant upon another person is justifiable when the defendant is a warden or other authorized official of a correctional institution, and:
    1. The defendant believes that the force used is necessary for the purpose of enforcing the lawful rules of the institution;
    2. The degree of force used is not forbidden by any statute governing the administration of the institution; and
    3. If deadly force is used, its use is otherwise justifiable under this code.
  3. The use of physical force by a defendant upon another person is justifiable when the defendant is a person responsible for the operation of or the maintenance of order in a vehicle or other carrier of passengers and the defendant believes that such force is necessary to prevent interference with its operation or to maintain order in the vehicle or other carrier, except that deadly physical force may be used only when the defendant believes it necessary to prevent death or serious physical injury.
  4. The use of physical force by a defendant upon another person is justifiable when the defendant is a doctor or other therapist or a person assisting him at his direction, and:
    1. The force is used for the purpose of administering a recognized form of treatment which the defendant believes to be adapted to promoting the physical or mental health of the patient; and
    2. The treatment is administered with the consent of the patient or, if the patient is a minor or a mentally disabled person, with the consent of the parent, guardian, or other person legally competent to consent in his behalf, or the treatment is administered in an emergency when the defendant believes that no one competent to consent can be consulted and that a reasonable person, wishing to safeguard the welfare of the patient, would consent.

History. Enact. Acts 1974, ch. 406, § 36, effective January 1, 1975; 1982, ch. 141, § 135, effective July 1, 1982.

Compiler’s Notes.

This section was amended by § 147 of Acts 1980, ch. 396, which would have taken effect July 1, 1982; however, Acts 1982, ch. 141, § 146, effective July 1, 1982, repealed Acts 1980, ch. 396.

NOTES TO DECISIONS

Analysis

1.Parental Discipline.

It may well be there are situations where using a wire coat hanger to correct a child’s behavior, if not appropriate, is at least within the legal limits of parental discretion in raising their children; nevertheless, beatings administered by defendant were sufficient to sustain the charges of torture or cruel punishment to a person under 12 years of age because the children testified to circumstances proving the nature of the beatings to have been cruel and indiscriminate, and far different in character from normal parental discipline. Stoker v. Commonwealth, 828 S.W.2d 619, 1992 Ky. LEXIS 45 ( Ky. 1992 ).

2.Teacher Discipline.

A teacher is justified in the use of physical force within certain bounds. The privilege to use force is unavailable as a defense if the teacher is wanton or reckless in believing the use of any force, or the degree of force used, to be necessary. Holbrook v. Commonwealth, 925 S.W.2d 191, 1995 Ky. App. LEXIS 227 (Ky. Ct. App. 1995).

4.Jury instructions.

Trial court did not abuse its discretion by failing to instruct the jury on justifiable force because consideration of the facts simply did not allow a reasonable inference that the force used by defendant on the victim was not designed to cause or known to create a substantial risk of causing death, serious physical injury, disfigurement, extreme pain, or extreme mental distress. Breazeale v. Commonwealth, 600 S.W.3d 682, 2020 Ky. LEXIS 125 ( Ky. 2020 ).

Notes to Unpublished Decisions

1.Parental Discipline.

Unpublished decision: In a 42 U.S.C.S. § 1983 case in which a plaintiff appealed district court's grant of summary judgment in favor of a police officer based on qualified immunity, the record presented no material dispute of fact whether the officer knew conclusively that the parental-discipline statute protected plaintiff's use of force; the undisputed facts tracked the elements of fourth-degree assault, and nothing required the officer to inquire further to discover plaintiff's affirmative defense. Harvey v. Carr, 616 Fed. Appx. 826, 2015 FED App. 0472N, 2015 U.S. App. LEXIS 11019 (6th Cir. Ky. 2015 ).

Research References and Practice Aids

Cross-References.

Discipline of school children, KRS 161.180.

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Defenses, Part 2 Justification, §§ 11.23 — 11.27.

503.120. Justification — General provisions.

  1. When the defendant believes that the use of force upon or toward the person of another is necessary for any of the purposes for which such belief would establish a justification under KRS 503.050 to 503.110 but the defendant is wanton or reckless in believing the use of any force, or the degree of force used, to be necessary or in acquiring or failing to acquire any knowledge or belief which is material to the justifiability of his use of force, the justification afforded by those sections is unavailable in a prosecution for an offense for which wantonness or recklessness, as the case may be, suffices to establish culpability.
  2. When the defendant is justified under KRS 503.050 to 503.110 in using force upon or toward the person of another, but he wantonly or recklessly injures or creates a risk of injury to innocent persons, the justification afforded by those sections is unavailable in a prosecution for an offense involving wantonness or recklessness toward innocent persons.

History. Enact. Acts 1974, ch. 406, § 37, effective January 1, 1975.

NOTES TO DECISIONS

Analysis

1.Instructions.

In a murder case, where all defendant’s evidence pointed to the fact that the victim had a pistol in his possession which he brandished and with which he threatened defendant, there was no evidence of wantonness or negligence that would justify instruction on manslaughter and reckless homicide under this section; under the evidence the jury could only find that defendant was guilty of murder or was not guilty by reason of self-protection. Caldwell v. Commonwealth, 634 S.W.2d 405, 1982 Ky. LEXIS 256 ( Ky. 1982 ).

Upon retrial of a defendant charged with and convicted of intentional homicide, the defendant would be entitled to an instruction that if the jury finds he believed, reasonably or unreasonably, in the need to defend himself, they should find him innocent. Bennett v. Scroggy, 793 F.2d 772, 1986 U.S. App. LEXIS 26244 (6th Cir. Ky. 1986 ).

Where, in prosecution for assault, there was no evidence that the shooting of the victim by the defendant was anything but intentional, the instruction given under this section was improper. Russell v. Commonwealth, 720 S.W.2d 347, 1986 Ky. App. LEXIS 1456 (Ky. Ct. App. 1986).

Where the defendant was charged with murder and the theory of the defense was self-protection, it was not error to instruct the jury on manslaughter in the second degree as a lesser-included offense; a person who perceives a need to kill in self-defense, when this perception is a gross deviation from the standard of conduct that a reasonable person would observe in the situation, kills both wantonly and intentionally. Commonwealth v. Rose, 725 S.W.2d 588, 1987 Ky. LEXIS 192 ( Ky. 1987 ), cert. denied, 484 U.S. 838, 108 S. Ct. 122, 98 L. Ed. 2d 80, 1987 U.S. LEXIS 3644 (U.S. 1987), overruled, Commonwealth v. Craig, 783 S.W.2d 387, 1990 Ky. LEXIS 9 ( Ky. 1990 ).

Failure to instruct the jury on self-protection, imperfect self-protection, second-degree manslaughter, and reckless homicide was not error as defendant never believed that the threat from the victim was imminent. Lickliter v. Commonwealth, 142 S.W.3d 65, 2004 Ky. LEXIS 173 ( Ky. 2004 ).

As defendant testified he intentionally killed the victim in self-defense, there was no evidentiary basis for his “stand alone” instructions on second degree manslaughter or reckless homicide premised on a theory that he unintentionally killed the victim. Saylor v. Commonwealth, 144 S.W.3d 812, 2004 Ky. LEXIS 220 ( Ky. 2004 ).

2.Self-Defense.

Classifying a killing in self-defense with Manslaughter II or Reckless Homicide, does not label the act both intentional and wanton or reckless at the same time. It simply says that an intentional killing precipitated by a wanton or reckless belief in the need to kill is less culpable than murder, and shall be classified for punishment as either Manslaughter II or Reckless Homicide, depending on whether the belief was wantonly or recklessly formed. Shannon v. Commonwealth, 767 S.W.2d 548, 1988 Ky. LEXIS 80 ( Ky. 1988 ), limited, McGinnis v. Commonwealth, 875 S.W.2d 518, 1994 Ky. LEXIS 37 ( Ky. 1994 ), overruled, Elliott v. Commonwealth, 976 S.W.2d 416, 1998 Ky. LEXIS 114 ( Ky. 1998 ).

Subsection (1) of this section does not preclude the assertion of self-protection and other KRS Chapter 503 justifications as defenses to charges of wanton murder, second-degree manslaughter, or reckless homicide (as well as to charges of wanton or reckless assault); reinstating holdings in Thompson v. Commonwealth, 652 S.W.2d 78, 1983 Ky. LEXIS 251 ( Ky. 1983 ) and Kohlheim v. Commonwealth, 618 S.W.2d 591, 1981 Ky. App. LEXIS 261 (Ky. Ct. App.), and, to the extent they hold otherwise, specifically overruling Shannon v. Commonwealth, 767 S.W.2d 548, 1988 Ky. LEXIS 80 ( Ky. 1989 ); Holbrook v. Commonwealth, 813 S.W.2d 811, 1991 Ky. LEXIS 85 ( Ky. 1991 ); Barbour v. Commonwealth, 824 S.W.2d 861, 1992 Ky. LEXIS 15 ( Ky. 1992 ); Sizemore v. Commonwealth, 844 S.W.2d 397, 1992 Ky. LEXIS 177 ( Ky. 1992 ); and McGinnis v. Commonwealth, 875 S.W.2d 518, 1994 Ky. LEXIS 37 ( Ky. 1994 ).Elliott v. Commonwealth, 976 S.W.2d 416, 1998 Ky. LEXIS 114 ( Ky. 1998 ).

The statute precludes an instruction on self-protection if the defendant’s wanton or reckless use of deadly force caused the death of an innocent person. Phillips v. Commonwealth, 17 S.W.3d 870, 2000 Ky. LEXIS 19 (Ky.), cert. denied, 531 U.S. 1016, 121 S. Ct. 577, 148 L. Ed. 2d 494, 2000 U.S. LEXIS 7878 (U.S. 2000).

Where defendant struck the police officer while defendant was being placed under arrest, defendant was not entitled to a qualified self-protection instruction under KRS 503.120(1), as the language of KRS 503.060(1) precluded the application of KRS 503.120(1) to situations where a police officer used no more force than reasonably necessary to arrest, and defendant was aware that defendant was being placed under arrest. Hightower v. Commonwealth, 2003 Ky. App. Unpub. LEXIS 214 (Ky. Ct. App. May 23, 2003).

Court affirmed the dismissal of a state inmate’s habeas corpus petition. The inmate offered no United States Supreme Court authority suggesting that the Kentucky courts unreasonably applied clearly established federal law in denying him a jury instruction on self-defense; where the Kentucky Supreme Court affirmed the non-issuance of the instruction under Kentucky law, specifically KRS 503.120(2), and there was no controlling United States Supreme Court authority contradicting the state court ruling, the inmate’s argument did not raise a question of fundamental fairness. Phillips v. Million, 374 F.3d 395, 2004 FED App. 0202P, 2004 U.S. App. LEXIS 13438 (6th Cir. Ky. 2004 ).

Evidence supported defendant’s KRS 507.050(1) reckless homicide conviction under an imperfect self-defense theory because, under KRS 503.120(1), a rational juror could believe beyond a reasonable doubt defendant subjectively thought the victim was about to harm defendant, but, objectively, defendant recklessly did not perceive a risk that defendant’s belief was mistaken, as nothing showed defendant evaluated that risk. Commonwealth v. Hasch, 421 S.W.3d 349, 2013 Ky. LEXIS 393 ( Ky. 2013 ).

3.Wanton or Reckless Injury.

The definitions of “wantonly” and “recklessly” in KRS 501.020 explain that those terms apply both to “a result or to a circumstance described by a statute defining an offense.” A subjective belief in the need for self-defense, which is objectively wanton or reckless, is a “circumstance” falling within the definition of wanton or reckless behavior, punishable under Manslaughter II or Reckless Homicide, as the case may be. Shannon v. Commonwealth, 767 S.W.2d 548, 1988 Ky. LEXIS 80 ( Ky. 1988 ), limited, McGinnis v. Commonwealth, 875 S.W.2d 518, 1994 Ky. LEXIS 37 ( Ky. 1994 ), overruled, Elliott v. Commonwealth, 976 S.W.2d 416, 1998 Ky. LEXIS 114 ( Ky. 1998 ).

A teacher is justified in the use of physical force within certain bounds. The privilege to use force is unavailable as a defense if the teacher is wanton or reckless in believing the use of any force, or the the degree of force used, to be necessary. Holbrook v. Commonwealth, 925 S.W.2d 191, 1995 Ky. App. LEXIS 227 (Ky. Ct. App. 1995).

The statute does not provide that a wantonly or recklessly held belief in the need to act in self-protection always reduces a primary offense to a lesser included offense; rather, it provides that an act in self-protection committed under a wantonly held belief is no defense to an offense predicated on wantonness, and that an act in self-protection committed under a recklessly held belief is no defense to an offense predicated on recklessness. Commonwealth v. Hager, 41 S.W.3d 828, 2001 Ky. LEXIS 12 ( Ky. 2001 ).

The fact that the fatal conduct was committed under a wantonly held belief in the need therefor provides no defense to a charge of either second-degree manslaughter or reckless homicide, and the fact that the fatal conduct was committed under a recklessly held belief in the need therefor reduces a charge of second-degree manslaughter to reckless homicide, but provides no defense to a charge of reckless homicide. Commonwealth v. Hager, 41 S.W.3d 828, 2001 Ky. LEXIS 12 ( Ky. 2001 ).

When defendant was convicted of manslaughter, his counsel was not ineffective for not seeking a jury instruction on “imperfect self-protection,” which was the wanton or reckless use of self-protection, under KRS 503.120(1), because such an instruction was given. Fuston v. Commonwealth, 217 S.W.3d 892, 2007 Ky. App. LEXIS 70 (Ky. Ct. App. 2007).

Cited:

Thompson v. Commonwealth, 652 S.W.2d 78, 1983 Ky. LEXIS 251 ( Ky. 1983 ), overruled, Shannon v. Commonwealth, 767 S.W.2d 548, 1988 Ky. LEXIS 80 ( Ky. 1988 ), overruled in part, Shannon v. Commonwealth, 767 S.W.2d 548, 1988 Ky. LEXIS 80 ( Ky. 1988 ).

Notes to Unpublished Decisions

2.Self-Defense.

Unpublished decision: Sentencing enhancement was proper because the court properly enhanced the sentence when the self-defense justification under Kentucky law was not available, and evidence tampering provided an alternative basis. United States v. Sweat, 688 Fed. Appx. 352, 2017 FED App. 0257N, 2017 U.S. App. LEXIS 8092 (6th Cir. Ky. 2017 ).

Research References and Practice Aids

Kentucky Law Journal.

West, Criminal Law, 74 Ky. L.J. 403 (1985-86).

Cooper and Lawson, Self-Defense in Kentucky: A Need for Clarification or Revision, 76 Ky. L.J. 167 (1987-88).

McClure, The Battered Woman Syndrome and the Kentucky Criminal Justice System: Abuse Excuse or Legitimate Mitigation?, 85 Ky. L.J. 169 (1997).

Northern Kentucky Law Review.

Vaughn and Moore, Battered Spouse Defense In Kentucky, 10 N. Ky. L. Rev. 399 (1983).

Hodge, Wanton Murder, Self-Defense, and Jury Instructions: Shannon v. Commonwealth is Revisited; But does it Remain?, 22 N. Ky. L. Rev. 435 (1995).

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Assaults and Restraints of Persons, Part 2 Homicide, §§ 3.20A, 3.22.

Kentucky Instructions to Juries (Criminal), 5th Ed., Defenses, Part 2 Justification, §§ 11.07, 11.28.

CHAPTER 504 Responsibility

504.010. Immaturity. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1974, ch. 406, § 38, effective January 1, 1975) was repealed by Acts 1976, ch. 183, § 8, effective June 19, 1976.

504.020. Mental illness or intellectual disability.

  1. A person is not responsible for criminal conduct if at the time of such conduct, as a result of mental illness or intellectual disability, he lacks substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law.
  2. As used in this chapter, the term “mental illness or intellectual disability” does not include an abnormality manifested only by repeated criminal or otherwise antisocial conduct.
  3. A defendant may prove mental illness or intellectual disability, as used in this section, in exculpation of criminal conduct.

History. Enact. Acts 1974, ch. 406, § 39, effective January 1, 1975; 1988, ch. 283, § 8, effective July 15, 1988; 2012, ch. 146, § 120, effective July 12, 2012.

NOTES TO DECISIONS

1.Constitutionality.

Defendant’s due process rights are not violated by requirement that defendant prove insanity to the satisfaction of the jury. McDonald v. Commonwealth, 554 S.W.2d 84, 1977 Ky. LEXIS 485 ( Ky. 1977 ).

This section is not unconstitutional on the ground that it places the burden of proving a mental disease or defect in exculpation of criminal conduct on the defense. Brewster v. Commonwealth, 568 S.W.2d 232, 1978 Ky. LEXIS 371 ( Ky. 1978 ).

2.Burden of Proof.

The introduction of proof of insanity by a defendant does not place a burden on the Commonwealth to prove him sane; rather, it entitles the defendant to an instruction that the jury may find him not guilty by reason of insanity. Edwards v. Commonwealth, 554 S.W.2d 380, 1977 Ky. LEXIS 494 (Ky.), cert. denied, 434 U.S. 999, 98 S. Ct. 642, 54 L. Ed. 2d 495, 1977 U.S. LEXIS 4342 (U.S. 1977).

The burden of proving insanity is on the accused. Helmes v. Commonwealth, 558 S.W.2d 162, 1977 Ky. LEXIS 548 ( Ky. 1977 ).

It is incumbent on the defendant to prove his insanity. Wainscott v. Commonwealth, 562 S.W.2d 628, 1978 Ky. LEXIS 332 (Ky.), cert. denied, 439 U.S. 868, 99 S. Ct. 196, 58 L. Ed. 2d 179, 1978 U.S. LEXIS 3143 (U.S. 1978).

Where there was no testimony that the appellant, on the occasion of the murder, robbery and assault, lacked substantial capacity either to appreciate the criminality of his conduct or to conform his conduct to the requirements of law, he was not entitled to an acquittal on the grounds of insanity. Brewster v. Commonwealth, 568 S.W.2d 232, 1978 Ky. LEXIS 371 ( Ky. 1978 ).

Defendant’s introduction of mental illness sufficient to raise issue of insanity as a defense, KRS 504.020 , did not require the Commonwealth to then disprove mental illness. KRS 500.070(3) laid out the burden of proof for insanity, which rested on the defendant. Biyad v. Commonwealth, 392 S.W.3d 380, 2013 Ky. LEXIS 8 ( Ky. 2013 ).

3.Evidence.

The presentation of evidence merely proving the defendant to be suffering from some form of mental illness at the time of the offense, without also proving him unable to appreciate the wrongfulness of his conduct or to resist his impulse to commit the illegal deed due to the perceived mental disease or defect, will not relieve him from the consequences of his criminal act. Edwards v. Commonwealth, 554 S.W.2d 380, 1977 Ky. LEXIS 494 (Ky.), cert. denied, 434 U.S. 999, 98 S. Ct. 642, 54 L. Ed. 2d 495, 1977 U.S. LEXIS 4342 (U.S. 1977).

In a murder and robbery prosecution where the defendant’s sole defense was insanity, it was prejudicial error for the trial court to question a psychiatrist regarding the inadequacy of psychiatric treatment at a mental institution since the trial court attempted to introduce the testimony as proof of the inadequacy of the remedy of placing defendant in the mental institution. Paul v. Commonwealth, 625 S.W.2d 569, 1981 Ky. LEXIS 300 (Ky.), overruled, Payne v. Commonwealth, 623 S.W.2d 867, 1981 Ky. LEXIS 286 ( Ky. 1981 ).

Where the defendant in a murder prosecution asserted that he was not competent to stand trial, but at a pretrial hearing several psychiatrists, lay witnesses, prisoners in jail with the defendant, and police officers all testified as to normal behavior on the part of the defendant, there was substantial evidence to support the ruling of the trial court that the defendant was competent to stand trial and that he was not insane at the time of the homicide. Harston v. Commonwealth, 638 S.W.2d 700, 1982 Ky. LEXIS 292 ( Ky. 1982 ).

Evidence of insanity need not be pinpointed at the moment of the crime before it can be submitted to a jury for decision, and Corder v. Commonwealth , 278 S.W.2d 77, 1955 Ky. LEXIS 479 ( Ky. 1955 ) is overruled to the extent that it, even inferentially, imposes such a requirement. Cannon v. Commonwealth, 777 S.W.2d 591, 1989 Ky. LEXIS 68 ( Ky. 1989 ) (decided prior to 1988 amendment).

The evidence necessary to support the submission of the issue of sanity/insanity to a jury must be relevant to the two (2) legal requirements set out in subsection (1) of this section, and for this purpose, even lay testimony is acceptable, if relevant. Cannon v. Commonwealth, 777 S.W.2d 591, 1989 Ky. LEXIS 68 ( Ky. 1989 ) (decided prior to 1988 amendment).

A mere showing of narcotics addiction, without more, does not constitute “some evidence” of mental illness or retardation so as to raise the issue of criminal responsibility, requiring introduction of the expert’s controversial testimony or an instruction to the jury on that issue. Commonwealth v. Tate, 893 S.W.2d 368, 1995 Ky. LEXIS 17 ( Ky. 1995 ).

In an assault prosecution, defendant had not been entitled to a directed verdict on his insanity defense because he acknowledged on cross-examination that he did not kill his other family members because it was wrong, and he tried to blame his brother-in-law for the shootings. Welborn v. Commonwealth, 157 S.W.3d 608, 2005 Ky. LEXIS 92 ( Ky. 2005 ).

In a murder case, evidence of believed poisoning in a jail was not relevant to the claim of sanity under KRS 504.020(1) because it had nothing to do with the offense at issue. The events in the jail occurred after the murder. Jones v. Commonwealth, 366 S.W.3d 376, 2011 Ky. LEXIS 133 ( Ky. 2011 ).

4.— Lay Opinion.

Wide latitude must be given to the way in which a lay opinion regarding sanity is expressed, and such opinion is not inadmissible merely because the question is couched in terms of the capacity to distinguish between right and wrong, or because it invades the jury’s prerogative, or because it is not confined to the precise time of the offensive act. Jewell v. Commonwealth, 549 S.W.2d 807, 1977 Ky. LEXIS 412 ( Ky. 1977 ), overruled, Payne v. Commonwealth, 623 S.W.2d 867, 1981 Ky. LEXIS 286 ( Ky. 1981 ).

5.— Expert Witness.

Testimony elicited from defendant’s expert witness about prior acts of violence by the defendant, because it related to understanding the basis of the expert’s opinion as to the defendant’s mental state at the time of the crime, which the expert had stated was based upon the defendant’s past history, was not impermissible testimony of other crimes under KRE 404(3)(b), rather it was evidence being used to understand a medical diagnosis and was permissible. Port v. Commonwealth, 906 S.W.2d 327, 1995 Ky. LEXIS 79 ( Ky. 1995 ).

Because prosecution’s questions of “What percentage of paranoid schizophrenics kill people?” and “What kinds of killings are rational outside of war or police enforcement?” directed to expert witness for defendant, addressed the basis of the expert’s opinion as to defendant’s insanity and rationality of his actions, they were not irrelevant and intended only to inflame the jurors’ passions and fears and were proper under KRE 703. Port v. Commonwealth, 906 S.W.2d 327, 1995 Ky. LEXIS 79 ( Ky. 1995 ).

6.Insanity.

As regards defense of insanity, accused must show that, at time of offense, he did not know right from wrong or did not have sufficient will power to control his actions, and hence, instruction placing burden upon accused of establishing insanity at time of killing was proper, despite fact that insanity inquest had determined his insanity at earlier time. (Decided under prior law) Gulley v. Commonwealth, 284 Ky. 98 , 143 S.W.2d 1059, 1940 Ky. LEXIS 451 ( Ky. 1940 ).

Record on inquest as to accused’s insanity was admissible in evidence in murder prosecution, but letter from judge presiding at such inquest to superintendent of asylum was inadmissible, being hearsay and not part of official record. (Decided under prior law) Gulley v. Commonwealth, 284 Ky. 98 , 143 S.W.2d 1059, 1940 Ky. LEXIS 451 ( Ky. 1940 ).

Accused should be acquitted if at time he stabbed and killed victim, he was unconscious of his act and remembered nothing after victim jumped on him and cut his throat so that he did not know what he was doing or know right from wrong. (Decided under prior law) Newsome v. Commonwealth, 287 Ky. 649 , 154 S.W.2d 737, 1941 Ky. LEXIS 608 ( Ky. 1941 ).

In order for insanity to constitute a defense, it must be such as deprives the accused of ability to determine right from wrong, or to comprehend the effects of his act, or such as makes him powerless to control an impulse to commit the deed. Delirium tremens will not constitute a complete defense unless it produces in the accused such conditions. (Decided under prior law) Horn v. Commonwealth, 292 Ky. 587 , 167 S.W.2d 58, 1942 Ky. LEXIS 129 ( Ky. 1942 ).

Insane delusion of defendant that one of his nephews was plotting to take defendant’s life was no defense to prosecution of defendant for killing another nephew, where deceased at time of killing was unarmed and had performed no acts indicating that he had any design to kill defendant or to assist other nephew in killing defendant. (Decided under prior law) Horn v. Commonwealth, 292 Ky. 587 , 167 S.W.2d 58, 1942 Ky. LEXIS 129 ( Ky. 1942 ).

When a person is under an insane delusion, though he is rational on other subjects, he is not criminally responsible for acts committed under the influence of such delusion, where the state of facts existing in his imagination would, if actually existing, excuse the act; but where the imaginary facts, if real, would not justify or excuse the act, it is no defense that it was committed under an insane delusion. (Decided under prior law) Horn v. Commonwealth, 292 Ky. 587 , 167 S.W.2d 58, 1942 Ky. LEXIS 129 ( Ky. 1942 ).

Where defense is insanity, the question is whether or not the accused, at the time of the homicide, had sufficient reason to know what he was doing, or, to know right from wrong, or had sufficient mental power to govern or control his actions, and this is a question of fact for the jury. (Decided under prior law) Murrell v. Commonwealth, 291 Ky. 65 , 163 S.W.2d 1, 1942 Ky. LEXIS 161 ( Ky. 1942 ).

Evidence that defendant is not of average intelligence and is slow to learn is not sufficient to establish defense of insanity. (Decided under prior law) Gray v. Commonwealth, 293 Ky. 833 , 170 S.W.2d 870, 1943 Ky. LEXIS 718 ( Ky. 1943 ).

It is not an abuse of discretion to not hold a jury inquest on the question of the defendant’s competency in view of evidence by several psychiatrists who had examined the defendant before his trial that the defendant is clearly competent to stand trial. (Decided under prior law) Anderson v. Commonwealth, 353 S.W.2d 381, 1961 Ky. LEXIS 8 ( Ky. 1961 ), cert. denied, 369 U.S. 829, 82 S. Ct. 847, 7 L. Ed. 2d 795, 1962 U.S. LEXIS 1582 (U.S. 1962), cert. denied, 369 U.S. 863, 82 S. Ct. 953, 8 L. Ed. 2d 20, 1962 U.S. LEXIS 1418 (U.S. 1962).

Where the prosecutor used the term “insanity” during a trial and the trial court used the same term while giving an instruction outlining the elements of this section, which raised the “mental disease or defect” defense relied on by the defendant, the use of the term “insanity” did not deprive the defendant of a fair trial, since shorthand terms are often used in order to facilitate communications in the courtroom and since the jury is capable of exercising reason and logic. Payne v. Commonwealth, 623 S.W.2d 867, 1981 Ky. LEXIS 286 ( Ky. 1981 ), cert. denied, 456 U.S. 909, 102 S. Ct. 1758, 72 L. Ed. 2d 167, 1982 U.S. LEXIS 1573 (U.S. 1982).

A mental disease which does not in itself result in a lack of capacity to appreciate the criminality of one’s conduct or to conform one’s conduct to the requirements of law does not rise to the level of insanity, nor does it, in itself, constitute extreme emotional disturbance. McClellan v. Commonwealth, 715 S.W.2d 464, 1986 Ky. LEXIS 274 ( Ky. 1986 ), cert. denied, 479 U.S. 1057, 107 S. Ct. 935, 93 L. Ed. 2d 986, 1987 U.S. LEXIS 379 (U.S. 1987).

The legislature has not intended that drug addiction arising from the voluntary ingestion of drugs, by itself, affords a defense to a criminal charge on the basis of mental illness. Commonwealth v. Tate, 893 S.W.2d 368, 1995 Ky. LEXIS 17 ( Ky. 1995 ).

Defendant was not entitled to a directed verdict because it was not clearly unreasonable for the jury to find against defendant on the issue of insanity under KRS 504.020 because, although defendant had a history of mental illness and had been previously diagnosed with paranoid schizophrenia, the evidence showed that: (1) defendant admitted to shooting the three victims under the false impression that two of them had attempted to poison him; (2) defendant testified that he walked away from the shooting because he was looking for an escape route; (3) defendant told onlookers to tell the police that they could get him in the morning because he wanted to get some rest; (4) one victim testified that although defendant intended to shoot her a second time, she asked him not to and he complied; (5) a psychiatrist who interviewed defendant a few days after the shootings stated that he knew it was wrong and illegal to kill someone; and (6) the court-appointed psychiatrist testified that defendant showed an ability to control his actions because he did not attempt to murder other people he also believed were poisoning him. Star v. Commonwealth, 313 S.W.3d 30, 2010 Ky. LEXIS 115 ( Ky. 2010 ).

Prosecutor’s argument about defendant’s possible release from treatment if the jury agreed with the insanity defense legitimately applied KRS 504.020(2) to the evidence presented at trial; given the fact that the trial court’s jury instructions specifically addressed defendant’s possible release from treatment, the prosecutor’s comment was not improper. Noakes v. Commonwealth, 354 S.W.3d 116, 2011 Ky. LEXIS 153 ( Ky. 2011 ).

7.Instructions.

To authorize an instruction on insanity, there must be some evidence of a diseased mind, more than violent, uncontrollable desire to kill, and if in a state of anger one takes the life of another, he is not excusable on ground of insanity, but in order to justify instruction on point, there must be some derangement or disease of mind. (Decided under prior law) Hutsell v. Commonwealth, 225 Ky. 492 , 9 S.W.2d 132, 1928 Ky. LEXIS 802 ( Ky. 1928 ).

Refusal to give insanity instruction containing requirements urged by accused’s counsel to the effect that accused should be acquitted if he was of unsound mind in the sense that he did not have sufficient reason to know right from wrong was not erroneous, where there was no substantial evidence of insanity, despite some evidence that he had taken drink and that, when under influence of liquor, he was quarrelsome. (Decided under prior law) Smiddy v. Commonwealth, 287 Ky. 276 , 152 S.W.2d 949, 1941 Ky. LEXIS 532 ( Ky. 1941 ).

In cases hereafter submitted to the jury on the issue of insanity the trial judge shall delete the following sentence from the instruction: “The law presumes every man sane until the contrary is shown by the evidence.” Mason v. Commonwealth, 565 S.W.2d 140, 1978 Ky. LEXIS 348 ( Ky. 1978 ).

A trial court and an appellate court, before determining the appropriateness of an instruction on insanity, must consider all the evidence; it must consider the totality of the evidence. If there is any probative evidence from which a jury could reasonably infer that at the time of the offense, as a result of mental disease or defect, the defendant lacked substantial capacity to either appreciate the criminality of his act or to conform his conduct to the requirements of law, the defendant is entitled to an instruction on insanity. Cannon v. Commonwealth, 777 S.W.2d 591, 1989 Ky. LEXIS 68 ( Ky. 1989 ) (decided prior to 1988 amendment).

Medical certainty is not a prerequisite to giving defendant’s requested instruction regarding insanity; what matters is whether the supporting evidence, taken as a whole, is sufficient to infer a reasonable probability that the condition exists. Cannon v. Commonwealth, 777 S.W.2d 591, 1989 Ky. LEXIS 68 ( Ky. 1989 ) (decided prior to 1988 amendment).

Where the jury was instructed that it might find the defendant not guilty by reason of insanity if it believed “from the evidence” that he was insane at the time of the offenses, there was no error in this instruction. Sanders v. Commonwealth, 801 S.W.2d 665, 1990 Ky. LEXIS 93 ( Ky. 1990 ), cert. denied, 502 U.S. 831, 112 S. Ct. 107, 116 L. Ed. 2d 76, 1991 U.S. LEXIS 4767 (U.S. 1991).

Where the jury has been properly instructed as to the verdicts it may return upon particular findings of fact, the argument that the jury, without information on consequences, cannot distinguish between the verdict of not guilty by reason of insanity and that of guilty but mentally ill was entirely unfounded. Sanders v. Commonwealth, 801 S.W.2d 665, 1990 Ky. LEXIS 93 ( Ky. 1990 ), cert. denied, 502 U.S. 831, 112 S. Ct. 107, 116 L. Ed. 2d 76, 1991 U.S. LEXIS 4767 (U.S. 1991).

8.Irresistible Impulse.

In order for a so called “irresistible impulse” to constitute an excuse for a crime, it must result from mental disease, and a mere failure to exercise self-discipline over emotions and impulses is not enough. (Decided under prior law) Dugan v. Commonwealth, 333 S.W.2d 755, 1960 Ky. LEXIS 202 ( Ky. 1960 ).

9.Jury Determination.

In a prosecution for manslaughter where the defendant’s evidence was not so compelling as to require a directed verdict of acquittal as a matter of law, the issue of insanity was properly submitted to jury for its determination. Hayden v. Commonwealth, 563 S.W.2d 720, 1978 Ky. LEXIS 343 ( Ky. 1978 ), overruled in part, Thompson v. Commonwealth, 56 S.W.3d 406, 2001 Ky. LEXIS 223 ( Ky. 2001 ), overruled in part, Thompson v. Commonwealth, 50 S.W.3d 204, 2001 Ky. LEXIS 115 ( Ky. 2001 ).

Jury’s finding that defendant was sane would stand, even though the medical testimony, without equivocation, portrayed the defendant as a victim of mental disorder or defect, and it was without cavil that the defendant, at the time he killed his wife, was not acting in a normal manner. Wiseman v. Commonwealth, 587 S.W.2d 235, 1979 Ky. LEXIS 288 ( Ky. 1979 ).

Where there was lay testimony to rebut the defendant’s proof of insanity, and the circumstances preceding the commission of the crime, the evidence regarding the circumstances surrounding its occurrence, and the activities of the accused thereafter when taken as a whole were sufficient to submit the issue of insanity to the jury, it was not clearly unreasonable for a jury to find against the defendant on the issue of insanity, regardless of the fact that all of the expert testimony was to the contrary. Ice v. Commonwealth, 667 S.W.2d 671, 1984 Ky. LEXIS 212 (Ky.), cert. denied, 469 U.S. 860, 105 S. Ct. 192, 83 L. Ed. 2d 125, 1984 U.S. LEXIS 3642 (U.S. 1984).

If there is any evidence of insanity, even that provided by lay witnesses, the jury, under instructions, is the final arbiter of the ultimate question of the defendant’s sanity or insanity. Cannon v. Commonwealth, 777 S.W.2d 591, 1989 Ky. LEXIS 68 ( Ky. 1989 ) (decided prior to 1988 amendment).

Because the applicable standard is whether it would be clearly unreasonable for a jury to find against the defendant on the issue of insanity, it was not clearly unreasonable for any jury to find that the defendant, convicted of intentional murder but mentally ill, attempted murder but mentally ill and first-degree wanton endangerment but mentally ill, was not insane at the time of the incident where testimony of witnesses and police on scene was that he appeared to be in control and acted rationally. Port v. Commonwealth, 906 S.W.2d 327, 1995 Ky. LEXIS 79 ( Ky. 1995 ).

10.Remorse.

While the subject of the defendant’s remorse, in isolation, may well be irrelevant to the question of guilt or innocence, the record indicated that the question of remorse in the context presented was relevant to the psychiatrist’s conclusion that the defendant was a manipulative type of person, which question in turn is clearly relevant to a determination of whether the patient in fact suffered from a mental disease or defect, or whether on the other hand he was a malingerer; this latter issue being crucial in the guilt/innocence phase of defendant’s trial, the evidence as to the defendant’s remorse, vel non, was relevant and admissible. Sanders v. Commonwealth, 801 S.W.2d 665, 1990 Ky. LEXIS 93 ( Ky. 1990 ), cert. denied, 502 U.S. 831, 112 S. Ct. 107, 116 L. Ed. 2d 76, 1991 U.S. LEXIS 4767 (U.S. 1991).

11.Waiver of Defense.

If, after counsel has fully informed the defendant of relevant considerations bearing on the decision to forego the insanity defense, the defendant insists on an ill-advised course of action, counsel should bring the conflict to the attention of the trial court by seeking a determination of whether the accused is capable of voluntarily and intelligently waiving the defense. Dean v. Commonwealth, 777 S.W.2d 900, 1989 Ky. LEXIS 77 ( Ky. 1989 ), overruled in part, Caudill v. Commonwealth, 120 S.W.3d 635, 2003 Ky. LEXIS 140 ( Ky. 2003 ), limited, Quarels v. Commonwealth, 142 S.W.3d 73, 2004 Ky. LEXIS 186 ( Ky. 2004 ), overruled in part, Commonwealth v. McGorman, 489 S.W.3d 731, 2016 Ky. LEXIS 102 ( Ky. 2016 ).

It is possible that a defendant found competent to stand trial might be unable to comprehend the consequences of choosing not to use the insanity defense, thus rendering the defendant incapable of intelligently waiving the defense; the accused might also suffer a mental disability which would make it difficult or impossible to recognize his or her present condition. Dean v. Commonwealth, 777 S.W.2d 900, 1989 Ky. LEXIS 77 ( Ky. 1989 ), overruled in part, Caudill v. Commonwealth, 120 S.W.3d 635, 2003 Ky. LEXIS 140 ( Ky. 2003 ), limited, Quarels v. Commonwealth, 142 S.W.3d 73, 2004 Ky. LEXIS 186 ( Ky. 2004 ), overruled in part, Commonwealth v. McGorman, 489 S.W.3d 731, 2016 Ky. LEXIS 102 ( Ky. 2016 ).

Although defense counsel generally controls strategic and tactical decisions, after consultation with the client, the decision to assert the defense of insanity may seriously compromise a defendant’s chosen alternative defense, as well as threaten his liberty and reputational interests and other legal rights and counsel must respect the defendant’s authority to make critical decisions concerning his defense; however, if the trial judge determines a defendant to be incapable of voluntarily and intelligently waiving the defense of insanity, counsel must proceed as the evidence and counsel’s professional judgment warrant. Dean v. Commonwealth, 777 S.W.2d 900, 1989 Ky. LEXIS 77 ( Ky. 1989 ), overruled in part, Caudill v. Commonwealth, 120 S.W.3d 635, 2003 Ky. LEXIS 140 ( Ky. 2003 ), limited, Quarels v. Commonwealth, 142 S.W.3d 73, 2004 Ky. LEXIS 186 ( Ky. 2004 ), overruled in part, Commonwealth v. McGorman, 489 S.W.3d 731, 2016 Ky. LEXIS 102 ( Ky. 2016 ).

Because he pled guilty without preserving the issue of his competency for review, defendant waived his insanity and intoxication defenses for purposes of appellate review. Smith v. Commonwealth, 244 S.W.3d 757, 2008 Ky. App. LEXIS 11 (Ky. Ct. App. 2008).

12.Applicability.

It was an abuse of discretion to grant an inmate’s petition for a declaration of rights because (1) the inmate’s procedural due process rights were observed, (2) evidence supported discipline and did not show a lapse in medication caused the inmate’s actions, and (3) the inmate could not claim lack of intent due to mental illness, as the inmate was not charged with a crime, lack of capacity was no defense, and (4) the rule requiring a warden’s representative and a Mental Health Authority representative to consult before discipline was imposed, after guilt was decided, was complied with. Conover v. Blocker, 2019 Ky. App. LEXIS 58 (Ky. Ct. App. Apr. 5, 2019).

13.Inconsistent Verdicts.

Exception to the rule regarding inconsistent verdicts was not warranted because a verdict finding a defendant both not guilty by reason of insanity and guilty but mentally ill was permissible as long as there was sufficient evidence to support the jury’s finding of guilty but mentally ill on a particular count. Exantus v. Commonwealth, 612 S.W.3d 871, 2020 Ky. LEXIS 458 ( Ky. 2020 ).

It was not clearly unreasonable for the jury to find the requisite mental state to return a verdict of guilty but mentally ill of the second-degree assaults of two children and the fourth-degree assault of their father, and not guilty by reason of insanity on one count of murder and one count of first-degree burglary as the verdicts were not impermissibly inconsistent because a defense expert testified that it was possible for psychosis to wax and wane over time; and that testimony provided the jury with a basis to find that defendant’s mental state could have shifted from insanity to guilty but mentally ill during the short period of time the crimes were committed. Exantus v. Commonwealth, 612 S.W.3d 871, 2020 Ky. LEXIS 458 ( Ky. 2020 ).

Cited:

Ratliff v. Commonwealth, 567 S.W.2d 307, 1978 Ky. LEXIS 370 ( Ky. 1978 ), overruled, Wellman v. Commonwealth, 694 S.W.2d 696, 1985 Ky. LEXIS 235 ( Ky. 1985 ), overruled in part, Wellman v. Commonwealth, 694 S.W.2d 696, 1985 Ky. LEXIS 235 ( Ky. 1985 ), overruled, McClellan v. Commonwealth, 715 S.W.2d 464, 1986 Ky. LEXIS 274 ( Ky. 1986 ), overruled in part, McClellan v. Commonwealth, 715 S.W.2d 464, 1986 Ky. LEXIS 274 ( Ky. 1986 ), overruled in part as stated, Matthews v. Simpson, 603 F. Supp. 2d 960, 2008 U.S. Dist. LEXIS 108974 (W.D. Ky. 2008 ), overruled, Matthews v. Parker, — F.3d —, 651 F.3d 489, 2011 U.S. App. LEXIS 13091 (6th Cir. 2011); Williams v. Commonwealth, 233 S.W.3d 206, 2007 Ky. App. LEXIS 326 (Ky. Ct. App. 2007); Commonwealth v. Carneal, 274 S.W.3d 420, 2008 Ky. LEXIS 294 ( Ky. 2008 ).

Research References and Practice Aids

Cross-References.

Insanity defense, RCr 9.90.

Kentucky Law Journal.

Kentucky Law Survey, Overstreet and Collier, Criminal Law, 68 Ky. L.J. 733 (1979-1980).

Kentucky Law Survey, Fortune, Criminal Rules, 70 Ky. L.J. 395 (1981-82).

Northern Kentucky Law Review.

Notes, Criminal Law — Insanity Defense — Jury Instruction on Consequences of Acquittal — Payne v. Commonwealth, 623 S.W.2d 867, 1981 Ky. LEXIS 286 ( Ky. 1981 ), 9 N. Ky. L. Rev. 583 (1982).

Vaughn and Moore, Battered Spouse Defense In Kentucky, 10 N. Ky. L. Rev. 399 (1983).

Palmore, The Insanity Defense Revisited, 11 N. Ky. L. Rev. 1 (1984).

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Defenses, Part 3 Absence of Criminal Responsibility, §§ 11.31, 11.33.

Kentucky Instructions to Juries (Criminal), 5th Ed., General Principles, Part 1 Matters of Substance, § 1.03.

504.030. Disposition of person found not guilty by reason of insanity.

  1. When a defendant is found not guilty by reason of insanity, the court shall conduct an involuntary hospitalization proceeding under KRS Chapter 202A or 202B.
  2. To facilitate the procedure established in subsection (1) of this section, the court may order the detention of the defendant for a period of ten (10) days to allow for proceedings to be initiated against the defendant for examination and possible detention pursuant to the provisions of KRS Chapter 202A or 202B.

History. Enact. Acts 1974, ch. 406, § 40, effective January 1, 1975; 1976, ch. 332, § 31; 1982, ch. 445, § 42, effective July 15, 1982.

Legislative Research Commission Note.

This section was amended by 1982 Acts Chapter 113, Section 11 and 1982 Acts Chapter 445, Section 42, which conflict and cannot be compiled together. Pursuant to KRS 446.250 , the amendment in Chapter 445, Section 42, prevails as the later enactment.

This section was amended in 1982 Acts Chapter 445, which contains the following language in Section 45 of that Act: “This Act shall become effective on July 1, 1982.” The Ky. Constitution, in Section 55, requires that a reason be set forth for the emergency. However, no reason is set forth in this Act. The effective date for 1982 Acts with no emergency provision is July 15, 1982.

NOTES TO DECISIONS

1.Initiation of Proceedings.

The court required to initiate proceedings for involuntary hospitalization under KRS Chapter 202A is the one in which the verdict under KRS 504.110 , not guilty by reason of insanity, or the determination of incompetency under this section is made. Tolley v. Commonwealth, 892 S.W.2d 580, 1995 Ky. LEXIS 28 ( Ky. 1995 ).

2.Temporary Commitment.

Even though the jury has determined the defendant should not be held responsible for his criminal conduct because he was insane at the time the offense was committed, if at the time this verdict is returned there are no reasonable grounds for the court to believe the defendant will cause injury to himself or others if not immediately restrained, even the short-term, temporary commitment prescribed by subsection (2) of this section cannot be ordered. Edwards v. Commonwealth, 554 S.W.2d 380, 1977 Ky. LEXIS 494 (Ky.), cert. denied, 434 U.S. 999, 98 S. Ct. 642, 54 L. Ed. 2d 495, 1977 U.S. LEXIS 4342 (U.S. 1977).

Cited:

Jewell v. Commonwealth, 549 S.W.2d 807, 1977 Ky. LEXIS 412 ( Ky. 1977 ), overruled, Payne v. Commonwealth, 623 S.W.2d 867, 1981 Ky. LEXIS 286 ( Ky. 1981 ), overruled in part, Payne v. Commonwealth, 623 S.W.2d 867, 1981 Ky. LEXIS 286 ( Ky. 1981 ).

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Fortune, Criminal Procedure, 71 Ky. L.J. 367 (1982-83).

Northern Kentucky Law Review.

Notes, Criminal Law — Insanity Defense — Jury Instruction on Consequences of Acquittal — Payne v. Commonwealth, 623 S.W.2d 867, 1981 Ky. LEXIS 286 ( Ky. 1981 ), 9 N. Ky. L. Rev. 583 (1982).

Palmore, The Insanity Defense Revisited, 11 N. Ky. L. Rev. 1 (1984).

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Defenses, Part 3 Absence of Criminal Responsibility, § 11.31.

504.040. Mental disease or defect — Proceedings — Examinations. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1974, ch. 406, § 41, effective January 1, 1975; 1976, ch. 332, § 32; 1978, ch. 290, § 4, effective June 17, 1978) was repealed by Acts 1982, ch. 113, § 14, effective July 15, 1982.

504.050. Requirement of notice and examination of defendant. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1974, ch. 406, § 42, effective January 1, 1975; 1978, ch. 78, § 2, effective June 17, 1978) was repealed by Acts 1982, ch. 113, § 14, effective July 15, 1982.

504.060. Definitions for chapter.

As used in this chapter, unless the context otherwise requires:

  1. “Department” means the Department of Corrections;
  2. “Forensic psychiatric facility” means a mental institution or facility, or part thereof, designated by the secretary of the Cabinet for Health and Family Services for the purpose and function of providing inpatient evaluation, care, and treatment for mentally ill persons or individuals with an intellectual disability who have been charged with or convicted of a felony;
  3. “Foreseeable future” means not more than three hundred sixty (360) days;
  4. “Incompetency to stand trial” means, as a result of mental condition, lack of capacity to appreciate the nature and consequences of the proceedings against one or to participate rationally in one’s own defense;
  5. “Insanity” means, as a result of mental condition, lack of substantial capacity either to appreciate the criminality of one’s conduct or to conform one’s conduct to the requirements of law;
  6. “Mental illness” means substantially impaired capacity to use self-control, judgment, or discretion in the conduct of one’s affairs and social relations, associated with maladaptive behavior or recognized emotional symptoms where impaired capacity, maladaptive behavior, or emotional symptoms can be related to physiological, psychological, or social factors;
  7. “Individual with an intellectual disability” means an individual with significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the developmental period and is a condition which may exist concurrently with mental illness or insanity;
  8. “Psychiatrist” means a physician licensed pursuant to KRS Chapter 311 who is certified or eligible to apply for certification by the American Board of Psychiatry and Neurology, Inc.;
  9. “Psychologist” means a person licensed at the doctoral level pursuant to KRS Chapter 319 who has been designated by the Kentucky Board of Examiners of Psychology as competent to perform examinations;
  10. “Treatment” means medication or counseling, therapy, psychotherapy, and other professional services provided by or at the direction of psychologists or psychiatrists. “Treatment” shall not include electroshock therapy or psychosurgery; and
  11. “Treatment facility” means an institution or part thereof, approved by the Cabinet for Health and Family Services, which provides evaluation, care, and treatment for insane or mentally ill persons or individuals with an intellectual disability on an inpatient or outpatient basis, or both.

History. Enact. Acts 1982, ch. 113, § 1, effective July 15, 1982; 1986, ch. 331, § 57, effective July 15, 1986; 1988, ch. 139, § 15, effective July 15, 1988; 1992, ch. 211, § 131, effective July 14, 1992; 1998, ch. 426, § 605, effective July 15, 1998; 2005, ch. 99, § 653, effective June 20, 2005; 2012, ch. 146, § 121, effective July 12, 2012.

NOTES TO DECISIONS

1.Incompetency to Stand Trial.

Denial of defendant’s request for a competency evaluation prior to sentencing was proper under circumstances in which the case had been ongoing for a year with no sign of incompetency from defendant, who testified competently, and spoke clearly and intelligently while answering his counsel’s questions; further, on cross-examination defendant was clever and evasive with his answers, defendant’s counsel admitted that he did not detect any signs of mental illness throughout the representation, and defendant fully communicated with his attorney and participated rationally in his own defense. Gray v. Commonwealth, 233 S.W.3d 715, 2007 Ky. LEXIS 190 ( Ky. 2007 ).

Finding that defendant was incompetent to stand trial for criminal abuse was proper despite expert opinion that defendant was competent, because defendant’s expert also opined that defendant would need a lot of support during trial to assist counsel, as defendant, who was mildly mentally retarded, would probably not know what questions to ask, could not recognize a lie, and was unfamiliar with the necessary vocabulary. Commonwealth v. Wooten, 269 S.W.3d 857, 2008 Ky. LEXIS 298 ( Ky. 2008 ).

Trial court’s decision not to conduct an evidentiary hearing regarding defendant’s competency to enter a guilty plea was not palpable error, as, following a plea colloquy, there was no substantial possibility that a reasonable trial court judge would have experienced doubt as to defendant’s competency to stand trial. Smith v. Commonwealth, 244 S.W.3d 757, 2008 Ky. App. LEXIS 11 (Ky. Ct. App. 2008).

2.Mental Illness.

A mental disease which does not in itself result in a lack of capacity to appreciate the criminality of one’s conduct or to conform one’s conduct to the requirements of law does not rise to the level of insanity, nor does it, in itself, constitute extreme emotional disturbance. McClellan v. Commonwealth, 715 S.W.2d 464, 1986 Ky. LEXIS 274 ( Ky. 1986 ), cert. denied, 479 U.S. 1057, 107 S. Ct. 935, 93 L. Ed. 2d 986, 1987 U.S. LEXIS 379 (U.S. 1987).

A jury should be instructed on the statutory definition of mental illness if the jury may find a defendant guilty but mentally ill. Dean v. Commonwealth, 777 S.W.2d 900, 1989 Ky. LEXIS 77 ( Ky. 1989 ), overruled in part, Caudill v. Commonwealth, 120 S.W.3d 635, 2003 Ky. LEXIS 140 ( Ky. 2003 ), limited, Quarels v. Commonwealth, 142 S.W.3d 73, 2004 Ky. LEXIS 186 ( Ky. 2004 ), overruled in part, Commonwealth v. McGorman, 489 S.W.3d 731, 2016 Ky. LEXIS 102 ( Ky. 2016 ).

A guilty but mentally ill instruction was properly given, where there was sufficient evidence introduced regarding defendant’s paranoid schizophrenia from which the jury could reasonably infer that the defendant was guilty but mentally ill at the time murder was committed. Turner v. Commonwealth, 860 S.W.2d 772, 1993 Ky. LEXIS 114 ( Ky. 1993 ).

Defendant was not entitled to a jury instruction on insanity as his experts did not testify that he was insane, but recited only symptoms. Lickliter v. Commonwealth, 142 S.W.3d 65, 2004 Ky. LEXIS 173 ( Ky. 2004 ).

Exception to the rule regarding inconsistent verdicts was not warranted because a verdict finding a defendant both not guilty by reason of insanity and guilty but mentally ill was permissible as long as there was sufficient evidence to support the jury’s finding of guilty but mentally ill on a particular count. Exantus v. Commonwealth, 612 S.W.3d 871, 2020 Ky. LEXIS 458 ( Ky. 2020 ).

It was not clearly unreasonable for the jury to find the requisite mental state to return a verdict of guilty but mentally ill of the second-degree assaults of two children and the fourth-degree assault of their father, and not guilty by reason of insanity on one count of murder and one count of first-degree burglary as the verdicts were not impermissibly inconsistent because a defense expert testified that it was possible for psychosis to wax and wane over time; and that testimony provided the jury with a basis to find that defendant’s mental state could have shifted from insanity to guilty but mentally ill during the short period of time the crimes were committed. Exantus v. Commonwealth, 612 S.W.3d 871, 2020 Ky. LEXIS 458 ( Ky. 2020 ).

3.Waiver.

If, after counsel has fully informed the defendant of relevant considerations bearing on the decision to forego the insanity defense, the defendant insists on an ill-advised course of action, counsel should bring the conflict to the attention of the trial court by seeking a determination of whether the accused is capable of voluntarily and intelligently waiving the defense. Dean v. Commonwealth, 777 S.W.2d 900, 1989 Ky. LEXIS 77 ( Ky. 1989 ), overruled in part, Caudill v. Commonwealth, 120 S.W.3d 635, 2003 Ky. LEXIS 140 ( Ky. 2003 ), limited, Quarels v. Commonwealth, 142 S.W.3d 73, 2004 Ky. LEXIS 186 ( Ky. 2004 ), overruled in part, Commonwealth v. McGorman, 489 S.W.3d 731, 2016 Ky. LEXIS 102 ( Ky. 2016 ).

It is possible that a defendant found competent to stand trial might be unable to comprehend the consequences of choosing not to use the insanity defense, thus rendering the defendant incapable of intelligently waiving the defense; the accused might also suffer a mental disability which would make it difficult or impossible to recognize his or her present condition. Dean v. Commonwealth, 777 S.W.2d 900, 1989 Ky. LEXIS 77 ( Ky. 1989 ), overruled in part, Caudill v. Commonwealth, 120 S.W.3d 635, 2003 Ky. LEXIS 140 ( Ky. 2003 ), limited, Quarels v. Commonwealth, 142 S.W.3d 73, 2004 Ky. LEXIS 186 ( Ky. 2004 ), overruled in part, Commonwealth v. McGorman, 489 S.W.3d 731, 2016 Ky. LEXIS 102 ( Ky. 2016 ).

4.Properly Found Competent.

Trial court had substantial evidence to find that defendant was competent to stand trial under RCr P. 8.06 and KRS 504.060(4) as the record indicated that defendant was aware of the nature of the charges against him, that he was capable of providing assistance to his counsel, that he had high intelligence scores, that he provided the trial court with sophisticated legal research and writing, and that evaluations emphasized that defendant had tendencies to be uncooperative by choice. Sands v. Commonwealth, 358 S.W.3d 9, 2011 Ky. App. LEXIS 148 (Ky. Ct. App. 2011).

Psychiatrist’s evaluation of defendant was sufficient to support a finding under KRS 504.060(4) that he was competent to stand trial, even though two other more experienced psychiatrists had determined him to be incompetent to stand trial several years earlier. Keeling v. Commonwealth, 381 S.W.3d 248, 2012 Ky. LEXIS 160 ( Ky. 2012 ).

Trial court did not err in finding defendant to have been competent under KRS 504.060(4) to stand trial at all relevant times, or by not sending defendant for further in-patient testing; a contract psychologist reported that defendant was competent. Slone v. Commonwealth, 382 S.W.3d 851, 2012 Ky. LEXIS 172 ( Ky. 2012 ).

Cited:

Moody v. Commonwealth, 698 S.W.2d 530, 1985 Ky. App. LEXIS 615 (Ky. Ct. App. 1985); Dunlap v. Commonwealth, — S.W.3d —, 2013 Ky. LEXIS 292 ( Ky. 2013 ).

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Sellars, Criminal Law, 71 Ky. L.J. 355 (1982-83).

Northern Kentucky Law Review.

Notes, Criminal Law — Insanity Defense — Jury Instruction on Consequences of Acquittal — Payne v. Commonwealth, 623 S.W.2d 867, 1981 Ky. LEXIS 286 ( Ky. 1981 ), 9 N. Ky. L. Rev. 583 (1982).

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Defenses, Part 1 Definitions, §§ 11.04, 11.05.

Kentucky Instructions to Juries (Criminal), 5th Ed., Defenses, Part 3 Absence of Criminal Responsibility, §§ 11.31, 11.32.

Kentucky Instructions to Juries (Criminal), 5th Ed., Offenses Against Public Order, Safety and Morals, Part 8 Family Offenses, § 8.107.

Kentucky Instructions to Juries (Criminal), 5th Ed., Offenses Related to Sex and Pornography, Part 2 Rape, § 4.23.

504.070. Evidence by defendant of mental illness or insanity — Examination by psychologist or psychiatrist by court appointment — Rebuttal by prosecution.

  1. A defendant who intends to introduce evidence of his mental illness or insanity at the time of the offense shall file written notice of his intention at least twenty (20) days before trial.
  2. The prosecution shall be granted reasonable time to move for examination of the defendant, or the court may order an examination on its own motion.
  3. If the court orders an examination, it shall appoint at least one (1) psychologist or psychiatrist to examine, treat and report on the defendant’s mental condition. If it appears the examination will not be completed before the trial date, the court may, on its own motion or on motion of either party, postpone the trial date until after the examination.
  4. No less than ten (10) days before trial, the prosecution shall file the names and addresses of witnesses it proposes to offer in rebuttal along with reports prepared by its witnesses.

History. Enact. Acts 1982, ch. 113, § 2, effective July 15, 1982.

NOTES TO DECISIONS

1.Discovery.

Construing this section as a whole, it does not appear to be directed toward lay witnesses, but toward discovery as to the “names and addresses” of the expert witnesses who will be developed as a result of the examination contemplated by subsections (2) and (3); in short, the discovery requirements of subsection (4) are limited to the rebuttal witnesses that develop as part of the procedure outlined in the statute. Posey v. Commonwealth, 664 S.W.2d 203, 1984 Ky. LEXIS 206 ( Ky. 1984 ).

Considering this section as a whole, subsection (4) is a stage in a procedure for psychiatric examination to develop rebuttal evidence after an insanity defense has been announced; it contemplates discovery as to expert testimony that will be developed by a psychiatric examination to counter the insanity defense. Posey v. Commonwealth, 664 S.W.2d 203, 1984 Ky. LEXIS 206 ( Ky. 1984 ).

Where prior to his trial for first-degree assault, the defendant gave notice of his intention to introduce evidence of mental illness or insanity as a defense, and prior to the trial the Commonwealth furnished a complete witness list to the defendant that included the names and addresses of all the lay witnesses who subsequently testified at the trial, along with written statements made by most of those witnesses, the trial court did not err in allowing those witnesses to testify since the State had provided discovery beyond any specific discovery requirements. Posey v. Commonwealth, 664 S.W.2d 203, 1984 Ky. LEXIS 206 ( Ky. 1984 ).

Where, 20 days before trial, defendant filed notice of intent to introduce evidence of “mental illness, retardation or deficiency,” the Commonwealth was unable to schedule an independent examination of defendant until three days before the trial began, and the expert never prepared a final report, defendants were not entitled to relief as (1) defendant received the expert’s “preliminary report” before he testified, (2) co-defendant did not raise the issue at all, as the testimony did not prejudice him, and (3) as neither report was in the record, it could not be determined whether either defendant was prejudiced by the failure, if any, to timely receive them. Caudill v. Commonwealth, 120 S.W.3d 635, 2003 Ky. LEXIS 140 ( Ky. 2003 ).

2.Extreme Emotional Disturbance.

Extreme emotional disturbance (EED) is a defense to the extent that its presence precludes a conviction of murder. Coffey v. Messer, 945 S.W.2d 944, 1997 Ky. LEXIS 62 ( Ky. 1997 ).

3.— Burden of Proof.

Once evidence is introduced to prove the presence of extreme emotional disturbance (EED) its absence becomes an element of the offense of murder; the Commonwealth then assumes the burden of proof on the issue but is not required to produce direct evidence of its absence. Coffey v. Messer, 945 S.W.2d 944, 1997 Ky. LEXIS 62 ( Ky. 1997 ).

4.— Evidence.

Once evidence of extreme emotional disturbance (EED) is introduced the absence thereof becomes an element in the offense of murder; therefore the presence of EED is a defense which bears upon the issue of defendant’s guilt of the charged offense and when the defendant intends to introduce expert mental health evidence to prove the defense, the provisions of RCr 7.24(3)(B)(1) are triggered compelling discovery of the evidence so that Commonwealth can determine whether to move for a separate medical examination in accordance with RCr 7.24(3)(B)(ii). Coffey v. Messer, 945 S.W.2d 944, 1997 Ky. LEXIS 62 ( Ky. 1997 ).

5.Exclusion of Evidence.

In a prosecution for first degree rape and first degree sodomy, 0the exclusion of testimony from a psychologist who had administered tests and offered the expert opinion that the defendant’s psychological profile was not indicative of or consistent with that of a sex offender was not error where the accused did not rely on insanity as a defense and he did not file notice of an insanity defense before trial. Pendleton v. Commonwealth, 685 S.W.2d 549, 1985 Ky. LEXIS 208 ( Ky. 1985 ).

Where defendant failed to comply with the notice requirements of subsection (1) of this section, defendant’s proffered evidence regarding his alleged mental illness was properly excluded by the trial court. Stanford v. Commonwealth, 793 S.W.2d 112, 1990 Ky. LEXIS 55 ( Ky. 1990 ).

Trial court did not err in having defendant who pled guilty to capital murder undergo a psychological evaluation before sentencing since mental health evidence could relate to mitigation of punishment instead of only a defendant’s mental health defense. Woodall v. Commonwealth, 63 S.W.3d 104, 2001 Ky. LEXIS 142 ( Ky. 2001 ), cert. denied, 537 U.S. 835, 123 S. Ct. 145, 154 L. Ed. 2d 54, 2002 U.S. LEXIS 6199 (U.S. 2002), overruled in part, Roe v. Commonwealth, 2015 Ky. LEXIS 2080 (Ky. Sept. 24, 2015).

6.Mental Health Evaluation.

The requirement of RCr 7.24(3)(B)(ii) that a defendant submit to examination by a mental health professional employed by the Commonwealth does not violate defendant’s right against self-incrimination since such rule also insures that defendant’s rights will be protected by providing that no statement made by defendant in the course of the examination is admissible into evidence; nor does it violate defendant’s Sixth Amendment rights, since defense counsel will have advance notice of the examination and an opportunity to consult with him before the examination occurs. Coffey v. Messer, 945 S.W.2d 944, 1997 Ky. LEXIS 62 ( Ky. 1997 ).

Trial court erred in ruling that the Commonwealth was entitled to its own competency evaluation of defendant where defendant did not intend to introduce any evidence of mental illness or insanity. Bishop v. Caudill, 118 S.W.3d 159, 2003 Ky. LEXIS 237 ( Ky. 2003 ), limited, Powell v. Graham, 185 S.W.3d 624, 2006 Ky. LEXIS 46 ( Ky. 2006 ).

Psychiatric evaluation, ordered by the court upon notice by a defendant of his intent to assert mental illness as a defense to the crimes he is charged with committing, is not a “critical stage” in the procedural system giving rise to a constitutional necessity for the presence of counsel under Ky. Const. § 11 or the Sixth Amendment. Cain v. Abramson, 220 S.W.3d 276, 2007 Ky. LEXIS 9 ( Ky. 2007 ).

Defendant who challenged the trial court’s denial of his request to have counsel present during his psychiatric evaluation was not entitled to a writ of prohibition, because the procedural safeguards of RCr 7.24(3)(B)(ii) provided the protection to his Fifth Amendment right not to incriminate himself that he sought by means of a writ. Cain v. Abramson, 220 S.W.3d 276, 2007 Ky. LEXIS 9 ( Ky. 2007 ).

7.Motion for Continuance.

A motion for continuance predicated upon the assertion and notice of an insanity defense under this section is subject to the requirements of RCr 9.04, and will be granted only upon showing of sufficient cause to justify the postponement and that such motion shall be accompanied by affidavit as prescribed in that rule. Jackson v. Commonwealth, 703 S.W.2d 883, 1986 Ky. LEXIS 234 ( Ky. 1986 ).

The psychologist, in the instant case, found, as a result of his evaluation, that defendant met the requirements of Kentucky Rules of Criminal Procedure, Rule 8.06 and that he was able to appreciate the nature and consequences of his actions and the expert had reasonable grounds to believe that appellant was competent; as such, a second competency hearing was not required and, as a result, no cause was shown for a continuance. Crawford v. Commonwealth, 824 S.W.2d 847, 1992 Ky. LEXIS 29 ( Ky. 1992 ).

8.Notice.

The obvious and declared purpose of the time requirement that notice be filed at least 20 days before trial is to eliminate the defendant’s advantage of surprise and to better enable the judicial process to resolve the issue of insanity. Jackson v. Commonwealth, 703 S.W.2d 883, 1986 Ky. LEXIS 234 ( Ky. 1986 ).

Where counsel was appointed 21 days prior to trial, and nine (9) days before trial filed his notice of intention to rely upon the defense of insanity, it would have been virtually impossible for defendant’s trial counsel to comply with the notice provision; if this had been a bona fide defense, asserted in good faith and upon showing of sufficient cause, a postponement should have been granted. Jackson v. Commonwealth, 703 S.W.2d 883, 1986 Ky. LEXIS 234 ( Ky. 1986 ).

9.Private Psychiatric Facilities.

When state facilities were available to and actually used by the defendant, the defendant did not establish that the lower court abused its discretion in denying payment for private psychiatric facilities, where nothing had been filed by the defendant to indicate that he intended to raise insanity as a defense, and the defendant’s mental health records were filed on a sealed basis, on his own request, to be opened only for appellate review. Todd v. Commonwealth, 716 S.W.2d 242, 1986 Ky. LEXIS 290 ( Ky. 1986 ).

10.When Appointment Required.

Where there was a reasonable basis on which to determine whether an indigent defendant was suffering from insanity or acting from a diminished capacity during the commission of the crime and where the defendant was entitled to, under KRS 31.185 and 31.200, either the appointment of, or the funds necessary to, employ a competent mental health expert for assistance in the evaluation and presentation of his defense, this section and KRS 504.080 provide for such examination by either a psychologist or psychiatrist appointed by the court. Binion v. Commonwealth, 891 S.W.2d 383, 1995 Ky. LEXIS 11 ( Ky. 1995 ).

Cited:

Moody v. Commonwealth, 698 S.W.2d 530, 1985 Ky. App. LEXIS 615 (Ky. Ct. App. 1985); McClellan v. Commonwealth, 715 S.W.2d 464, 1986 Ky. LEXIS 274 ( Ky. 1986 ); Harris v. Commonwealth, 793 S.W.2d 802, 1990 Ky. LEXIS 25 ( Ky. 1990 ); McGuire v. Commonwealth, 885 S.W.2d 931, 1994 Ky. LEXIS 123 ( Ky. 1994 ).

Research References and Practice Aids

Northern Kentucky Law Review.

Notes, Criminal Law — Insanity Defense — Jury Instruction on Consequences of Acquittal — Payne v. Commonwealth, 623 S.W.2d 867, 1981 Ky. LEXIS 286 ( Ky. 1981 ), 9 N. Ky. L. Rev. 583 (1982).

504.080. Commitment to facility for examination — Persons to be present at hearing — Termination of criminal proceedings not bar to civil proceedings.

  1. A court may commit a defendant to a treatment facility or forensic psychiatric facility for up to thirty (30) days so that a psychologist or psychiatrist can examine, treat, and report on the defendant’s mental condition, except that if the defendant is charged with a felony and it is determined that inpatient examination or treatment is required, the defendant shall be committed to a forensic psychiatric facility unless the secretary of the Cabinet for Health and Family Services or the secretary’s designee determines that the defendant shall be examined and treated in another Cabinet for Health and Family Services facility.
  2. Reports on a defendant’s mental condition prepared under this chapter shall be filed within ten (10) days of the examination.
  3. The defendant shall be present at any hearing on his mental condition unless he waives his right to be present.
  4. The examining psychologist or psychiatrist shall appear at any hearing on defendant’s mental condition unless the defendant waives his right to have him appear.
  5. A psychologist or psychiatrist retained by the defendant shall be permitted to participate in any examination under this chapter.
  6. The Cabinet for Health and Family Services, if the cabinet or its agent or employee does not provide the examination, shall pay a reasonable fee to any psychologist or psychiatrist ordered to examine, treat, and report on a defendant’s mental condition.
  7. The termination of criminal proceedings under this chapter is not a bar to the institution of civil commitment proceedings.

History. Enact. Acts 1982, ch. 113, § 3, effective July 15, 1982; 1988, ch. 139, § 16, effective July 15, 1988; 1998, ch. 426, § 606, effective July 15, 1998; 2005, ch. 99, § 654, effective June 20, 2005.

NOTES TO DECISIONS

1.Competency Hearing.

In a manslaughter prosecution where a psychiatrist would only qualify the defendant to participate in a trial procedure that would be “very concrete” and where only “extremely” simple phrases and “ideas” would be used, the trial judge erred when he failed to conduct an evidentiary hearing concerning the defendant’s mental competence to stand trial as mandated by RCr. 8.06. (Decided under prior law) Hayden v. Commonwealth, 563 S.W.2d 720, 1978 Ky. LEXIS 343 ( Ky. 1978 ), overruled in part, Thompson v. Commonwealth, 56 S.W.3d 406, 2001 Ky. LEXIS 223 ( Ky. 2001 ), overruled in part, Thompson v. Commonwealth, 50 S.W.3d 204, 2001 Ky. LEXIS 115 ( Ky. 2001 ).

An incompetent may not be held indefinitely without a trial and the opportunity to clear himself; the 1978 changes in the statute are procedural and afford additional due process and equal protection for incompetents. (Decided under prior law) Watkins v. Turner, 587 S.W.2d 275, 1979 Ky. App. LEXIS 468 (Ky. Ct. App. 1979).

The psychologist, in the instant case, found, as a result of his evaluation, that defendant met the requirements of Kentucky Rules of Criminal Procedure, Rule 8.06 and that he was able to appreciate the nature and consequences of his actions and the expert had reasonable grounds to believe that appellant was competent; as such, a second competency hearing was not required and, as a result, no cause was shown for a continuance. Crawford v. Commonwealth, 824 S.W.2d 847, 1992 Ky. LEXIS 29 ( Ky. 1992 ).

Where defendant, at his competency hearing, had no opportunity to cross examine the expert examining psychiatrist, his conditional plea of guilty was vacated since he had not waived his right under this section to have the expert present at the hearing. Gabbard v. Commonwealth, 887 S.W.2d 547, 1994 Ky. LEXIS 105 ( Ky. 1994 ).

2.Expenses.
3.— Defendant’s Expert Witness.

The time indigent defendant’s expert witness spent in the presence of the state’s expert psychologist interviewing the defendant, as provided by subsection (5) of this section, was a necessary expense properly chargeable to county. McCracken County Fiscal Court v. Graves, 885 S.W.2d 307, 1994 Ky. LEXIS 120 ( Ky. 1994 ).

Trial court did not abuse its discretion by denying defendant’s motion for expert funds to cover the cost of his proposed expert to testify as to his competency to enter a guilty plea during a retrospective competency hearing where the denial of the funds by the trial court on the grounds that the expert’s testimony was not relevant because a current examination had little bearing on defendant’s mental state seven (7) years before was proper and defendant was competent to have entered an unconditional guilty plea. Thompson v. Commonwealth, 147 S.W.3d 22, 2004 Ky. LEXIS 195 ( Ky. 2004 ), cert. denied, 545 U.S. 1142, 125 S. Ct. 2966, 162 L. Ed. 2d 893, 2005 U.S. LEXIS 5086 (U.S. 2005).

4.When Appointment Required.

Where there was a reasonable basis on which to determine whether an indigent defendant was suffering from insanity or acting from a diminished capacity during the commission of the crime and where defendant was entitled to, under KRS 31.185 and 31.200, either the appointment of, or the funds necessary to, employ a competent mental health expert for assistance in the evaluation and presentation of his defense, KRS 504.070 and this section provide for such examination by either a psychologist or psychiatrist appointed by the court. Binion v. Commonwealth, 891 S.W.2d 383, 1995 Ky. LEXIS 11 ( Ky. 1995 ).

5.Post-Conviction Psychological Evaluations.

While the circuit court properly found that defendant was not entitled to public funds for an expert of his choosing, it erred in finding that he waived his intellectual disability claim by refusing to be examined by the Kentucky Correctional Psychiatric Center (KCPC) because a mental evaluation by KCPC was not statutorily precluded where KCPC was authorized to conduct post-conviction psychological evaluations, the trial court could impose appropriate safeguards to prevent KCPC from divulging information to the Commonwealth, and ex parte hearings were unnecessary where the trial court had already determined that an evaluation by private experts was not necessary. White v. Commonwealth, 2016 Ky. LEXIS 515 (Ky. May 5, 2016).

Research References and Practice Aids

Northern Kentucky Law Review.

Notes, Criminal Law — Insanity Defense — Jury Instruction on Consequences of Acquittal — Payne v. Commonwealth, 623 S.W.2d 867, 1981 Ky. LEXIS 286 ( Ky. 1981 ), 9 N. Ky. L. Rev. 583 (1982).

504.085. Facility’s standing to petition for clarification or modification and to appeal.

A forensic psychiatric facility or psychiatric facility as those terms are defined in KRS 202A.011 shall have standing to petition the court for any necessary clarification or modification of orders or judgments entered in proceedings under this chapter and to appeal from final orders or judgments entered in proceedings which have not complied with the provisions of this chapter. A copy shall be sent to the mentally ill person or individual with an intellectual disability who has been charged with or convicted of a felony and to the person’s attorney of record, if any, of whatever pleadings are filed by the forensic psychiatric facility or psychiatric facility.

History. Enact. Acts 1994, ch. 498, § 14, effective July 15, 1994; 2012, ch. 146, § 122, effective July 12, 2012.

504.090. Incompetent defendant not to be tried.

No defendant who is incompetent to stand trial shall be tried, convicted or sentenced so long as the incompetency continues.

History. Enact. Acts 1982, ch. 113, § 4, effective July 15, 1982.

NOTES TO DECISIONS

1.Competency Hearing.

Since, during the plea colloquy, defendant responded appropriately and provided no reason for the court to doubt his competency, and his counsel’s filing a motion for a psychological/psychiatric evaluation did not amount to evidence, the trial court did not err in failing to hold a competency hearing. Jones v. Commonwealth, 260 S.W.3d 355, 2008 Ky. App. LEXIS 231 (Ky. Ct. App. 2008).

2.Sentencing of Incompetent Defendant.

A convicted defendant who, due to his or her mental condition, is unable to appreciate the nature and consequences of his or her sentencing proceeding may not be sentenced until such time as he or she is competent to do so. Moody v. Commonwealth, 698 S.W.2d 530, 1985 Ky. App. LEXIS 615 (Ky. Ct. App. 1985).

3.Failure to Inquire as to Competency.

Trial court did not err by failing to inquire regarding defendant’s competency to stand trial after defendant acted erratically during the penalty phase of his trial because defendant was evaluated prior to the guilt phase and a doctor testified that defendant was competent to stand trial; additionally, defendant represented himself at trial after questioning by the trial court. Frazier v. Commonwealth, 2011 Ky. App. LEXIS 73 (Ky. Ct. App. Apr. 22, 2011, sub. op., 2011 Ky. App. Unpub. LEXIS 957 (Ky. Ct. App. Apr. 22, 2011).

4.Attaining Competency.

Prosecution of a criminal defendant originally found incompetent to stand trial for his alleged crimes is permissible upon a subsequent finding of competency to stand trial, so long as the later prosecution does not violate the defendant’s Constitutional rights. Keeling v. Commonwealth, 381 S.W.3d 248, 2012 Ky. LEXIS 160 ( Ky. 2012 ).

Cited:

Buchanan v. Kentucky, 483 U.S. 402, 107 S. Ct. 2906, 97 L. Ed. 2d 336, 1987 U.S. LEXIS 2877 (1987), rehearing denied, 483 U.S. 1044, 108 S. Ct. 19, 97 L. Ed. 2d 807, 1987 U.S. LEXIS 3112 (1987).

Research References and Practice Aids

Northern Kentucky Law Review.

Notes, Criminal Law — Insanity Defense — Jury Instruction on Consequences of Acquittal — Payne v. Commonwealth, 623 S.W.2d 867, 1981 Ky. LEXIS 286 ( Ky. 1981 ), 9 N. Ky. L. Rev. 583 (1982).

Palmore, The Insanity Defense Revisited, 11 N. Ky. L. Rev. 1 (1984).

504.100. Appointment by court of psychologist or psychiatrist during proceedings.

  1. If upon arraignment, or during any stage of the proceedings, the court has reasonable grounds to believe the defendant is incompetent to stand trial, the court shall appoint at least one (1) psychologist or psychiatrist to examine, treat and report on the defendant’s mental condition.
  2. The report of the psychologist or psychiatrist shall state whether or not he finds the defendant incompetent to stand trial. If he finds the defendant is incompetent, the report shall state:
    1. Whether there is a substantial probability of his attaining competency in the foreseeable future; and
    2. What type treatment and what type treatment facility the examiner recommends.
  3. After the filing of a report (or reports), the court shall hold a hearing to determine whether or not the defendant is competent to stand trial.

History. Enact. Acts 1982, ch. 113, § 5, effective July 15, 1982.

NOTES TO DECISIONS

1.Assessment.

Trial court erred in ruling that the Commonwealth was entitled to its own competency evaluation of defendant where defendant did not intend to introduce any evidence of mental illness or insanity. Bishop v. Caudill, 118 S.W.3d 159, 2003 Ky. LEXIS 237 ( Ky. 2003 ), limited, Powell v. Graham, 185 S.W.3d 624, 2006 Ky. LEXIS 46 ( Ky. 2006 ).

Trial court did not err by finding that defendant was competent to stand trial because the State’s expert’s uncontroverted testimony established that defendant had the capacity to understand the nature and consequences of the proceedings against him and to participate rationally in his own defense. Barnett v. Commonwealth, 317 S.W.3d 49, 2010 Ky. LEXIS 118 ( Ky. 2010 ).

Trial court’s decision that defendant was competent to stand trial was based upon substantial evidence as defendant offered no evidence to rebut the claims of a doctor who examined defendant at a psychiatric center, to the effect that the doctor did not find that defendant suffered from any mental condition which would interfere with his ability to comprehend the nature of the proceedings or with his ability to rationally participate in his defense. Multiple, unintelligible pro se pleadings, by themselves, were simply insufficient to alert the trial court to question defendant’s competency. Jackson v. Commonwealth, 319 S.W.3d 347, 2010 Ky. LEXIS 218 ( Ky. 2010 ).

Counsel was not ineffective in regard to defendant’s competency because defense counsel moved for defendant to be evaluated for mental health issues as well as competency, and as a result, the court ordered defendant to be evaluated; since the Commonwealth was not authorized to seek an independent competency evaluation, it stood to reason that the defense must operate under the same limitation. Furthermore, defendant did not demonstrate errors in the evaluator’s conclusions, nor show that a second evaluation would have provided a basis for a finding of incompetency. Hensley v. Commonwealth, 305 S.W.3d 434, 2010 Ky. App. LEXIS 45 (Ky. Ct. App. 2010).

Trial court did not abuse its discretion in denying defendant’s motion for a competency evaluation after he exhibited symptoms of incompetency midway through the trial as there was no allegation during the almost two-year period between the indictment and the commencement of the trial that defendant was incompetent to stand trial; instead, it was only after the victim presented her emotional testimony describing the event in question that the issue of incompetency arose. The trial court was within its discretion in concluding that defendant’s symptoms of disorientation and memory loss were due to the emotional testimony of the victim accusing him, her former pastor, of raping her. Woolfolk v. Commonwealth, 339 S.W.3d 411, 2011 Ky. LEXIS 64 ( Ky. 2011 ).

2.Competency Hearing.

Where the trial judge held an in camera hearing to determine defendant’s competency to stand trial during which two psychiatrists testified, one for the state and one for the defense, the trial court did not clearly abuse its discretion in accepting the finding of the prosecution’s witness, although the defense witness may have spent more time with the defendant. (Decided under prior law) Edmonds v. Commonwealth, 586 S.W.2d 24, 1979 Ky. LEXIS 279 ( Ky. 1979 ), overruled, Wellman v. Commonwealth, 694 S.W.2d 696, 1985 Ky. LEXIS 235 ( Ky. 1985 ).

A competency hearing pursuant to subsection (3) of this section is mandatory and cannot be waived by a defendant. Mills v. Commonwealth, 996 S.W.2d 473, 1999 Ky. LEXIS 51 ( Ky. 1999 ), cert. denied, 528 U.S. 1164, 120 S. Ct. 1182, 145 L. Ed. 2d 1088, 2000 U.S. LEXIS 1172 (U.S. 2000), overruled in part, Padgett v. Commonwealth, 312 S.W.3d 336, 2010 Ky. LEXIS 71 ( Ky. 2010 ), writ denied, 2018 Ky. Unpub. LEXIS 35 (Ky. June 14, 2018).

Competency hearing referenced in KRS 504.100(3) is mandatory and cannot be waived by a defendant; when such a hearing is held it must be an evidentiary hearing allowing the defendant to cross-examine witnesses, including the psychiatrist or psychologist. West v. Commonwealth, 161 S.W.3d 331, 2004 Ky. App. LEXIS 121 (Ky. Ct. App. 2004).

There was no error in ordering a hearing on competency before defendant’s second trial; a KRS 504.100(3) competency hearing could not be waived. Defense counsel’s motion at the prior proceedings created reasonable grounds for the trial court to question defendant’s competency under KRS 504.100(1), and defendant was not prejudiced by the competency hearing; no prejudicial information was obtained by the Commonwealth during its questioning of defendant at the competency hearing. Fields v. Commonwealth, 274 S.W.3d 375, 2008 Ky. LEXIS 259 ( Ky. 2008 ), cert. denied, 558 U.S. 971, 130 S. Ct. 460, 175 L. Ed. 2d 310, 2009 U.S. LEXIS 7564 (U.S. 2009), overruled in part, Childers v. Commonwealth, 332 S.W.3d 64, 2010 Ky. LEXIS 306 ( Ky. 2010 ), overruled in part, Childers v. Commonwealth, 2010 Ky. LEXIS 285 (Ky. Dec. 16, 2010).

There was no error in trial counsel's decision not to make a renewed competency motion nor in the trial court's proceeding with the trial court's proceeding with the trial without a second competency hearing, as there was not sufficient evidence of record to conclude that there were any changes in the inmate's competency based on his rocking back and forth during trial, which experts believed was due to his medications and/or anxiety. Commonwealth v. McGorman, 489 S.W.3d 731, 2016 Ky. LEXIS 102 ( Ky. 2016 ).

3.Failure to Hold Hearing.

Where a trial court erroneously fails to hold a competency hearing, a retrospective competency hearing is a permissible remedy depending on the facts of the particular case. Thompson v. Commonwealth, 50 S.W.3d 204, 2001 Ky. LEXIS 115 ( Ky. 2001 ).

3.2.— Standard.

In reviewing a trial court’s failure to hold a competency hearing, the standard is whether a reasonable judge, situated as was the trial court judge whose failure to conduct an evidentiary hearing is being reviewed, should have experienced doubt with respect to competency to stand trial; if the reasonable judge would not have experienced doubt, the lack of a hearing may be considered harmless error. West v. Commonwealth, 161 S.W.3d 331, 2004 Ky. App. LEXIS 121 (Ky. Ct. App. 2004).

Standard of review applicable to a case wherein the trial court judge failed to conduct a competency hearing is whether a reasonable judge, situated as was the trial court judge whose failure to conduct an evidentiary hearing is being reviewed, should have experienced doubt with respect to competency to stand trial. Turner v. Commonwealth, 153 S.W.3d 823, 2005 Ky. LEXIS 3 ( Ky. 2005 ), overruled in part, Padgett v. Commonwealth, 312 S.W.3d 336, 2010 Ky. LEXIS 71 ( Ky. 2010 ).

Competency hearing can be waived, or simply not done (in the court’s discretion), when there is no constitutional requirement for a hearing (when there is not substantial evidence of incompetency in the record). This is the approach to be followed, and to the extent that prior cases are inconsistent with this approach, they are overruled. Padgett v. Commonwealth, 312 S.W.3d 336, 2010 Ky. LEXIS 71 ( Ky. 2010 ).

3.4.— No Error.

Trial court’s decision not to conduct an evidentiary hearing regarding defendant’s competency to enter a guilty plea was not palpable error, as, following a plea colloquy, there was no substantial possibility that a reasonable trial court judge would have experienced doubt as to defendant’s competency to stand trial. Smith v. Commonwealth, 244 S.W.3d 757, 2008 Ky. App. LEXIS 11 (Ky. Ct. App. 2008).

Since, during the plea colloquy, defendant responded appropriately and provided no reason for the court to doubt his competency, and his counsel’s filing a motion for a psychological/psychiatric evaluation did not amount to evidence, the trial court did not err in failing to hold a competency hearing. Jones v. Commonwealth, 260 S.W.3d 355, 2008 Ky. App. LEXIS 231 (Ky. Ct. App. 2008).

Denial of defendant’s request for a competency evaluation prior to sentencing was proper where the case had been ongoing for a year with no sign of incompetency from defendant, who testified competently, and spoke clearly and intelligently while answering his counsel’s questions; further, on cross-examination defendant was clever and evasive with his answers, defendant’s counsel admitted that he did not detect any signs of mental illness throughout the representation, and defendant fully communicated with his attorney and participated rationally in his own defense. Gray v. Commonwealth, 233 S.W.3d 715, 2007 Ky. LEXIS 190 ( Ky. 2007 ).

Trial court did not err in failing to order a competency evaluation and hearing because defendant stated in court that neither the mental conditions with which he had been diagnosed nor the lack of medication affected his understanding of the proceedings, and he displayed a thorough understanding of the implications of his conditional guilty plea and what issue could be appealed when asked if he knew what his plea meant; defendant failed to provide specific examples of any adverse effects of his bi-polar disorder, post-traumatic stress, or obsessive compulsive disorder, and the record did not show any clear factual evidence to contradict defendant’s own statements asserting his competency. Marshall v. Commonwealth, 2008 Ky. App. LEXIS 347 (Ky. Ct. App. Nov. 7, 2008), review granted, transferred, 2009 Ky. LEXIS 132 (Ky. Feb. 11, 2009), rev'd, 319 S.W.3d 352, 2010 Ky. LEXIS 182 ( Ky. 2010 ).

Trial court did not err in failing to hold a mandatory competency hearing because defense counsel’s statements alone could not have been substantial evidence; the fact was that defendant’s competency was no longer in doubt after the report specifically concluded that he understood courtroom proceedings and that he was competent. The evidence was entirely one-sided, it pointed to defendant’s competence, and did not rise to the level of substantial evidence of incompetence, meaning that no hearing was required by due process. Padgett v. Commonwealth, 312 S.W.3d 336, 2010 Ky. LEXIS 71 ( Ky. 2010 ).

Where defendant was charged with two counts of murder after he killed his wife and their eight-year-old son by stabbing them with a kitchen knife and beating them with a dumbbell, where defendant took an overdose of prescription medication on the day that trial was to commence in an apparent suicide attempt, where a competency evaluation was conducted and a competency hearing held and defendant was found competent to stand trial, where defendant offered to plead guilty and accept the death sentence, and where the trial court accepted his plea and, following a two-day sentencing hearing, found that two statutory aggravating factors existed to support the imposition of the death penalty, the imposition of the death sentence was not erroneous because the trial court did not err in failing to sua sponte revisit the issue of defendant’s competency after he offered to plead guilty. Defendant’s desire to plead guilty and accept the death penalty did not, by itself, create reasonable grounds within the meaning of KRS 504.100(1), to question defendant’s competency where no evidence demonstrated that defendant’s mental health had deteriorated since the earlier competency hearing. Windsor v. Commonwealth, 2010 Ky. LEXIS 210 (Ky. Aug. 26, 2010).

Trial court did not err under KRS 504.100(1) in failing to order sua sponte a pretrial competency evaluation of defendant because defense counsel had affirmed defendant’s competence to stand trial. Slone v. Commonwealth, 382 S.W.3d 851, 2012 Ky. LEXIS 172 ( Ky. 2012 ).

There was sufficient evidence that the trial court examined defendant’s behavior during trial, even though there was no hearing, and found that there was nothing to indicate he was not competent because the trial court relied on testimony for defendant from three doctors. McGorman v. Commonwealth, 2012 Ky. App. LEXIS 243 (Ky. Ct. App. Nov. 16, 2012).

3.6.— Harmless Error.

It was error for the trial court to fail to conduct a competency hearing; however, the error was harmless beyond a reasonable doubt, where the doctor who conducted the examination and submitted the report to the trial court testified that in his opinion defendant acted under extreme emotional disturbance at the time of the offense, that he could not form an opinion as to sanity at the time of the offense, and that defendant suffered a personality disorder or mental disorder, but was not psychotic, and where the only inference to draw from the doctor’s entire testimony was that defendant was competent to stand trial and that there was no suggestion by anyone that he was not. (Decided under prior law) Clark v. Commonwealth, 591 S.W.2d 365, 1979 Ky. LEXIS 309 ( Ky. 1979 ).

Trial court’s failure to hold a competency hearing after ordering a competency evaluation was harmless error; the evaluation order was based solely on defendant’s motion under KRS 504.100 , the motion was based more on conjecture than any clear facts, the evaluating psychologist found defendant competent to stand trial, and there were no other facts that would have caused a reasonable judge to doubt defendant’s competence. West v. Commonwealth, 161 S.W.3d 331, 2004 Ky. App. LEXIS 121 (Ky. Ct. App. 2004).

Trial court’s failure to conduct a competency hearing under KRS 504.100(3) was harmless error as a juvenile failed to establish any factual basis that should have caused the District Court to have a reasonable doubt as to the juvenile’s competency to stand trial; the juvenile’s request for a second evaluation, after a psychologist had found him competent to stand trial, and a later determination that the juvenile’s competency fluctuated, did not indicate that the District Court should have questioned the juvenile’s competency. Humphrey v. Commonwealth, 153 S.W.3d 854, 2004 Ky. App. LEXIS 147 (Ky. Ct. App. 2004).

3.8.— Due Process.

Defendant was not denied due process when the trial court failed to hold a competency hearing where the two competency evaluations agreed that defendant was competent to stand trial, defense counsel had waived the opportunity to call either expert and stipulated to the accuracy of the valuations, and thus, the requirements of KRS 504.100(3) had been met. Fredline v. Commonwealth, 241 S.W.3d 793, 2007 Ky. LEXIS 261 ( Ky. 2007 ).

The trial court erred by failing to conduct a competency hearing with regard to defendant’s multiple sexual abuse convictions, despite defendant never requesting the hearing prior to trial, particularly since defendant was found to be mentally retarded, but able to understand his actions violated the law. Gibbs v. Commonwealth, 208 S.W.3d 848, 2006 Ky. LEXIS 239 ( Ky. 2006 ), overruled in part, Padgett v. Commonwealth, 312 S.W.3d 336, 2010 Ky. LEXIS 71 ( Ky. 2010 ).

Trial court’s failure to hold a competency hearing under KRS 504.100(3) after it ordered a comprehensive psychiatric evaluation and received the psychiatric report and recommendation was not harmless error; on remand, a retrospective competency hearing was permissible where the hearing would not violate defendant’s due process rights. Dorris v. Commonwealth, 305 S.W.3d 438, 2010 Ky. App. LEXIS 53 (Ky. Ct. App. 2010).

4.Retrospective Hearing.

Kentucky Supreme Court concluded that a retrospective competency hearing was now permissible and satisfied the requirements of due process provided it was based upon evidence related to observations made or knowledge possessed at the time of trial; the quantity and quality of available evidence was to be adequate to arrive at an assessment that could be labeled as more than mere speculation; some factors bearing upon the permissibility of a retrospective competency hearing were: (1) the length of time between the retrospective hearing and the trial, (2) the availability of transcript or video record of the relevant proceedings, (3) the existence of mental examinations conducted close in time to the trial date, and (4) the availability of the recollections of non-experts—including counsel and the trial judge—who had the ability to observe and interact with the defendant during trial; no single factor was determinative, and the issue was to be decided on a case-by-case basis. Johnson v. Commonwealth, 103 S.W.3d 687, 2003 Ky. LEXIS 21 (Ky.), cert. denied, 540 U.S. 986, 124 S. Ct. 470, 157 L. Ed. 2d 379, 2003 U.S. LEXIS 8075 (U.S. 2003).

Seven (7) years between a trial and a retrospective KRS 504.100 competency hearing is not enough in and of itself to deny a defendant due process. Johnson v. Commonwealth, 103 S.W.3d 687, 2003 Ky. LEXIS 21 (Ky.), cert. denied, 540 U.S. 986, 124 S. Ct. 470, 157 L. Ed. 2d 379, 2003 U.S. LEXIS 8075 (U.S. 2003).

With respect to the argument that a trial judge’s reliance on his own observations allow him to act as an unsworn witness whose recollections are not subject to the truth-finding mechanism of cross-examination, KRS 504.100 competency determinations are made by presiding trial judges based in part on their observations, and this does not thereby convert them into witnesses. Johnson v. Commonwealth, 103 S.W.3d 687, 2003 Ky. LEXIS 21 (Ky.), cert. denied, 540 U.S. 986, 124 S. Ct. 470, 157 L. Ed. 2d 379, 2003 U.S. LEXIS 8075 (U.S. 2003).

While the better practice is to hold a mandatory competency hearing as required by KRS 504.100(3) prior to trial, a retrospective competency hearing is permissible when circumstances with respect to time and witness availability are adequate to arrive at an assessment that could be labeled as more than mere speculation. Gibbs v. Commonwealth, 208 S.W.3d 848, 2006 Ky. LEXIS 239 ( Ky. 2006 ), overruled in part, Padgett v. Commonwealth, 312 S.W.3d 336, 2010 Ky. LEXIS 71 ( Ky. 2010 ).

5.Testimony of Psychologist.

Where a defendant claiming insanity introduced a clinical psychologist with a Ph.D. degree in psychology as a witness and this witness narrated the tests performed and his observations but was not permitted by the trial court to express an opinion as to the defendant’s mental condition, the ruling by the trial court was prejudicial error requiring reversal for a new trial. (Decided under prior law) Burgess v. Commonwealth, 564 S.W.2d 532, 1978 Ky. LEXIS 377 ( Ky. 1978 ).

Cited:

Stanford v. Commonwealth, 793 S.W.2d 112, 1990 Ky. LEXIS 55 ( Ky. 1990 ); Gabbard v. Commonwealth, 887 S.W.2d 547, 1994 Ky. LEXIS 105 ( Ky. 1994 ); McGuire v. Commonwealth, 885 S.W.2d 931, 1994 Ky. LEXIS 123 ( Ky. 1994 ); Garland v. Commonwealth, 127 S.W.3d 529, 2003 Ky. LEXIS 233 ( Ky. 2003 ); Quarels v. Commonwealth, 142 S.W.3d 73, 2004 Ky. LEXIS 186 ( Ky. 2004 ); Williams v. Commonwealth, 233 S.W.3d 206, 2007 Ky. App. LEXIS 326 (Ky. Ct. App. 2007).

NOTES TO UNPUBLISHED DECISIONS

1.Assessment.

Unpublished decision: Trial court abused its discretion by refusing to comply with statutory obligation to appoint a mental health expert to evaluate defendant’s competency, because this section required trial court to order an examination after finding reasonable grounds to believe defendant was incompetent to stand trial. Cox v. Commonwealth, 2014 Ky. App. Unpub. LEXIS 1041 (Ky. Ct. App. Aug. 15, 2014), review denied, ordered not published, 2015 Ky. LEXIS 1668 (Ky. June 3, 2015).

Research References and Practice Aids

Northern Kentucky Law Review.

Notes, Criminal Law — Insanity Defense — Jury Instruction on Consequences of Acquittal — Payne v. Commonwealth, 623 S.W.2d 867, 1981 Ky. LEXIS 286 ( Ky. 1981 ), 9 N. Ky. L. Rev. 583 (1982).

504.110. Alternative handling of defendant depending on whether he or she is competent or incompetent to stand trial — Commitment proceeding.

  1. If the court finds the defendant incompetent to stand trial but there is a substantial probability the defendant will attain competency in the foreseeable future, it shall commit the defendant to a treatment facility or a forensic psychiatric facility and order the defendant to submit to treatment for sixty (60) days or until the psychologist or psychiatrist treating him or her finds the defendant competent to stand trial, whichever occurs first, except that if the defendant is charged with a felony, he or she shall be committed to a forensic psychiatric facility unless the secretary of the Cabinet for Health and Family Services or the secretary’s designee determines that the defendant shall be treated in another Cabinet for Health and Family Services facility. Within ten (10) days of that time, the court shall hold another hearing to determine whether or not the defendant is competent to stand trial.
  2. If the court finds the defendant incompetent to stand trial and there is no substantial probability he or she will attain competency in the foreseeable future:
    1. The Commonwealth’s attorney’s office serving the county of criminal prosecution shall immediately petition the Circuit Court that found the defendant incompetent to stand trial or, if the finding was by a District Court, the Circuit Court in the county of criminal prosecution, to initiate an involuntary commitment proceeding under KRS 202C.010 , 202C.020 , 202C.030 , 202C.040 , and 202C.050 if the defendant is charged with a capital offense, a Class A felony, a Class B felony resulting in death or serious physical injury, or a violation of KRS 510.040 or 510.070 ; or
    2. The court shall conduct an involuntary hospitalization proceeding under KRS Chapter 202A or 202B if the defendant is charged with an offense not listed in paragraph (a) of this subsection.
  3. A defendant who is the subject of an involuntary commitment proceeding under KRS 202C.010 , 202C.020 , 202C.030 , 202C.040 , and 202C.050 shall be committed to a forensic psychiatric facility unless the secretary of the Cabinet for Health and Family Services or the secretary’s designee determines that the defendant shall be treated in another Cabinet for Health and Family Services facility, during the pendency of the proceeding.
  4. If the court finds the defendant competent to stand trial, the court shall continue the proceedings against the defendant.

History. Enact. Acts 1982, ch. 113, § 6, effective July 15, 1982; 1988, ch. 139, § 17, effective July 15, 1988; 1998, ch. 426, § 607, effective July 15, 1998; 2005, ch. 99, § 655, effective June 20, 2005; 2021 ch. 175, § 5, effective April 1, 2021.

NOTES TO DECISIONS

1.Construction.

When construed together, KRS 504.030 and this section establish that “the court” is the court in which the verdict of not guilty by reason of insanity or the determination of incompetency is made. Schuttemeyer v. Commonwealth, 793 S.W.2d 124, 1990 Ky. App. LEXIS 4 (Ky. Ct. App. 1990).

2.Attaining Competency.

There was no error in requiring defendant to undergo involuntary intrusive ingestion of medication for schizophrenia in order to attain competency for trial, where all statutory requirements were followed, and where defendant’s constitutional rights were adequately protected. Turner v. Commonwealth, 860 S.W.2d 772, 1993 Ky. LEXIS 114 ( Ky. 1993 ).

Prosecution of a criminal defendant originally found incompetent to stand trial for his alleged crimes is permissible upon a subsequent finding of competency to stand trial, so long as the later prosecution does not violate the defendant’s Constitutional rights. Keeling v. Commonwealth, 381 S.W.3d 248, 2012 Ky. LEXIS 160 ( Ky. 2012 ).

3.Initiation of Proceedings.

The court required to initiate proceedings for involuntary hospitalization under KRS Chapter 202A is the one in which the verdict under KRS 504.110 , not guilty by reason of insanity, or the determination of incompetency under KRS 504.030 is made. Tolley v. Commonwealth, 892 S.W.2d 580, 1995 Ky. LEXIS 28 ( Ky. 1995 ).

4.Insanity.

Where a defendant was diagnosed as schizophrenic 15 years prior to trial but was found competent to stand trial, and there had been no irregular conduct on his part in the interim, there was not a sufficient showing made to require a mistrial and to permit the defendant to plead insanity. (Decided under prior law) Huff v. Commonwealth, 560 S.W.2d 544, 1977 Ky. LEXIS 569 ( Ky. 1977 ).

5.Permanent Commitment.

Where the trial judge found defendant to be a dangerous and violent man, and if released, there was a strong probability that he would engage in other violent crimes, it was therefore proper and necessary for the trial court to proceed according to the statute and initiate proceedings for a permanent-type commitment of defendant to a state mental institution. (Decided under prior law) Watkins v. Turner, 587 S.W.2d 275, 1979 Ky. App. LEXIS 468 (Ky. Ct. App. 1979).

Cited:

Moody v. Commonwealth, 698 S.W.2d 530, 1985 Ky. App. LEXIS 615 (Ky. Ct. App. 1985); Commonwealth v. Miles, 816 S.W.2d 657, 1991 Ky. App. LEXIS 18 (Ky. Ct. App. 1991); Gabbard v. Commonwealth, 887 S.W.2d 547, 1994 Ky. LEXIS 105 ( Ky. 1994 ); Commonwealth v. Todd, 12 S.W.3d 695, 1999 Ky. App. LEXIS 39 (Ky. Ct. App. 1999).

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Sellars, Criminal Law, 71 Ky. L.J. 355 (1982-83).

Kentucky Law Survey, Fortune, Criminal Procedure, 71 Ky. L.J. 367 (1982-83).

Northern Kentucky Law Review.

Notes, Criminal Law — Insanity Defense — Jury Instruction on Consequences of Acquittal — Payne v. Commonwealth, 623 S.W.2d 867, 1981 Ky. LEXIS 286 ( Ky. 1981 ), 9 N. Ky. L. Rev. 583 (1982).

Palmore, The Insanity Defense Revisited, 11 N. Ky. L. Rev. 1 (1984).

504.120. Verdicts of jury.

In cases in which the defendant provides evidence at trial of his mental illness or insanity at the time of the offense, the jury or court may find the defendant:

  1. Guilty;
  2. Not guilty;
  3. Not guilty by reason of insanity at the time of the offense; or
  4. Guilty but mentally ill at the time of the offense.

History. Enact. Acts 1982, ch. 113, § 7, effective July 15, 1982.

NOTES TO DECISIONS

1.In General.

Although conviction of defendant found guilty but mentally ill was affirmed because the record was devoid of any evidence with which to consider such issues, decision did not put to rest the issues of the constitutionality of the “guilty but mentally ill (GBMI)” statute and the content of the instructions, especially regarding treatment, to be given to the jury in a GBMI case. The fact that 1996 Kentucky House Concurrent Resolution No. 27 to create a task force to study the involuntary commitment and criminal responsibility laws in Kentucky did not emerge from committee, is evidence that the Legislature, with passage of KRS 504.120 through 504.150 , has put into place a system lacking in adequate funding and has taken no positive measures to correct this deficiency, thus falling clearly in contravention of its own mandate for treatment of individuals found to be GBMI. Brown v. Commonwealth, 934 S.W.2d 242, 1996 Ky. LEXIS 97 ( Ky. 1996 ).

Defendant’s contention that the trial court’s giving the jury the option of finding him guilty but mentally ill was unconstitutional was rejected because defendant pointed to no evidence supporting the proposition that guilty but mentally ill verdicts increased the possibility of improper compromises by the trier of fact, it did not constitute cruel and unusual punishment, and the trial court’s jury instructions complied with and alleviated any concerns. Star v. Commonwealth, 313 S.W.3d 30, 2010 Ky. LEXIS 115 ( Ky. 2010 ).

2.Counsel’s Comment on Verdict.

The trial judge did not commit any error in refusing to allow defense counsel to comment on the result of a guilty but mentally ill verdict. Mitchell v. Commonwealth, 781 S.W.2d 510, 1989 Ky. LEXIS 86 ( Ky. 1989 ).

3.Instructions.

Instruction pursuant to RCr 9.55 on the disposition of a defendant if the jury returns a verdict of not guilty by reason of insanity or guilty but mentally ill is a matter of trial strategy and is only available at the request of the defendant; defendant was not denied due process where instruction was not requested and not given. Port v. Commonwealth, 906 S.W.2d 327, 1995 Ky. LEXIS 79 ( Ky. 1995 ).

RCr 9.55 merely insures that an instruction on the disposition of a case if a “guilty but mentally ill (GBMI)” verdict were to be returned will be given if so requested, not that the trial court cannot give such an instruction for GBMI without the defendant’s consent. Brown v. Commonwealth, 934 S.W.2d 242, 1996 Ky. LEXIS 97 ( Ky. 1996 ).

Trial court did not abuse its discretion by rejecting defendant’s proposed instructions indicating that a guilty but mentally ill defendant “may or may not” receive treatment. Keeling v. Commonwealth, 381 S.W.3d 248, 2012 Ky. LEXIS 160 ( Ky. 2012 ).

4.Sanity of Defendant.

Defendant, found guilty but mentally ill, was not entitled to directed verdict as the general rule is that where there is any evidence indicative of a defendant’s sanity, there is presented an issue of fact for jury determination; testimony of a doctor and certain lay witnesses satisfied this standard. Kentucky Supreme Court has long allowed lay testimony in cases involving the sanity of the defendant. Brown v. Commonwealth, 934 S.W.2d 242, 1996 Ky. LEXIS 97 ( Ky. 1996 ).

5.Speedy Trial.

The nearly eight (8) year lapse between the time the crimes were committed and the time defendant was finally brought to trial did not violate defendant’s right to a speedy trial where first indictment was dismissed upon a finding that defendant was incompetent to stand trial, defendant was involuntarily hospitalized for over three (3) years, then reindicted and found competent to stand trial, and then following motions filed by both sides, jury selection occurred a year later. Determination of length of delay for speedy trial purposes does not include the time when a defendant was not under indictment. Brown v. Commonwealth, 934 S.W.2d 242, 1996 Ky. LEXIS 97 ( Ky. 1996 ).

Cited:

Wellman v. Commonwealth, 694 S.W.2d 696, 1985 Ky. LEXIS 235 ( Ky. 1985 ).

Research References and Practice Aids

Kentucky Law Journal.

Comment, The Not Guilty by Reason of Insanity Verdict: Should Juries be Informed of its Consequences?, 72 Ky. L.J. 207 (1983-84).

Northern Kentucky Law Review.

Notes, Criminal Law — Insanity Defense — Jury Instruction on Consequences of Acquittal — Payne v. Commonwealth, 623 S.W.2d 867, 1981 Ky. LEXIS 286 ( Ky. 1981 ), 9 N. Ky. L. Rev. 583 (1982).

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Defenses, Part 3 Absence of Criminal Responsibility, §§ 11.31, 11.32.

504.130. Grounds for finding defendant guilty but mentally ill.

  1. The defendant may be found guilty but mentally ill if:
    1. The prosecution proves beyond a reasonable doubt that the defendant is guilty of an offense; and
    2. The defendant proves by a preponderance of the evidence that he was mentally ill at the time of the offense.
  2. If the defendant waives his right to trial, the court may accept a plea of guilty but mentally ill if it finds that the defendant was mentally ill at the time of the offense.

History. Enact. Acts 1982, ch. 113, § 8, effective July 15, 1982.

NOTES TO DECISIONS

1.In General.

Although conviction of defendant found guilty but mentally ill was affirmed because the record was devoid of any evidence with which to consider such issues, decision did not put to rest the issues of the constitutionality of the “guilty but mentally ill (GBMI)” statute and the content of the instructions, especially regarding treatment, to be given to the jury in a GBMI case. The fact that 1996 Kentucky House Concurrent Resolution No. 27 to create a task force to study the involuntary commitment and criminal responsibility laws in Kentucky did not emerge from committee, is evidence that the Legislature, with passage of KRS 504.120 through 504.150 , has put into place a system lacking in adequate funding and has taken no positive measures to correct this deficiency, thus falling clearly in contravention of its own mandate for treatment of individuals found to be GBMI. Brown v. Commonwealth, 934 S.W.2d 242, 1996 Ky. LEXIS 97 ( Ky. 1996 ).

2.Evidence.

Photographic evidence of the deceased victims constituted relevant and probative evidence of the circumstances of the crime even though defendant, found guilty but mentally ill of murders and assaults, admitted to the killings. Brown v. Commonwealth, 934 S.W.2d 242, 1996 Ky. LEXIS 97 ( Ky. 1996 ).

3.Instructions.

A jury should be instructed on the statutory definition of mental illness if the jury may find a defendant guilty but mentally ill. Dean v. Commonwealth, 777 S.W.2d 900, 1989 Ky. LEXIS 77 ( Ky. 1989 ), overruled in part, Caudill v. Commonwealth, 120 S.W.3d 635, 2003 Ky. LEXIS 140 ( Ky. 2003 ), limited, Quarels v. Commonwealth, 142 S.W.3d 73, 2004 Ky. LEXIS 186 ( Ky. 2004 ), overruled in part, Commonwealth v. McGorman, 489 S.W.3d 731, 2016 Ky. LEXIS 102 ( Ky. 2016 ).

Trial court’s denial of instructions offered by defense counsel was proper and affirmed where proposed instructions defined the preponderance of the evidence standard the defense had to meet in proving defendant’s insanity because counsel was free to argue the preponderance burden to the jury and because the Kentucky Supreme Court has reiterated its dissatisfaction with the use of the word “preponderance” in jury instructions. Brown v. Commonwealth, 934 S.W.2d 242, 1996 Ky. LEXIS 97 ( Ky. 1996 ).

Trial court did not abuse its discretion by rejecting defendant’s proposed instructions indicating that a guilty but mentally ill defendant “may or may not” receive treatment. Keeling v. Commonwealth, 381 S.W.3d 248, 2012 Ky. LEXIS 160 ( Ky. 2012 ).

4.Pleas.

A trial court may accept a plea of guilty but mentally ill without the acquiescence of the Commonwealth; however, the trial court is required to make findings of fact with respect to the defendant’s mental illness before accepting such a plea. Commonwealth v. Ryan, 5 S.W.3d 113, 1999 Ky. LEXIS 103 ( Ky. 1999 ), overruled in part, Hoskins v. Maricle, 150 S.W.3d 1, 2004 Ky. LEXIS 196 ( Ky. 2004 ).

When a trial court rejects a guilty but mentally ill (GBMI) plea on the basis that the defendant did not carry his burden of proving, by a preponderance of the evidence, that he was mentally ill at the time of the offense, an appellate court may review that determination, if properly preserved, for clear error. Therefore, the trial court properly rejected defendant’s GBMI plea because defendant wanted the trial court to believe that a brain defect, present since birth, only manifested as a mental illness one time in his life - the day he committed the crimes. Dunlap v. Commonwealth, 435 S.W.3d 537, 2013 Ky. LEXIS 292 ( Ky. 2013 ), cert. denied, 574 U.S. 838, 135 S. Ct. 87, 190 L. Ed. 2d 72, 2014 U.S. LEXIS 6466 (U.S. 2014).

5.Testimony.

Defendant, found guilty but mentally ill, was not entitled to directed verdict as the general rule is that where there is any evidence indicative of a defendant’s sanity, there is presented an issue of fact for jury determination; testimony of a doctor and certain lay witnesses satisfied this standard. Kentucky Supreme Court has long allowed lay testimony in cases involving the sanity of the defendant. Brown v. Commonwealth, 934 S.W.2d 242, 1996 Ky. LEXIS 97 ( Ky. 1996 ).

6.Verdict.

Because the applicable standard is whether it would be clearly unreasonable for a jury to find against the defendant on the issue of insanity, it was not clearly unreasonable for any jury to find that the defendant, convicted of intentional murder but mentally ill, attempted murder but mentally ill and first-degree wanton endangerment but mentally ill, was not insane at the time of the incident where testimony of witnesses and police on scene was that he appeared to be in control and acted rationally. Port v. Commonwealth, 906 S.W.2d 327, 1995 Ky. LEXIS 79 ( Ky. 1995 ).

Cited:

Wellman v. Commonwealth, 694 S.W.2d 696, 1985 Ky. LEXIS 235 ( Ky. 1985 ); Coffey v. Messer, 945 S.W.2d 944, 1997 Ky. LEXIS 62 ( Ky. 1997 ).

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Sellars, Criminal Law, 71 Ky. L.J. 355 (1982-83).

Comment, The Not Guilty by Reason of Insanity Verdict: Should Juries be Informed of its Consequences?, 72 Ky. L.J. 207 (1983-84).

Northern Kentucky Law Review.

Notes, Criminal Law — Insanity Defense — Jury Instruction on Consequences of Acquittal — Payne v. Commonwealth, 623 S.W.2d 867, 1981 Ky. LEXIS 286 ( Ky. 1981 ), 9 N. Ky. L. Rev. 583 (1982).

Palmore, The Insanity Defense Revisited, 11 N. Ky. L. Rev. 1 (1984).

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Defenses, Part 3 Absence of Criminal Responsibility, § 11.32.

504.140. Examination before sentencing.

If a defendant is found guilty but mentally ill, the court may appoint at least one (1) psychologist or psychiatrist to examine, treat and report on the defendant’s mental condition at the time of sentencing.

History. Enact. Acts 1982, ch. 113, § 9, effective July 15, 1982; 1988, ch. 139, § 18, effective July 15, 1988.

NOTES TO DECISIONS

1.In General.

Although conviction of defendant found guilty but mentally ill was affirmed because the record was devoid of any evidence with which to consider such issues, decision did not put to rest the issues of the constitutionality of the “guilty but mentally ill (GBMI)” statute and the content of the instructions, especially regarding treatment, to be given to the jury in a GBMI case. The fact that 1996 Kentucky House Concurrent Resolution No. 27 to create a task force to study the involuntary commitment and criminal responsibility laws in Kentucky did not emerge from committee, is evidence that the Legislature, with passage of KRS 504.120 through 504.150 , has put into place a system lacking in adequate funding and has taken no positive measures to correct this deficiency, thus falling clearly in contravention of its own mandate for treatment of individuals found to be GBMI. Brown v. Commonwealth, 934 S.W.2d 242, 1996 Ky. LEXIS 97 ( Ky. 1996 ).

2.Noncompliance.

Failure of the trial court to follow the mandate of this section, requiring the court to appoint a psychologist or psychiatrist to examine, treat and report on defendant’s mental condition, such appointment to be made at the time of sentencing, is error. Wellman v. Commonwealth, 694 S.W.2d 696, 1985 Ky. LEXIS 235 ( Ky. 1985 ).

In appointing a psychologist or psychiatrist to examine, treat, and report on a defendant’s mental condition on the date of sentencing pursuant to this section, the trial court should direct the person appointed to report not only on the defendant’s mental condition, but also, on the issue of whether the defendant is sufficiently competent to understand the nature and consequences of such a proceeding. Moody v. Commonwealth, 698 S.W.2d 530, 1985 Ky. App. LEXIS 615 (Ky. Ct. App. 1985).

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Sellars, Criminal Law, 71 Ky. L.J. 355 (1982-83).

Northern Kentucky Law Review.

Notes, Criminal Law — Insanity Defense — Jury Instruction on Consequences of Acquittal — Payne v. Commonwealth, 623 S.W.2d 867, 1981 Ky. LEXIS 286 ( Ky. 1981 ), 9 N. Ky. L. Rev. 583 (1982).

504.150. Sentence for person found guilty but mentally ill.

  1. The court shall sentence a defendant found guilty but mentally ill at the time of the offense to the local jail or to the Department of Corrections in the same manner as a defendant found guilty. If the defendant is found guilty but mentally ill, treatment shall be provided the defendant until the treating professional determines that the treatment is no longer necessary or until expiration of his sentence, whichever occurs first.
  2. Treatment shall be a condition of probation, shock probation, conditional discharge, parole, or conditional release so long as the defendant requires treatment for his mental illness in the opinion of his treating professional.

History. Enact. Acts 1982, ch. 113, § 10, effective July 15, 1982; 1988, ch. 139, § 19, effective July 15, 1988; 1992, ch. 211, § 132, effective July 14, 1992.

NOTES TO DECISIONS

1.In General.

Although conviction of defendant found guilty but mentally ill was affirmed because the record was devoid of any evidence with which to consider such issues, decision did not put to rest the issues of the constitutionality of the “guilty but mentally ill (GBMI)” statute and the content of the instructions, especially regarding treatment, to be given to the jury in a GBMI case. The fact that 1996 Kentucky House Concurrent Resolution No. 27 to create a task force to study the involuntary commitment and criminal responsibility laws in Kentucky did not emerge from committee, is evidence that the Legislature, with passage of KRS 504.120 through 504.150 , has put into place a system lacking in adequate funding and has taken no positive measures to correct this deficiency, thus falling clearly in contravention of its own mandate for treatment of individuals found to be GBMI. Brown v. Commonwealth, 934 S.W.2d 242, 1996 Ky. LEXIS 97 ( Ky. 1996 ).

2.Instructions.

RCr 9.55 merely insures that an instruction on the disposition of a case if a “guilty but mentally ill (GBMI)” verdict were to be returned will be given if so requested, not that the trial court cannot give such an instruction for GBMI without the defendant’s consent. Brown v. Commonwealth, 934 S.W.2d 242, 1996 Ky. LEXIS 97 ( Ky. 1996 ).

Trial court did not abuse its discretion by rejecting defendant’s proposed instructions indicating that a guilty but mentally ill defendant “may or may not” receive treatment. Keeling v. Commonwealth, 381 S.W.3d 248, 2012 Ky. LEXIS 160 ( Ky. 2012 ).

Cited:

McClellan v. Commonwealth, 715 S.W.2d 464, 1986 Ky. LEXIS 274 ( Ky. 1986 ); O'Hara v. Wigginton, 24 F.3d 823, 1994 FED App. 0161P, 1994 U.S. App. LEXIS 10901 (6th Cir. Ky. 1994 ); Coffey v. Messer, 945 S.W.2d 944, 1997 Ky. LEXIS 62 ( Ky. 1997 ).

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Sellars, Criminal Law, 71 Ky. L.J. 355 (1982-83).

Kentucky Law Survey, Fortune, Criminal Procedure, 71 Ky. L.J. 367 (1982-83).

Northern Kentucky Law Review.

Notes, Criminal Law — Insanity Defense — Jury Instruction on Consequences of Acquittal — Payne v. Commonwealth, 623 S.W.2d 867, 1981 Ky. LEXIS 286 ( Ky. 1981 ), 9 N. Ky. L. Rev. 583 (1982).

Palmore, The Insanity Defense Revisited, 11 N. Ky. L. Rev. 1 (1984).

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Defenses, Part 3 Absence of Criminal Responsibility, § 11.32.

CHAPTER 505 Protection Against Unfair or Oppressive Prosecution

505.010. Entrapment.

  1. A person is not guilty of an offense arising out of proscribed conduct when:
    1. He was induced or encouraged to engage in that conduct by a public servant or by a person acting in cooperation with a public servant seeking to obtain evidence against him for the purpose of criminal prosecution; and
    2. At the time of the inducement or encouragement, he was not otherwise disposed to engage in such conduct.
  2. The relief afforded by subsection (1) is unavailable when:
    1. The public servant or the person acting in cooperation with a public servant merely affords the defendant an opportunity to commit an offense; or
    2. The offense charged has physical injury or the threat of physical injury as one (1) of its elements and the prosecution is based on conduct causing or threatening such injury to a person other than the person perpetrating the entrapment.
  3. The relief provided a defendant by subsection (1) is a defense.

History. Enact. Acts 1974, ch. 406, § 43, effective January 1, 1975.

NOTES TO DECISIONS

1.In General.

The defense of entrapment is available only in those instances in which a police officer or his or her confederate implants in the mind of an innocent person the disposition to violate the law, not in those instances in which a person already having in mind to violate the law is induced to do so again. Fuston v. Commonwealth, 721 S.W.2d 734, 1986 Ky. App. LEXIS 1497 (Ky. Ct. App. 1986), overruled, Commonwealth v. Day, 983 S.W.2d 505, 1999 Ky. LEXIS 1 ( Ky. 1999 ).

The defense of entrapment is available when there is evidence that the defendant was induced by police authorities, or someone acting in cooperation with them, to commit a criminal act which he was not otherwise disposed to commit. Commonwealth v. Day, 983 S.W.2d 505, 1999 Ky. LEXIS 1 ( Ky. 1999 ).

Entrapment defense was unavailable in defendant’s drug trafficking trial because defendant denied the underlying offense or any proscribed conduct. Morrow v. Commonwealth, 2007 Ky. App. LEXIS 196 (Ky. Ct. App. June 29, 2007).

2.Criminal Intent.

There was no entrapment merely because public authorities were aware that a burglary was to be committed by some other parties. (Decided under prior law) Gordon v. Commonwealth, 387 S.W.2d 13, 1965 Ky. LEXIS 455 ( Ky. 1965 ), cert. denied, 387 U.S. 911, 87 S. Ct. 1697, 18 L. Ed. 2d 631, 1967 U.S. LEXIS 1538 (U.S. 1967).

A failure to instruct on entrapment was not error where the uncontradicted evidence showed that the criminal intent originated in the mind of the defendants. (Decided under prior law) Alford v. Commonwealth, 240 Ky. 513 , 42 S.W.2d 711, 1931 Ky. LEXIS 435 ( Ky. 1931 ).

The criminality of an act depends on whether the criminal intent originated in the mind of the entrapping person or in the mind of the accused; in the latter case the fact that an opportunity is provided is no defense and the question of whose mind initiated the criminal intent is for the jury. Sebastian v. Commonwealth, 585 S.W.2d 440, 1979 Ky. App. LEXIS 445 (Ky. Ct. App. 1979).

3.Evidence.

Where the defendant had no prior history of trafficking in drugs and the evidence showed that a narcotics informant owed defendant $200 and refused to pay, but suggested he could get the money by delivering a package of drugs to a third man who turned out to be an undercover police officer, the defendant’s claim that he was induced to make the delivery and would not otherwise have done so was plausible and it was reversible error to deny any instruction on entrapment. Sebastian v. Commonwealth, 585 S.W.2d 440, 1979 Ky. App. LEXIS 445 (Ky. Ct. App. 1979).

Where the informant arranged a meeting between the defendant and an undercover detective, and the defendant testified that the informant came to his house “pretty near every night” for about a week and called on the telephone frequently to talk him into selling the detective ten (10) pounds of marijuana, the evidence was sufficient to create a jury question as to whether the defendant was induced or encouraged by the informant to sell the ten pounds of marijuana. Fuston v. Commonwealth, 721 S.W.2d 734, 1986 Ky. App. LEXIS 1497 (Ky. Ct. App. 1986), overruled, Commonwealth v. Day, 983 S.W.2d 505, 1999 Ky. LEXIS 1 ( Ky. 1999 ).

Where the officer testified that the idea for the robbery of the service station originated with the defendant, but the defendant, testifying in his own defense, stated that the police informant was the one who first suggested the commission of the crime and that his statements testified to by the officer were merely to accommodate the police informant and that he never intended a robbery, a jury question was presented on the question of entrapment. Commonwealth v. Sanders, 736 S.W.2d 338, 1987 Ky. LEXIS 241 ( Ky. 1987 ).

When defendant was charged with criminal solicitation to commit murder of two (2) police officers, she was entitled to an instruction on the defense of entrapment, under KRS 505.010 , because (1) an undercover officer suggested the means to commit the murders, the method of payment for the murders, which was drugs, and the required quantity, and (2) an informant encouraged defendant to furnish a gun. Wyatt v. Commonwealth, 219 S.W.3d 751, 2007 Ky. LEXIS 96 ( Ky. 2007 ).

When defendant was charged with criminal solicitation to commit murder of two (2) police officers, she was not barred, under KRS 505.010(2)(b), from a jury instruction on an entrapment defense because (1) she had no history of similar offenses, (2) she told others that an informant planned the murders, (3) only hearsay showed that the plan originated with her, and (4) her response to an offer to kill the officers was equivocal. Wyatt v. Commonwealth, 219 S.W.3d 751, 2007 Ky. LEXIS 96 ( Ky. 2007 ).

Mere fact that the confidential informants set up the drug transaction for a location within 1,000 yards of a school did not suffice as probative evidence of entrapment to traffic in drugs, in violation of KRS 218A.1411 , where (1) the evidence plainly showed that defendant was predisposed to traffic illegal drugs and that he had access to the drugs, acquired them and came prepared to sell them at the location suggested by the confidential informants, with all the risks that location entailed; and (2) there was nothing from which a rational jury could conclude that defendant’s conduct was induced by the government and that he would not have otherwise sold marijuana within 1,000 yards of a school; thus, defendant did not cite to any probative evidence of record that would support his entrapment defense, requiring the burden to shift to the Commonwealth. Saxton v. Commonwealth, 315 S.W.3d 293, 2010 Ky. LEXIS 158 ( Ky. 2010 ).

4.Instructions.

Where, in addition to the two (2) previous sales to the undercover officer, the defendant admitted that he had made 15 or 20 other sales of small quantities of marijuana within the last three (3) months, the defendant was not entitled to a jury instruction on entrapment. Fuston v. Commonwealth, 721 S.W.2d 734, 1986 Ky. App. LEXIS 1497 (Ky. Ct. App. 1986), overruled, Commonwealth v. Day, 983 S.W.2d 505, 1999 Ky. LEXIS 1 ( Ky. 1999 ).

The testimony of defendant that he had never transferred drugs before; that he only knew where to locate the cocaine because of his own prior usage; and that he received no benefit from his participating in the transfer other than satisfying the confidential informant for whom he had “feelings,” supported his defense that he was induced or encouraged to engage in the transfer of cocaine by a person acting in cooperation with a public servant seeking to obtain evidence against him for the purpose of criminal prosecution, and at the time of the inducement or encouragement, he was not otherwise disposed to engage in such conduct. Therefore, the trial court erred in refusing to give the entrapment instruction requested by defendant because as a matter of law the evidence presented supported the giving of the instruction. Farris v. Commonwealth, 836 S.W.2d 451, 1992 Ky. App. LEXIS 174 (Ky. Ct. App. 1992), overruled, Houston v. Commonwealth, 975 S.W.2d 925, 1998 Ky. LEXIS 1 23 ( Ky. 1998 ), overruled in part, Commonwealth v. Day, 983 S.W.2d 505, 1999 Ky. LEXIS 1 ( Ky. 1999 ).

The trial court erred in not giving an instruction on two (2) lesser included offenses of possession of a controlled substance (cocaine) and criminal facilitation. Although the defense of entrapment constituted an admission of the alleged conduct and thereby as to the principal offense extinguished the theories of a lesser included offense, it was possible that the defense of entrapment could be asserted against the elements of the lesser included offenses, while the defendant continued to deny commission of all the elements of the principal offense. In other words, defendant could consistently claim that he was entrapped to possess cocaine or aid in its transfer without admitting that he trafficked in cocaine. Farris v. Commonwealth, 836 S.W.2d 451, 1992 Ky. App. LEXIS 174 (Ky. Ct. App. 1992), overruled, Houston v. Commonwealth, 975 S.W.2d 925, 1998 Ky. LEXIS 1 23 ( Ky. 1998 ), overruled in part, Commonwealth v. Day, 983 S.W.2d 505, 1999 Ky. LEXIS 1 ( Ky. 1999 ).

Trial court erred in failing to instruct the jury on entrapment where the Commonwealth conceded that defendant was induced to participate in the drug transaction and thus, the burden was on the prosecution to prove beyond a reasonable doubt that defendant was predisposed to participate, an issue for which the evidence was conflicting and thus, for a jury to decide. Morrow v. Commonwealth, 286 S.W.3d 206, 2009 Ky. LEXIS 160 ( Ky. 2009 ).

In an attempted unlawful transaction with a minor in the first degree case, the evidence showed that (1) defendant made initial contact with a fictitious person, who had been created by volunteers of a not-for-profit organization which collaborated with law enforcement to catch internet child-predators, that defendant believed was 13 years old, (2) the fictitious person’s profile identified her as a 13-year-old girl, (3) defendant initiated sexually explicit chats with the fictitious 13-year-old girl, (4) he suggested meeting in-person, (5) he spoke on the telephone with a person he believed to be the 13 year old girl, and (6) he drove to what he believed to be the fictitious 13-year-old girl’s house to meet her; the fact that he was invited to come inside the fictitious 13-year-old girl’s house did not provide sufficient evidence of inducement or encouragement, in light of all the evidence, because going inside was not required to complete the crime. Thus, the trial court did not err by denying defendant’s request to instruct the jury on the defense of entrapment. Quist v. Commonwealth, 338 S.W.3d 778, 2010 Ky. App. LEXIS 93 (Ky. Ct. App. 2010).

5.Predisposition.

An essential ingredient of entrapment is a showing that the defendant was induced by police authorities or someone acting in cooperation with them, for the purpose of obtaining evidence for prosecution, to commit an act which he was not otherwise disposed to commit. Johnson v. Commonwealth, 554 S.W.2d 401, 1977 Ky. App. LEXIS 763 (Ky. Ct. App. 1977).

When the authorities only afford the defendant an opportunity to commit the offense it is not entrapment. Johnson v. Commonwealth, 554 S.W.2d 401, 1977 Ky. App. LEXIS 763 (Ky. Ct. App. 1977).

Where the defendant planned the crime, recruited an accomplice, and intended to rob the drivers of the van, the disposition to commit the crime arose in the defendant; therefore, he was not entitled to an entrapment defense. Prather v. Rees, 822 F.2d 1418, 1987 U.S. App. LEXIS 8485 (6th Cir. Ky. 1987 ).

The critical test of entrapment is not the extent of the police participation in planning and assisting in the crime, but whether the defendant was disposed to commit the crime regardless of any encouragement or inducement on the part of the authorities. Commonwealth v. Sanders, 736 S.W.2d 338, 1987 Ky. LEXIS 241 ( Ky. 1987 ).

While the defendant’s acquittal of the first charge of trafficking in a controlled substance did not require an acquittal of the second, neither did his admission that he was entrapped to commit the first offense require a conclusion that as a matter of law he was predisposed to commit the second; although evidence of prior similar transactions is relevant to prove predisposition, the question of whose mind initiated the criminal intent is a question of fact to be submitted to the jury. Commonwealth v. Day, 983 S.W.2d 505, 1999 Ky. LEXIS 1 ( Ky. 1999 ).

Reasonable juror could not have concluded that defendant was entrapped and not guilty of the crimes charged, as evidence was presented that the criminal intent originated with defendant and that defendant was predisposed to engage in the crimes to which he was charged. Thus, the trial court did not commit palpable error in denying defendant’s motion for a directed verdict. Mackey v. Commonwealth, 407 S.W.3d 554, 2013 Ky. LEXIS 378 ( Ky. 2013 ).

Research References and Practice Aids

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Controlled Substances, Part 2 Schedule Substances, § 9.11B.

Kentucky Instructions to Juries (Criminal), 5th Ed., Controlled Substances, Part 4 Miscellaneous KRS 218A Offenses, §§ 9.24A, 9.25, 9.30C, 9.31, 9.33, 9.34C, 9.36E.

Kentucky Instructions to Juries (Criminal), 5th Ed., Controlled Substances, Part 5 Alcoholic Beverages, § 9.37A.

Kentucky Instructions to Juries (Criminal), 5th Ed., Defenses, Part 4 Miscellaneous Defenses, § 11.34.

Kentucky Instructions to Juries (Criminal), 5th Ed., General Principles, Part 1 Matters of Substance, § 1.03.

505.020. Prosecution for multiple offenses.

  1. When a single course of conduct of a defendant may establish the commission of more than one (1) offense, he may be prosecuted for each such offense. He may not, however, be convicted of more than one (1) offense when:
    1. One offense is included in the other, as defined in subsection (2); or
    2. Inconsistent findings of fact are required to establish the commission of the offenses; or
    3. The offense is designed to prohibit a continuing course of conduct and the defendant’s course of conduct was uninterrupted by legal process, unless the law expressly provides that specific periods of such conduct constitute separate offenses.
  2. A defendant may be convicted of an offense that is included in any offense with which he is formally charged. An offense is so included when:
    1. It is established by proof of the same or less than all the facts required to establish the commission of the offense charged; or
    2. It consists of an attempt to commit the offense charged or to commit an offense otherwise included therein; or
    3. It differs from the offense charged only in the respect that a lesser kind of culpability suffices to establish its commission; or
    4. It differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property or public interest suffices to establish its commission.

History. Enact. Acts 1974, ch. 406, § 44, effective January 1, 1975.

NOTES TO DECISIONS

Analysis

1.In General.

This section clearly contemplates that a single course of conduct may result in and establish the commission of more than one offense but prohibits bifurcating a single crime, which is established in statutory degrees, into additional crimes and by import, prohibits multiple punishments. Jordan v. Commonwealth, 703 S.W.2d 870, 1985 Ky. LEXIS 269 ( Ky. 1985 ).

2.Continuing Course of Conduct.

Where all charges are contained in a single indictment and disposed of at a single trial, the entire factual history of the continuing course of conduct is presented to the jury and, if that chronicle contains the elements necessary for separate statutory crimes, the reality that many of the constituent parts which compose the severable wholes are the same does not destroy that severability under the label of double jeopardy. Jordan v. Commonwealth, 703 S.W.2d 870, 1985 Ky. LEXIS 269 ( Ky. 1985 ).

There was no error in aggregating the individual amounts of 45 bogus contracts, submitted to service company employing defendant, even though each individual commission was less than $100.00, in order to charge defendant with a Class D felony under this section, where it could be reasonably concluded that defendant had a single continuous criminal intent and scheme. Smith v. Commonwealth, 818 S.W.2d 620, 1991 Ky. App. LEXIS 128 (Ky. Ct. App. 1991).

Two (2) separate sales of cocaine on the same date did not constitute a single continuing course of conduct where they occurred at different times and resulted in the transfer of separate quantities of cocaine. Gray v. Commonwealth, 979 S.W.2d 454, 1998 Ky. LEXIS 130 ( Ky. 1998 ), overruled, Morrow v. Commonwealth, 77 S.W.3d 558, 2002 Ky. LEXIS 133 ( Ky. 2002 ).

3.Double Jeopardy.

Ky. Const., § 13 and KRS 505.040(1)(a) both relate to an offense before double jeopardy is activated. Retrial of a defendant, whose Persistent Felony Offender in the first degree conviction was reversed, as a second degree Persistent Felony Offender would not be prohibited by the constitutional provisions against double jeopardy. White v. Commonwealth, 770 S.W.2d 222, 1989 Ky. LEXIS 19 ( Ky. 1989 ).

There are two (2) prongs to the double jeopardy principle; a person cannot be twice convicted or twice punished for the same murder, and where the additional element that aggravates kidnapping to a capital offense is the murder, the defendant can be convicted and punished for both offenses, but not sentenced to death for kidnapping if he is sentenced to death for murder. Cosby v. Commonwealth, 776 S.W.2d 367, 1989 Ky. LEXIS 92 ( Ky. 1989 ), cert. denied, 493 U.S. 1063, 110 S. Ct. 880, 107 L. Ed. 2d 963, 1990 U.S. LEXIS 508 (U.S. 1990), overruled in part, St. Clair v. Roark, 10 S.W.3d 482, 1999 Ky. LEXIS 148 ( Ky. 1999 ).

Double jeopardy issues arising out of multiple prosecutions will be analyzed in accordance with the principles set forth in Blockburger v. United States , 284 U.S. 299, 52 S. Ct. 180, 76 L. Ed. 306, 1932 U.S. LEXIS 875 (1932); double jeopardy does not occur when a person is charged with two crimes arising from the same conduct, as long as each statute requires proof of an additional fact which the other does not. Commonwealth v. Burge, 947 S.W.2d 805, 1996 Ky. LEXIS 82 ( Ky. 1997 ).

No double jeopardy issue was raised after continuance because jeopardy never attached where the jury was selected but never sworn. Johnson v. Commonwealth, 12 S.W.3d 258, 1999 Ky. LEXIS 159 ( Ky. 1999 ).

Improper introduction of misdemeanor juvenile adjudications was not bad faith by the prosecutor such as to bar defendant’s retrial on double jeopardy grounds. Terry v. Commonwealth, 153 S.W.3d 794, 2005 Ky. LEXIS 16 ( Ky. 2005 ).

Defendants’ convictions for two (2) counts each of using a minor in a sexual performance and promoting a sexual performance by a minor did not violate prohibition against double jeopardy and KRS 505.020 , as the convictions did not arise from a single course of conduct, but rather, were based on distinct actions as to separate victims; the evidence showed that defendant used or employed a friend’s daughter in a sexual performance when defendant tossed the child in the air while the friend filmed the child’s bare buttocks and defendant promoted a sexual performance when defendant allowed defendant’s daughter to be filmed while naked in a bathtub. Little v. Commonwealth, 272 S.W.3d 180, 2008 Ky. LEXIS 241 ( Ky. 2008 ), modified, 2009 Ky. LEXIS 21 (Ky. Jan. 22, 2009).

Defendant’s convictions for manufacturing methamphetamine under KRS 218A.1432(1)(a) and possession of a methamphetamine precursor under KRS 218A.1437(1) did not violate double jeopardy because, to be guilty of the former offense, one must have actually manufactured some quantity of methamphetamine, while to be guilty of the latter offense, one must have the precursor necessary to produce methamphetamine and the intent to use it to produce the drug in the future. Thus, the unique element between the two offenses was whether defendant had manufactured methamphetamine in the past or whether he had the materials and intent to produce it in the future; as such, defendant’s convictions did not violate the prohibition against double jeopardy under the Blockburger rule or KRS 505.020(1). Shemwell v. Commonwealth, 294 S.W.3d 430, 2009 Ky. LEXIS 181 ( Ky. 2009 ).

Defendant’s convictions for manufacturing methamphetamine under KRS 218A.1432(1)(a) and anhydrous ammonia in an unapproved container with the intent to manufacture methamphetamine under KRS 250.489(1) did not violate double jeopardy because the former made no mention of anhydrous ammonia or what constituted a proper container for it; thus, on its face there was proof of an element required for a conviction of the latter offense that was not required for a conviction of the former. Further, while manufacturing methamphetamine required that the defendant acted in the past, proving that the defendant possessed the anhydrous ammonia in an unapproved container with the intent to manufacture methamphetamine in the future required proving how the defendant was going to act; thus, the two crimes did not constitute a “continuing course of conduct” and did not violate double jeopardy. Shemwell v. Commonwealth, 294 S.W.3d 430, 2009 Ky. LEXIS 181 ( Ky. 2009 ).

Defendant’s convictions for both possession of a controlled substance and promoting contraband did not violate double jeopardy under KRS 505.020(2)(a) as his arrest constituted a legal process that interrupted his possession of cocaine. Thus, his continued concealment of the second quantity once he arrived at the detention facility, after specifically denying any additional contraband, constituted a second, distinct offense. Stewart v. Commonwealth, 306 S.W.3d 502, 2010 Ky. LEXIS 57 ( Ky. 2010 ).

Defendant was properly convicted of two counts of drug trafficking for possessing a quantity of cocaine in a vehicle and another quantity on defendant’s person shortly thereafter, despite defendant’s claim of a double jeopardy violation, as defendant possessed two discrete quantities of cocaine and defendant’s possession of the cocaine that defendant tried to swallow came after the interruption of the legal process, defendant’s arrest. Williams v. Commonwealth, 336 S.W.3d 42, 2011 Ky. LEXIS 40 ( Ky. 2011 ).

Terroristic threatening requires a threat to commit a crime, but wanton endangerment does not require such a threat, and wanton endangerment requires actual conduct placing others at serious risk, but terroristic threatening does not require such actual conduct or such actual serious risk. Consequently, convictions on both offenses do not violate KRS 505.020 because terroristic threatening is not included within wanton endangerment since terroristic threatening is not established by proof of the same or less than all the facts required to establish the commission of wanton endangerment. Mullikan v. Commonwealth, 341 S.W.3d 99, 2011 Ky. LEXIS 89 ( Ky. 2011 ).

Defendant’s convictions for both attempted murder and first-degree assault from the shooting of one victim resulted in a double jeopardy violation under KRS 505.020(1)(b); to convict defendant of both attempted murder and assault, the jury had to conclude that defendant intended to kill the victim and, at the same instant, intended not to kill the victim but only to injure the victim. Kiper v. Commonwealth, 399 S.W.3d 736, 2012 Ky. LEXIS 190 ( Ky. 2012 ), reprinted, 2012 Ky. LEXIS 409 (Ky. Nov. 21, 2012), modified, 2013 Ky. LEXIS 145 (Ky. Apr. 25, 2013).

Conviction of possession of marijuana violated U.S. Const. amend. V and Ky. Const. § 13 because it was a lesser included offense of trafficking in marijuana; even though the jury could have found that roaches were personally used by appellant, the jury instructions did not require the jury to make a distinction between the offenses. As such, it was impossible to determine whether appellant was convicted of possession marijuana and trafficking marijuana based on the same quantity of marijuana. Massie v. Commonwealth, 2012 Ky. App. LEXIS 178 (Ky. Ct. App. Sept. 21, 2012).

Constitutional and statutory double jeopardy provisions prohibited defendant’s conviction for multiple counts of possession of a weapon by a convicted felon because they arose from a single course of conduct, the statute did not explicitly designate separate offenses for each firearm found in the possession of a convicted felon, and defendant’s possession of two firearms constituted a single court of conduct. Hinchey v. Commonwealth, 432 S.W.3d 710, 2014 Ky. App. LEXIS 70 (Ky. Ct. App. 2014).

Ky. Rev. Stat. Ann. § 505.020(1)(a) did not apply to appellant's convictions for criminal attempt to commit murder and first-degree assault as each charge required an element that the other did not. Spicer v. Commonwealth, 442 S.W.3d 26, 2014 Ky. LEXIS 435 ( Ky. 2014 ).

Ky. Rev. Stat. Ann. § 505.020(1)(b) prohibited both convictions because in order to convict appellant of both attempted murder and first-degree assault, the jury had to find that his specific intent was to kill the victim, but and at the same time, only to cause her serious physical injury, and such findings of fact were inconsistent. Spicer v. Commonwealth, 442 S.W.3d 26, 2014 Ky. LEXIS 435 ( Ky. 2014 ).

Ky. Rev. Stat. Ann. § 505.020(1)(c) barred convictions for both attempted murder and first-degree assault charges where the stab wound to the victim came through a single struggle, and the multiple stabs to the victim were not readily distinguishable. Spicer v. Commonwealth, 442 S.W.3d 26, 2014 Ky. LEXIS 435 ( Ky. 2014 ).

Defendant's convictions for second-degree wanton endangerment and third-degree assault violated double jeopardy because allowing both convictions required the jury to make inconsistent findings, i.e., that defendant was motivated by two different mental states for the same act against the same person. Montgomery v. Commonwealth, 505 S.W.3d 274, 2016 Ky. App. LEXIS 198 (Ky. Ct. App. 2016).

Defendant’s sodomy conviction did not implicate double jeopardy concerns, because defendant committed two separate acts, sexual abuse by forcing the victim to touch his genitals and by forcibly touching hers, and sodomy though genital to oral contact between the two. King v. Commonwealth, 554 S.W.3d 343, 2018 Ky. LEXIS 293 ( Ky. 2018 ).

Defendants’ convictions for both attempted murder and first-degree assault violated the double jeopardy protection of Ky. Rev. Stat. § 505.020(1)(b), any error had been cured where the trial court did not allow the defendants to be sentenced for first-degree assault, and the final judgment did not list a first-degree assault conviction. Thus, the trial court’s actions at trial and its final judgment showed that the first-degree assault charge was effectively vacated. Taylor v. Commonwealth, 611 S.W.3d 730, 2020 Ky. LEXIS 278 ( Ky. 2020 ).

Jury instructions sufficiently differentiated the culpable conduct required for a conviction of first-degree sexual abuse and first-degree sodomy, and therefore defendant’s convictions for both did not result in a double-jeopardy violation because the sexual-abuse instruction did not state with which body part the jury must find that the victim touched defendant for defendant to be guilty of sexual abuse, but the sodomy instruction explicitly required the jury to find the victim placed his penis in her mouth. Towe v. Commonwealth, 617 S.W.3d 355, 2021 Ky. LEXIS 16 ( Ky. 2021 ).

4.Included Offenses.

A statutory definition of the phrase, “included offense,” is found in subsection (2) of this section which has the dual purpose of limiting the permissibility of multiple convictions and setting forth the circumstances under which conviction of an offense not expressly named in the charging instrument is appropriate. Hart v. Commonwealth, 768 S.W.2d 552, 1989 Ky. App. LEXIS 170 (Ky. Ct. App. 1989).

In determining whether one offense is a lesser included offense of another, the critical question is whether each statute requires proof of an additional fact which the other does not, and not whether the evidence actually introduced at trial could be relied on to prove the elements of both offenses. Hart v. Commonwealth, 768 S.W.2d 552, 1989 Ky. App. LEXIS 170 (Ky. Ct. App. 1989).

A charged offense necessarily includes an uncharged lesser offense if the lesser offense involves fewer of the same constituent elements than the charged greater offense so that the proof necessary to establish the greater offense will of necessity establish every element of the lesser offense. The critical question is whether each statute requires proof of an additional fact which the other does not. Cheser v. Commonwealth, 904 S.W.2d 239, 1994 Ky. App. LEXIS 151 (Ky. Ct. App. 1994), overruled in part, Walker v. Commonwealth, 127 S.W.3d 596, 2004 Ky. LEXIS 42 ( Ky. 2004 ).

Trial court erred in denying defendant's request for an instruction on giving a false name to a peace officer because the false-name charge was a lesser-included offense to the charge against defendant of theft of identity and the evidence supported an instruction on both charges. When a police officer asked defendant for defendant's identity during a traffic stop, defendant gave the officer the name of defendant's sibling and a false date of birth before eventually giving the officer defendant's true identity. Stephenson v. Commonwealth, 2017 Ky. App. LEXIS 750 (Ky. Ct. App. Dec. 1, 2017, sub. op., 2017 Ky. App. Unpub. LEXIS 943 (Ky. Ct. App. Dec. 1, 2017).

4.4.Assault.

Where the element of physical injury necessary to first-degree assault was used to elevate the offenses of robbery and attempted rape to the first degree, the assault conviction merged with the other two convictions so that the defendant was convicted of one offense included in others as proscribed by this section. Sherley v. Commonwealth, 558 S.W.2d 615, 1977 Ky. LEXIS 545 ( Ky. 1977 ), cert. denied, 435 U.S. 999, 98 S. Ct. 1655, 56 L. Ed. 2d 89, 1978 U.S. LEXIS 1656 (U.S. 1978), overruled, Dixon v. Commonwealth, 263 S.W.3d 583, 2008 Ky. LEXIS 138 ( Ky. 2008 ).

Under the Blockburger test, codified at KRS 505.020 , assault in the first degree under KRS 508.010 is not a lesser included offense of first-degree rape under KRS 510.040 , involving serious physical injury to the victim. Dixon v. Commonwealth, 263 S.W.3d 583, 2008 Ky. LEXIS 138 ( Ky. 2008 ).

Where defendant approached a co-worker whom he believed had stolen drugs and money from him, where the co-worker gave defendant money and a cellular phone, where defendant kept the money, which he claimed to rightfully be his, and because he believed that the co-worker still had the drugs, kicked the co-worker between the legs and in the face while wearing steel toe shoes, and where defendant was charged with first-degree robbery, the trial court erred in instructing the jury that second-degree assault under KRS 508.020(1)(b) was a lesser-included offense of first-degree robbery under KRS 515.020(1)(a) because (1) the existence of the use of a deadly a deadly weapon had to be established by proof of more of the facts required to establish the commission of robbery; (2) the offense of assault was not the offense of attempted robbery; and (3) assault, under the circumstances of the case, required the completely separate element of the use of a deadly weapon; thus, it did not differ from robbery only in the respect that a lesser kind of culpability suffices to establish its commission, or in the respect that a less serious injury or risk of injury to the same person, property, or public interest suffices to establish its commission. Howell v. Commonwealth, 296 S.W.3d 430, 2009 Ky. App. LEXIS 149 (Ky. Ct. App. 2009).

It was not improper for state to prosecute defendant on both charge of possession of a handgun by a convicted felon under KRS 527.040 and on first-degree assault charge under KRS 508.010 even though a single course of conduct establishes the commission of both offenses because of this section; and conviction for both crimes is not double jeopardy under Ky. Const., § 13 because neither offense is necessarily included within the other and each requires proof of an element not required by the other. Boulder v. Commonwealth, 610 S.W.2d 615, 1980 Ky. LEXIS 288 ( Ky. 1980 ), overruled, Dale v. Commonwealth, 715 S.W.2d 227, 1986 Ky. LEXIS 284 ( Ky. 1986 ).

4.6.Controlled Substances.

Action of the District Court in accepting a plea of guilty to possession charge after return of grand jury’s indictment for trafficking did not preclude a Circuit Court conviction on the same possession charge, since once the indictment was returned charging the offense of trafficking, the District Court no longer had jurisdiction to make a final disposition of offense of possession, a lesser included offense. Jackson v. Commonwealth, 633 S.W.2d 61, 1982 Ky. LEXIS 246 ( Ky. 1982 ).

Possession of a controlled substance is a lesser offense included within a trafficking charge. Jackson v. Commonwealth, 633 S.W.2d 61, 1982 Ky. LEXIS 246 ( Ky. 1982 ).

Conviction for possession of a Schedule III controlled substance was barred by double jeopardy where the possession of the Schedule III controlled substance was an element of the charge of receiving that substance as stolen property, and there was no additional element which would constitute it to be a separate crime. Moser v. Commonwealth, 799 S.W.2d 21, 1990 Ky. LEXIS 101 ( Ky. 1990 ).

Criminal facilitation is not a lesser included offense of trafficking in or possession of a controlled substance and, thus, defendant was not entitled to an instruction on that theory. Houston v. Commonwealth, 975 S.W.2d 925, 1998 Ky. LEXIS 123 ( Ky. 1998 ), limited, Commonwealth v. Montaque, 23 S.W.3d 629, 2000 Ky. LEXIS 41 ( Ky. 2000 ).

The defendant in a prosecution for first degree trafficking in a controlled substance was not entitled to have the jury instructed with regard to lesser included offenses of possession of a controlled substance or criminal facilitation where he admitted that he transferred cocaine on two occasions, but claimed entrapment. Commonwealth v. Day, 983 S.W.2d 505, 1999 Ky. LEXIS 1 ( Ky. 1999 ).

Convictions for manufacturing methamphetamine in violation of KRS 218A.1432(1)(a) and possession of methamphetamine in violation of KRS 218A.1415(1) constituted double jeopardy; one who manufactures a controlled substance also necessarily possesses the substance in the course of manufacturing it. Beaty v. Commonwealth, 125 S.W.3d 196, 2003 Ky. LEXIS 232 ( Ky. 2003 ).

4.8.Robbery.

Where a defendant pointed a pistol at a person during the course of a robbery, the act of wanton endangerment is an included offense under this section; according, convictions for both first-degree robbery and first-degree wanton endangerment arising out of the same robbery violated the constitutional and statutory prohibitions against double jeopardy and the wanton endangerment charge must be dismissed. Marshall v. Commonwealth, 625 S.W.2d 581, 1981 Ky. LEXIS 306 ( Ky. 1981 ).

As a general rule, assault in the first degree is a lesser included offense of robbery in the first degree. Commonwealth v. Varney, 690 S.W.2d 758, 1985 Ky. LEXIS 211 ( Ky. 1985 ), overruled, Goodman v. Commonwealth, 2015 Ky. Unpub. LEXIS 19 (Ky. Feb. 19, 2015).

Theft and assault are lesser included offenses within the charge of robbery, and a person cannot be convicted of both robbery and assault. Commonwealth v. Varney, 690 S.W.2d 758, 1985 Ky. LEXIS 211 ( Ky. 1985 ), overruled, Goodman v. Commonwealth, 2015 Ky. Unpub. LEXIS 19 (Ky. Feb. 19, 2015).

Although the guilty plea to the theft of the car did not attach jeopardy to the further prosecution for first degree robbery, the theft should have been included in the prosecution for robbery; therefore, an affirmance by the Supreme Court would constitute impermissible enhancement of the penalty, and it must be set aside. Jordan v. Commonwealth, 703 S.W.2d 870, 1985 Ky. LEXIS 269 ( Ky. 1985 ).

Because theft is a lesser included offense of robbery, a conviction for receiving stolen property also is a lesser included offense of robbery and is barred by the constitutional double jeopardy principle, Ky. Const., § 13, and by the limitations on prosecution for multiple offenses detailed in this section. Jones v. Commonwealth, 756 S.W.2d 462, 1988 Ky. LEXIS 49 ( Ky. 1988 ), limited, Moser v. Commonwealth, 799 S.W.2d 21, 1990 Ky. LEXIS 101 ( Ky. 1990 ), limited, Mhoney v. Kentucky (Ky. Ct. App. 1992), overruled, Commonwealth v. Burge, 947 S.W.2d 805, 1996 Ky. LEXIS 82 ( Ky. 1997 ).

4.9.Other Offenses.

Terroristic threat is included in wanton endangerment. Watson v. Commonwealth, 579 S.W.2d 103, 1979 Ky. LEXIS 233 ( Ky. 1979 ).

Second-degree bail jumping is not a lesser-included offense of first-degree bail jumping and trial court was not required to instruct on it. Whalen v. Commonwealth, 891 S.W.2d 86, 1995 Ky. App. LEXIS 9 (Ky. Ct. App. 1995).

Because the offenses of driving under the influence and wanton endangerment, found in KRS 189A.010 (c)(1) and 508.060(1) respectively, were included in the offense of fleeing or evading police, found in KRS 520.095(1)(a), defendant’s conviction for all three (3) offenses constituted double jeopardy in violation of Ky. Const. § 13 and KRS 505.020 . Pinkston v. Commonwealth, 2003 Ky. App. LEXIS 92 (Ky. Ct. App. May 2, 2003).

Trial court’s denial of defendant’s request to instruct the jury on voyeurism, under KRS 531.090(1), as a lesser included offense of burglary under KRS 511.020(1), was not error, as voyeurism was not a lesser included offense of burglary where proof of the fact that defendant entered or remained unlawfully for the purpose of viewing another individual’s body or sexual conduct was not a required element of burglary. Morgan v. Commonwealth, 189 S.W.3d 99, 2006 Ky. LEXIS 12 ( Ky. 2006 ), overruled, Shane v. Commonwealth, 243 S.W.3d 336, 2007 Ky. LEXIS 262 ( Ky. 2007 ), overruled in part, Roe v. Commonwealth, 2015 Ky. LEXIS 2080 (Ky. Sept. 24, 2015).

5.Instructions.

Although assault in the first degree is an included offense of the crime of murder, an instruction on this issue need not be given unless the evidence leaves room for some doubt as to whether the act of the accused was the cause of death and, at the same time, all elements necessary to prove an assault in the first degree are present. Muse v. Commonwealth, 551 S.W.2d 564, 1977 Ky. LEXIS 452 ( Ky. 1977 ).

An instruction on a lesser included offense should not be given unless the evidence is such that a reasonable juror could doubt that the defendant is guilty of the crime charged but conclude that he is guilty of the lesser included offense. Luttrell v. Commonwealth, 554 S.W.2d 75, 1977 Ky. LEXIS 482 ( Ky. 1977 ).

There was no error in failing to instruct on first or second degree assault as lesser included offenses within the charge of robbery, where no instruction was requested. Commonwealth v. Varney, 690 S.W.2d 758, 1985 Ky. LEXIS 211 ( Ky. 1985 ), overruled, Goodman v. Commonwealth, 2015 Ky. Unpub. LEXIS 19 (Ky. Feb. 19, 2015).

An indictment which originally charged the defendant as being a Persistent Felony Offender I was sufficient to allow for a conviction as a Persistent Felony Offender II; nevertheless the jury must be instructed on Persistent Felony Offender II and decide his guilt or innocence. White v. Commonwealth, 770 S.W.2d 222, 1989 Ky. LEXIS 19 ( Ky. 1989 ).

Defendant’s pretrial statement did not establish that he was not shooting at the murdered store clerk but merely that the pistol jerked his arm so that he shot higher than he intended. Shooting at a store clerk during the course of an armed robbery simply because an alarm sounded or the clerk moved his foot toward a floor alarm button clearly manifested extreme indifference to the value of human life as a matter of law. Accordingly, the trial judge was correct in declining to instruct on second-degree manslaughter or reckless homicide as lesser-included offenses. Crane v. Commonwealth, 833 S.W.2d 813, 1992 Ky. LEXIS 78 ( Ky. 1992 ), cert. denied, 506 U.S. 1069, 113 S. Ct. 1020, 122 L. Ed. 2d 167, 1993 U.S. LEXIS 351 (U.S. 1993).

Conviction for DUI and wanton murder in the same trial violates the double jeopardy principle in the Ky. Const., § 13, and its statutory counterpart, this section. Under Kentucky law, in such circumstances the DUI may be submitted to the jury as an alternative to the more serious offense, available in the event the jury does not convict of the greater offense, but not as a subject for additional punishment. Bush v. Commonwealth, 839 S.W.2d 550, 1992 Ky. LEXIS 146 ( Ky. 1992 ).

Where the defendant first started beating the victim and eventually the co-defendant started beating the victim with a lug wrench while defendant threatened to kill the victim and encouraged the co-defendant to get the victim’s wallet, the later assault is the action for which defendant was charged with complicity; a jury could not reasonably have found that defendant was not guilty of complicity to the second degree assault, but guilty of only the preceding fourth degree assault, and, thus, the jury instruction on lesser-included offenses was properly denied. Fields v. Commonwealth, 219 S.W.3d 742, 2007 Ky. LEXIS 92 ( Ky. 2007 ).

Because the complicity charge required proof that co-defendant caused the victim’s physical injury, and the fourth degree assault instruction required an inconsistent finding that defendant caused the physical injury, defendant’s fourth degree assault could not be a lesser-included charge of complicity to assault in the second degree. Thus, a lesser-included offense jury instruction was properly denied. Fields v. Commonwealth, 219 S.W.3d 742, 2007 Ky. LEXIS 92 ( Ky. 2007 ).

Where defendant was charged with rape in the first degree under KRS 510.040 for engaging in sexual intercourse with his eight-year-old niece, the trial court did not err in refusing to instruct the jury on first-degree sexual abuse under KRS 510.110(1)(b)(2) because the victim’s testimony was unequivocal that defendant inserted his penis into her vagina and defendant did not take the stand or otherwise offer evidence to controvert this testimony. Although the victim also gave brief testimony regarding an instance during which defendant removed her clothing and touched her vagina, she denied being raped on this occasions; this testimony did not warrant the giving of a jury instruction on the lesser-included offense, however, because the testimony did not contradict the victim’s testimony of sexual penetration but was merely testimony regarding a separate, uncharged offense. Cecil v. Commonwealth, 297 S.W.3d 12, 2009 Ky. LEXIS 245 ( Ky. 2009 ).

Because terroristic threatening in the third degree requires proof of a threat to commit a crime likely to result in death or serious physical injury while intimidation of a participant in the legal process does not require proof of such a threat but requires proof simply that physical force or a threat of any nature be used, terroristic threatening in the third degree is, therefore, not a lesser included offense of intimidating a participant in the legal process. Cecil v. Commonwealth, 297 S.W.3d 12, 2009 Ky. LEXIS 245 ( Ky. 2009 ).

Defendant was not entitled to have the trial court give the jury a first-degree manslaughter instruction pursuant to KRS 507.030 in a case where the defendant fatally injured the three-month old infant son of defendant’s girlfriend by engaging in unrestrained shaking of the infant after defendant became upset at the infant’s crying. Defendant engaged in wanton conduct, as contemplated by KRS 507.020(1)(b) and KRS 501.020(3), by disregarding a grave risk to the child’s life through the unrestrained shaking, and, thus, no reasonable juror could have believed that defendant meant to injure the child and was only guilty of a KRS 505.020 lesser included offense rather than the offense of wanton murder. Allen v. Commonwealth, 338 S.W.3d 252, 2011 Ky. LEXIS 85 ( Ky. 2011 ).

Because appellant was not merely a facilitator of the first murder as he was at the scene of the crime, stole various items from the store where the victim worked, helped codefendant carry the loot back to the homeless shelter, stored the bags of stolen goods in a storage unit rented under his name, and both he and codefendant made repeated trips to the unit to retrieve items, the trial judge was correct in refusing to instruct on criminal facilitation under KRS 506.080 as a lesser-included offense and instructing the jury on complicity to commit murder under KRS 520.020 . Murray v. Commonwealth, 399 S.W.3d 398, 2013 Ky. LEXIS 230 ( Ky. 2013 ).

6.Lesser Offense Vacated.

Kentucky cases applying the Double Jeopardy Clause to multiple prosecutions in a single trial when there is in fact a single offense, also recognize that the rule when applied to two convictions in the same trial requires only that the lesser offense be vacated. Walden v. Commonwealth, 805 S.W.2d 102, 1991 Ky. LEXIS 3 ( Ky. 1991 ), overruled, Commonwealth v. Burge, 947 S.W.2d 805, 1996 Ky. LEXIS 82 ( Ky. 1997 ).

Where there is but a single trial, the Double Jeopardy Clause does not foreclose multiple convictions, per se , but only judgments imposing multiple punishments, meaning that the judgment punishing on the lesser charge should be set aside. Walden v. Commonwealth, 805 S.W.2d 102, 1991 Ky. LEXIS 3 ( Ky. 1991 ), overruled, Commonwealth v. Burge, 947 S.W.2d 805, 1996 Ky. LEXIS 82 ( Ky. 1997 ).

7.Merger of Offenses.

Where the proof relied upon to elevate the offense of kidnapping to capital kidnapping is proof that the victim was murdered, the offenses merge. Cosby v. Commonwealth, 776 S.W.2d 367, 1989 Ky. LEXIS 92 ( Ky. 1989 ), cert. denied, 493 U.S. 1063, 110 S. Ct. 880, 107 L. Ed. 2d 963, 1990 U.S. LEXIS 508 (U.S. 1990), overruled in part, St. Clair v. Roark, 10 S.W.3d 482, 1999 Ky. LEXIS 148 ( Ky. 1999 ).

8.Same Act or Transaction.

Where the same act or transaction constitutes a violation of two (2) distinct statutory provisions, the test to be applied to determine whether there are two (2) offenses or only one (1) for double jeopardy purposes, is whether each provision requires proof of a fact which the other does not. McClain v. Commonwealth, 607 S.W.2d 421, 1980 Ky. LEXIS 261 ( Ky. 1980 ).

Conviction of defendant for murder and arson was not a violation of double jeopardy as there were distinct elements in each of the offenses not required for the other and defendant’s act of setting decedent’s car afire produced compound consequences, which provided an exception to the prohibition of multiple prosecutions for crimes which arise from only a single act or impulse. Eldred v. Commonwealth, 906 S.W.2d 694, 1994 Ky. LEXIS 122 ( Ky. 1994 ), cert. denied, 516 U.S. 1154, 116 S. Ct. 1034, 134 L. Ed. 2d 111, 1996 U.S. LEXIS 1528 (U.S. 1996).

It is a violation of Const., § 13 and subsection (2) of this section as well as the prohibition against double jeopardy for a defendant to be charged with possession and sale of the same marijuana in the same transaction. Mangrum v. Commonwealth, 674 S.W.2d 957, 1984 Ky. LEXIS 244 ( Ky. 1984 ).

Where defendant who sold two (2) marijuana cigarettes to a minor was convicted of selling marijuana to a minor and trafficking within 1000 yards of a school, the facts presented a single impulse and single act, having no compound consequences, and therefore, the defendant committed but one (1) offense, and dual convictions were constitutionally impermissible. Ingram v. Commonwealth, 801 S.W.2d 321, 1990 Ky. LEXIS 144 ( Ky. 1990 ), limited, Mhoney v. Kentucky (Ky. Ct. App. 1992), overruled, Commonwealth v. Burge, 947 S.W.2d 805, 1996 Ky. LEXIS 82 ( Ky. 1997 ).

There was no double jeopardy violation where the defendant was convicted of both first degree robbery and second degree assault for a single course of conduct since (1) the conviction of robbery required proof of a theft, which was not required to convict of assault; and (2) the conviction of assault required proof of a physical injury to the victim, whereas the conviction of robbery required proof only that defendant used or threatened the use of physical force upon the victim while armed with a rifle. Taylor v. Commonwealth, 995 S.W.2d 355, 1999 Ky. LEXIS 73 ( Ky. 1999 ).

Separate charges for misdemeanor trafficking, KRS 218A.1421(2)(a), and felony trafficking, KRS 218A.1421(4), were permissible and did not violate double jeopardy where the misdemeanor was based on drugs found on defendant’s person at the time of his arrest, while the felony was based on the significant amount of marijuana found in defendant’s vehicle during a search three (3) days later pursuant to a warrant. Simpson v. Commonwealth, 159 S.W.3d 824, 2005 Ky. App. LEXIS 66 (Ky. Ct. App. 2005).

Defendant’s conviction for both the use of a minor in a sexual performance (KRS 531.310 ) and promotion of a sexual performance with a minor (KRS 531.320 ) violated double jeopardy as they failed the Blockburger test; the convictions arose out of a single course of conduct and one offense did not require proof of a fact which the other did not. Therefore, defendant’s conviction for promoting a sexual performance by a minor was vacated. Clark v. Commonwealth, 267 S.W.3d 668, 2008 Ky. LEXIS 181 ( Ky. 2008 ).

Defendant’s convictions for both attempted murder and first-degree assault for shooting the same alleged victim did not violate the protections against double jeopardy under U.S. Const. amend. V and Ky. Const. § 13 because each crime contained an element that the other did not; the convictions did result in a double jeopardy violation of KRS 505.020(1)(b) because there were inconsistent and mutually exclusive findings of fact regarding defendant’s mens rea at the moment he fired the shots when the jury had to conclude that defendant intended to kill the alleged victim and, at the same instant, intended not to kill him but only to injure him. Kiper v. Commonwealth, 2012 Ky. LEXIS 409 (Ky. Nov. 21, 2012).

9.Separate Acts.

Where the defendants fired six (6) shots over a period of about 15 minutes from a moving car, at pursuing police, there were six (6) separate instances of wanton endangerment, not one (1) continuous act. Hennemeyer v. Commonwealth, 580 S.W.2d 211, 1979 Ky. LEXIS 243 ( Ky. 1979 ).

Because nothing in either KRS 434.650 or 434.690 was intended to limit the number of felonies which could be charged for acts that qualify on their face, regardless of the period of time considered, the trial court correctly convicted defendant of two (2) felony counts of fraudulently using a credit card for two (2) purchases made at the same store on the same day. Commonwealth v. Lewis, 903 S.W.2d 524, 1995 Ky. LEXIS 65 ( Ky. 1995 ).

Separate charges for misdemeanor trafficking, KRS 218A.1421(2)(a), and felony trafficking, KRS 218A.1421(4), were permissible and did not violate double jeopardy where the misdemeanor was based on drugs found on defendant’s person at the time of his arrest, while the felony was based on the significant amount of marijuana found in defendant’s vehicle during a search three (3) days later pursuant to a warrant. Simpson v. Commonwealth, 159 S.W.3d 824, 2005 Ky. App. LEXIS 66 (Ky. Ct. App. 2005).

Where the minor victim testified to five separate incidents of sexual abuse, which did not constitute a continuing course of conduct under KRS 505.020(1)(c), double jeopardy was not violated by defendant’s convictions on both unlawful transaction with a minor in the first degree in violation of KRS 530.064(1), (2)(b), and one count of sexual abuse in the first degree in violation of KRS 510.110(1)(b)(2), (2). Combs v. Commonwealth, 193 S.W.3d 267, 2006 Ky. LEXIS 105 (Ky.), op. withdrawn, 198 S.W.3d 574, 2006 Ky. LEXIS 252 ( Ky. 2006 ).

Defendant’s convictions on two counts of criminal mischief, arising out of damage he inflicted on a mausoleum and a casket, did not violate KRS 505.020(1)(c) because the criminal mischief statute was not designed to prevent a continuing course of conduct. Rather, the offense of first-degree criminal mischief was completed once the defendant, without the authority to do so, intentionally or wantonly defaced, destroyed or damaged any property causing pecuniary loss of $ 1,000 or more. Terry v. Commonwealth, 253 S.W.3d 466, 2007 Ky. LEXIS 268 ( Ky. 2007 ).

Because defendant’s act of touching the victim’s genitals was an entirely separate act and offense than his orally sodomizing the victim, there was no double jeopardy violation. Benet v. Commonwealth, 253 S.W.3d 528, 2008 Ky. LEXIS 132 ( Ky. 2008 ).

10.Separate Offenses.

The elements of first-degree sodomy and aiding and abetting first-degree rape have nothing in common, and where the court’s instruction on aiding and abetting first-degree rape required the jury to find that defendant aided codefendant in committing first-degree rape by holding or sitting on the victim while also forcing her to commit oral sodomy, such holding or sitting on the victim, while it occurred simultaneously with the commission of first-degree sodomy, was not an element of the sodomy; therefore, subdivision (1)(a) of this section, prohibiting multiple convictions based on the same offense did not apply to this situation nor did double jeopardy bar conviction for both offenses since each crime required proof of different facts. Norris v. Commonwealth, 668 S.W.2d 557, 1984 Ky. App. LEXIS 456 (Ky. Ct. App. 1984).

Tampering with physical evidence and possession of alcoholic beverages are clearly separate criminal statutes, and do not constitute double jeopardy. Smith v. Commonwealth, 712 S.W.2d 360, 1986 Ky. App. LEXIS 1128 (Ky. Ct. App. 1986).

The single act of firing a shotgun into a building can be the basis of a conviction for both wanton murder and for wanton endangerment in the first degree where there was more than one (1) victim. Alexander v. Commonwealth, 766 S.W.2d 631, 1988 Ky. LEXIS 51 ( Ky. 1988 ).

Conviction as a Persistent Felony Offender is not a charge of an independent criminal offense but rather a particular criminal status; consequently double jeopardy does not attach. Persistent Felony Offender proceedings involve the status of the offender and the length of the punishment, not a separate or independent criminal offense. White v. Commonwealth, 770 S.W.2d 222, 1989 Ky. LEXIS 19 ( Ky. 1989 ).

Where defendant allegedly submitted approximately 1600 fraudulent Medicaid claims over a 15 month period, it was not error for the grand jury to return against defendant, 15 separate felony counts alleging violation of KRS 205.850(4) (now repealed), where each count represented the aggregation of monthly claims filed for services fraudulently certified. Commonwealth v. Bass, 777 S.W.2d 916, 1989 Ky. LEXIS 88 ( Ky. 1989 ).

Defendant’s sentences for both driving under the influence (DUI), KRS 189A.010(1)(a), and operating a motor vehicle while his license was suspended for DUI, KRS 189A.090(1), did not violate his double jeopardy rights under KRS 505.020(2)(a), since being under the influence was not an element of each offense. As each offense required the proof of different elements, sentencing on both convictions was not double jeopardy. Lay v. Commonwealth, 207 S.W.3d 18, 2006 Ky. App. LEXIS 163 (Ky. Ct. App. 2006).

No double jeopardy violation occurred for convicting defendant for DUI and driving with a suspended license while DUI. Jones v. Commonwealth, 2006 Ky. App. Unpub. LEXIS 255 (Ky. Ct. App. Sept. 29, 2006).

Statutory double-jeopardy bar did not bar a conviction for both homicide and second-degree criminal abuse where defendant was accused of causing torture, cruel confinement or cruel punishment, Ky. Rev. Stat. Ann. § 508.110(1)(c), which was a different element than causing death and was not included in death (i.e., it did not merge as causing serious physical injury would, and thus, second-degree criminal abuse was not a lesser included offense of wanton murder or second-degree manslaughter. Shouse v. Commonwealth, 481 S.W.3d 480, 2015 Ky. LEXIS 1852 ( Ky. 2015 ).

10.2.Assault.

Escape from a detention facility or custody is not an element of KRS 508.010 which defines assault in the first degree; thus, double jeopardy did not prohibit punishing the defendant for escape from a detention facility as well as for an assault he committed during the escape. Cope v. Commonwealth, 645 S.W.2d 703, 1983 Ky. LEXIS 215 ( Ky. 1983 ).

Convictions for both conspiracy to commit first degree robbery and accomplice to second degree assault did not violate defendant’s constitutional and statutory right against double jeopardy. Wilson v. Commonwealth, 695 S.W.2d 854 ( Ky. 1985 ).

Since to be convicted of second-degree assault, one must cause physical injury, and no such requirement exists for first-degree rape, and similarly, for a first-degree rape conviction, sexual intercourse must be proven, and there is no such requirement for second-degree assault, neither offense is included in the other, and it was not double jeopardy to convict the defendant of both second-degree assault and first-degree rape. Wager v. Commonwealth, 751 S.W.2d 28, 1988 Ky. LEXIS 29 ( Ky. 1988 ).

Defendant can only be convicted of promoting contraband in the first degree for possessing dangerous contraband in a detention facility or penitentiary; that element is not required to support a conviction for second-degree assault and there was no double jeopardy violation where defendant was convicted of both. Tyler v. Commonwealth, 805 S.W.2d 126, 1991 Ky. LEXIS 16 ( Ky. 1991 ).

In a prosecution for assault under KRS 508.010 , the trial court did not violate the double jeopardy ban or KRS 505.020 by submitting the case to the jury with instructions for three (3) counts of first-degree assault as defendant shot an officer three (3) separate times and inflicted three (3) separate wounds. Welborn v. Commonwealth, 157 S.W.3d 608, 2005 Ky. LEXIS 92 ( Ky. 2005 ).

Applying the Blockburger test, codified at KRS 505.020 , first-degree rape under KRS 510.040 , premised on serious physical injury, and first-degree assault under KRS 508.010 were separate offenses, as each contained an element that the other did not. First-degree rape requires sexual intercourse and assualt does not; first-degree assault requires that the serious physical injury was obtained by use of a deadly weapon or dangerous instrument, but first-degree rape involving serious physical injury to the victim contains no such deadly weapon or dangerous instrument requirement. Dixon v. Commonwealth, 263 S.W.3d 583, 2008 Ky. LEXIS 138 ( Ky. 2008 ).

10.4.Burglary, Robbery or Theft.

Where defendants unlawfully entered victim’s house and armed themselves with deadly weapons and threatened him with dangerous instruments and caused physical injury and where the physical injury caused by defendants was both intentional and serious the statutory elements of first degree burglary and first degree assault were present and defendants’ conviction for both offenses does not violate this section. Polk v. Commonwealth, 679 S.W.2d 231, 1984 Ky. LEXIS 295 ( Ky. 1984 ).

Burglary is basically an offense against property inasmuch as it mandates unlawful entry into a building to obtain a conviction; however, such entry is not a part of the evidence necessary to convict of first degree robbery which is an offense against persons. Therefore, robbery and burglary are separate offenses and prosecution for both is not double jeopardy. Jordan v. Commonwealth, 703 S.W.2d 870, 1985 Ky. LEXIS 269 ( Ky. 1985 ).

Where the defendant, on trial for first degree robbery, wanton murder and first degree assault, pled guilty to the robbery charge, his plea of guilty to one (1) of the offenses did not attach jeopardy to the others; the robbery with intent to take property by force was but one (1) element in the circumstances necessary for submission to the jury the question of wantonness in the murder and assault. Kruse v. Commonwealth, 704 S.W.2d 192, 1985 Ky. LEXIS 303 ( Ky. 1985 ).

Double jeopardy principles did not bar the conviction of the defendant for both first degree burglary and second degree assault as second degree assault required the proof of two (2) elements not required to establish first degree burglary, i.e., (1) a culpable mental state (the defendant intentionally caused physical injury), and (2) that the defendant caused the physical injury with a dangerous instrument. Grundy v. Commonwealth, 25 S.W.3d 76, 2000 Ky. LEXIS 107 ( Ky. 2000 ).

Actual infliction of physical injury to the victim by a dangerous instrument was not required to convict defendant of complicity to robbery in the first degree under KRS 515.020 , nor was the theft required for conviction of complicity to second degree assault under KRS 508.020 ; both of the statutes had different elements that had to be proved in finding guilt under the respective instructions. Thus, the double jeopardy rule was not violated. Fields v. Commonwealth, 219 S.W.3d 742, 2007 Ky. LEXIS 92 ( Ky. 2007 ).

Convictions for theft by unlawful taking over $10,000 and first-degree criminal mischief did not violate double jeopardy under U.S. Const. amend. V and Ky. Const. § 13 because they required different elements; theft by unlawful taking over $10,000 required intent to deprive the owner of the property, but first-degree criminal mischief did not. And first-degree criminal mischief requires the property be defaced, destroyed, or damaged, but theft by unlawful taking over $10,000 did not; in addition, the jury instructions required the jury to find different elements for each offense. Fagan v. Commonwealth, 374 S.W.3d 274, 2012 Ky. LEXIS 110 ( Ky. 2012 ).

Where the defendant took property and aided the others in taking property, her conviction as an accomplice to theft by unlawful taking in addition to her conviction of theft by unlawful taking did not violate the United States constitutional guarantee against double jeopardy, because the proof for each offense was completely different, and none of the facts proving one offense was necessary to prove the other. Linder v. Commonwealth, 714 S.W.2d 154, 1986 Ky. LEXIS 280 ( Ky. 1986 ), overruled, Mayse v. Commonwealth, 422 S.W.3d 223, 2013 Ky. LEXIS 457 ( Ky. 2013 ), abrogated, Mayse v. Commonwealth, 2013 Ky. LEXIS 700 (Ky. Oct. 24, 2013).

10.6.Controlled Substances.

Although the substance involved with regard to change of trafficking a Schedule IV controlled substance was the same substance that was stolen by defendant in the burglary, a completely new crime was committed when the defendant asked some girls if they “did drugs” and stated that he had “a bunch of narcotics”; that apparent solicitation, together with the quantity of drugs involved, were sufficient to sustain the trafficking conviction. Moser v. Commonwealth, 799 S.W.2d 21, 1990 Ky. LEXIS 101 ( Ky. 1990 ).

Defendant was not placed in double jeopardy as a result of her conviction for both cocaine trafficking and criminal syndicate. The count of cocaine trafficking was not a “lesser included offense” of the crime of criminal syndicate and there is no double jeopardy violation because the statutory crimes of trafficking in a controlled substance and criminal syndicate each require proof of facts which the other does not. Dishman v. Commonwealth, 906 S.W.2d 335, 1995 Ky. LEXIS 114 ( Ky. 1995 ); Edmonds v. Commonwealth, 906 S.W.2d 343, 1995 Ky. LEXIS 113 ( Ky. 1995 ).

If defendant was twice convicted for possession of drug paraphernalia arising from the same aluminum foil “boat,” which was seized with other drug paraphernalia, the convictions did not constitute double jeopardy because pursuant to KRS 505.020(1)(c), defendant’s arrest for use of possession of drug paraphernalia one (1) week prior to a subsequent arrest for the same crime was a legal process that interrupted his possession of the aluminum foil “boat” so that his subsequent possession of the same paraphernalia (if it was the same) would constitute a separate offense. Fulcher v. Commonwealth, 149 S.W.3d 363, 2004 Ky. LEXIS 274 ( Ky. 2004 ), overruled in part, Ballinger v. Commonwealth, 459 S.W.3d 349, 2015 Ky. LEXIS 1611 ( Ky. 2015 ).

Because the elements of possession of a controlled substance were not contained in possession of drug paraphernalia, and vice versa, as the elements of possession of drug paraphernalia are possession of an object that is drug paraphernalia with the intent to use it to consume drugs and possession of a controlled substance required knowing and unlawful possession of a controlled substance, there was no double jeopardy violation. Hampton v. Commonwealth, 231 S.W.3d 740, 2007 Ky. LEXIS 162 ( Ky. 2007 ).

10.6.Controlled Substances.

Five convictions under this statute did not violate double jeopardy because it clearly defined a trafficking offense as relating to a prescription, the Kentucky Legislature's use of the singular “a forged prescription” demonstrated its intention to punish the trafficking of each forged prescription as a separate and distinct trafficking offense, and the Legislature drafted criminal statutes to specify certain acts or quantities that might have been included in a singular crime when it intended to bar a continuing course of conduct. Early v. Commonwealth, 470 S.W.3d 729, 2015 Ky. LEXIS 1871 ( Ky. 2015 ).

11.Separate Trials.

Under Kentucky constitutional law the protection against multiple punishments for crimes which are factually a single offense does not depend for its existence upon prosecutorial discretion attaching to the decision to try multiple charges in the same trial rather than in successive trials. Walden v. Commonwealth, 805 S.W.2d 102, 1991 Ky. LEXIS 3 ( Ky. 1991 ), overruled, Commonwealth v. Burge, 947 S.W.2d 805, 1996 Ky. LEXIS 82 ( Ky. 1997 ).

Cited:

Lynem v. Commonwealth, 565 S.W.2d 141, 1978 Ky. LEXIS 349 ( Ky. 1978 ); Perry v. Commonwealth, 839 S.W.2d 268, 1992 Ky. LEXIS 138 ( Ky. 1992 ); Roark v. Commonwealth, 90 S.W.3d 24, 2002 Ky. LEXIS 189 ( Ky. 2002 ); West v. Commonwealth, 161 S.W.3d 331, 2004 Ky. App. LEXIS 121 (Ky. Ct. App. 2004); Foley v. Commonwealth, 233 S.W.3d 734, 2007 Ky. App. LEXIS 333 (Ky. Ct. App. 2007); Roberts v. Commonwealth, 410 S.W.3d 606, 2013 Ky. LEXIS 405 ( Ky. 2013 ); Pettway v. Commonwealth, 2015 Ky. LEXIS 1862 (Sept. 24, 2015).

Notes to Unpublished Decisions

1.Included Offenses.
1.Robbery.

Unpublished decision: First-degree robbery conviction was affirmed because the trial court did not err in refusing to instruct the jury on theft by unlawful taking over $ 300.00 and fourth-degree assault as lesser-included offenses of robbery, as the jury could not have reasonably doubted defendant’s guilt of robbery, and yet believed beyond a reasonable doubt that the defendant was guilty of the two lesser crimes. Mack v. Commonwealth, 136 S.W.3d 434, 2004 Ky. LEXIS 150 ( Ky. 2004 ).

Research References and Practice Aids

Cross-References.

Lesser included offense, conviction upon, RCr 9.86.

Northern Kentucky Law Review.

Gilday and Gillen, Jeopardy — Meandering Through Mandates and Maneuvers, 6 N. Ky. L. Rev. 245 (1979).

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., General Principles, Part 1 Matters of Substance, §§ 1.04, 1.05, 1.16.

Kentucky Instructions to Juries (Criminal), 5th Ed., Damage To or Intrusion Upon Property, Part 2 Burglary and Trespass, § 5.07.

505.030. Effect of former prosecution for same offense.

When a prosecution is for a violation of the same statutory provision and is based upon the same facts as a former prosecution, it is barred by the former prosecution under the following circumstances:

  1. The former prosecution resulted in:
    1. An acquittal, or
    2. A conviction which has not subsequently been set aside; or
  2. The former prosecution resulted in a determination by the court that there was insufficient evidence to warrant a conviction; or
  3. The former prosecution was terminated by a final order or judgment, which has not subsequently been set aside, and which required a determination inconsistent with any fact or legal proposition necessary to a conviction in the subsequent prosecution; or
  4. The former prosecution was improperly terminated after the first witness was sworn but before findings were rendered by a trier of fact. Termination under either of the following circumstances is not improper:
    1. The defendant expressly consents to the termination or by motion for mistrial or in some other manner waives his right to object to the termination; or
    2. The trial court, in exercise of its discretion, finds that the termination is manifestly necessary.

History. Enact. Acts 1974, ch. 406, § 45, effective January 1, 1975.

NOTES TO DECISIONS

1.Constitutionality.

This section is constitutional under the federal and the state Constitutions. Graham v. Commonwealth, 562 S.W.2d 625, 1978 Ky. LEXIS 331 ( Ky. 1978 ).

2.Double Jeopardy.

No double jeopardy issue was raised after continuance because jeopardy never attached where the jury was selected but never sworn. Johnson v. Commonwealth, 12 S.W.3d 258, 1999 Ky. LEXIS 159 ( Ky. 1999 ).

Trial court erred when it empaneled second jury to determine defendant’s guilt as the first jury returned a verdict against defendant on the second-degree perjury charge in the first trial, and, thus, double jeopardy barred the retrial of defendant on the same indictment. Holbrooks v. Commonwealth, 85 S.W.3d 563, 2002 Ky. LEXIS 173 ( Ky. 2002 ).

Defendant’s conduct in fleeing from officers was a single event without any sufficient break in conduct and time, and could not have been parsed into separate and distinct offenses regardless of the facts that the chase began in one county and ended in another, and regardless of how many officers may have given an order to stop; therefore, an additional fleeing and evading charge in another county based on the same incident was a violation of double jeopardy protection. Foley v. Commonwealth, 233 S.W.3d 734, 2007 Ky. App. LEXIS 333 (Ky. Ct. App. 2007).

Pursuant to KRS 505.030 , defendant’s conviction in the second county was not barred by double jeopardy principles after defendant’s trial in the first county ended on defendant’s mistrial motion following the jury being empaneled and sworn as well as the presentation of three witnesses. The trial in the first county ended on defendant’s own motion and without a determination being made as to defendant’s guilt. Derry v. Commonwealth, 274 S.W.3d 439, 2008 Ky. LEXIS 316 ( Ky. 2008 ).

Under the federal rule, in jury trials, jeopardy attaches when the jury is impaneled and sworn. To the extent that KRS 505.030(4) and the cases interpreting it guarantee anything less than the federal standard for attachment of double jeopardy, they are overruled. Cardine v. Commonwealth, 283 S.W.3d 641, 2009 Ky. LEXIS 7 ( Ky. 2009 ).

Defendant’s conviction for conspiracy to manufacture methamphetamine obtained in the second forum county had to be vacated, as defendant earlier had been convicted in the first forum county for attempted manufacturing of methamphetamine after being indicted under the same statutes, KRS 218A.1432 and KRS 502.020 . As a result, the second conviction violated double jeopardy principles not only under Ky. Const. § 13, but also the codification of double jeopardy principles, KRS 505.030 . Beeler v. Commonwealth, 2011 Ky. App. LEXIS 39 (Ky. Ct. App. Mar. 4, 2011, sub. op., 2011 Ky. App. Unpub. LEXIS 991 (Ky. Ct. App. Mar. 4, 2011).

3.Manifest Necessity.

The trial court did not state sufficient grounds to support a finding of “manifest necessity” under subdivision (4)(b) of this section, where the defendant’s accomplice acted within the scope of his constitutional rights when he refused to testify, so whether he was improperly influenced to do so was irrelevant, and the defendant did not ask for a mistrial, nor did he concur therein. Leibson v. Taylor, 721 S.W.2d 690, 1986 Ky. LEXIS 298 ( Ky. 1986 ), overruled, Shaffer v. Morgan, 815 S.W.2d 402, 1991 Ky. LEXIS 145 ( Ky. 1991 ).

There was no abuse of discretion by the trial court’s determination that the loss of a piece of evidence by the Commonwealth was an error which denied the defendant due process of law, that such would result in reversal in the event of conviction, and that the court, therefore, had the discretion to terminate the trial based upon a finding of manifest necessity. Tinsley v. Jackson, 771 S.W.2d 331, 1989 Ky. LEXIS 50 ( Ky. 1989 ).

There was no manifest neccesity for a mistrial where a juror’s comments were perceived to show hostility toward the prosecutor after the prosecutor attempted to hand the jury a gun, albeit a BB gun, without knowing whether it was loaded. Commonwealth v. Scott, 12 S.W.3d 682, 2000 Ky. LEXIS 9 ( Ky. 2000 ).

Although jeopardy attached during defendant’s first trial, because defendant requested dismissal of the indictment and failed to object to a finding of manifest necessity, pursuant KRS 505.030(4)(a), defendant could be re-prosecuted in another county on the same charges. Derry v. Commonwealth, 2005 Ky. App. LEXIS 287 (Ky. Ct. App. Oct. 7, 2005), aff'd, 274 S.W.3d 439, 2008 Ky. LEXIS 316 ( Ky. 2008 ).

4.Mistrial.

Where, in the defendant’s second trial on the charge of assault in the first degree, the defense attorney questioned the prosecuting witness about charges pending against him on possession of marijuana charges, the charge against the prosecuting witness of possessing marijuana occurred after the first trial and before the second trial, and the defendant did not contest the assertion that the complaining witness testified the same before the grand jury, the preliminary hearing, the first trial, and the second trial, the Court of Appeals properly denied the defendant’s writ of prohibition to prevent a third trial because of double jeopardy. Chapman v. Richardson, 740 S.W.2d 929, 1987 Ky. LEXIS 268 ( Ky. 1987 ).

Defendant impliedly consented to a mistrial under KRS 505.030(4), and defendant’s retrial was not barred on double jeopardy grounds under U.S. Const. amend. V or Ky. Const. § 13 as defendant did not object to the mistrial after a four-minute chambers conference, or offer an alternative course of action, and defendant gave implied consent to the mistrial by contemplating additional proceedings by discussing potential witnesses for the retrial with the trial court. Commonwealth v. Borders, 2009 Ky. App. LEXIS 20 (Ky. Ct. App. Feb. 13, 2009), review denied, ordered not published, 2009 Ky. LEXIS 324 (Ky. Nov. 18, 2009).

5.Retrial of Penalty Phase.

A retrial of the penalty phase following a deadlocked jury does not violate either the federal or state constitutional prohibition against double jeopardy. Retrial under these circumstances does not constitute double jeopardy under this section, which permits retrial upon proper termination. Skaggs v. Commonwealth, 1985 Ky. LEXIS 304 (Ky. May 23, 1985).

6.Termination.

Instructing on robbery instead of both robbery and assault in response to defense counsel’s motion does not qualify as improper termination of either the robbery charge or the underlying offense of assault. Commonwealth v. Varney, 690 S.W.2d 758, 1985 Ky. LEXIS 211 ( Ky. 1985 ), overruled, Goodman v. Commonwealth, 2015 Ky. Unpub. LEXIS 19 (Ky. Feb. 19, 2015).

Dismissing a hung jury does not qualify as improper termination foreclosing a second prosecution. Commonwealth v. Varney, 690 S.W.2d 758, 1985 Ky. LEXIS 211 ( Ky. 1985 ), overruled, Goodman v. Commonwealth, 2015 Ky. Unpub. LEXIS 19 (Ky. Feb. 19, 2015).

In the juvenile prosecution where the trial court recessed a hearing for two (2) weeks in order to obtain a witness’s testimony, defendant’s rights under KRS 505.030(4) were not violated, as the hearing was not terminated, it was merely recessed. M. J. v. Commonwealth, 115 S.W.3d 830, 2002 Ky. App. LEXIS 2314 (Ky. Ct. App. 2002).

7.Retrial of Charges.

A defendant could be retried for the murder of her husband without offending the principle of double jeopardy after she presented character evidence against the victim regarding his abuse of her and her children but then failed to present any evidence toward a self-defense theory, which would make such character evidence admissible, instead relying solely on the defense of accident. Grimes v. McAnulty, 957 S.W.2d 223, 1997 Ky. LEXIS 118 ( Ky. 1997 ), cert. denied, 525 U.S. 824, 119 S. Ct. 70, 142 L. Ed. 2d 55, 1998 U.S. LEXIS 4948 (U.S. 1998).

A partial verdict where the jury finds guilt or innocence on one or more charges but is unable to reach a verdict on the remaining charges does not bar a retrial on the charges for which no verdict was rendered. Commonwealth v. Ray, 982 S.W.2d 671, 1998 Ky. App. LEXIS 119 (Ky. Ct. App. 1998).

An acquittal on a greater offense does not bar a retrial on lesser included offenses for which the jury was unable to reach a verdict. Commonwealth v. Ray, 982 S.W.2d 671, 1998 Ky. App. LEXIS 119 (Ky. Ct. App. 1998).

Where defendant was convicted of first-degree possession of a forged instrument, the jury could not reach a verdict on the charges for possession of a forgery device and bail jumping; thus, the fact that the jury left the verdict forms blank did not amount to an acquittal of those charges. KRS 505.030(4)(b) permitted the trial court to terminate the trial; double jeopardy did not prevent retrial. Williams v. Commonwealth, 2009 Ky. App. LEXIS 204 (Ky. Ct. App. Oct. 23, 2009).

9.Dismissal.

Defendant was not entitled to amend the dismissal without prejudice of the charge against defendant to a dismissal with prejudice of the charge because it was not within the province of the circuit court to grant defendant’s request as defendant made no claim of the deprivation of a statutory right or a principle of Constitutional law which foreclosed a future attempt to prosecute defendant. Gibson v. Commonwealth, 291 S.W.3d 686, 2009 Ky. LEXIS 155 ( Ky. 2009 ).

Trial court’s dismissal of an indictment based on a finding that the defendant is incompetent to stand trial is not a dismissal “with prejudice” unless it is designated as such with the consent of the Commonwealth’s attorney. Therefore, double jeopardy principles did not bar a subsequent trial for murder and assault, after the charges were dismissed based on incompetence to stand trial, without a designation as with or without prejudice. Keeling v. Commonwealth, 381 S.W.3d 248, 2012 Ky. LEXIS 160 ( Ky. 2012 ).

Cited:

Commonwealth v. Lewis, 548 S.W.2d 509, 1977 Ky. LEXIS 400 ( Ky. 1977 ); Macklin v. Ryan, 672 S.W.2d 60, 1984 Ky. LEXIS 255 ( Ky. 1984 ); Commonwealth v. Green, 194 S.W.3d 277, 2006 Ky. LEXIS 171 ( Ky. 2006 ).

Opinions of Attorney General.

The preliminary hearing before a magistrate does not involve double jeopardy. OAG 80-97 .

Under this section, jeopardy attaches after the first witness is sworn. OAG 80-97 .

Research References and Practice Aids

Cross-References.

Former jeopardy, constitutional provisions, Ky. Const., §§ 13, 168.

Former jeopardy, military justice, KRS 35.220 .

Kentucky Law Journal.

Kentucky Law Survey, Fritz, Criminal Procedure, 67 Ky. L.J. 599 (1978-1979).

Kentucky Law Survey, Fortune, Criminal Procedure, 73 Ky. L.J. 347 (1984-85).

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., General Principles, Part 1 Matters of Substance, § 1.14.

505.040. Effects of former prosecution for different offenses.

Although a prosecution is for a violation of a different statutory provision from a former prosecution or for a violation of the same provision but based on different facts, it is barred by the former prosecution under the following circumstances:

  1. The former prosecution resulted in an acquittal, a conviction which has not subsequently been set aside, or a determination that there was insufficient evidence to warrant a conviction, and the subsequent prosecution is for:
    1. An offense of which the defendant could have been convicted at the first prosecution; or
    2. An offense involving the same conduct as the first prosecution, unless each prosecution requires proof of a fact not required in the other prosecution or unless the offense was not consummated when the former prosecution began; or
  2. The former prosecution was terminated by a final order or judgment which has not subsequently been set aside and which required a determination inconsistent with any fact necessary to a conviction in the subsequent prosecution; or
  3. The former prosecution was improperly terminated, as that term is used in subsection (4) of KRS 505.030 , and the subsequent prosecution is for an offense of which the defendant could have been convicted had the former prosecution not been improperly terminated.

History. Enact. Acts 1974, ch. 406, § 46, effective January 1, 1975.

NOTES TO DECISIONS

1.Included Offenses.

Since the jury was instructed on sexual abuse in the first degree as a lesser included offense of unlawful transaction with a minor in the first degree, re-prosecution of the defendant on sexual abuse as a lesser included offense of unlawful transaction was permitted after defendant’s unlawful transaction conviction was vacated for insufficient evidence. However, even though defendant’s conduct supported a charge on criminal attempt to commit unlawful transaction with a minor, since an instruction on attempt as a lesser included offense was neither requested nor given in defendant’s original trial, KRS 505.040(1)(a) precluded prosecuting defendant for attempt. Combs v. Commonwealth, 193 S.W.3d 267, 2006 Ky. LEXIS 105 (Ky.), op. withdrawn, 198 S.W.3d 574, 2006 Ky. LEXIS 252 ( Ky. 2006 ).

2.Persistent Felony Offender.

Conviction as a Persistent Felony Offender is not a charge of an independent criminal offense but rather a particular criminal status; consequently double jeopardy does not attach. Persistent Felony Offender proceedings involve the status of the offender and the length of the punishment, not a separate or independent criminal offense. White v. Commonwealth, 770 S.W.2d 222, 1989 Ky. LEXIS 19 ( Ky. 1989 ).

Kentucky Const., § 13 and subdivision (1)(a) of this section both relate to an offense before double jeopardy is activated. Retrial of a defendant, whose Persistent Felony Offender in the first degree conviction was reversed, as a second degree Persistent Felony Offender would not be prohibited by the constitutional provisions against double jeopardy. White v. Commonwealth, 770 S.W.2d 222, 1989 Ky. LEXIS 19 ( Ky. 1989 ).

3.Separate Offenses.

Collateral estoppel did not bar a prosecution for perjury where (1) the defendant was tried and acquitted of murdering his girlfriend, (2) the victim’s former employer was thereafter tried for terroristic threatening on the basis of a letter he sent to the defendant which threatened to have him killed if he did not reveal any information he had about the victim’s disappearance, (3) later-discovered evidence led to the defendant’s confession to the murder, and (4) the defendant was then charged with perjury on the basis of his testimony at the terroristic threatening trial pertaining to the good relationship he had with the victim; the murder trial did not require a determination inconsistent with any fact necessary to a conviction in the perjury case as the issue to be litigated in the perjury trial was whether the defnedant lied about the status of his relationship with the victim when he testified at the terroristic threatening trial, and the quality of that relationship on the day he murdered the victim was never expressly litigated at the murder trial, and the murder and other crimes were not facts necessary for conviction of perjury. Ignatow v. Ryan, 40 S.W.3d 861, 2001 Ky. LEXIS 11 ( Ky. 2001 ).

4.Splitting Causes of Action.

There was no improper splitting of causes of action where (1) the defendant was tried and acquitted of murdering his girlfriend, (2) the victim’s former employer was thereafter tried for terroristic threatening on the basis of a letter he sent to the defendant which threatened to have him killed if he did not reveal any information he had about the victim’s disappearance, (3) later-discovered evidence led to the defendant’s confession to the murder, and (4) the defendant was then charged with perjury on the basis of his testimony at the terroristic threatening trial pertaining to the good relationship he had with the victim; the alleged perjury occurred almost a year after the victim’s disappearance and murder and in a case in which the defendant claimed to be the victim and, therefore, the perjury prosecution was not precluded by subsection (1)(a). Ignatow v. Ryan, 40 S.W.3d 861, 2001 Ky. LEXIS 11 ( Ky. 2001 ).

5.Termination.

Dismissing a hung jury does not qualify as improper termination foreclosing a second prosecution. Commonwealth v. Varney, 690 S.W.2d 758, 1985 Ky. LEXIS 211 ( Ky. 1985 ), overruled, Goodman v. Commonwealth, 2015 Ky. Unpub. LEXIS 19 (Ky. Feb. 19, 2015).

Instructing on robbery instead of both robbery and assault in response to defense counsel’s motion does not qualify as improper termination of either the robbery charge or the underlying offense of assault. Commonwealth v. Varney, 690 S.W.2d 758, 1985 Ky. LEXIS 211 ( Ky. 1985 ), overruled, Goodman v. Commonwealth, 2015 Ky. Unpub. LEXIS 19 (Ky. Feb. 19, 2015).

Cited:

Foley v. Commonwealth, 233 S.W.3d 734, 2007 Ky. App. LEXIS 333 (Ky. Ct. App. 2007).

Opinions of Attorney General.

A prosecution of driving under the influence of intoxicating liquor is not a bar to a prosecution of homicide arising out of the same incident. OAG 78-301 .

A prosecution of reckless driving under KRS 189.290 would not bar a later prosecution of reckless homicide under KRS 507.050 arising out of the same conduct. OAG 78-301 .

Research References and Practice Aids

Northern Kentucky Law Review.

Notes, Admissibility of evidence of Other Crimes — Emphasis on Use in Prosecution of Sex Crimes — For Which the Defendant Had Been Acquitted, Under Similar Crimes Rules, at Subsequent Trial, 7 N. Ky. L. Rev. 133 (1980).

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., General Principles, Part 1 Matters of Substance, § 1.14.

Kentucky Instructions to Juries (Criminal), 5th Ed., Offenses Against Public and Judicial Administration, Part 5 Perjury and Related Offenses, § 7.65.

505.050. Effects of former prosecution in another jurisdiction.

When conduct constitutes an offense within the concurrent jurisdiction of this state and of the United States or another state, a prosecution in such other jurisdiction is a bar to a subsequent prosecution in this state under the following circumstances:

  1. The former prosecution resulted in an acquittal, a conviction which has not subsequently been set aside, or a determination that there was insufficient evidence to warrant a conviction, and the subsequent prosecution is for an offense involving the same conduct unless:
    1. Each prosecution requires proof of a fact not required in the other prosecution; or
    2. The offense involved in the subsequent prosecution was not consummated when the former prosecution began; or
  2. The former prosecution was terminated in a final order or judgment which has not subsequently been set aside and which required a determination inconsistent with any fact necessary to a conviction in the subsequent prosecution.

History. Enact. Acts 1974, ch. 406, § 47, effective January 1, 1975.

NOTES TO DECISIONS

1.In General.

The principle of collateral estoppel precludes a subsequent prosecution only if the defendant proves that the decision in the former prosecution required a determination inconsistent with any fact necessary to his conviction in the subsequent prosecution, that is, the first jury must have decided the first case on an issue necessary to convict in the subsequent case. Benton v. Crittenden, 14 S.W.3d 1, 1999 Ky. LEXIS 160 ( Ky. 1999 ). (Overruling Smith v. Lowe, Ky., 792 S.W.2d 371, 1990 Ky. LEXIS 61 (1990) on this issue.).

2.Applicability.

Where defendants took money from bank customer when she entered the bank while they were in the process of robbing the bank, the money taken from such customer was not in the care, custody and control of the bank and thus the robbery of the customer was not within the concurrent jurisdiction of the state and federal courts; thus subsequent conviction of defendants in state court after they had pled guilty to bank robbery in federal court did not violate their right against double jeopardy. Booth v. Commonwealth, 675 S.W.2d 856, 1984 Ky. LEXIS 266 ( Ky. 1984 ).

Defendant’s prosecution in Kentucky for wanton endangerment was not for the same conduct for which he was convicted in Tennessee, despite notification by Kentucky troopers that they were in pursuit of defendant, where the two crimes of wanton endangerment in Kentucky were completed in Kentucky against two Kentucky victims before defendant ever entered Tennessee and where there was no evidence that defendant was prosecuted in the state of Tennessee for his conduct in Kentucky; therefore, this section has no application. Hash v. Commonwealth, 883 S.W.2d 892, 1994 Ky. App. LEXIS 56 (Ky. Ct. App. 1994).

The mere fact that appellant was tried and acquitted in federal court does not preclude his prosecution in a Kentucky Circuit Court even if both prosecutions involved the same conduct and the same offenses, nor does Ky. Const., § 13, preclude appellant’s subsequent prosecution on pure double jeopardy grounds, since the offense for which appellant was tried in federal court and each of the offenses for which he was indicted in the Kentucky Circuit Court require proof of an element which the others do not. Benton v. Crittenden, 14 S.W.3d 1, 1999 Ky. LEXIS 160 ( Ky. 1999 ).

Defendant fled from Kentucky police to Indiana, where he was caught, charged with and pled guilty to driving under the influence (DUI). KRS 505.050 was inapplicable and the double jeopardy ban did not preclude Kentucky from trying defendant for DUI based on his conduct in Kentucky. Commonwealth v. Stephenson, 82 S.W.3d 876, 2002 Ky. LEXIS 165 ( Ky. 2002 ).

3.Burden of Proof.

The burden is on the defendant to demonstrate that the issue whose relitigation he seeks to foreclose through collateral estoppel was actually decided in the first proceeding. Benton v. Crittenden, 14 S.W.3d 1, 1999 Ky. LEXIS 160 ( Ky. 1999 ).

Cited:

Foley v. Commonwealth, 233 S.W.3d 734, 2007 Ky. App. LEXIS 333 (Ky. Ct. App. 2007).

Research References and Practice Aids

Northern Kentucky Law Review.

Gilday and Gillen, Jeopardy — Meandering Through Mandates and Maneuvers, 6 N. Ky. L. Rev. 245 (1979).

General Law Issue: Article: Limitations Imposed on the Dual Sovereignty Doctrine by Federal and State Governments, 38 N. Ky. L. Rev. 173 (2011).

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., General Principles, Part 1 Matters of Substance, § 1.14.

505.060. Effects of fraudulent prosecution or lack of jurisdiction.

A prosecution is not barred, as provided in KRS 505.030 , 505.040 and 505.050 if the former prosecution:

  1. Was procured by the defendant without the knowledge of the proper prosecuting officer and with the purpose of avoiding the sentence which otherwise might be imposed; or
  2. Was before a court which lacked jurisdiction over the defendant or the offense.

History. Enact. Acts 1974, ch. 406, § 48, effective January 1, 1975.

NOTES TO DECISIONS

1.Applicability.

Defendant’s prosecution in Kentucky for wanton endangerment was not for the same conduct for which he was convicted in Tennessee, despite notification by Kentucky troopers that they were in pursuit of defendant, where the two crimes of wanton endangerment in Kentucky were completed in Kentucky against two Kentucky victims before defendant ever entered Tennessee and where there was no evidence that defendant was prosecuted in the state of Tennessee for his conduct in Kentucky. Hash v. Commonwealth, 883 S.W.2d 892, 1994 Ky. App. LEXIS 56 (Ky. Ct. App. 1994).

As a District Court lacked jurisdiction to make a final adjudication as to defendant’s felony charges, its dismissal of those charges did not preclude the Commonwealth, on double jeopardy grounds, from proceeding against defendant in Circuit Court on the same charges. Commonwealth v. Stephenson, 82 S.W.3d 876, 2002 Ky. LEXIS 165 ( Ky. 2002 ).

CHAPTER 506 Inchoate Offenses

506.010. Criminal attempt.

  1. A person is guilty of criminal attempt to commit a crime when, acting with the kind of culpability otherwise required for commission of the crime, he:
    1. Intentionally engages in conduct which would constitute the crime if the attendant circumstances were as he believes them to be; or
    2. Intentionally does or omits to do anything which, under the circumstances as he believes them to be, is a substantial step in a course of conduct planned to culminate in his commission of the crime.
  2. Conduct shall not be held to constitute a substantial step under subsection (1)(b) unless it is an act or omission which leaves no reasonable doubt as to the defendant’s intention to commit the crime which he is charged with attempting.
  3. A person is guilty of criminal attempt to commit a crime when he engages in conduct intended to aid another person to commit that crime, although the crime is not committed or attempted by the other person, provided that his conduct would establish complicity under KRS 502.020 if the crime were committed by the other person.
  4. A criminal attempt is a:
    1. Class C felony when the crime attempted is a violation of KRS 521.020 or 521.050 ;
    2. Class B felony when the crime attempted is a Class A felony or capital offense;
    3. Class C felony when the crime attempted is a Class B felony;
    4. Class A misdemeanor when the crime attempted is a Class C or D felony;
    5. Class B misdemeanor when the crime attempted is a misdemeanor.

History. Enact. Acts 1974, ch. 406, § 49, effective January 1, 1975; 1994, ch. 477, § 2, effective July 15, 1994.

NOTES TO DECISIONS

1.In General.

To constitute an attempt, there must be an overt act, sufficiently proximate to the intended crime to form one of the natural series of acts which the intent requires for its full execution. (Decided under prior law) Gilley v. Commonwealth, 280 Ky. 306 , 133 S.W.2d 67, 1939 Ky. LEXIS 119 ( Ky. 1939 ).

Defense of impossibility was inapplicable to a crime of attempt and the trial court properly granted the Commonwealth’s motion in limine to exclude any argument or testimony to that effect. Stone v. Commonwealth, 2010 Ky. App. LEXIS 3 (Ky. Ct. App. Jan. 8, 2010).

2.Attempted Arson.

The offense of attempt to burn is completed by the burning, however slight, of any part of the building; and the house is burned when it is charred, that is, when any of the wood is reduced to coal and its identity changed. (Decided under prior law) Kehoe v. Commonwealth, 149 Ky. 400 , 149 S.W. 818, 1912 Ky. LEXIS 619 ( Ky. 1912 ).

Where the indictment described the offense as a “malicious attempt to burn building” but did not charge specific wilful conduct, the indictment was sufficient. (Decided under prior law) Freeman v. Commonwealth, 477 S.W.2d 133, 1972 Ky. LEXIS 347 ( Ky. 1972 ).

3.Attempted Burglary.

Where defendants had only broken through the concrete blocks to the air pockets, where no part of the body or an instrument had extended into the interior of the building, where air pockets of concrete blocks were not a protected space absent some showing of something of value in the particular wall which could be the subject of the crime, and where the men were still attempting to get through the blocks to the point of entering the store when apprehended, the maximum charge under which they could be convicted would be attempted third-degree burglary which is a Class A misdemeanor pursuant to this section. Stamps v. Commonwealth, 602 S.W.2d 172, 1980 Ky. LEXIS 239 ( Ky. 1980 ).

4.Attempted Fraudulent Use of Credit Card.

Because defendant was unsuccessful in obtaining merchandise, he could not be convicted of fraudulent credit card use, but instead could only be convicted of attempt to commit such an offense. Jackson v. Commonwealth, 972 S.W.2d 286, 1997 Ky. App. LEXIS 133 (Ky. Ct. App. 1997).

5.Attempted Kidnapping.

It was reversible error for the trial court to give the instruction for punishment for a sentence of 20 years to life, under KRS 532.060(2)(a), where the defendant was charged with kidnapping since kidnapping was a Class B felony (509.040(2)), and an attempt to commit a Class B felony is itself a Class C felony pursuant to subdivision (4)(b) of this section. Bruce v. Commonwealth, 581 S.W.2d 8, 1979 Ky. LEXIS 253 ( Ky. 1979 ).

6.Attempted Manslaughter.

There is no crime of attempted first degree manslaughter since a person would have to, intending only to cause serious physical injury, take an intentional, substantial step toward causing an unintentional, unanticipated death, yet not actually cause death; such would require an intention to commit an unintentional act. Prince v. Commonwealth, 987 S.W.2d 324, 1997 Ky. App. LEXIS 103 (Ky. Ct. App. 1997).

Evidence showed that (1) a fictitious person, who had been created by volunteers of a not-for-profit organization which collaborated with law enforcement to catch internet child-predators, that defendant believed was 13 years old willingly participated in the sexually explicit chats, as well as in scheduling to meet defendant, and conversed with defendant over the telephone, and (2) defendant wanted to induce the 13-year-old to willingly engage in sexual activity, but no evidence was presented to show that defendant subjected the 13-year-old to sexual touching without her consent under KRS 510.010 ; thus, the evidence did not support an instruction on attempted sexual abuse in the second degree under KRS 510.120 as a lesser-included offense to attempted unlawful transaction with a minor in the first degree under KRS 506.010 and 530.064 . Therefore, the trial court did not err by declining to give a lesser-included offense instruction to the jury. Quist v. Commonwealth, 338 S.W.3d 778, 2010 Ky. App. LEXIS 93 (Ky. Ct. App. 2010).

7.Attempted Murder.

Where proof of the facts charged in the indictment would establish the commission of both attempted murder and assault in the second degree, assault in the second degree is a lesser included offense and where the evidence raised the question of whether defendant intended to kill or to injure police officer, failure to give requested instruction on lesser included offense was reversible error. Luttrell v. Commonwealth, 554 S.W.2d 75, 1977 Ky. LEXIS 482 ( Ky. 1977 ).

Where defendant, accused of attempted murder, said of the gun allegedly used in the attempt “That looks like my gun but I couldn’t swear to it,” but no further evidence was introduced tying him to the gun, the gun was erroneously admitted in evidence, and a conviction for attempted murder must be reversed. Reed v. Commonwealth, 579 S.W.2d 109, 1979 Ky. LEXIS 236 ( Ky. 1979 ).

A person is guilty of attempted murder when, with the intent to kill someone, he takes a substantial step toward killing him. Assault in the first degree requires a state of mind, an act and a result, “serious” physical injury. Attempted murder requires only a state of mind and an act, but does not require any injury. Perry v. Commonwealth, 839 S.W.2d 268, 1992 Ky. LEXIS 138 ( Ky. 1992 ).

Because there were three (3) independently targeted victims and three (3) independent acts of shooting and killing one (1) patron, shooting and wounding another, and struggling with other patrons, that occurred in the diner that gave rise to the three (3) charges against defendant for which he was convicted of intentional murder but mentally ill, attempted murder but mentally ill, and first-degree wanton endangerment but mentally ill, the verdict did not involve inconsistent mental states nor violate double jeopardy principles. Port v. Commonwealth, 906 S.W.2d 327, 1995 Ky. LEXIS 79 ( Ky. 1995 ).

The fact that defendant repeatedly fired a pistol in the general direction of a robbery victim was a substantial step in a course of conduct planned to end in the victim’s murder and as one shot actually struck the victim, the jury could properly have inferred defendant’s specific intent to kill the victim. Wright v. Commonwealth, 239 S.W.3d 63, 2007 Ky. LEXIS 246 ( Ky. 2007 ).

Court properly denied defendant’s motion for a directed verdict as there was sufficient evidence to support defendant’s convictions for attempted murder and intimidating a witness where the victim, who, along with another witness who was murdered, had previously witnessed defendant’s uncle murder a man, testified as to being severly beaten and cut by defendant and others. Hatfield v. Commonwealth, 250 S.W.3d 590, 2008 Ky. LEXIS 12 ( Ky. 2008 ).

Defendant was not entitled to a directed verdict on the charge of complicity to the attempted murder of the victim because (1) defendant and another person beat the victim into unconsciousness and left him at the scene unattended; (2) in addition to robbing the victim, they also sought to eliminate him as a witness by killing him, and when he became unconscious, they thought they had accomplished their purpose and left him for dead; (3) even after regaining consciousness and seeking help the next morning, the victim again lapsed into unconsciousness; (4) although his most serious injury was a broken nose, the victim testified that as a result of the beating he had scars on his forehead, the top of his head, and his arm, shoulder, and chest; and (5) an emergency room physician testified that numerous CAT scans were required to evaluate the victim’s head injuries, the purpose of which was to look for possible intracranial bleeding and broken bones in his face and neck – injuries which could have been life-threatening. Rogers v. Commonwealth, 315 S.W.3d 303, 2010 Ky. LEXIS 141 ( Ky. 2010 ).

Instruction on extreme emotional disturbance was not supported by evidence that defendant’s mental illness could have caused him to stab the victim because there was no triggering event. Keeling v. Commonwealth, 381 S.W.3d 248, 2012 Ky. LEXIS 160 ( Ky. 2012 ).

Instruction on extreme emotional disturbance was not supported under a cumulative impact theory because defendant’s statement to law enforcement indicated that it was the completely unrelated event of his grandfather ignoring him that provoked him to retrieve a knife, walk back to the victim, and stab him. Keeling v. Commonwealth, 381 S.W.3d 248, 2012 Ky. LEXIS 160 ( Ky. 2012 ).

Defendant’s convictions for both attempted murder and first-degree assault from the shooting of one victim resulted in a double jeopardy violation under KRS 505.020(1)(b); to convict defendant of both attempted murder and assault, the jury had to conclude that defendant intended to kill the victim and, at the same instant, intended not to kill the victim but only to injure the victim. Kiper v. Commonwealth, 399 S.W.3d 736, 2012 Ky. LEXIS 190 ( Ky. 2012 ), reprinted, 2012 Ky. LEXIS 409 (Ky. Nov. 21, 2012), modified, 2013 Ky. LEXIS 145 (Ky. Apr. 25, 2013).

Defendant’s convictions for both attempted murder and first-degree assault for shooting the same alleged victim did not violate the protections against double jeopardy under U.S. Const. amend. V and Ky. Const. § 13 because each crime contained an element that the other did not; the convictions did result in a double jeopardy violation of KRS 505.020(1)(b) because there were inconsistent and mutually exclusive findings of fact regarding defendant’s mens rea at the moment he fired the shots when the jury had to conclude that defendant intended to kill the alleged victim and, at the same instant, intended not to kill him but only to injure him. Kiper v. Commonwealth, 2012 Ky. LEXIS 409 (Ky. Nov. 21, 2012).

8.Attempted Rape.

A conviction may be had for an attempt to commit rape on an infant under 12 years of age under an indictment charging rape on such infant. (Decided under prior law) Begley v. Commonwealth, 107 S.W. 243, 32 Ky. L. Rptr. 890 (1908).

An attempt to commit rape embraces every element of the crime, except its accomplishment, and if the assault is made under such circumstances that the act of sexual intercourse, if it had been actually accomplished, would be rape, it would be an “attempt to commit rape.” (Decided under prior law) Payne v. Commonwealth, 110 S.W. 311, 33 Ky. L. Rptr. 229 (1908).

Where defendant was charged with attempted rape and testimony was that defendant told infant prosecutrix to lie down on bed, then got on top of her and, without removing her clothing, got seminal fluid on bloomers, there was no evidence on which to base instruction on unlawfully detaining a woman against her will. (Decided under prior law) Wright v. Commonwealth, 267 Ky. 441 , 102 S.W.2d 376, 1937 Ky. LEXIS 336 ( Ky. 1937 ).

Testimony by seven (7) year old prosecutrix that defendant told her to lie down on bed, that he pulled up her dress and laid on her, that he did not undress her, and that he wet her bloomers, and testimony of her parents that, when she arrived back home some 500 yards away, they were able to identify wet substance on her bloomers as seminal fluid, constituted sufficient evidence to support jury verdict of guilty of attempted rape under this section. (Decided under prior law) Wright v. Commonwealth, 267 Ky. 441 , 102 S.W.2d 376, 1937 Ky. LEXIS 336 ( Ky. 1937 ).

In attempted rape case, testimony of seven (7) year old prosecutrix was competent. (Decided under prior law) Wright v. Commonwealth, 267 Ky. 441 , 102 S.W.2d 376, 1937 Ky. LEXIS 336 ( Ky. 1937 ).

Where the victim testified fully as to the attempted rape and she made an immediate outcry, blood and stains were found on her undergarments and the defendant was found in the location at which the victim had testified the defendant told her he would be, there was sufficient evidence to sustain a conviction for attempted rape. (Decided under prior law) Reynolds v. Commonwealth, 269 Ky. 21 , 106 S.W.2d 88, 1937 Ky. LEXIS 552 ( Ky. 1937 ).

Attempted carnal knowledge of female with her consent was misdemeanor and degree of common-law rape. (Decided under prior law) Merriss v. Commonwealth, 287 Ky. 58 , 151 S.W.2d 1030, 1941 Ky. LEXIS 486 ( Ky. 1941 ).

In prosecution for attempted rape under law that provided a penalty for the rape of a child under the age of twelve (12), it was not prejudicial to omit instruction on detaining a woman against her will, since under facts as related by prosecutrix defendant was guilty of attempted rape or nothing. (Decided under prior law) Gilbert v. Commonwealth, 303 Ky. 298 , 197 S.W.2d 247, 1946 Ky. LEXIS 818 ( Ky. 1946 ).

In prosecution for attempted rape under law that provided for a penalty for the rape of a child under the age of twelve (12), it was proper for court to instruct on detaining woman against her will, as against contention of defendant that he was guilty of attempted rape or nothing for every attempt to have carnal knowledge of a woman by force or against her will amounts to detaining her. (Decided under prior law) McDaniel v. Commonwealth, 308 Ky. 132 , 213 S.W.2d 1007, 1948 Ky. LEXIS 881 ( Ky. 1948 ).

A specific intention to rape is an essential ingredient to an attempt to rape and must accompany the means used to effect the crime, and it was not enough that accused intended to use force to accomplish his purpose, but he must have done some overt act connected with his intent tending and fairly designed to effectuate commission of the crime so if actually accomplished a rape would have been committed. (Decided under prior law) Muncie v. Commonwealth, 308 Ky. 155 , 213 S.W.2d 1019, 1948 Ky. LEXIS 892 ( Ky. 1948 ).

Mere indecent advances or solicitations do not amount to an attempt to rape. (Decided under prior law) Muncie v. Commonwealth, 308 Ky. 155 , 213 S.W.2d 1019, 1948 Ky. LEXIS 892 ( Ky. 1948 ).

In prosecution for attempted rape, the six (6) year old victim of the offense was competent to testify, and it was immaterial that the qualifying questions were asked by the Commonwealth attorney and not by the court. (Decided under prior law) Muncie v. Commonwealth, 308 Ky. 155 , 213 S.W.2d 1019, 1948 Ky. LEXIS 892 ( Ky. 1948 ).

In indictment for offense of attempted rape of a child under the age of twelve (12), omission of word “felonious” was not error, because such attempt was strictly statutory felony, not having been felony at common law, and word “felonious” was not used in law that provided a penalty for rape of a child under the age of twelve (12). (Decided under prior law) Warren v. Commonwealth, 253 S.W.2d 612, 1952 Ky. LEXIS 1111 ( Ky. 1952 ).

Where defendant denied he harmed child under 12 in any way and prosecution made out case of attempted rape of child under 12 and nothing else, instructions on lesser degrees of detaining a woman against her will or indulging in indecent or immoral practices with child under 15 were not warranted. (Decided under prior law) Jewell v. Commonwealth, 290 S.W.2d 47, 1956 Ky. LEXIS 310 ( Ky. 1956 ).

Evidence placing the defendant in a stolen car and near the scene of the robbery, beating and possible rape of an 87-year-old woman was sufficient to support convictions for first-degree robbery and attempted rape. Sherley v. Commonwealth, 558 S.W.2d 615, 1977 Ky. LEXIS 545 ( Ky. 1977 ), cert. denied, 435 U.S. 999, 98 S. Ct. 1655, 56 L. Ed. 2d 89, 1978 U.S. LEXIS 1656 (U.S. 1978), overruled, Dixon v. Commonwealth, 263 S.W.3d 583, 2008 Ky. LEXIS 138 ( Ky. 2008 ).

Where a defendant forced a woman into a bathroom at gunpoint, cornered her, kissed her and ordered her to remove her clothes, the jury could find beyond a reasonable doubt that he intended to commit rape. Long v. Commonwealth, 559 S.W.2d 482, 1977 Ky. LEXIS 555 ( Ky. 1977 ).

It was error for the trial court to refuse an instruction on a lesser-included-offense of attempted rape when defendant was charged with three (3) violations of KRS 510.060 , because the testimony presented at trial varied from an assertion that defendant attempted to have intercourse with the juvenile three (3) times to a conclusion that defendant had intercourse with the victim five (5) times. Based on the evidence, the jury could have concluded that a violation of attempted rape had occurred. Williams v. Commonwealth, 208 S.W.3d 881, 2006 Ky. LEXIS 320 ( Ky. 2006 ).

9.Attempted Robbery.

Where defendant, while planning robbery and while fully observed by the police: (1) drove from one city to another, going directly to motel; (2) conducted a surveillance of the surroundings; (3) noted the modus operandi involved in making deposit by use of van; and (4) determined the route between the motel and the bank by following the van, and after deciding to carry out robbery on certain date, again while fully observed by the police, (1) drove from city directly to the motel; (2) parked and waited for couriers to appear; (3) tested the doors on the van; and, (4) followed the van several hundred feet and pulled behind it at the traffic light; such overt acts, considered under the circumstances and not as isolated occurrences, convincingly demonstrated a firm purpose to commit crime of criminal attempt to commit first degree robbery, and the police, upon observing such incriminating conduct, properly intervened to prevent such crime. Commonwealth v. Prather, 690 S.W.2d 396, 1985 Ky. LEXIS 229 ( Ky. 1985 ).

10.Attempted Sodomy.

Evidence was sufficient to sustain defendant’s conviction for attempted sodomy where victim testified that she was awakened by a naked man attempting to have oral sex with her, failing this, he then began to rape her and, thereafter, threatened to force her to perform oral sex on him. Harris v. Commonwealth, 846 S.W.2d 678, 1992 Ky. LEXIS 134 ( Ky. 1992 ), overruled, Mitchell v. Commonwealth, 908 S.W.2d 100, 1995 Ky. LEXIS 94 ( Ky. 1995 ).

Evidence was sufficient to support defendant’s conviction for attempted sodomy in the first degree, in violation of KRS 506.010 and 510.070(1)(a), where there was testimony from the victim that defendant used force to place his penis directly in front of her mouth in an attempt to penetrate her mouth; such conduct constituted an attempt at deviate sexual intercourse, as that term was defined in KRS 510.010(1). Chames v. Commonwealth, 405 S.W.3d 519, 2012 Ky. App. LEXIS 231 (Ky. Ct. App. 2012).

11.Attempt to Commit Unlawful Transaction with Minor.

Defendant’s verbal attempts to induce three (3) young boys to engage in sexual activity were sufficient to support a conviction for criminal attempt to commit an unlawful transaction with a minor; because the underlying statute criminalizes “inducement,” mere words are a substantial step toward the offense and can therefore constitute an attempt. Young v. Commonwealth, 968 S.W.2d 670, 1998 Ky. LEXIS 82 ( Ky. 1998 ), overruled in part, Matthews v. Commonwealth, 163 S.W.3d 11, 2005 Ky. LEXIS 161 ( Ky. 2005 ).

Defendant believed he was dealing with a thirteen-year-old child, which was sufficient for purposes of KRS 506.010 ; any sexual activity between a forty-three year old man and a thirteen-year-old girl would have been illegal, such that the requirements of KRS 530.064 had been met. Stone v. Commonwealth, 2010 Ky. App. LEXIS 3 (Ky. Ct. App. Jan. 8, 2010).

In an attempted unlawful transaction with a minor in the first degree case, the evidence showed that (1) defendant made initial contact with a fictitious person, who had been created by volunteers of a not-for-profit organization which collaborated with law enforcement to catch internet child-predators, that defendant believed was 13 years old, (2) the fictitious person’s profile identified her as a 13-year-old girl, (3) defendant initiated sexually explicit chats with the fictitious 13-year-old girl, (4) he suggested meeting in-person, (5) he spoke on the telephone with a person he believed to be the 13 year old girl, and (6) he drove to what he believed to be the fictitious 13-year-old girl’s house to meet her; the fact that he was invited to come inside the fictitious 13-year-old girl’s house did not provide sufficient evidence of inducement or encouragement, in light of all the evidence, because going inside was not required to complete the crime. Thus, the trial court did not err by denying defendant’s request to instruct the jury on the defense of entrapment. Quist v. Commonwealth, 338 S.W.3d 778, 2010 Ky. App. LEXIS 93 (Ky. Ct. App. 2010).

Evidence of sexually explicit internet chats and telephone conversations between defendant and a fictitious 13-year-old girl, who had been created by volunteers of a not-for-profit organization that collaborated with law enforcement to catch internet child-predators, was sufficient for a jury to find, beyond a reasonable doubt, that defendant believed he was communicating with a 13-year-old girl, which was sufficient to support his conviction for attempted unlawful transaction with a minor in the first degree under KRS 506.010 and 530.064 and to deny his motion for a directed verdict. Quist v. Commonwealth, 338 S.W.3d 778, 2010 Ky. App. LEXIS 93 (Ky. Ct. App. 2010).

In an attempted unlawful transaction with a minor in the first degree case under KRS 506.010 and 530.064 , the trial court did not err in denying defendant’s motion for a directed verdict because (1) the Commonwealth presented evidence of the sexually explicit chats defendant engaged in with a fictitious person that he believed was 13 years old, and (2) evidence was presented that he drove to what he believed to be the residence of the 13-year-old girl in order to meet her; based on the evidence, it was not clearly unreasonable for a jury to determine that defendant intended to engage in illegal sexual activities and completed a substantial step in pursuing that intention. Quist v. Commonwealth, 338 S.W.3d 778, 2010 Ky. App. LEXIS 93 (Ky. Ct. App. 2010).

When (1) defendant pled guilty to criminal attempt to commit first-degree unlawful transaction with a minor, under KRS 530.064(2)(a) and 506.010 (4)(d) and was placed on probation, on the condition that defendant participate in any recommended treatment, (2) it was recommended that defendant participate in a sex offender treatment program that lasted three years, and (3) the Court of Appeals reversed the trial court’s extension of defendant’s term of probation, the trial court could not revoke defendant’s probation on remand and had to deem defendant finally discharged because (1) the probation period could not exceed two years, under KRS 533.020(4), (2) defendant was not convicted of a sex crime, as criminal attempt was a separate, inchoate offense under KRS 506.010 , and only felony attempts at offenses listed in KRS 17.500(8)(a) were sex crimes under KRS 17.500(8)(b), so defendant was not statutorily required to complete sex offender treatment as a condition of probation, (3) defendant did not request or agree to an extension of defendant’s probation when accepting a plea bargain, as defendant only had to complete recommended counseling, was not told treatment would take more than two years, and, when treatment lasted more than two years, this did not trump the statutory length of misdemeanor probation in violation of the separation of powers in Ky. Const. §§ 27 and 28, (4) probation was unlawfully extended after probation expired, and (5) defendant did not violate probation. Miller v. Commonwealth, 391 S.W.3d 801, 2013 Ky. LEXIS 6 ( Ky. 2013 ).

12.No Reasonable Doubt.

The “no reasonable doubt” requirement imposed by subsection (2) of this section is a matter for jury determination. Commonwealth v. Prather, 690 S.W.2d 396, 1985 Ky. LEXIS 229 ( Ky. 1985 ).

Cited:

Brown v. Commonwealth, 551 S.W.2d 557, 1977 Ky. LEXIS 450 ( Ky. 1977 ); Wood v. Commonwealth, 567 S.W.2d 121, 1978 Ky. LEXIS 366 ( Ky. 1978 ); Sherrill v. Nicholson, 545 F. Supp. 573, 1982 U.S. Dist. LEXIS 14291 (W.D. Ky. 1982 ); Gilbert v. Commonwealth, 637 S.W.2d 632, 1982 Ky. LEXIS 282 ( Ky. 1982 ); Kordenbrock v. Commonwealth, 700 S.W.2d 384, 1985 Ky. LEXIS 263 ( Ky. 1985 ), cert. denied, Kordenbrock v. Kentucky, 476 U.S. 1153, 106 S. Ct. 2260, 90 L. Ed. 2d 704, 1986 U.S. LEXIS 1712 (1986); Johnson v. Commonwealth, 875 S.W.2d 105, 1994 Ky. App. LEXIS 43 (Ky. Ct. App. 1994).

Research References and Practice Aids

Cross-References.

Conviction of attempt as lesser included offense, RCr 9.86.

Kentucky Law Journal.

West, Criminal Law, 74 Ky. L.J. 403 (1985-86).

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Assaults and Restraints of Persons, Part 3 Assault, § 3.47.

Kentucky Instructions to Juries (Criminal), 5th Ed., Assaults and Restraints of Persons, Part 6 Assisting Suicide, § 3.87.

Kentucky Instructions to Juries (Criminal), 5th Ed., Complicity and Inchoate Offenses, Part 1 Definitions, § 10.02.

Kentucky Instructions to Juries (Criminal), 5th Ed., Complicity and Inchoate Offenses, Part 3 Inchoate Offenses, §§ 10.20 — 10.23.

Kentucky Instructions to Juries (Criminal), 5th Ed., Offenses Against Public and Judicial Administration, Part 3 Escape and Offenses Related to Custody, § 7.23.

Kentucky Instructions to Juries (Criminal), 5th Ed., Offenses Against Public and Judicial Administration, Part 4 Bribery and Related Offenses, § 7.39.

Kentucky Instructions to Juries (Criminal), 5th Ed., Offenses Related to Sex and Pornography, Part 9 Sexual Exploitation of Minors, § 4.92.

506.020. Criminal attempt — Defense of renunciation.

  1. In any prosecution for criminal attempt to commit a crime, it is a defense that, under circumstances manifesting a voluntary and complete renunciation of his criminal purpose, the defendant abandoned his effort to commit the crime and, if mere abandonment was insufficient to avoid the commission of the crime, took the necessary affirmative steps to prevent its commission.
  2. A renunciation is not “voluntary and complete” within the meaning of this section if it is motivated in whole or in part by:
    1. A belief that circumstances exist which pose a particular threat of apprehension or detection of the accused or another participant in the criminal enterprise or which render more difficult the accomplishment of the criminal purpose; or
    2. A decision to postpone the criminal conduct until another time or to transfer the criminal effort to another victim or another but similar object.

History. Enact. Acts 1974, ch. 406, § 50, effective January 1, 1975.

NOTES TO DECISIONS

1.Applicability.

This section was inapplicable where defendant was charged with murder, not attempted murder. Tribbett v. Commonwealth, 561 S.W.2d 662, 1978 Ky. LEXIS 328 ( Ky. 1978 ).

2.Abandoned Effort.

The fact that defendant’s accomplice in an attempted robbery had abandoned the effort was evidence which would tend to prove not that defendant had “voluntarily” abandoned his criminal purpose, but on the contrary had quit the scheme because of circumstances which made the accomplishment of the crime more difficult. Tipton v. Commonwealth, 640 S.W.2d 818, 1982 Ky. LEXIS 307 ( Ky. 1982 ).

Defendant’s testimony would not have provided the evidentiary grounds for a renunciation instruction under KRS 506.020 because the evidence indicated that defendant’s declaration that she could not go through with the murder occurred after the attack on the victim had begun. Brown v. Commonwealth, 253 S.W.3d 490, 2008 Ky. LEXIS 27 ( Ky. 2008 ).

Trial court did not abuse its discretion in declining to give a renunciation instruction because there was no evidence that defendant abandoned his effort to commit the crime of attempted murder or took the necessary affirmative steps to prevent its commission as he retrieved the gun from the barn, brought it into the home, took a nap, and then shot the victim in the head, with the intent to kill her; and his attempts to help her receive medical treatment did not constitute abandonment because the shooting had already taken place. Bowen v. Commonwealth, 605 S.W.3d 316, 2020 Ky. LEXIS 274 ( Ky. 2020 ).

Research References and Practice Aids

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Complicity and Inchoate Offenses, Part 1 Definitions, § 10.03.

Kentucky Instructions to Juries (Criminal), 5th Ed., Complicity and Inchoate Offenses, Part 3 Inchoate Offenses, §§ 10.20 — 10.23.

Kentucky Instructions to Juries (Criminal), 5th Ed., Offenses Against Public and Judicial Administration, Part 3 Escape and Offenses Related to Custody, § 7.23.

506.030. Criminal solicitation.

  1. A person is guilty of criminal solicitation when, with the intent of promoting or facilitating the commission of a crime, he commands or encourages another person to engage in specific conduct which would constitute that crime or an attempt to commit that crime or which would establish the other’s complicity in its commission or attempted commission.
  2. A criminal solicitation is a:
    1. Class C felony when the crime solicited is a violation of KRS 521.020 or 521.050 ;
    2. Class B felony when the crime solicited is a Class A felony or capital offense;
    3. Class C felony when the crime solicited is a Class B felony;
    4. Class A misdemeanor when the crime solicited is a Class C or D felony;
    5. Class B misdemeanor when the crime solicited is a misdemeanor.

History. Enact. Acts 1974, ch. 406, § 51, effective January 1, 1975; 1994, ch. 477, § 3, effective July 15, 1994.

NOTES TO DECISIONS

1.Applicability.

In enacting this section, the General Assembly designed a comprehensive approach to prohibiting the solicitation of criminal acts, which includes a coherent classification scheme for determining the range of penalties from which an appropriate punishment may be imposed, and where a city ordinance conflicts with the statute by its description of the proscribed conduct and by the excessive penalty it authorizes, it is an invalid exercise of the power granted to cities under KRS 82.082 . Pierce v. Commonwealth, 777 S.W.2d 926, 1989 Ky. LEXIS 90 ( Ky. 1989 ).

Where a city ordinance prohibits sodomy solicitation more explicitly than does this section in combination with KRS 510.100 , but where in either instance, solicitation of the same illegal act is condemned and made unlawful, as the General Assembly chose the language used in the statutes, it did so intentionally and an ordinance which amounts to an enlargement of the conduct proscribed by the act of the General Assembly is not valid. Pierce v. Commonwealth, 777 S.W.2d 926, 1989 Ky. LEXIS 90 ( Ky. 1989 ).

2.Elements.

Immediate rejection is not an element of the offense of solicitation which must be proven by the Commonwealth; the defendant’s culpability rests upon his or her intentional act of encouraging another person to commit a crime and does not depend upon whether the solicitee accepts or rejects the solicitation. Landrith v. Commonwealth, 709 S.W.2d 833, 1986 Ky. App. LEXIS 1053 (Ky. Ct. App. 1986).

3.Evidence.

Where the only evidence showing that the defendant made a proposal, which was refused, that an informer commit a murder was the testimony of an agent concerning his conversations with the informer about the defendant, such evidence was highly prejudicial and its introduction violated the defendant’s right to confrontation in the absence of any supporting testimony by the informer. Maynard v. Commonwealth, 558 S.W.2d 628, 1977 Ky. App. LEXIS 853 (Ky. Ct. App. 1977).

The trial court did not err in permitting the Commonwealth to introduce a tape recording of a conversation between the defendant and the woman who paid him to solicit persons to murder her ex-husband after the woman invoked her Fifth Amendment privilege and refused to testify, where the defendant’s counsel had previously been furnished with a complete and accurate transcript of the tape recording, and there was no evidence that the prosecution deliberately withheld anything, even though the Commonwealth may have misled the defendant by failing to indicate in its discovery response that it would seek to introduce the tape recording at trial. Landrith v. Commonwealth, 709 S.W.2d 833, 1986 Ky. App. LEXIS 1053 (Ky. Ct. App. 1986).

When defendant was charged with criminal solicitation to commit murder of two (2) police officers, she was entitled to an instruction on the defense of entrapment, under KRS 505.010 , because (1) an undercover officer suggested the means to commit the murders, the method of payment for the murders, which was drugs, and the required quantity, and (2) an informant encouraged defendant to furnish a gun. Wyatt v. Commonwealth, 219 S.W.3d 751, 2007 Ky. LEXIS 96 ( Ky. 2007 ).

When defendant was charged with criminal solicitation to commit murder of two (2) police officers, she was not barred, under KRS 505.010(2)(b), from a jury instruction on an entrapment defense because (1) she had no history of similar offenses, (2) she told others that an informant planned the murders, (3) only hearsay showed that the plan originated with her, and (4) her response to an offer to kill the officers was equivocal. Wyatt v. Commonwealth, 219 S.W.3d 751, 2007 Ky. LEXIS 96 ( Ky. 2007 ).

When defendant was charged with criminal solicitation to commit murder of two (2) police officers, and the evidence showed one act of solicitation, she could only be convicted of one criminal solicitation because, had the solicited crime been completed, she would only have been guilty of one conspiracy, and it was illogical to convict her of two (2) crimes for an imperfect conspiracy, which was a solicitation. Wyatt v. Commonwealth, 219 S.W.3d 751, 2007 Ky. LEXIS 96 ( Ky. 2007 ).

Cited:

Young v. Commonwealth, 968 S.W.2d 670, 1998 Ky. LEXIS 82 ( Ky. 1998 ), overruled in part, Matthews v. Commonwealth, 163 S.W.3d 11, 2005 Ky. LEXIS 161 ( Ky. 2005 ).

Opinions of Attorney General.

A police department which sends out officers as “decoy” prostitutes may properly charge those potential patrons who approach the decoys and solicit sexual conduct for a fee with criminal solicitation of prostitution pursuant to this section, since the solicitor attempts to persuade another person to attempt to commit the crime of prostitution, thus evidencing an intent to promote or facilitate the commission of a crime. OAG 81-216 .

Research References and Practice Aids

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Complicity and Inchoate Offenses, Part 3 Inchoate Offenses, § 10.25.

Kentucky Instructions to Juries (Criminal), 5th Ed., Offenses Related to Sex and Pornography, Part 7 Prostitution, § 4.61.

506.040. Criminal conspiracy.

  1. A person having the intention of promoting or facilitating the commission of a crime is guilty of criminal conspiracy when he:
    1. Agrees with one (1) or more persons that at least one (1) of them will engage in conduct constituting that crime or an attempt or solicitation to commit such a crime; or
    2. Agrees to aid one or more persons in the planning or commission of that crime or an attempt or solicitation to commit such a crime.
  2. Except as provided in a specific statute to the contrary, a criminal conspiracy is a:
    1. Class C felony when the conspiratorial agreement is a violation of KRS 521.020 or 521.050 ;
    2. Class B felony when the object of the conspiratorial agreement is a Class A felony or capital offense;
    3. Class C felony when the object of the conspiratorial agreement is a Class B felony;
    4. Class A misdemeanor when the object of the conspiratorial agreement is a Class C or D felony;
    5. Class B misdemeanor when the object of the conspiratorial agreement is a misdemeanor.

History. Enact. Acts 1974, ch. 406, § 52, effective January 1, 1975; 1988, ch. 181, § 2, effective July 15, 1988; 1992, ch. 441, § 25, effective July 14, 1992; 1994, ch. 477, § 4, effective July 15, 1994.

NOTES TO DECISIONS

1.In General.

Conspiracy to take and detain a woman against her will charges only one crime. (Decided under prior law) Weisiger v. Commonwealth, 215 Ky. 172 , 284 S.W. 1039, 1926 Ky. LEXIS 691 ( Ky. 1926 ). See Alexander v. Commonwealth, 215 Ky. 832 , 287 S.W. 29, 1926 Ky. LEXIS 819 ( Ky. 1926 ).

An altercation that grows out of sudden heat and passion without the parties previously banding and confederating together to intimidate, disturb, and alarm another, is not a conspiracy. (Decided under prior law) Fulks v. Commonwealth, 237 Ky. 642 , 36 S.W.2d 36, 1931 Ky. LEXIS 662 ( Ky. 1931 ).

The fact that members of the sheriff’s posse rather than defendants themselves precipitated the battle does not relieve defendants of the charge of conspiring, confederating and banding together. (Decided under prior law) Diamond v. Commonwealth, 237 Ky. 374 , 35 S.W.2d 554, 1931 Ky. LEXIS 614 ( Ky. 1931 ).

A combination to accomplish perversion or obstruction of administration of justice in a criminal or civil proceeding is an indictable conspiracy. (Decided under prior law) Frick v. Commonwealth, 313 Ky. 163 , 230 S.W.2d 634, 1950 Ky. LEXIS 843 ( Ky. 1950 ).

The criminal syndicate statute, KRS 506.120 , is not unconstitutionally vague and sufficiently differs from KRS 218A.1402 , which prohibits criminal conspiracy to traffic in a controlled substance. KRS 218A.1402 prohibits a conspiracy as defined in this section. This section is distinguishable from KRS 506.120 , because the former does not require the involvement of five or more persons as does the latter. A conspiracy can result from an agreement between one or more persons. Dishman v. Commonwealth, 906 S.W.2d 335, 1995 Ky. LEXIS 114 ( Ky. 1995 ).

2.Criminal Responsibility.

Each conspirator is liable for the acts of his associates, as well as for the consequences of such acts, that are naturally or necessarily done pursuant to and in furtherance of the conspiracy, even though such consequences were not specifically intended. (Decided under prior law) Powers v. Commonwealth, 110 Ky. 386 , 61 S.W. 735, 22 Ky. L. Rptr. 1807 , 1901 Ky. LEXIS 95 ( Ky. 1901 ).

When a co-conspirator is discharged from liability and elects to testify concerning the conspiracy, another can be convicted on the charge if it is proven by the evidence beyond a reasonable doubt. (Decided under prior law) Weber v. Commonwealth, 72 S.W. 30, 24 Ky. L. Rptr. 1726 (1903).

Where the purpose of conspiracy was the whipping of members of a family, and while engaged in the unlawful undertaking a member of family was shot and killed, the shooting may fairly be embraced in the purpose, and it is not necessary to show killing was contemplated by conspirators. (Decided under prior law) Anderson v. Commonwealth, 144 Ky. 215 , 137 S.W. 1063, 1911 Ky. LEXIS 590 ( Ky. 1911 ).

One participating in a conspiracy to commit robbery is held accountable for any act done by any member of the conspiracy in furtherance of the design, and cannot escape the consequences. (Decided under prior law) Marion v. Commonwealth, 269 Ky. 729 , 108 S.W.2d 721, 1937 Ky. LEXIS 662 ( Ky. 1937 ).

If a person is burned to death as the result of a conspiracy to burn a dwelling house, such death is the natural consequence of the burning of the house and the conspirators are guilty of murder, even though they had no intent to commit a homicide. (Decided under prior law) Whitfield v. Commonwealth, 278 Ky. 111 , 128 S.W.2d 208, 1939 Ky. LEXIS 381 ( Ky. 1939 ).

Where murder was committed in carrying out conspiracy to commit robbery, the fact that person charged as conspirator was not present at scene of killing at time shots were fired, and did not know that his partners in conspiracy planned to use guns, did not constitute a defense. (Decided under prior law) Baxter v. Commonwealth, 292 Ky. 204 , 166 S.W.2d 24, 1942 Ky. LEXIS 45 ( Ky. 1942 ).

Where Commonwealth proved agreement between defendant and another to commit a robbery, defendant was guilty of murder when victim was killed by defendant’s partner. (Decided under prior law) Simpson v. Commonwealth, 293 Ky. 831 , 170 S.W.2d 869, 1943 Ky. LEXIS 717 ( Ky. 1943 ).

Where two or more persons conspire or combine to commit an unlawful act, each is criminally responsible for what his associate does in furtherance of prosecution of the common design and if a homicide results in pursuance of the common purpose all parties participating are responsible in the same degree even though the killing was not a part of the prearranged plan. (Decided under prior law) Simpson v. Commonwealth, 293 Ky. 831 , 170 S.W.2d 869, 1943 Ky. LEXIS 717 ( Ky. 1943 ).

3.Conspiracy to Present Perjured Testimony.

Conspiracy between husband and wife to procure false testimony was not shown as against husband, where evidence was insufficient to show that wife had conspired with him when he allegedly procured false statements from witnesses. (Decided under prior law) Lester v. Commonwealth, 284 Ky. 352 , 144 S.W.2d 808, 1940 Ky. LEXIS 497 ( Ky. 1940 ).

Conspiracy by wife with husband to procure false testimony was not shown by fact that after he conversed with witnesses out of her hearing she wrote out their statements, since she could presume that husband was preparing truthful statements of the conversations. (Decided under prior law) Lester v. Commonwealth, 284 Ky. 352 , 144 S.W.2d 808, 1940 Ky. LEXIS 497 ( Ky. 1940 ).

A conviction of conspiracy to present perjured testimony cannot be sustained when the only evidence against the appellants is their presence together on the preceding night, alleged bad feelings toward those accused and slight inconsistencies in their testimony. (Decided under prior law) Booth v. Commonwealth, 419 S.W.2d 739, 1967 Ky. LEXIS 182 ( Ky. 1967 ).

4.Evidence.

Evidence tending to establish a proposal to enter into a conspiracy is admissible to prove the existence of a conspiracy. (Decided under prior law) Sosby v. Commonwealth, 221 Ky. 589 , 299 S.W. 211, 1927 Ky. LEXIS 782 ( Ky. 1927 ).

The fact that members of the sheriff’s posse rather than defendants themselves precipitated the battle does not relieve defendants of the charge of conspiring, confederating and banding together. (Decided under prior law) Diamond v. Commonwealth, 237 Ky. 374 , 35 S.W.2d 554, 1931 Ky. LEXIS 614 ( Ky. 1931 ).

In prosecution under law that provided penalty for banding together for an unlawful purpose, it was not prejudicial error to refuse to permit witness to testify that two women had told him that they had heard prosecuting witness say that he had shot boys in his watermelon patch. (Decided under prior law) Maggard v. Commonwealth, 287 Ky. 787 , 155 S.W.2d 228, 1941 Ky. LEXIS 644 ( Ky. 1941 ).

While a conspiracy may be adduced from circumstantial evidence, the circumstances must be of such nature and character as to exclude every reasonable hypothesis of innocence of accused. (Decided under prior law) Patton v. Commonwealth, 289 Ky. 771 , 160 S.W.2d 180, 1942 Ky. LEXIS 648 ( Ky. 1942 ).

Where defendant, indicted as conspirator, participated in planning and carrying out armed robbery, in course of which victim was killed by conspirators, it was not error to admit detailed evidence as to condition of scene of crime, although defendant was not present at time of killing. (Decided under prior law) Baxter v. Commonwealth, 292 Ky. 204 , 166 S.W.2d 24, 1942 Ky. LEXIS 45 ( Ky. 1942 ).

In prosecution for murder, admission of evidence as to statements made by alleged accomplice, admitting guilt, after commission of crime and not in presence of defendant, was prejudicially erroneous, and error was not corrected by admonition of court directing jury to disregard testimony, where admonition was confusing and jury could have understood that they could consider testimony for some purposes. (Decided under prior law) Bailey v. Commonwealth, 294 Ky. 355 , 171 S.W.2d 1005, 1943 Ky. LEXIS 456 ( Ky. 1943 ).

In prosecution for confederating and banding together to intimidate a man and wife, based on acts done at night, admission of detailed evidence as to acts of intimidation performed by defendants earlier in the day against the man’s brother, and references by Commonwealth’s attorney to death of the brother, constituted prejudicial error. (Decided under prior law) Martin v. Commonwealth, 308 Ky. 472 , 214 S.W.2d 1014, 1948 Ky. LEXIS 970 ( Ky. 1948 ).

Where there was not sufficient evidence in a murder prosecution to establish that the murder was the result of a conspiracy it was highly prejudicial to allow a witness to testify as to what an alleged co-conspirator told her about the crime. (Decided under prior law) Gammons v. Commonwealth, 305 S.W.2d 932, 1957 Ky. LEXIS 354 ( Ky. 1957 ).

Acts and statements of a co-conspirator after the object of alleged conspiracy has been completed are inadmissible, except where they occur in the presence of accused under such circumstances that his failure to deny reasonably implies an admission. (Decided under prior law) Senibaldi v. Commonwealth, 338 S.W.2d 915, 1960 Ky. LEXIS 425 ( Ky. 1960 ).

5.— Sufficient.

To sustain conviction there must be evidence of conspiracy either direct or circumstantial. (Decided under prior law) Wood v. Commonwealth, 230 Ky. 813 , 20 S.W.2d 980, 1929 Ky. LEXIS 177 ( Ky. 1929 ). See Helton v. Commonwealth, 245 Ky. 7 , 53 S.W.2d 189, 1932 Ky. LEXIS 536 ( Ky. 1932 ).

Testimony in conspiracy cases is allowed to take a wide range, and participation may be shown by actions, declarations, acts, facts, and circumstances, though there be no positive or direct evidence. (Decided under prior law) Brashear v. Commonwealth, 275 Ky. 356 , 121 S.W.2d 718, 1938 Ky. LEXIS 427 ( Ky. 1938 ).

Where Commonwealth’s evidence in conspiracy prosecution showed that defendant and others agreed to picket a mine, and pursuant to that agreement assembled at the mine and, by directing and threatening to remove nonunion workers from the mine by force, prevented them from returning to their jobs at the mine, it was error to direct a verdict for the defendant. (Decided under prior law) Commonwealth v. Ramey, 279 Ky. 810 , 132 S.W.2d 342, 1939 Ky. LEXIS 364 ( Ky. 1939 ).

Evidence of actual participation by accused in commission of a crime is sufficient to corroborate testimony of an accomplice and to uphold a conviction of conspiracy. (Decided under prior law) Ashley v. Commonwealth, 283 Ky. 835 , 143 S.W.2d 726, 1940 Ky. LEXIS 426 ( Ky. 1940 ).

That a conviction may be had on circumstantial evidence is especially true as to charges of conspiracy where direct proof is seldom available, but to convict, circumstances must be so unequivocal and incriminating as to exclude every reasonable hypothesis of innocence. (Decided under prior law) Lester v. Commonwealth, 284 Ky. 352 , 144 S.W.2d 808, 1940 Ky. LEXIS 497 ( Ky. 1940 ).

Evidence that accused persons confederated together to intimidate named individual was sufficient for conviction, where evidence for Commonwealth showed that on approaching home of said individual, they did not exchange greetings but got behind fence posts and that one of them carried rifle. (Decided under prior law) Maggard v. Commonwealth, 287 Ky. 787 , 155 S.W.2d 228, 1941 Ky. LEXIS 644 ( Ky. 1941 ).

Evidence that group of workers on pipeline left work and marched up and down line urging other workers to join them in making protest to employer for higher wages and for discharge of certain employees from other counties, and that in so doing members of the group used clubs and threats to coerce others to join them, and assaulted several workers, was sufficient to support a conviction of conspiracy. (Decided under prior law) Chapman v. Commonwealth, 294 Ky. 631 , 172 S.W.2d 228, 1943 Ky. LEXIS 498 ( Ky. 1943 ).

A conspiracy may be established by the acts, conduct or declarations of the participants, or by facts or circumstances, but it may not be established by mere suspicion nor by association of the parties. (Decided under prior law) Johnson v. Commonwealth, 295 Ky. 520 , 174 S.W.2d 769, 1943 Ky. LEXIS 276 ( Ky. 1943 ).

Where all circumstances tend to show that defendants confederated and banded themselves together to intimidate, alarm and persuade the plaintiff from going to his work, the evidence was sufficient for the court to submit the issue of guilt to the jury. (Decided under prior law) Jones v. Commonwealth, 305 Ky. 609 , 205 S.W.2d 171, 1947 Ky. LEXIS 882 ( Ky. 1947 ).

Where there was evidence that the defendant union refused to discuss contract renewals with the plaintiff, negotiated contracts with competitors of the plaintiff giving them a substantial competitive advantage, called a meeting of plaintiff’s employees during working hours and during picketing at plaintiff’s plant intimidated nonunion employees, this was sufficient to find that the defendant union and its officials conspired to force the plaintiff out of business. (Decided under prior law) District Union, Amalgamated Meat Cutters, etc. v. Fleischaker, 384 S.W.2d 68, 1964 Ky. LEXIS 72 ( Ky. 1964 ).

6.— Insufficient.

Payment to state treasurer by insurance commissioner of salary exceeding what under a correct interpretation of law would be proper, did not constitute a conspiracy between them since it was not a fraudulent act nor a violation of any trust or duty in the matter. (Decided under prior law) Commonwealth v. Dishman, 232 Ky. 686 , 24 S.W.2d 568, 1930 Ky. LEXIS 65 ( Ky. 1930 ).

Mere surmises and speculation are insufficient evidence to constitute a conspiracy. (Decided under prior law) Glass v. Commonwealth, 249 Ky. 757 , 61 S.W.2d 629, 1933 Ky. LEXIS 601 ( Ky. 1933 ). See Smith v. Commonwealth, 270 Ky. 367 , 109 S.W.2d 836, 1937 Ky. LEXIS 88 ( Ky. 1937 ).

Testimony indicating that members of a family attacked a sheriff who was in their home on official business, but did not band together for purposes denounced in the statute, is insufficient to constitute a conspiracy. (Decided under prior law) Sexton v. Commonwealth, 262 Ky. 636 , 90 S.W.2d 999, 1936 Ky. LEXIS 66 ( Ky. 1936 ).

Evidence of a suddenly precipitated general fight does not sustain charge of conspiracy. (Decided under prior law) Chadwell v. Commonwealth, 270 Ky. 67 , 109 S.W.2d 1, 1937 Ky. LEXIS 18 ( Ky. 1937 ).

Conviction may not be had on suspicion and evidence of relationship among accused or by their association when crime was committed by one of them. (Decided under prior law) Lester v. Commonwealth, 284 Ky. 352 , 144 S.W.2d 808, 1940 Ky. LEXIS 497 ( Ky. 1940 ).

Mere relationship to the perpetrator of the crime and association with him after the crime has been consummated is insufficient proof of a conspiracy. (Decided under prior law) Patton v. Commonwealth, 289 Ky. 771 , 160 S.W.2d 180, 1942 Ky. LEXIS 648 ( Ky. 1942 ).

Where one of several persons traveling together engaged in a fight with a person they met on the road, there was no basis for a conviction under conspiracy law. (Decided under prior law) Brock v. Commonwealth, 293 Ky. 311 , 168 S.W.2d 993, 1943 Ky. LEXIS 605 ( Ky. 1943 ).

Where member of one party of men shot and killed a member of another party, after an altercation arising from a drinking bout in a road house in which all had engaged, the fact that other members of the killer’s party were present at the time of the killing, and that one or more of them had engaged in minor altercations with members of the victim’s party during the evening, was not sufficient to establish aiding and abetting or a conspiracy. (Decided under prior law) Mills v. Commonwealth, 294 Ky. 92 , 171 S.W.2d 38, 1943 Ky. LEXIS 403 ( Ky. 1943 ).

Evidence merely showing that defendants were seen together shortly before commission of the crime and that shots were fired by one from the other’s pistol is insufficient to support a charge of conspiracy. (Decided under prior law) Johnson v. Commonwealth, 295 Ky. 520 , 174 S.W.2d 769, 1943 Ky. LEXIS 276 ( Ky. 1943 ).

In order to sustain a conviction under law that provided a penalty for banding together for an unlawful purpose, there must be evidence tending to show that the persons indicted did confederate or band themselves together for an unlawful purpose and a conspiracy to do an unlawful act must be proved. The mere presence of one at the scene of the commission of a crime, or a showing that he had been in the presence of the perpetrator of the crime previous to its commission, is not sufficient evidence that such person had entered into a conspiracy with the perpetrator of the crime. (Decided under prior law) Brock v. Commonwealth, 293 Ky. 311 , 168 S.W.2d 993, 1943 Ky. LEXIS 605 ( Ky. 1943 ).

In prosecution of two men for confederating and banding together to injure property, arising out of the shooting of several rifle shots into prosecuting witness’s truck at night, evidence that defendants and prosecuting witness engaged in an argument the afternoon of the shooting, that the two defendants were together that day and night, and that the rifle from which the shots were fired was found concealed in barn on premises where both defendants lived, was insufficient to sustain conviction. (Decided under prior law) Benge v. Commonwealth, 304 Ky. 609 , 201 S.W.2d 892, 1947 Ky. LEXIS 690 ( Ky. 1947 ).

In prosecution for confederating and banding together for purpose of intimidating and injuring another, evidence that prosecuting witness flagged down cab containing defendants, and after short ride was engaged in fight by them on side of road, was insufficient for jury’s consideration, particularly in absence of any evidence of motive to commit offense charged. (Decided under prior law) Milby v. Commonwealth, 305 Ky. 704 , 205 S.W.2d 487, 1947 Ky. LEXIS 908 ( Ky. 1947 ).

In a murder prosecution, evidence showing that the wife of the victim sent notes to the defendant, then abandoned her children and fled with him after the victim was killed, was insufficient to establish a conspiracy between the wife and the defendant. (Decided under prior law) Mills v. Commonwealth, 310 Ky. 240 , 220 S.W.2d 376, 1949 Ky. LEXIS 872 ( Ky. 1949 ).

In a prosecution for conspiring for the purpose of intimidating, alarming, disturbing and injuring another, wherein there was no evidence that the object of the conspiracy was to go forth to molest, damage or destroy property of another person, the court erred in giving an instruction under this section. (Decided under prior law) James v. Commonwealth, 259 S.W.2d 76, 1953 Ky. LEXIS 939 ( Ky. 1953 ).

Where the only evidence of a conspiracy was that the defendant and his alleged co-conspirator were friends and had been seen together on the day of the victim’s death this was not sufficient to establish a conspiracy. (Decided under prior law) Gammons v. Commonwealth, 305 S.W.2d 932, 1957 Ky. LEXIS 354 ( Ky. 1957 ).

Conspiracy cannot be established by mere suspicion, and relationships and associations between parties which are natural and reasonable according to their habits and modes of life do not constitute evidence of a conspiracy. (Decided under prior law) Gammons v. Commonwealth, 305 S.W.2d 932, 1957 Ky. LEXIS 354 ( Ky. 1957 ).

Evidence which contained no proof of act, statement or circumstance that created more than a suspicion of defendant’s complicity as a conspirator was insufficient to sustain conviction. (Decided under prior law) Guinn v. Commonwealth, 331 S.W.2d 886, 1960 Ky. LEXIS 131 ( Ky. 1960 ).

7.Indictment.

Indictment alleging a conspiracy to intimidate and injure several parties charged but a single offense. (Decided under prior law) Asher v. Commonwealth, 211 Ky. 524 , 277 S.W. 842, 1925 Ky. LEXIS 913 ( Ky. 1925 ).

An indictment which also charged defendant with having accomplished the purpose was not thereby bad. (Decided under prior law) Cobb v. Commonwealth, 242 Ky. 424 , 46 S.W.2d 776, 1932 Ky. LEXIS 296 ( Ky. 1932 ).

Under an indictment charging a conspiracy under law that provided a penalty for banding together for an unlawful purpose to commit the offense of robbery, it was essential and required that both accusatory and descriptive parts of indictment name and describe the same offense. (Decided under prior law) Acree v. Commonwealth, 243 Ky. 216 , 47 S.W.2d 1051, 1932 Ky. LEXIS 71 ( Ky. 1932 ). See Lynch v. Commonwealth, 248 Ky. 210 , 58 S.W.2d 408, 1933 Ky. LEXIS 216 ( Ky. 1933 ).

An indictment is fatally defective if it fails to state the purpose for which defendants confederated or banded together. (Decided under prior law) Grise v. Commonwealth, 245 Ky. 220 , 53 S.W.2d 362, 1932 Ky. LEXIS 569 ( Ky. 1932 ).

Indictment charging criminal conspiracy in accusatory part, and in descriptive part alleging defendants pursuant to conspiracy stole chickens is not defective for failure to describe in accusatory part felonious acts defendants conspired to commit. (Decided under prior law) Harr v. Commonwealth, 245 Ky. 278 , 53 S.W.2d 575, 1932 Ky. LEXIS 594 ( Ky. 1932 ). See Lynch v. Commonwealth, 248 Ky. 210 , 58 S.W.2d 408, 1933 Ky. LEXIS 216 ( Ky. 1933 ).

An indictment charging conspiracy must name and describe the same offense in both its accusatory and descriptive parts. (Decided under prior law) Lynch v. Commonwealth, 248 Ky. 210 , 58 S.W.2d 408, 1933 Ky. LEXIS 216 ( Ky. 1933 ).

An indictment for conspiracy is sufficient where it specifically charges that the appellants conspired “for the purpose of intimidating, alarming, and disturbing” another. (Decided under prior law) York v. Commonwealth, 285 Ky. 492 , 148 S.W.2d 337, 1941 Ky. LEXIS 409 ( Ky. 1941 ).

An indictment charging storehouse breaking accompanied by allegation that same was done pursuant to a conspiracy does not charge the offense of banding together for unlawful purpose. Such indictment is not duplicitous or otherwise defective. (Decided under prior law) Haynes v. Commonwealth, 286 Ky. 360 , 150 S.W.2d 925, 1941 Ky. LEXIS 269 ( Ky. 1941 ).

Indictment, considered as whole, was direct and certain enough as to confederating and banding together to intimidate named person, notwithstanding accusatory part of indictment did not allege that accused persons confederated and banded together to intimidate named person, but descriptive part named the person. (Decided under prior law) Maggard v. Commonwealth, 287 Ky. 787 , 155 S.W.2d 228, 1941 Ky. LEXIS 644 ( Ky. 1941 ).

Indictment, which charged that accused persons confederated and banded together “and went forth armed” to intimidate named individual, was sufficient, as against contention that, because of quoted words, accused persons could not know whether charge was under first mentioned section or latter section. (Decided under prior law) Maggard v. Commonwealth, 287 Ky. 787 , 155 S.W.2d 228, 1941 Ky. LEXIS 644 ( Ky. 1941 ).

An indictment charging conspiracy is sufficient without averring that the conspiracy was actually consummated, since the acts committed pursuant to the conspiracy are immaterial and the offense is completed when the conspiracy is formed. (Decided under prior law) Commonwealth v. Fletcher, 298 Ky. 585 , 183 S.W.2d 644, 1944 Ky. LEXIS 962 ( Ky. 1944 ).

Indictment charging that defendants confederated and banded together for purpose of intimidating, alarming, and disturbing or injuring and robbing a name person, and that defendants “actually did assault and rob the said John Riddle with an offensive weapon,” was fatally defective because it charged two separate offenses. (Decided under prior law) Jones v. Commonwealth, 303 Ky. 106 , 196 S.W.2d 972, 1946 Ky. LEXIS 795 ( Ky. 1946 ).

Prisoners who attacked deputy jailer with a chain and took from him money and jail keys should have been indicted for armed assault with intent to rob, rather than under conspiracy statute, but in descriptive part of indictment it would be proper to describe all of the acts constituting the offense, including acts showing a conspiracy. (Decided under prior law) Jones v. Commonwealth, 303 Ky. 106 , 196 S.W.2d 972, 1946 Ky. LEXIS 795 ( Ky. 1946 ).

Single indictment charging banding together to intimidate or injure prosecuting witness, and banding together to damage or destroy his property, was duplicitous and hence defective, since the one indictment charged two separate and distinct offenses under this section. (Decided under prior law) Benge v. Commonwealth, 304 Ky. 609 , 201 S.W.2d 892, 1947 Ky. LEXIS 690 ( Ky. 1947 ).

Indictment charging defendant and his accomplices with murder, alleged to have been committed pursuant to a conspiracy, was an indictment for murder, and not for conspiracy, and it was proper for the court to instruct on murder. (Decided under prior law) Napier v. Commonwealth, 306 Ky. 75 , 206 S.W.2d 53, 1947 Ky. LEXIS 944 ( Ky. 1947 ).

Where the indictment against the defendant for aiding and abetting was dismissed, under the doctrine of collateral estoppel the Commonwealth was precluded from prosecuting the defendant for common-law conspiracy or for statutory banding and confederating in connection with the abduction. (Decided under prior law) Arnett v. Meade, 462 S.W.2d 940, 1971 Ky. LEXIS 569 ( Ky. 1971 ).

An indictment was sufficient to charge the felony offense of promoting contraband in the first degree where it indicated that the offense was accomplished by conspiring to introduce dangerous contraband into a county jail. Fulton v. Commonwealth, 849 S.W.2d 553, 1992 Ky. App. LEXIS 203 (Ky. Ct. App. 1992).

8.Instructions.

In a prosecution under law that provided for a penalty for the banding together for an unlawful purpose, omission of words “unlawfully, wilfully and feloniously” from the instructions was not error and failure to define a conspiracy was not error where facts constituting the conspiracy were submitted to the jury. (Decided under prior law) Slaven v. Commonwealth, 197 Ky. 790 , 248 S.W. 214, 1923 Ky. LEXIS 735 ( Ky. 1923 ).

If the evidence tends to prove that a crime, with which two or more persons are charged, was committed pursuant to a conspiracy, the court may submit the cause under a conspiracy instruction, even though the indictment does not charge conspiracy. (Decided under prior law) Davis v. Commonwealth, 279 Ky. 127 , 129 S.W.2d 1030, 1939 Ky. LEXIS 237 ( Ky. 1939 ).

In prosecution for conspiracy to intimidate and disturb, instruction admonishing jury to disregard certain killing, since evidence did not connect defendant with it, was not error. (Decided under prior law) Commonwealth v. Ramey, 279 Ky. 810 , 132 S.W.2d 342, 1939 Ky. LEXIS 364 ( Ky. 1939 ).

Where the case is close and guilt or innocence of accused depends in a large measure on evidence as to whereabouts, acts an utterances of co-conspirators, the court should instruct as to the circumstances in which the jury may consider acts and statements made out of the defendant’s presence and hearing. (Decided under prior law) Canada v. Commonwealth, 281 Ky. 641 , 136 S.W.2d 1061, 1940 Ky. LEXIS 83 ( Ky. 1940 ).

Where testimony as to acts and statements of alleged co-conspirators was permitted to take wide range, an instruction should have been given confining jury to consideration of acts and statements done and made in presence of defendant. (Decided under prior law) Meadors v. Commonwealth, 281 Ky. 622 , 136 S.W.2d 1066, 1940 Ky. LEXIS 84 ( Ky. 1940 ).

In view of instruction correctly defining confederation and banding together as corrupt combination between two persons to do by concerted action unlawful act or to do lawful act by unlawful means, and considering instructions as whole, another instruction which allegedly authorized jury to convict any one of defendants, although one man could not by himself confederate or band together, could not be deemed to have misled jury. (Decided under prior law) Maggard v. Commonwealth, 287 Ky. 787 , 155 S.W.2d 228, 1941 Ky. LEXIS 644 ( Ky. 1941 ).

A conspiracy instruction may be given in a murder prosecution if the proof warrants, notwithstanding that the indictment does not charge a conspiracy. (Decided under prior law) Howard v. Commonwealth, 305 Ky. 257 , 305 Ky. 258 , 203 S.W.2d 27, 1947 Ky. LEXIS 781 ( Ky. 1947 ).

Conspiracy instruction should not have been given in homicide prosecution, where the proof, or circumstances shown, were not sufficient to show or to create a reasonable inference that a conspiracy existed. (Decided under prior law) Howard v. Commonwealth, 305 Ky. 257 , 305 Ky. 258 , 203 S.W.2d 27, 1947 Ky. LEXIS 781 ( Ky. 1947 ).

In a homicide prosecution, a conspiracy instruction may be given if proof warrants, notwithstanding failure of indictment to charge conspiracy. (Decided under prior law) Howard v. Commonwealth, 305 Ky. 257 , 305 Ky. 258 , 203 S.W.2d 27, 1947 Ky. LEXIS 781 ( Ky. 1947 ).

In prosecution for confederating and banding together to intimidate, alarm and disturb prosecuting witness, failure to instruct that if jury believed defendants’ only purpose was to peaceably persuade witness to quit job formerly held by one of defendants, they should find defendants not guilty, was nor error, where instructions that were given required jury to find that defendants went forth to “intimidate, alarm or disturb” prosecuting witness in an unlawful manner. (Decided under prior law) Jones v. Commonwealth, 305 Ky. 609 , 205 S.W.2d 171, 1947 Ky. LEXIS 882 ( Ky. 1947 ).

In prosecution for statutory conspiracy under indictment charging that defendants confederated and banded together and did actually go forth and intimidate workmen in pursuance of a conspiracy to induce them to join a labor union, failure to give instructions submitting claims of defense that defendants were on a peaceful mission in going to construction job, or that they merely stopped as spectators, was reversible error. (Decided under prior law) Davis v. Commonwealth, 311 Ky. 249 , 223 S.W.2d 893, 1949 Ky. LEXIS 1105 ( Ky. 1949 ).

Question of whether there was a confederation or conspiracy, if there was any evidence introduced on such issue, was in every case for the jury to determine and thus it is proper to give the jury an instruction on conspiracy. (Decided under prior law) Hughes v. Commonwealth, 249 S.W.2d 786, 1952 Ky. LEXIS 866 ( Ky. 1952 ).

In a prosecution for conspiring for the purpose of intimidating, alarming, disturbing and injuring another, wherein there was no evidence that the object of the conspiracy was to go forth to molest, damage or destroy property of another person, the court erred in giving an instruction under law that provided for a penalty if injury or death resulted from conspiracy. (Decided under prior law) James v. Commonwealth, 259 S.W.2d 76, 1953 Ky. LEXIS 939 ( Ky. 1953 ).

An instruction authorizing the conviction of a conspirator if either the person who actually committed the crime or another accomplice conspired to commit the crime, although erroneous in form, was harmless error. (Decided under prior law) Senibaldi v. Commonwealth, 338 S.W.2d 915, 1960 Ky. LEXIS 425 ( Ky. 1960 ).

Where instruction called for conviction if there was a conspiracy carried out by commission of armed robbery, it was not error to allow conviction of armed robbery rather than conspiracy. (Decided under prior law) Cripple v. Commonwealth, 506 S.W.2d 506, 1974 Ky. LEXIS 751 ( Ky. 1974 ).

9.Labor Activities.

Peaceful and reasonable persuasion by striking miners regarding the merits of their cause, to enlist sympathy and support for the advancement of their interest, is not a conspiracy. (Decided under prior law) Alsbrook v. Commonwealth, 243 Ky. 814 , 50 S.W.2d 22, 1932 Ky. LEXIS 204 ( Ky. 1932 ).

Members of a labor union may peaceably assemble and agree to pursue by persuasive power any legal means to gain their ends without committing conspiracy. Commonwealth v. Compton, 259 Ky. 565 , 82 S.W.2d 813, 1935 Ky. LEXIS 354 ( Ky. 1935 ).

Picketing, when done for the purpose of coercing, threatening or intimidating persons who desire to go to or from picketed premises as employees or applicants for employment, amounts to conspiracy. (Decided under prior law) Commonwealth v. Ramey, 279 Ky. 810 , 132 S.W.2d 342, 1939 Ky. LEXIS 364 ( Ky. 1939 ).

10.Nature of Offense.

Where two or more persons confederate or band together to do a felonious act, it is a crime, whether consummated or not. (Decided under prior law) Acree v. Commonwealth, 243 Ky. 216 , 47 S.W.2d 1051, 1932 Ky. LEXIS 71 ( Ky. 1932 ).

A conspiracy is a corrupt combination of two or more persons by concerted action to commit a criminal act, so that where there was a joint participation of two persons to obtain cigars fraudulently by false representation it was a conspiracy under this section. (Decided under prior law) Jones v. Commonwealth, 269 Ky. 795 , 108 S.W.2d 1021, 1937 Ky. LEXIS 682 ( Ky. 1937 ).

Confederating together to do a felonious act is a violation of law that provided for a penalty for banding together for an unlawful purpose, whether or not the felonious act is consummated. (Decided under prior law) Commonwealth v. Ramey, 279 Ky. 810 , 132 S.W.2d 342, 1939 Ky. LEXIS 364 ( Ky. 1939 ).

The conspiracy itself the complete offense and consummation is immaterial. (Decided under prior law) Haynes v. Commonwealth, 286 Ky. 360 , 150 S.W.2d 925, 1941 Ky. LEXIS 269 ( Ky. 1941 ).

The gravamen of offense defined by conspiracy law was the conspiracy to commit acts referred to therein, and it was immaterial when the conspiracy was formed or whether the acts were consummated or not. (Decided under prior law) Combs v. Commonwealth, 285 Ky. 425 , 148 S.W.2d 291, 1941 Ky. LEXIS 404 ( Ky. 1941 ).

The gravamen of a criminal conspiracy is the agreement and its consummation is generally immaterial. (Decided under prior law) Davis v. Commonwealth, 311 Ky. 249 , 223 S.W.2d 893, 1949 Ky. LEXIS 1105 ( Ky. 1949 ).

11.Proof.

On trial of one defendant under law that provided a penalty for the banding together for an unlawful purpose, Commonwealth could prove unfriendly relations or enmity existing between any of the defendants and the person assaulted to show defendants’ hostility and motive. (Decided under prior law) Napier v. Commonwealth, 110 S.W. 842, 33 Ky. L. Rptr. 635 (1908).

Conspiracy may be deduced from circumstances showing concert of action in pursuance of common purpose to coerce or compel victims to submit to will or wish of conspirators. (Decided under prior law) Alsbrook v. Commonwealth, 243 Ky. 814 , 50 S.W.2d 22, 1932 Ky. LEXIS 204 ( Ky. 1932 ).

In a conspiracy prosecution, testimony is allowed to take a wide range, and it is permissible to allow proof of declarations, actions and circumstances tending to show the formation of the plan, or its consummation. (Decided under prior law) Gilbert v. Commonwealth, 283 Ky. 831 , 143 S.W.2d 509, 1940 Ky. LEXIS 417 ( Ky. 1940 ).

Conspiracy may not be established by suspicion and evidence of relationship among the accused or their association at a time when a crime was committed by one of them. (Decided under prior law) Lester v. Commonwealth, 284 Ky. 352 , 144 S.W.2d 808, 1940 Ky. LEXIS 497 ( Ky. 1940 ).

Conspiracy by wife with husband to procure false testimony was not shown by fact that she accompanied him when he conversed with witnesses out of her hearing. (Decided under prior law) Lester v. Commonwealth, 284 Ky. 352 , 144 S.W.2d 808, 1940 Ky. LEXIS 497 ( Ky. 1940 ).

Acts of persons indicted under law that provided a penalty for banding together for an unlawful purpose may indicate confederating and banding together as clearly as direct evidence. (Decided under prior law) Maggard v. Commonwealth, 287 Ky. 787 , 155 S.W.2d 228, 1941 Ky. LEXIS 644 ( Ky. 1941 ).

While conspiracy may not be established on suspicion or merely by proof of suspicious acts, it may be proven by circumstances where they are such as to be so unequivocal and incriminating as to remove reasonable doubt of innocence. (Decided under prior law) Baxter v. Commonwealth, 292 Ky. 204 , 166 S.W.2d 24, 1942 Ky. LEXIS 45 ( Ky. 1942 ).

A conspiracy is generally established by welding into one chain circumstances which, when considered separately, are of themselves insufficient and inconclusive, but, when connected and examined as a whole, are sufficient to show it. (Decided under prior law) Johnson v. Commonwealth, 295 Ky. 520 , 174 S.W.2d 769, 1943 Ky. LEXIS 276 ( Ky. 1943 ).

If what the accused did is sufficient to constitute him an aider and abettor, as being actually present and participating in the commission of a felony it is not essential that there should have been a prearranged planning or concert of action. (Decided under prior law) Simpson v. Commonwealth, 293 Ky. 831 , 170 S.W.2d 869, 1943 Ky. LEXIS 717 ( Ky. 1943 ).

In a civil action to recover damages for death resulting from conspiracy, a petition that charged that damage or death followed as the result of the forming of a conspiracy would be fatally defective, as a necessary allegation to support such charge is that damage or death resulted from some overt act done pursuant to or in furtherance of the conspiracy. (Decided under prior law) Davenport's Adm'x v. Crummies Creek Coal Co., 299 Ky. 79 , 184 S.W.2d 887, 1945 Ky. LEXIS 386 ( Ky. 1945 ).

In action against coal company, to recover damages for death of person shot by mine store clerk, petition that alleged that company and its store clerks entered into a conspiracy to shoot and kill members of United Mine Workers entering company stores, that deceased, who was in store when group of mine workers entered, was shot by clerk when deceased was starting to run out of store to avoid trouble, and that the shooting was “in furtherance of said conspiracy and pursuant thereto,” stated a cause of action. (Decided under prior law) Davenport's Adm'x v. Crummies Creek Coal Co., 299 Ky. 79 , 184 S.W.2d 887, 1945 Ky. LEXIS 386 ( Ky. 1945 ).

Conspiracy may be established by welding together a number of links to form a chain of circumstances. (Decided under prior law) Chapman v. Commonwealth, 294 Ky. 631 , 172 S.W.2d 228, 1943 Ky. LEXIS 498 ( Ky. 1943 ); Mills v. Commonwealth, 310 Ky. 240 , 220 S.W.2d 376, 1949 Ky. LEXIS 872 ( Ky. 1949 ).

A conspiracy may be established by acts, conduct or declaration of the participants, or by facts and circumstances relating to the offense charged, but never by mere suspicion or association of parties. (Decided under prior law) Milby v. Commonwealth, 305 Ky. 704 , 205 S.W.2d 487, 1947 Ky. LEXIS 908 ( Ky. 1947 ).

A conspiracy cannot be established by suspicion or by evidence showing relations and associations between the parties which are natural and reasonable, but such conspiracy may be shown by circumstances from which the jury may infer its existence. (Decided under prior law) Senibaldi v. Commonwealth, 338 S.W.2d 915, 1960 Ky. LEXIS 425 ( Ky. 1960 ).

Cited:

Corbett v. Commonwealth, 717 S.W.2d 831, 1986 Ky. LEXIS 288 ( Ky. 1986 ); Perkins v. Commonwealth, 834 S.W.2d 182, 1992 Ky. App. LEXIS 150 (Ky. Ct. App. 1992).

Research References and Practice Aids

Cross-References.

Conspiracy to promote gambling, KRS 528.040 .

Kentucky Law Journal.

Article: Judicially Fusing the Pinkerton Doctrine to RICO Conspiracy Litigation Through the Concept of Mediate Causation, 97 Ky. L.J. 665 (2008/2009).

Northern Kentucky Law Review.

Gilday and Gillen, Jeopardy — Meandering Through Mandates and Maneuvers, 6 N. Ky. L. Rev. 245 (1979).

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Complicity and Inchoate Offenses, Part 3 Inchoate Offenses, § 10.24.

Kentucky Instructions to Juries (Criminal), 5th Ed., Offenses Against Public and Judicial Administration, Part 4 Bribery and Related Offenses, § 7.39.

Kentucky Instructions to Juries (Criminal), 5th Ed., Offenses Against Public Order, Safety and Morals, Part 6 Gambling, § 8.84.

506.050. Conspiracy — General provisions.

  1. No person may be convicted of conspiracy to commit a crime unless an overt act in furtherance of the conspiracy is alleged and proved to have been committed by one (1) of the conspirators.
  2. A person who conspires to commit more than one (1) crime, all of which are the object of the same agreement or continuous conspiratorial relationship, is guilty of only one (1) conspiracy. The classification of this crime under subsection (2) of KRS 506.040 shall be determined by the most serious offense which he is found guilty of conspiring to commit.
  3. If a person guilty of conspiracy, as defined by KRS 506.040 , knows that a person with whom he conspires to commit a crime has conspired with another person or persons to commit the same crime, he is guilty of conspiring to commit the crime with the other person or persons, whether or not he knows their identity.
  4. No person may be convicted of conspiracy to commit a crime when an element of that crime is agreement with the person with whom he is alleged to have conspired or when that crime is so defined that his conduct is an inevitable incident to its commission.

History. Enact. Acts 1974, ch. 406, § 53, effective January 1, 1975.

NOTES TO DECISIONS

1.Applicability.

This section was inapplicable where defendant was charged with murder, not with conspiracy to commit murder. Tribbett v. Commonwealth, 561 S.W.2d 662, 1978 Ky. LEXIS 328 ( Ky. 1978 ).

2.Conspiracy to Promote Gambling.

Where the defendant accepted wagers on sporting events in pursuance of the conspiracy, such acceptance of wagers was an overt act pursuant to KRS 528.040 ; the fact that the overt act alleged was also the substantive offense was of no consequence to the conspiracy conviction. Commonwealth v. Speakes, 740 S.W.2d 941, 1987 Ky. LEXIS 262 ( Ky. 1987 ).

Research References and Practice Aids

Cross-References.

Witness in prosecution of criminal conspirators not to claim exemption, KRS 437.140 .

Northern Kentucky Law Review.

Gilday and Gillen, Jeopardy — Meandering Through Mandates and Maneuvers, 6 N. Ky. L. Rev. 245 (1979).

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Complicity and Inchoate Offenses, Part 3 Inchoate Offenses, § 10.24.

Kentucky Instructions to Juries (Criminal), 5th Ed., Offenses Against Public Order, Safety and Morals, Part 6 Gambling, § 8.84.

506.060. Criminal solicitation or conspiracy — Defense of renunciation.

  1. In any prosecution for criminal solicitation or criminal conspiracy in which the crime solicited or the crime contemplated by the conspiracy was not in fact committed, it is a defense that, under circumstances manifesting a voluntary and complete renunciation of his criminal purpose, the defendant prevented the commission of the crime.
  2. A renunciation is not “voluntary and complete” within the meaning of this section when it is motivated in whole or in part by:
    1. A belief that circumstances exist which pose a particular threat of apprehension or detection of the accused or another participant in the criminal enterprise or which render more difficult the accomplishment of the criminal purpose; or
    2. A decision to postpone the criminal conduct until another time or to transfer the criminal effort to another victim or another but similar object.

History. Enact. Acts 1974, ch. 406, § 54, effective January 1, 1975.

NOTES TO DECISIONS

1.In General.

One who enters into a conspiracy may voluntarily withdraw from or abandon it prior to overt act required to constitute or to consummate offense and thereby preclude prosecution or conviction. (Decided under prior law) Warren v. Commonwealth, 333 S.W.2d 766, 1960 Ky. LEXIS 208 ( Ky. 1960 ).

Cited:

Walker v. Commonwealth, 561 S.W.2d 656, 1977 Ky. LEXIS 578 ( Ky. 1977 ).

Research References and Practice Aids

Kentucky Law Journal.

Article: Judicially Fusing the Pinkerton Doctrine to RICO Conspiracy Litigation Through the Concept of Mediate Causation, 97 Ky. L.J. 665 (2008/2009).

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Complicity and Inchoate Offenses, Part 1 Definitions, § 10.03.

Kentucky Instructions to Juries (Criminal), 5th Ed., Complicity and Inchoate Offenses, Part 3 Inchoate Offenses, §§ 10.24, 10.25.

506.070. Incapacity of solicitee or co-conspirator.

  1. It is no defense to a prosecution for criminal solicitation that the person solicited could not be guilty of the crime solicited because of:
    1. Criminal irresponsibility or other legal incapacity or exemption; or
    2. Unawareness of the criminal nature of the conduct solicited or of the defendant’s criminal purpose; or
    3. Any other factor precluding the mental state required for the commission of the crime solicited.
  2. It is no defense to a prosecution for criminal conspiracy that a co-conspirator could not be guilty of the conspiracy or the crime contemplated by the conspiracy because of:
    1. Criminal irresponsibility or other legal incapacity or exemption; or
    2. Unawareness of the criminal nature of the conspiracy or the conduct contemplated by the conspiracy or of the defendant’s criminal purpose; or
    3. Any other factor precluding the mental state required for the commission of the conspiracy or the crime contemplated by the conspiracy.
  3. A defendant cannot be convicted of conspiracy if all of his co-conspirators have been acquitted or discharged under circumstances amounting to an acquittal.

History. Enact. Acts 1974, ch. 406, § 55, effective January 1, 1975.

NOTES TO DECISIONS

1.Acquittal.

Defendant was not entitled to a directed verdict of acquittal on conspiracy charges because his codefendant entered a plea to the offense of facilitation, and the fact that his other co-conspirator was a police agent did not mean that he was “discharged under circumstances amounting to an acquittal” so as to entitle defendant to an acquittal under subsection (3) of this section. Commonwealth v. Sego, 872 S.W.2d 441, 1994 Ky. LEXIS 10 ( Ky. 1994 ).

2.Invalid Defense.

Defendant was not entitled to a directed verdict of acquittal on conspiracy charges pursuant to subsection (2) of this section because it was not a valid defense that his co-conspirator, a police agent, did not truly agree to the conspiracy. Commonwealth v. Sego, 872 S.W.2d 441, 1994 Ky. LEXIS 10 ( Ky. 1994 ).

Research References and Practice Aids

Kentucky Law Journal.

Article: Judicially Fusing the Pinkerton Doctrine to RICO Conspiracy Litigation Through the Concept of Mediate Causation, 97 Ky. L.J. 665 (2008/2009).

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Complicity and Inchoate Offenses, Part 3 Inchoate Offenses, § 10.24.

506.080. Criminal facilitation.

  1. A person is guilty of criminal facilitation when, acting with knowledge that another person is committing or intends to commit a crime, he engages in conduct which knowingly provides such person with means or opportunity for the commission of the crime and which in fact aids such person to commit the crime.
  2. Criminal facilitation is a:
    1. Class D felony when the crime facilitated is a Class A or Class B felony or capital offense;
    2. Class A misdemeanor when the crime facilitated is a Class C or Class D felony;
    3. Class B misdemeanor when the crime facilitated is a misdemeanor.

History. Enact. Acts 1974, ch. 406, § 56, effective January 1, 1975.

NOTES TO DECISIONS

Analysis

1.Elements.

Criminal facilitation has the same elements as complicity except that the state of mind required for its facilitation is less culpable than the state of mind required for complicity; thus to be convicted of murder by complicity, the jury must find that the defendant intended that the victim’s murder occur and to be convicted of facilitation, the jury must find only that the defendant knew the co-defendant was going to commit a crime. Chumbler v. Commonwealth, 905 S.W.2d 488, 1995 Ky. LEXIS 99 ( Ky. 1995 ).

Under KRS 506.080 , criminal facilitation occurs when a defendant, with no intent to promote or commit the crime personally, provides the means or opportunity for another to do so. Bennett v. Commonwealth, 2003 Ky. App. Unpub. LEXIS 433 (Ky. Ct. App. Apr. 11, 2003).

Main difference between facilitation and complicity is the state of mind; complicity requires the complicitor to “intend” that the crime take place. Bennett v. Commonwealth, 2003 Ky. App. Unpub. LEXIS 433 (Ky. Ct. App. Apr. 11, 2003).

KRS 506.080 requires a facilitator of a crime to have knowledge of the principal’s intent to commit the crime. Bennett v. Commonwealth, 2003 Ky. App. Unpub. LEXIS 433 (Ky. Ct. App. Apr. 11, 2003).

2.Evidence.

Victim was abducted and forced into her car and then driven to an isolated area where victim was raped, robbed and murdered. The evidence of the knowledge and assistance of defendant was clearly sufficient to convict her of facilitation of rape and murder. Defendant was acting with the knowledge that codefendant was committing the crimes of rape and murder, defendant helped plan the robbery and the abduction prior to the rape and murder, and she knowingly provided co-defendant with the means or opportunity for the commission of the crimes which in fact aided him in committing those crimes. Humphrey v. Commonwealth, 836 S.W.2d 865, 1992 Ky. LEXIS 87 ( Ky. 1992 ).

The fact that defendant not only knew the people he was transporting were engaged in a drug transaction, but also participated in inspecting the drugs and transported the drugs on more than one occasion did not support a lesser-included offense jury instruction on facilitation. Thompkins v. Commonwealth, 54 S.W.3d 147, 2001 Ky. LEXIS 154 ( Ky. 2001 ) sub. nom.Morrow v. Commonwealth, 77 S.W.3d 558, 2002 Ky. LEXIS 133 ( Ky. 2002 ).

Supreme court affirmed wanton murder and first-degree robbery convictions, and life sentence as second-degree persistent felony offender; trial court did not err in admitting defendant’s letters to co-defendant and co-defendant’s testimony; jury could reasonably infer defendant put pressure on the co-defendant so as to dominate and control the co-defendant to commit the crimes—defendant criminally solicited the co-defendant under KRS 506.080 ; there was also sufficient evidence of their conspiracy. Neal v. Commonwealth, 95 S.W.3d 843, 2003 Ky. LEXIS 9 ( Ky. 2003 ).

Evidence that defendant’s cohorts possessed all of the chemicals and equipment necessary to manufacture methamphetamine and that defendant purchased some of those items was sufficient to prove that he facilitated the manufacture of methamphetamine in violation of KRS 506.080(1). Layton v. Commonwealth, 2007 Ky. App. LEXIS 134 (Ky. Ct. App. May 4, 2007), review denied, ordered not published, 2008 Ky. LEXIS 45 (Ky. Jan. 16, 2008).

Reasonable jury could have found, beyond a reasonable doubt, appellant guilty of facilitation to incest under Ky. Rev. Stat. Ann. § 506.080 where the timeline of events, coupled with the photographs she sent and phone calls she made, showed that she should have known of the sexual misconduct between the perpetrator and her daughter, and she left her daughter alone with the perpetrator. Hiles v. Commonwealth, 595 S.W.3d 482, 2019 Ky. App. LEXIS 166 (Ky. Ct. App. 2019).

3.Forfeiture.

Trial court erred by ordering homeowner who was convicted of facilitating husband’s crime of cultivating marijuana to forfeit $55,000 in proceeds from a foreclosure sale without determining if the forfeiture was proportionate to the homeowner’s crime or considering the homeowner’s post-conviction contributions to the equity in the house. Hinkle v. Commonwealth, 104 S.W.3d 778, 2002 Ky. App. LEXIS 1848 (Ky. Ct. App. 2002).

4.Instructions.

Where all four defendants planned the crime, where they agreed to split the proceeds equally, where they rode together to the scene in car and defendant was the driver, and where defendant was an active participant in the crime, trial court did not err in denying request for instruction on criminal facilitation as a lesser included offense of complicity and a more favorable instruction on complicity. Skinner v. Commonwealth, 864 S.W.2d 290, 1993 Ky. LEXIS 149 ( Ky. 1993 ).

A KRS 506.080 facilitation instruction need not always accompany a KRS 502.020 complicity instruction; rather, a lesser-included instruction, such as facilitation, may be given only when supported by the evidence, and since facilitation and complicity require different mental states, an instruction on facilitation is necessary only if the evidence supports the existence of both mental states. A defendant is not entitled to a lesser-included offense instruction, such as facilitation, simply because the defendant wants the jury to have the option to convict the defendant of a less serious offense. Dixon v. Commonwealth, 263 S.W.3d 583, 2008 Ky. LEXIS 138 ( Ky. 2008 ).

Defendant was not entitled to a lesser-included offense instruction on facilitation. Since facilitation under KRS 506.080 and complicity under KRS 502.020 required different mental states, an instruction on facilitation was necessary only if the evidence supported the existence of both mental states, and there was no evidence that defendant was wholly indifferent to the commission of the rape and robbery. Dixon v. Commonwealth, 263 S.W.3d 583, 2008 Ky. LEXIS 138 ( Ky. 2008 ).

Trial court did not err in denying a jury instruction on facilitation as a lesser-included offense to the complicity charges for robbery, burglary, and assault because, although the jury might choose to disbelieve part of the testimony of the two accomplices, that did not constitute evidence of the lesser mental state required for a facilitation instruction; and because defendant presented no evidence demonstrating that he was wholly indifferent to the completion of the crime. Forte v. Commonwealth, 2016 Ky. App. LEXIS 182 (Ky. Ct. App. Nov. 4, 2016).

For a facilitation conviction, the jury must be instructed on Appellant having knowledge of Daniel’s actions or intent, and with that knowledge, provided the means and opportunity for Daniel to commit the crime. The trial court did not need to insert a specific action into the instruction, and its actions were proper in leaving the phrase engaged in conduct. Hiles v. Commonwealth, 595 S.W.3d 482, 2019 Ky. App. LEXIS 166 (Ky. Ct. App. 2019).

Refusing to give a facilitation instruction was not error as the evidence clearly established that appellant’s participation in the robbery went far beyond engaging in conduct which knowingly provided his co-defendant with means or opportunity for the commission of the crime. Appellant was not only present at the robbery, but actively participated in the crime. Goff v. Commonwealth, 618 S.W.3d 503, 2020 Ky. App. LEXIS 85 (Ky. Ct. App. 2020).

4.1.Underlying Crimes.

Criminal facilitation has the same elements as the substantive offenses of attempted murder and second-degree assault except for a less culpable state of mind and where a reasonable juror could conclude that defendant acted as a facilitator, defendant was entitled to instructions on lesser included offense of criminal facilitation of attempted murder and assault in the second degree. Luttrell v. Commonwealth, 554 S.W.2d 75, 1977 Ky. LEXIS 482 ( Ky. 1977 ).

4.2.Burglary, Robbery or Theft.

Where the defendant participated in the planning of a robbery and was in the car when the robbery was actually committed by his friends, there being no evidence in the record to indicate that he merely permitted his friends to use the car in order to commit the robbery, the evidence failed to establish criminal facilitation and the trial judge correctly refused to instruct on this theory of the case. Risinger v. Commonwealth, 556 S.W.2d 177, 1977 Ky. App. LEXIS 815 (Ky. Ct. App. 1977).

Where from the evidence presented in the prosecution for theft by unlawful taking, the jury could reasonably infer that the defendant knowingly assisted his colleague in stealing the merchandise from the department store, whereas there was no evidence to justify a finding that the defendant merely provided an opportunity for the theft, the trial court did not err in refusing to instruct the jury on the lesser included offense of criminal facilitation. Adkins v. Commonwealth, 647 S.W.2d 502, 1982 Ky. App. LEXIS 286 (Ky. Ct. App. 1982).

Where there was evidence that defendant did more than simply provide an opportunity for co-defendant to steal the radar detectors: he was an active participant in the crime, the trial court properly refused to give a criminal facilitation instruction. Churchwell v. Commonwealth, 843 S.W.2d 336, 1992 Ky. App. LEXIS 213 (Ky. Ct. App. 1992).

Since in view of all the evidence a reasonable juror could not have acquitted defendant of both second degree burglary and burglary by complicity, and still have found him guilty of criminal facilitation, failure to give instruction on criminal facilitation as a lesser included offense of complicity was not error. Skinner v. Commonwealth, 864 S.W.2d 290, 1993 Ky. LEXIS 149 ( Ky. 1993 ).

Where defendant and defendant’s friend claimed that the friend gave defendant a ride to the victim’s home to look for someone and, without defendant’s prior knowledge, the friend started to rob the victim, and where, in contrast, the victim claimed that, as soon as the victim opened the victim’s door, it was defendant who put a gun to the victim’s head and demanded money, the evidence did not support a jury instruction on criminal facilitation in defendant’s trial for first-degree robbery and, thus, the failure to give such an instruction was not error, as the evidence indicated that defendant either went beyond mere facilitation to directly participate in the crime, or that defendant had no knowledge of the principal’s intent to commit the crime, which was insufficient for facilitation. Bennett v. Commonwealth, 2003 Ky. App. Unpub. LEXIS 433 (Ky. Ct. App. Apr. 11, 2003).

Where defendant was charged with second-degree robbery under KRS 515.030(1), the trial court did not err in refusing to instruct the jury on facilitation under KRS 506.080(1) because the record established that defendant was either a masked robber who actively participated in the bank robbery or the driver of the getaway car; defendant thus could not be found to have been indifferent to the actual completion of the crime. This was true even if defendant merely served as the getaway driver because the driver could not be found to have been indifferent in that he dropped off and waited for the individual who robbed the bank. Tunstull v. Commonwealth, 337 S.W.3d 576, 2011 Ky. LEXIS 51 ( Ky. 2011 ).

4.3.Forgery.

Where defendant knew that acquaintance intended to commit or was committing a forgery with a stolen credit card, her action in selecting merchandise to be purchased with the card, providing transportation and keeping merchandise in her car evinced an intent to promote the commission of a crime and a jury instruction on criminal facilitation under this section was not warranted. Commonwealth v. Caswell, 614 S.W.2d 253, 1981 Ky. App. LEXIS 231 (Ky. Ct. App. 1981).

4.4.Controlled Substances- Related.

Where a reasonable juror could have believed that defendant charged with complicity to trafficking in a controlled substance in the first degree and with being a persistent felony offender in the second degree, provided his girlfriend whom he knew was in the process of a drug transaction with transportation during the transaction without specifically intending that the crime be accomplished, refusal to give an instruction on criminal facilitation constituted reversable error. Webb v. Commonwealth, 904 S.W.2d 226, 1995 Ky. LEXIS 92 ( Ky. 1995 ), modified, 1995 Ky. LEXIS 89 (Ky. Aug. 24, 1995).

Criminal facilitation is not a lesser included offense of trafficking in or possession of a controlled substance and, thus, defendant was not entitled to an instruction on that theory. Houston v. Commonwealth, 975 S.W.2d 925, 1998 Ky. LEXIS 123 ( Ky. 1998 ), limited, Commonwealth v. Montaque, 23 S.W.3d 629, 2000 Ky. LEXIS 41 ( Ky. 2000 ).

In a prosecution for manufacturing methamphetamine, the trial court properly refused to instruct the jury on facilitation to manufacture methamphetamine under KRS 506.080 , as (1) there was no evidence that anyone else manufactured methamphetamine in defendant’s house or on his property, (2) there was no evidence that anyone other than defendant had possession of or obtained the chemicals used to manufacture methamphetamine, and (3) defendant never testified that he knew that others were manufacturing methamphetamine in his house, and such knowledge was an essential element of facilitation. Johnson v. Commonwealth, 134 S.W.3d 563, 2004 Ky. LEXIS 110 ( Ky. 2004 ).

Because criminal facilitation under this section is not a lesser included offense of manufacturing methamphetamine, defendant, who was found guilty of manufacturing methamphetamine, was not entitled to a criminal facilitation jury instruction, and the trial court did not err by denying defendant’s request for such an instruction. Roberts v. Commonwealth, 410 S.W.3d 606, 2013 Ky. LEXIS 405 ( Ky. 2013 ).

Because no evidence was presented during defendant’s trial for first-degree trafficking in a controlled substance to support a criminal facilitation instruction, a trial court was correct in not providing it to the jury. While it was true that by selling crack to another individual, defendant “facilitated” her in what he thought was the commission of a crime, it did not absolve him of his own criminal liability for selling it to her because he was fully aware that he was in fact obtaining and selling drugs, and thus was not just providing another person the means or opportunity to commit a crime. Springfield v. Commonwealth, 410 S.W.3d 589, 2013 Ky. LEXIS 410 ( Ky. 2013 ).

4.5.Murder.

The defendant was not entitled to the instruction on criminal facilitation of either rape or murder, where he never asserted that he knew of his companion’s intentions. Smith v. Commonwealth, 722 S.W.2d 892, 1987 Ky. LEXIS 190 ( Ky. 1987 ).

Because codefendant’s knowledge (necessary to convict her of facilitation) or intent (necessary to convict her of complicity) must both be inferred from her conduct, a reasonable juror could have doubted that she was guilty of murder by complicity but concluded she was guilty of the lesser offense of facilitation; thus failure to provide a facilitation instruction was error requiring reversal of codefendant’s conviction for murder by complicity where her tendered instruction on criminal facilitation was refused. Chumbler v. Commonwealth, 905 S.W.2d 488, 1995 Ky. LEXIS 99 ( Ky. 1995 ).

In a murder prosecution of two (2) defendants, where no reasonable juror could have found from the evidence — including defendants’ own testimony — that either defendant was “wholly indifferent” to the completion of the murder, neither had been entitled to an instruction on criminal facilitation of murder. Caudill v. Commonwealth, 120 S.W.3d 635, 2003 Ky. LEXIS 140 ( Ky. 2003 ).

Defendant was not entitled to a facilitation instruction, as no reasonable juror could conclude that she provided money to her son to commit a murder, knowing that he would commit the crime, but lacked any intention to promote the crime itself. Monroe v. Commonwealth, 244 S.W.3d 69, 2008 Ky. LEXIS 10 ( Ky. 2008 ).

Trial court properly declined to instruct the jury on facilitation to reckless homicide because defendant knew that an offender intended to commit a crime other than reckless homicide, and the crime for which defendant was convicted, reckless homicide, was appropriate for his conduct based on the evidence presented at trial; one cannot facilitate reckless homicide because facilitation requires knowledge that a person intends to commit a crime, and a person cannot intend to commit reckless homicide. Finnell v. Commonwealth, 295 S.W.3d 829, 2009 Ky. LEXIS 254 ( Ky. 2009 ).

Because appellant was not merely a facilitator of the first murder as he was at the scene of the crime, stole various items from the store where the victim worked, helped codefendant carry the loot back to the homeless shelter, stored the bags of stolen goods in a storage unit rented under his name, and both he and codefendant made repeated trips to the unit to retrieve items, the trial judge was correct in refusing to instruct on criminal facilitation under KRS 506.080 as a lesser-included offense and instructing the jury on complicity to commit murder under KRS 520.020 . Murray v. Commonwealth, 399 S.W.3d 398, 2013 Ky. LEXIS 230 ( Ky. 2013 ).

5.Providing Weapon.

Defendant, who handed his codefendant a gun when told to shoot a police officer, would be guilty of criminal facilitation if he furnished his codefendant with the means of committing a crime knowing that he would use it to commit a crime but without intention to promote or contribute to its fruition. Luttrell v. Commonwealth, 554 S.W.2d 75, 1977 Ky. LEXIS 482 ( Ky. 1977 ).

6.Separate Offenses.

Defendant’s conviction of both facilitation of the manufacture of methamphetamine pursuant to KRS 506.080(1) and of engaging in organized crime pursuant to KRS 506.120 did not violate the double jeopardy ban, as each offense clearly required proof of facts not required by the other. Layton v. Commonwealth, 2007 Ky. App. LEXIS 134 (Ky. Ct. App. May 4, 2007), review denied, ordered not published, 2008 Ky. LEXIS 45 (Ky. Jan. 16, 2008).

Cited:

Perdue v. Commonwealth, 916 S.W.2d 148, 1995 Ky. LEXIS 109 ( Ky. 1995 ), cert. denied, Perdue v. Kentucky, 519 U.S. 855, 117 S. Ct. 151, 136 L. Ed. 2d 96, 1996 U.S. LEXIS 5295, 65 U.S.L.W. 3260 (1996); Gabow v. Commonwealth, 34 S.W.3d 63, 2000 Ky. LEXIS 136 ( Ky. 2000 ), cert. denied, Gabow v. Kentucky, 534 U.S. 832, 122 S. Ct. 80, 151 L. Ed. 2d 43, 2001 U.S. LEXIS 5753, 70 U.S.L.W. 3235 (2001); Smith v. Commonwealth, — S.W.3d —, 2011 Ky. App. LEXIS 9 (Ky. Ct. App. 2011); Darcy v. Commonwealth, 2014 Ky. LEXIS 433 (Sept. 18, 2014).

Notes to Unpublished Decisions

1.Miscellaneous.

Unpublished decision: Where defendant appealed his 180-month sentence for violating 18 U.S.C.S. § 922(a), a district court did not err in treating his conviction for facilitation to robbery, first degree, in violation of KRS 506.080 , as a violent felony under 18 U.S.C.S. § 924(e). United States v. Elliott, 2014 FED App. 0387N, 2014 U.S. App. LEXIS 9674 (6th Cir. Ky. May 23, 2014).

Research References and Practice Aids

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Complicity and Inchoate Offenses, Part 3 Inchoate Offenses, § 10.26.

506.090. Criminal facilitation — No defense.

In any prosecution for criminal facilitation, it is no defense that:

  1. The person facilitated could not be guilty of the crime facilitated because of criminal irresponsibility or other legal incapacity or exemption, unawareness of the criminal nature of the conduct facilitated, or any other factor precluding the mental state required for commission of the crime facilitated; or
  2. The person facilitated has not been prosecuted for or convicted of the crime facilitated, or has been convicted of a different crime, or has an immunity to prosecution or conviction for such conduct; or
  3. The crime facilitated can be committed only by a particular class or classes of persons, and the accused, not belonging to such class or classes, is for that reason legally incapable of committing the crime in an individual capacity.

History. Enact. Acts 1974, ch. 406, § 57, effective January 1, 1975.

Research References and Practice Aids

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Complicity and Inchoate Offenses, Part 3 Inchoate Offenses, § 10.26.

506.100. Criminal facilitation — Exemptions.

A person is not guilty of criminal facilitation when:

  1. The crime facilitated is so defined that his conduct is inevitably incident to its commission; or
  2. Prior to the commission of the crime facilitated he makes a substantial effort to prevent the commission of that crime.

History. Enact. Acts 1974, ch. 406, § 58, effective January 1, 1975.

NOTES TO DECISIONS

1.Jury Instruction.

Trial court correctly omitted a jury instruction based on this section, because first degree assault under Ky. Rev. Stat. Ann. § 508.010(1) did not require participation of two persons and thus, defendant's participation was not inevitably incident to the crime of assault. Commonwealth v. Jennings, 490 S.W.3d 339, 2016 Ky. LEXIS 247 ( Ky. 2016 ).

Research References and Practice Aids

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Complicity and Inchoate Offenses, Part 3 Inchoate Offenses, § 10.26.

506.110. Multiple convictions.

  1. A person may not be convicted on the basis of the same course of conduct of both the actual commission of a crime and:
    1. A criminal attempt to commit that crime; or
    2. A criminal solicitation of that crime; or
    3. A criminal facilitation of that crime; or
    4. A conspiracy to commit that crime, except as provided in subsection (2) of this section.
  2. A person may be convicted on the basis of the same course of conduct of both the actual commission of a crime and a conspiracy to commit that crime when the conspiracy from which the consummated crime resulted had as an objective of the conspiratorial relationship the commission of more than one (1) crime.
  3. A person may not be convicted of more than one (1) of the offenses defined in KRS 506.010 , 506.030 , 506.040 and 506.080 for a single course of conduct designed to consummate in the commission of the same crime.

History. Enact. Acts 1974, ch. 406, § 59, effective January 1, 1975.

NOTES TO DECISIONS

1.Conspiracy and Underlying Offense.

Convictions for both conspiracy to commit first degree robbery and accomplice to second degree assault did not violate the prohibition in subsection (1) of this section against conviction for both conspiracy to commit a crime and the actual commission of that crime. Wilson v. Commonwealth, 695 S.W.2d 854 ( Ky. 1985 ).

Defendant’s conviction for robbery and conspiracy to commit robbery did not constitute double jeopardy under Kentucky law or the Federal Constitution. The evidence presented indicated a plan or conspiracy by both defendants to kidnap the victim and to rob her as well as to take any other illegal actions in order to achieve the successful completion of their criminal enterprise. It was clear that the codefendants intended to kidnap the victim in order to commit the robbery and subsequently the rape by defendant and the killing of the victim by defendant occurred. Clearly there were multiple illegal actions in the kidnapping and robbery and subsection (2) of this section applied. Wilson v. Commonwealth, 836 S.W.2d 872, 1992 Ky. LEXIS 84 ( Ky. 1992 ), cert. denied, 507 U.S. 1034, 113 S. Ct. 1857, 123 L. Ed. 2d 479, 1993 U.S. LEXIS 2856 (U.S. 1993), overruled in part, St. Clair v. Roark, 10 S.W.3d 482, 1999 Ky. LEXIS 148 ( Ky. 1999 ).

Subsection (2) of this section specifically authorized punishment for robbery as an addition to and not a substitute for conspiracy in cases meeting the standards of this section. The offenses are considered separate and a claim of double jeopardy is no bar to cumulative sentences. Humphrey v. Commonwealth, 836 S.W.2d 865, 1992 Ky. LEXIS 87 ( Ky. 1992 ).

2.Evidence.

Where there was testimony that co-conspirators had been walking around looking for someone to rob and that the victim was abducted for robbery, drugs, and drug money, the evidence of defendant’s guilt under subsection (2) of this section of the crime of criminal conspiracy was sufficient to withstand a motion for directed verdict. Humphrey v. Commonwealth, 836 S.W.2d 865, 1992 Ky. LEXIS 87 ( Ky. 1992 ).

Cited:

Commonwealth v. Speakes, 740 S.W.2d 941, 1987 Ky. LEXIS 262 ( Ky. 1987 ).

Research References and Practice Aids

Northern Kentucky Law Review.

Gilday and Gillen, Jeopardy — Meandering Through Mandates and Maneuvers, 6 N. Ky. L. Rev. 245 (1979).

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Complicity and Inchoate Offenses, Part 3 Inchoate Offenses, § 10.24.

Kentucky Instructions to Juries (Criminal), 5th Ed., General Principles, Part 1 Matters of Substance, § 1.16.

506.120. Engaging in organized crime.

  1. A person, with the purpose to establish or maintain a criminal syndicate or to facilitate any of its activities, shall not do any of the following:
    1. Organize or participate in organizing a criminal syndicate or any of its activities;
    2. Provide material aid to a criminal syndicate or any of its activities, whether such aid is in the form of money or other property, or credit;
    3. Manage, supervise, or direct any of the activities of a criminal syndicate, at any level of responsibility;
    4. Knowingly furnish legal, accounting, or other managerial services to a criminal syndicate;
    5. Commit, or conspire or attempt to commit, or act as an accomplice in the commission of, any offense of a type in which a criminal syndicate engages on a continuing basis;
    6. Commit, or conspire or attempt to commit or act as an accomplice in the commission of, any offense of violence;
    7. Commit, or conspire or attempt to commit, or act as an accomplice in the commission of bribery in violation of KRS Chapters 518 or 521, or KRS 119.205 , 121.025 , 121.055 , 524.070 , 156.465, 45A.340 , 63.090 , 6.080 , 18A.145 , or 244.600 ;
    8. Commit, or conspire or attempt to commit, or act as an accomplice in the commission of more than one (1) theft of retail merchandise with the intent to resell the stolen merchandise; or
    9. Acquire stolen retail merchandise for the purpose of reselling it where the person knew or should have known that the merchandise had been stolen.
  2. Whoever violates this section is guilty of engaging in organized crime, which shall be a Class B felony, unless the offense involves only the theft or acquisition of retail merchandise for the purpose of reselling it, in which case it shall be a Class C felony.
  3. As used in this section “criminal syndicate” means three (3) or more persons, or, in cases of merchandise theft from a retail store for the purpose of reselling the stolen merchandise, two (2) or more persons, collaborating to promote or engage in any of the criminal acts provided in subsection (4)(a) to (f) of this section on a continuing basis.
  4. As used in this section, “criminal gang syndicate” means three (3) or more persons acting as a part of or members of a criminal gang and collaborating to promote or engage in any of the following on a continuing basis:
    1. Extortion or coercion in violation of KRS 514.080 or 521.020 ;
    2. Engaging in, promoting, or permitting prostitution or human trafficking in violation of KRS Chapter 529;
    3. Any theft offense as defined in KRS Chapter 514;
    4. Any gambling offense as defined in KRS 411.090 , KRS Chapter 528, or Section 226 of the Constitution;
    5. Illegal trafficking in controlled substances as prohibited by KRS Chapter 218A, in intoxicating or spirituous liquor as defined in KRS Chapters 242 or 244, or in destructive devices or booby traps as defined in KRS Chapter 237; or
    6. Lending at usurious interest, and enforcing repayment by illegal means in violation of KRS Chapter 360.
  5. Any person found to have been a member of a criminal gang syndicate while engaging in the criminal acts listed in subsection (4) of this section shall not be released on probation or parole until he or she has served at least eighty-five percent (85%) of the sentence imposed.

History. Enact. Acts 1978, ch. 321, § 1, effective June 17, 1978; 1980, ch. 188, § 306, effective July 15, 1980; 1982, ch. 448, § 72, effective July 15, 1982; 1998, ch. 121, § 37, effective July 15, 1998; 2000, ch. 417, § 16, effective December 1, 2000; 2007, ch. 19, § 3, effective June 26, 2007; 2009, ch. 106, § 15, effective June 25, 2009; 2018 ch. 202, § 3, effective April 26, 2018.

Legislative Research Commission Note.

(12/1/2000). The contingency on the effectiveness of this statute set by 2000 Ky. Acts ch. 417, sec. 18, was met, the voters of the Commonwealth having ratified at the general election on November 7, 2000, a constitutional amendment (see 2000 Ky. Acts ch. 399) abolishing the Railroad Commission.

NOTES TO DECISIONS

1.Constitutionality.

The criminal syndicate statute, this section, is not unconstitutionally vague and sufficiently differs from KRS 218A.1402 , which prohibits criminal conspiracy to traffic in a controlled substance. KRS 218A.1402 prohibits a conspiracy as defined in KRS 506.040 . KRS 506.040 is distinguishable from this section, because the former does not require the involvement of five or more persons as does the latter. A conspiracy can result from an agreement between one or more persons. Dishman v. Commonwealth, 906 S.W.2d 335, 1995 Ky. LEXIS 114 ( Ky. 1995 ).

2.Collaboration.

The collaboration required by this section means simply collaborating in the scheme, and it is not necessary for the Commonwealth to show that each participant collaborating in the scheme collaborated with or even was aware of the collaboration of the other participants. Commonwealth v. Phillips, 655 S.W.2d 6, 1983 Ky. LEXIS 286 ( Ky. 1983 ), cert. denied, 465 U.S. 1072, 104 S. Ct. 1427, 79 L. Ed. 2d 751 (U.S. 1984).

All the jury is required to believe for conviction is that “five or more collaborated”; this is not giving a jury the option of finding alternative grounds of guilt. Commonwealth v. Phillips, 655 S.W.2d 6, 1983 Ky. LEXIS 286 ( Ky. 1983 ), cert. denied, 465 U.S. 1072, 104 S. Ct. 1427, 79 L. Ed. 2d 751 (U.S. 1984).

In an appeal of a conviction for engaging in a criminal syndicate, where sufficient evidence was produced at trial that as many as six other named individuals collaborated with defendant to distribute narcotics, the fact that two others were acquitted of the criminal syndicate charge does not render the proof against defendant insufficient; there were still at least four whom the jury believed collaborated with defendant in the activities of the criminal syndicate. The court properly submitted the issue to the jury for their determination based on the facts and evidence produced at trial. Cooper v. Commonwealth, 786 S.W.2d 875, 1990 Ky. LEXIS 30 ( Ky. 1990 ).

3.Number of Collaborators.

Inmate did not cite any authority imposing a requirement that each member of the criminal syndicate must be convicted, nor did he cite to any authority that voided the organized crime convictions of all members of the criminal syndicate any time one of those members either was not convicted or had their conviction overturned on appeal; thus, the inmate did not provide the court with any factual or legal support for his request. Accordingly, the inmate failed to show good cause for the court to stay the matter or hold it in abeyance to allow him to return to state court to pursue the claim. Brewer v. Bottom, 2012 U.S. Dist. LEXIS 15478 (E.D. Ky. Feb. 8, 2012).

4.Continuing Basis.

The standard of proof on the element of collaboration on a “continuing basis” is by its very nature indefinite; the Commonwealth is not held to proving any specific number of incidents or any element of time, but must show by the proof what the jury could infer from the evidence as intent to collaborate on a continuing basis. Commonwealth v. Phillips, 655 S.W.2d 6, 1983 Ky. LEXIS 286 ( Ky. 1983 ), cert. denied, 465 U.S. 1072, 104 S. Ct. 1427, 79 L. Ed. 2d 751 (U.S. 1984).

Where defendant, while in prison, engaged in credit card fraud and, over a period of time collaborated with a number of other persons with a view towards setting up the scheme on a nationwide basis, the jury was entitled to find that the collaboration “to promote or engage” was on a “continuing basis.” Commonwealth v. Phillips, 655 S.W.2d 6, 1983 Ky. LEXIS 286 ( Ky. 1983 ), cert. denied, 465 U.S. 1072, 104 S. Ct. 1427, 79 L. Ed. 2d 751 (U.S. 1984).

Where the group smuggled drugs into the prison numerous times, and the defendant wrote about 17 letters to a co-conspirator in facilitation of the syndicate’s goals, the letters themselves constituted continuing acts, and also described a continuing series of other illegal activities; therefore, subsection (3) of this section was not unconstitutionally vague, even though it fails to define “continuing basis.” Cohoon v. Rees, 820 F.2d 784, 1987 U.S. App. LEXIS 7207 (6th Cir. Ky. 1987 ).

One incident of drug dealing, involving only three individuals, was not sufficient to prove the existence of an ongoing collaboration involving at least five individuals for purposes of KRS 506.120(3). Parker v. Commonwealth, 291 S.W.3d 647, 2009 Ky. LEXIS 91 ( Ky. 2009 ), cert. denied, 559 U.S. 910, 130 S. Ct. 1293, 175 L. Ed. 2d 1084, 2010 U.S. LEXIS 1004 (U.S. 2010).

5.Evidence.

The jury was certainly entitled to find that defendant organized credit card fraud scheme with the purpose of establishing and maintaining a criminal syndicate, where he deliberately brought a number of persons, at least five, into active participation in the scheme, where there was evidence he wished a friend to be able to establish a similar scheme in California, and where there was some evidence of an individual wishing to establish a nationwide organization. Commonwealth v. Phillips, 655 S.W.2d 6, 1983 Ky. LEXIS 286 ( Ky. 1983 ), cert. denied, 465 U.S. 1072, 104 S. Ct. 1427, 79 L. Ed. 2d 751 (U.S. 1984).

Where the defendant was charged with facilitating a criminal syndicate’s illegal drug trafficking by knowingly participating directly in the drug trafficking itself, and the instruction to the jury required it to find that facilitation had occurred only if the defendant, acting with knowledge that another person was committing or tended to commit a crime, engaged in conduct which knowingly provided such person with means of opportunity for the commission of the crime and which in fact aided such person to commit a crime, his conviction was clearly premised on behavior barred by an undoubtedly constitutional application of subsection (1) of this section, even though subsection (1) of this section conceivably could be read to reach a person who facilitates an unknown criminal syndicate’s illegal activities by aiding its legal activities. Cohoon v. Rees, 820 F.2d 784, 1987 U.S. App. LEXIS 7207 (6th Cir. Ky. 1987 ).

Admission of search warrant execution and arrest video tape, which contained dramatic footage of the arrest, was not inflammatory, provocative, unnecessary, irrelevant or unduly prejudicial, but provided relevant and probative evidence of the circumstances of the crimes charged to defendant of trafficking cocaine and criminal syndicate; showing of such tape did not rise to the level of manifest injustice or palpable error under RCr 10.26. Edmonds v. Commonwealth, 906 S.W.2d 343, 1995 Ky. LEXIS 113 ( Ky. 1995 ).

Trial court erred by failing to grant defendant’s motion for a directed verdict on the criminal syndication charge; the Commonwealth did not present proof that defendant and at least four other persons collaborated to traffic in narcotics on a continuing basis. Parker v. Commonwealth, 291 S.W.3d 647, 2009 Ky. LEXIS 91 ( Ky. 2009 ), cert. denied, 559 U.S. 910, 130 S. Ct. 1293, 175 L. Ed. 2d 1084, 2010 U.S. LEXIS 1004 (U.S. 2010).

Large amount of cocaine a gang member testified to having seen hidden in a victim’s coat permitted but did not require the jury to infer that defendant and two other gang members intended to steal the cocaine from the victim in order to distribute, sell, or otherwise transfer it; likewise, the gang member’s testimony that he tried unsuccessfully to get his share of the cocaine from defendant later that night would permit the inference that defendant stole the cocaine from the victim, even though defendant allegedly denied it. Drawing all reasonable inferences in favor of the Commonwealth, it was not unreasonable for the jury to have found defendant guilty beyond a reasonable doubt of conspiracy to traffic in a controlled substance. Parker v. Commonwealth, 291 S.W.3d 647, 2009 Ky. LEXIS 91 ( Ky. 2009 ), cert. denied, 559 U.S. 910, 130 S. Ct. 1293, 175 L. Ed. 2d 1084, 2010 U.S. LEXIS 1004 (U.S. 2010).

6.Indictment.

An indictment for criminal syndication need not allege at least one of the seven methods of committing the crime set forth in KRS 506.120(1) and one of the six forbidden activities set forth in KRS 506.120(3). An indictment sufficiently charged an offense simply by naming the offense. Parker v. Commonwealth, 291 S.W.3d 647, 2009 Ky. LEXIS 91 ( Ky. 2009 ), cert. denied, 559 U.S. 910, 130 S. Ct. 1293, 175 L. Ed. 2d 1084, 2010 U.S. LEXIS 1004 (U.S. 2010).

KRS 506.120 criminal syndication indictment was not infirm and subject to dismissal solely because it lacked a detailed recitation of the underlying facts. The protocol for a defendant who desired more information was to serve a RCr 6.22 motion for a bill of particulars. Parker v. Commonwealth, 291 S.W.3d 647, 2009 Ky. LEXIS 91 ( Ky. 2009 ), cert. denied, 559 U.S. 910, 130 S. Ct. 1293, 175 L. Ed. 2d 1084, 2010 U.S. LEXIS 1004 (U.S. 2010).

7.Instructions.

Where the trial court failed to instruct the jury on an essential element, namely, action on a continuing basis, the error, if not harmless, violated the defendant’s due process rights. Cohoon v. Rees, 820 F.2d 784, 1987 U.S. App. LEXIS 7207 (6th Cir. Ky. 1987 ).

Because the words “continuing basis” in the jury instructions on the criminal syndicate statute were made applicable to both paragraphs A and B of the instructions by the word “and,” it was not necessary that the instructions contain the words “continuing basis” in both paragraphs; thus, the instructions were correct and did not amount to reversible error. Dishman v. Commonwealth, 906 S.W.2d 335, 1995 Ky. LEXIS 114 ( Ky. 1995 ).

3.Number of Collaborators.

The requirement of “five persons” in the definitional portion of this section is only a minimum number to prove a violation of the statute, and the Commonwealth is at liberty to prove or attempt to prove as many “persons collaborated” as enabled to do so by available witnesses; the “five persons” required by statute is not enlarged by virtue of the Commonwealth proving more than five persons. Commonwealth v. Phillips, 655 S.W.2d 6, 1983 Ky. LEXIS 286 ( Ky. 1983 ), cert. denied, 465 U.S. 1072, 104 S. Ct. 1427, 79 L. Ed. 2d 751 (U.S. 1984).

8.Separate Offenses.

Defendant was not placed in double jeopardy as a result of her conviction for both cocaine trafficking and criminal syndicate. The count of cocaine trafficking was not a “lesser included offense” of the crime of criminal syndicate and there is no double jeopardy violation because the statutory crimes of trafficking in a controlled substance and criminal syndicate each require proof of facts which the other does not. Brooks v. Commonwealth, 905 S.W.2d 861, 1995 Ky. LEXIS 104 ( Ky. 1995 ); Smith v. Commonwealth, 905 S.W.2d 865, 1995 Ky. LEXIS 115 ( Ky. 1995 ); Dishman v. Commonwealth, 906 S.W.2d 335, 1995 Ky. LEXIS 114 (Ky. 1995); Edmonds v. Commonwealth, 906 S.W.2d 343, 1995 Ky. LEXIS 113 (Ky. 1995).

Defendant’s conviction of both facilitation of the manufacture of methamphetamine pursuant to KRS 506.080(1) and of engaging in organized crime pursuant to KRS 506.120 did not violate the double jeopardy ban, as each offense clearly required proof of facts not required by the other. Layton v. Commonwealth, 2007 Ky. App. LEXIS 134 (Ky. Ct. App. May 4, 2007), review denied, ordered not published, 2008 Ky. LEXIS 45 (Ky. Jan. 16, 2008).

Defendant was properly convicted of engaging in organized crime under KRS 506.120 , with manufacturing methamphetamine (KRS 218A.010(34)) as the predicate offense, because illegal trafficking was part of the definition of “criminal syndicate” under KRS 506.120 (3)(e) and 506.120(1)(b). Layton v. Commonwealth, 2007 Ky. App. LEXIS 134 (Ky. Ct. App. May 4, 2007), review denied, ordered not published, 2008 Ky. LEXIS 45 (Ky. Jan. 16, 2008).

Indictment for criminal syndication complied with RCr 9.18; the Commonwealth did not have to allege at least one of the seven methods of committing the crime set forth in KRS 506.120(1) and one of the six forbidden activities set forth in KRS 506.120(3). The indictment sufficiently charged an offense simply by naming the offense, and defendant did not show that he was unfairly prejudiced by joinder. Parker v. Commonwealth, 291 S.W.3d 647, 2009 Ky. LEXIS 91 ( Ky. 2009 ), cert. denied, 559 U.S. 910, 130 S. Ct. 1293, 175 L. Ed. 2d 1084, 2010 U.S. LEXIS 1004 (U.S. 2010).

9.Severance of Offenses.

Trial court did not abuse its wide discretion in denying defendant’s RCr 9.16 motion to sever; the KRS 506.120(1) criminal syndication charge served to link the other charges together. Even the charges that did not specifically underlie the syndication charge helped present the jury with a more complete picture of the alleged activities of defendant and his gang; and, aside from his speculation that a jury was more likely to convict him due to the multitude of charges, defendant pointed to no concrete prejudice (for example, having to present completely antagonistic defenses to various charges or having to admit guilt on a lesser offense in an attempt to avoid conviction on a higher offense). Parker v. Commonwealth, 291 S.W.3d 647, 2009 Ky. LEXIS 91 ( Ky. 2009 ), cert. denied, 559 U.S. 910, 130 S. Ct. 1293, 175 L. Ed. 2d 1084, 2010 U.S. LEXIS 1004 (U.S. 2010).

Cited:

Zalman v. Armstrong, 802 F.2d 199, 1986 U.S. App. LEXIS 31458 (6th Cir. 1986); Hill v. Commonwealth, 125 S.W.3d 221, 2004 Ky. LEXIS 11 ( Ky. 2004 ).

Research References and Practice Aids

Kentucky Bench & Bar.

Hunt, Human Trafficking: A Primer for Kentucky Lawyers. Vol. 73, No. 4, July 2009, Ky. Bench & Bar, 17.

Kentucky Law Journal.

Article: Judicially Fusing the Pinkerton Doctrine to RICO Conspiracy Litigation Through the Concept of Mediate Causation, 97 Ky. L.J. 665 (2008/2009).

Northern Kentucky Law Review.

Gilday and Gillen, Jeopardy — Meandering Through Mandates and Maneuvers, 6 N. Ky. L. Rev. 245 (1979).

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Complicity and Inchoate Offenses, Part 1 Definitions, § 10.04.

Kentucky Instructions to Juries (Criminal), 5th Ed., Complicity and Inchoate Offenses, Part 3 Inchoate Offenses, §§ 10.27, 10.28.

506.130. Engaging in furtherance of criminal gang activity — Enhancement of penalty. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1998, ch. 606, § 82, effective July 15, 1998) was repealed by Acts 2000, ch. 431, § 3, effective July 14, 2000. For present law, see KRS 506.140 and 506.150 .

506.135. Definitions for chapter.

As used in this chapter:

  1. “Criminal gang” means any alliance, network, conspiracy, or group that:
    1. Consists of three (3) or more persons who have any of the following in common:
      1. Name;
      2. Identifying hand signal or sign;
      3. Colors;
      4. Symbols;
      5. Geographical location; or
      6. Leader;
    2. Has been identified or prosecuted as a gang by the Commonwealth, or another state or any federal law enforcement agency; and
    3. Has two (2) or more members who, individually or collectively, through its members or actions of its members engage in or have engaged in a pattern of criminal activity.

      “Criminal gang” does not include fraternal organizations, unions, corporations, associations, or similar entities, unless organized for the primary purpose of engaging in criminal activity; and

  2. “Pattern of criminal gang activity” means acts performed on separate occasions within a five (5) year period by any member or members of a criminal gang for the commission, attempt, or solicitation of, or conspiracy to commit:
    1. Two (2) or more felony offenses;
    2. Three (3) or more of the misdemeanor offenses enumerated in KRS 506.160 ; or
    3. A combination of at least:
      1. One (1) felony offense; and
      2. One (1) of the misdemeanor offenses enumerated in KRS 506.160 .

HISTORY: 2018 ch. 202, § 1, effective April 26, 2018.

506.140. Criminal gang recruitment — Definitions for chapter.

  1. A person is guilty of criminal gang recruitment when he solicits or entices another person to join a criminal gang, or intimidates or threatens another person because the other person:
    1. Refuses to join a criminal gang;
    2. Has withdrawn or is attempting to withdraw from a criminal gang; or
    3. Refuses to submit to a demand made by a criminal gang.
  2. As used in this chapter:
    1. “Criminal gang” means any alliance, network, or conspiracy, in law or in fact, of five (5) or more persons with an established hierarchy that, through its membership or through the action of any member, engages in a continuing pattern of criminal activity. “Criminal gang” shall not include fraternal organizations, unions, corporations, associations, or similar entities, unless organized for the primary purpose of engaging in criminal activity.
    2. “Continuing pattern of criminal activity” means a conviction by any member or members of a criminal gang for the commission, attempt, or solicitation of two (2) or more felony offenses, the commission of two (2) or more violent misdemeanor offenses, or a combination of at least one (1) of these felony offenses and one (1) of these violent misdemeanor offenses, on separate occasions within a two (2) year period for the purpose of furthering gang activity.
    3. “Violent misdemeanor offense” means KRS 508.030 , 508.050 , 508.070 , 508.080 , 508.120 , 508.150 , 509.030 , and 509.080 .
  3. Criminal gang recruitment is a Class A misdemeanor for the first offense and a Class D felony for a second or subsequent offense.

History. Enact. Acts 1998, ch. 606, § 83, effective July 15, 1998; 2000, ch. 431, § 1, effective July 14, 2000.

Research References and Practice Aids

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Complicity and Inchoate Offenses, Part 1 Definitions, §§ 10.05, 10.07.

Kentucky Instructions to Juries (Criminal), 5th Ed., Complicity and Inchoate Offenses, Part 3 Inchoate Offenses, §§ 10.30, 10.31.

506.140. Criminal gang recruitment.

    1. Any person who is age eighteen (18) or older is guilty of criminal gang recruitment in the first degree if he or she: (1) (a) Any person who is age eighteen (18) or older is guilty of criminal gang recruitment in the first degree if he or she:
      1. Solicits or entices any person under the age of fifteen (15) to join a criminal gang; and
      2. Requires as a condition of membership the commission of a crime.
    2. Criminal gang recruitment in the first degree is a Class C felony for the first offense and a Class B felony for a second or subsequent offense.
    1. Any person over the age of eighteen (18) is guilty of criminal gang recruitment in the second degree if he or she entices or solicits another person to join a criminal gang or intimidates or threatens another person because the other person: (2) (a) Any person over the age of eighteen (18) is guilty of criminal gang recruitment in the second degree if he or she entices or solicits another person to join a criminal gang or intimidates or threatens another person because the other person:
      1. Refuses to join a criminal gang;
      2. Has withdrawn or is attempting to withdraw from a criminal gang; or
      3. Refuses to submit to a demand made by a criminal gang.
    2. Criminal gang recruitment in the second degree is a Class D felony for the first offense and a Class C felony for a second or subsequent offense.
    1. Any person under the age of eighteen (18) is guilty of criminal gang recruitment in the third degree when he or she intentionally encourages or solicits another person to join a criminal gang. (3) (a) Any person under the age of eighteen (18) is guilty of criminal gang recruitment in the third degree when he or she intentionally encourages or solicits another person to join a criminal gang.
    2. Criminal gang recruitment in the third degree is a Class A misdemeanor for the first offense and a Class D felony for a second or subsequent offense.
  1. It shall be no defense to prosecution under this section that the other person never intended to or did not commit the crime.

HISTORY: Enact. Acts 1998, ch. 606, § 83, effective July 15, 1998; amend, Acts 2000, ch. 431, § 1, effective July 14, 2000; repealed and reenacted by 2018 ch. 202, § 2, effective April 26, 2018.

506.150. Criminal gang activity or recruitment — Actions not constituting defenses.

  1. To establish the existence of a “criminal gang” as defined in KRS 506.135 , competent evidence that is probative of the existence of or membership in a criminal gang shall be admissible, including two (2) or more of the following:
    1. Self-proclamation, either at the time of arrest or any time before or thereafter;
    2. A common name, insignia, flag, or means of recognition;
    3. Common identifying hand or body signs, signals, graffiti, or code;
    4. A common identifying mode, style, or color of dress;
    5. An identifying tattoo or body marking;
    6. Membership, age, or other qualifications;
    7. Creed of belief;
    8. An organizational or command structure, overt or covert;
    9. A de facto claim of territory or jurisdiction;
    10. Participation, whether present or under direction, in an initiation ritual;
    11. Directing or ordering participation in an initiation ritual;
    12. A concentration or specialty;
    13. A method of operation or criminal enterprise;
    14. Identification as a gang member by a reliable informant;
    15. Identification as a criminal gang member by the alleged gang member’s parent or guardian;
    16. Self-proclamation of association, whether for business or enjoyment, with criminal gang members;
    17. Identification through criminal gang publications, rosters, or bylaws;
    18. Participation in some form of verbal or written communication indicating the commission of a crime by the criminal gang;
    19. Participation in photos or social media interaction with criminal gang members promoting or furthering criminal activity; or
    20. Having committed or planning to commit crime or a criminal activity to target a rival criminal gang.
  2. It is no defense to prosecution under KRS 506.120 1 506.140 , 506.160 , or 506.170 that:
    1. One (1) or more members of the gang are not criminally responsible for the offense;
    2. One (1) or more members of the gang have been acquitted, have not been prosecuted or convicted, have been convicted of a different offense, or are under prosecution;
    3. A person has been charged with, acquitted, or convicted of any offense under KRS 506.120 , 506.140 , 506.160 , or 506.170 ;
    4. The participants may not know each other’s identity;
    5. The membership in the criminal gang may change from time to time; or
    6. The participants may stand in a wholesaler-retailer or other arm’s length arrangement in the conduct of illicit distribution or other operations.
  3. Once the initial combination of three (3) or more persons is formed, the number or identity of persons remaining in the gang is immaterial as long as two (2) or more persons in the gang, excluding the defendant, are involved in a continuing pattern of criminal gang activity constituting a violation of KRS 506.120 , 506.140 , 506.160 , or 506.170 .

History. Enact. Acts 1998, ch. 606, § 84, effective July 15, 1998; 2000, ch. 431, § 2, effective July 14, 2000; 2018 ch. 202, § 4, effective April 26, 2018.

506.160. Minimum service of sentence required if convicted defendant was member of criminal gang acting for the purpose of benefitting, promoting, or furthering the interest of criminal gang.

  1. If a defendant is alleged by the prosecuting attorney to have been a member of a criminal gang as defined in KRS 506.135 , at the time of the commission of the offense, upon conviction of the offense there shall be a separate proceeding from that proceeding which resulted in the defendant’s conviction if the defendant was convicted of:
    1. Assault in the fourth degree under KRS 508.030 ;
    2. Menacing under KRS 508.050 ;
    3. Wanton endangerment in the second degree under KRS 508.070 ;
    4. Terroristic threatening in the third degree under KRS 508.080 ;
    5. Stalking in the second degree under KRS 508.150 ;
    6. Unlawful imprisonment in the second degree under KRS 509.030 ;
    7. Criminal coercion under KRS 509.080 ;
    8. Criminal mischief in the second degree under KRS 512.030 ;
    9. Criminal mischief in the third degree under KRS 512.040 ;
    10. Obstructing governmental operations under KRS 519.020 ;
    11. Resisting arrest under KRS 520.090 ;
    12. Riot in the second degree under KRS 525.030 ;
    13. Inciting to riot under KRS 525.040 ;
    14. Harassment under KRS 525.070 ;
    15. Harassing communications under KRS 525.080 ;
    16. The misdemeanor offense of carrying a concealed deadly weapon in violation of KRS 527.020 ; or
    17. Possession of a handgun by a minor as a first offense under KRS 527.100 .
  2. The proceeding described in subsection (1) of this section shall be conducted before the court sitting with the jury that found the defendant guilty of the offense unless the court for good cause discharges that jury and impanels a new jury for that purpose. If the jury determines beyond a reasonable doubt that the defendant is or was a member of a criminal gang, acting for the purpose of benefitting, promoting, or furthering the interest of a criminal gang at the time he or she committed the offense, he or she shall not be released for a minimum of seventy-six (76) to ninety (90) days of the sentence imposed if the offense he or she is convicted of is classified as a Class B misdemeanor, or for a minimum of three hundred eleven (311) to three hundred sixty-five (365) days if the offense he or she is convicted of is classified as a Class A misdemeanor.
  3. This section shall not apply to a juvenile unless he or she has been transferred to Circuit Court as a youthful offender pursuant to KRS 640.010 and has on at least one (1) prior separate occasion been adjudicated a public offender for a felony offense.

HISTORY: 2018 ch. 202, § 5, effective April 26, 2018.

506.170. Enhancement of penalty and minimum service of sentence for conviction of criminal gang-related felonies resulting in risk of physical injury, serious physical injury, or death — Application to juveniles and persistent felony offenders.

  1. Other provisions of law notwithstanding, a person shall be penalized one (1) class more severely than provided in the penalty provision pertaining to that felony offense, unless the reclassification would move the offense to a capital offense, and shall not be released on parole until he or she has served at least eighty-five percent (85%) of the sentence imposed, if that person:
    1. Is convicted of an offense classified as a felony under any provision of the Kentucky Revised Statutes and for which the commission of the felony or felonies could or did place a member of the public at risk of physical injury, serious physical injury, or death; and
    2. At the time of the commission of the offense or offenses was a member of a criminal gang as defined in KRS 506.135 and acting for the purpose of benefitting, promoting, or furthering the interests of a criminal gang or any individual member of a criminal gang.
  2. This section shall not apply to a juvenile unless:
    1. He or she has been transferred to Circuit Court as a youthful offender pursuant to KRS 640.010 and has on at least one (1) prior separate occasion been adjudicated a public offender for a felony offense; or
    2. He or she is a violent offender, as defined in KRS 439.3401 .
  3. This section shall not apply in cases where the defendant is found to be a persistent felony offender under KRS 532.080 .

HISTORY: 2018 ch. 202, § 6, effective April 26, 2018.

506.180. Cause of action by victim of criminal gang incident against defendant for damages.

  1. If a person alleges that he or she was a victim of a criminal act by:
    1. An organization, which at the time the incident or incidents were alleged to take place was a criminal gang as defined in KRS 506.135 ; or
    2. A person, who at time the incident or incidents were alleged to take place was a member of a criminal gang as defined in KRS 506.135 ; that person may bring a cause of action against the defendant or defendants for damages.
  2. In an action brought under this section:
    1. If the plaintiff prevails, he or she shall be entitled to reasonable costs and attorney’s fees;
    2. Any award of nominal damages to the plaintiff shall support an award of attorney’s fees and costs; and
    3. Punitive damages as well as compensatory damages shall be awardable.
  3. This section shall not be construed as repealing any provision of KRS 431.080 or any other applicable statute or any statutory or common law right of action, but shall be construed as ancillary and supplemental thereto.

HISTORY: 2018 ch. 202, § 7, effective April 26, 2018.

506.190. Criminal gang-related property subject to forfeiture under same criteria and process as set out in KRS 218A.405 to 218A.460.

All property used in connection with or acquired by a criminal gang as defined in KRS 506.135 or any of its members in committing, attempting to commit, or facilitating the commission of a criminal offense shall be subject to forfeiture under the same terms, conditions, and defenses and using the same process as set out in KRS 218A.405 to 218A.460 .

HISTORY: 2018 ch. 202, § 8, effective April 26, 2018.

CHAPTER 507 Criminal Homicide

507.010. Definitions for chapter.

As used in this chapter:

  1. “Abuse” has the same meaning as in KRS 508.090 ;
  2. “Criminal homicide” means that a person is guilty of causing the death of another human being under circumstances which constitute murder, manslaughter in the first degree, manslaughter in the second degree, or reckless homicide; and
  3. “Physically helpless” and “mentally helpless” have the same meaning as in KRS 508.090 .

HISTORY: Enact. Acts 1974, ch. 406, § 60, effective January 1, 1975; 2015 ch. 64, § 1, effective June 24, 2015.

Legislative Research Commission Notes.

(6/24/2015). 2015 Ky. Acts ch. 64, sec. 3 provides that the amendments to this statute and KRS 507.030 made in 2015 Ky. Acts ch. 64, secs. 1 and 2 may be cited as “Conner's Law.”

NOTES TO DECISIONS

1.In General.

Where defendant in murder prosecution case challenged the constitutionality of KRS Chapter 507 but did not comply with KRS 418.075(1) and provide the Attorney General with notice of his challenge the appellate court declined to address the issue. Jacobs v. Commonwealth, 947 S.W.2d 416, 1997 Ky. App. LEXIS 7 (Ky. Ct. App. 1997).

2.Human Being.

A viable fetus is a “human being” for purposes of KRS 500.080(12) and the KRS Ch. 507 homicide statutes. Commonwealth v. Morris, 142 S.W.3d 654, 2004 Ky. LEXIS 153 ( Ky. 2004 ).

Cited in:

Timmons v. Commonwealth, 555 S.W.2d 234, 1977 Ky. LEXIS 496 ( Ky. 1977 ); Smith v. Commonwealth, 737 S.W.2d 683, 1987 Ky. LEXIS 237 ( Ky. 1987 ).

Research References and Practice Aids

Cross-References.

Venue of action, injury in one county, death in another, KRS 452.560 .

Northern Kentucky Law Review.

Note — Criminal Law — Murder — Intentional Killing of Viable Fetus Not Murder, 11 N. Ky. L. Rev. 213 (1984).

Hodge, Wanton Murder, Self-Defense, and Jury Instructions: Shannon v. Commonwealth is Revisited; But does it Remain?, 22 N. Ky. L. Rev. 435 (1995).

507.020. Murder.

  1. A person is guilty of murder when:
    1. With intent to cause the death of another person, he causes the death of such person or of a third person; except that in any prosecution a person shall not be guilty under this subsection if he acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be. However, nothing contained in this section shall constitute a defense to a prosecution for or preclude a conviction of manslaughter in the first degree or any other crime; or
    2. Including, but not limited to, the operation of a motor vehicle under circumstances manifesting extreme indifference to human life, he wantonly engages in conduct which creates a grave risk of death to another person and thereby causes the death of another person.
  2. Murder is a capital offense.

History. Enact. Acts 1974, ch. 406, § 61, effective January 1, 1975; 1976, ch. 183, § 1; 1976 (Ex. Sess.), ch. 15, § 1, effective December 22, 1976; 1984, ch. 165, § 26, effective July 13, 1984.

NOTES TO DECISIONS

Analysis

1.In General.

The common definition of “felonious” is “proceeding from an evil heart or purpose; done with a deliberate purpose to commit a crime.” (Decided under prior law) Hocker v. Commonwealth, 70 S.W. 291, 24 Ky. L. Rptr. 936 (1902).

Suicide, or self-murder, is a felony at common law and if one kills himself upon the advice of another, the adviser, whether present or absent at the time of the suicide, is under the statute, guilty of murder, an accessory before the fact being a principal in the murder. (Decided under prior law) Commonwealth v. Hicks, 118 Ky. 637 , 82 S.W. 265, 26 Ky. L. Rptr. 511 , 1904 Ky. LEXIS 86 ( Ky. 1904 ).

Murder is to be prosecuted as a capital offense pursuant to statute. Fact that the Commonwealth did not allege or offer to prove any of the aggravating circumstances that would authorize the imposition of aggravated punishment did not transform the offense of capital murder into a Class A felony. Berry v. Commonwealth, 782 S.W.2d 625, 1990 Ky. LEXIS 7 ( Ky. 1990 ), overruled in part, Chestnut v. Commonwealth, 250 S.W.3d 288, 2008 Ky. LEXIS 113 ( Ky. 2008 ).

2.Constitutionality.

Provision that permitted the imposition of a death sentence for willful murder did not impose cruel and inhuman punishment. (Decided under prior law) Elliott v. Kentucky, 45 F. Supp. 902, 1942 U.S. Dist. LEXIS 2668 (D. Ky. 1942 ); but see Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346, 1972 U.S. LEXIS 169 (U.S. 1972).

Kentucky’s 1974 mandatory death penalty is unconstitutional. Boyd v. Commonwealth, 550 S.W.2d 507, 1977 Ky. LEXIS 429 ( Ky. 1977 ).

Defendant was not deprived of due process where some 20 prospective jurors were excused for cause when they expressed opposition to the death penalty. Meadows v. Commonwealth, 550 S.W.2d 511, 1977 Ky. LEXIS 431 ( Ky. 1977 ).

The definition of wanton murder in subdivision (1)(b) of this section is sufficient to withstand constitutional challenges for both vagueness and separation of powers. Brown v. Commonwealth, 975 S.W.2d 922, 1998 Ky. LEXIS 172 ( Ky. 1998 ).

There is no double jeopardy violation in convicting a defendant of both the murder and the capital kidnapping of the same victim and imposing separate death sentences for each conviction. St. Clair v. Roark, 10 S.W.3d 482, 1999 Ky. LEXIS 148 ( Ky. 1999 ) sub. nom.St. Clair v. Commonwealth, 174 S.W.3d 474, 2005 Ky. LEXIS 334 ( Ky. 2005 ).

After a motor vehicle fatality, defendant was charged with wanton murder under KRS 507.020(1)(b); the Court of Appeals of Kentucky rejected defendant’s claim that the wanton murder statute was void for vagueness. The definition of wantonly had been given a statutory definition under KRS 501.020(3). Reed v. Commonwealth, 2009 Ky. App. LEXIS 171 (Ky. Ct. App. Sept. 18, 2009).

This statute was not unconstitutionally vague as it applied to petitioner inmate because he offered no extreme emotional disturbance (EED) evidence at trial and whether EED should have had a more precise definition did not go to the concerns implicated by the void-for-vagueness doctrine; EED did not forbid or require the doing of an act, but mitigated murder to manslaughter. Halvorsen v. Simpson, 2014 U.S. Dist. LEXIS 150549 (E.D. Ky. Oct. 22, 2014), aff'd, 746 Fed. Appx. 489, 2018 FED App. 426N, 2018 U.S. App. LEXIS 23105 (6th Cir. Ky. 2018 ).

3.Construction.

The offense of murder may be committed with either of two culpable mental states, intentional or wanton; however, wanton murder is not a lesser-included offense of murder, but is simply murder committed with a different state of mental culpability. Smith v. Commonwealth, 737 S.W.2d 683, 1987 Ky. LEXIS 237 ( Ky. 1987 ).

The statutory construction of subdivision (1)(a) of this section does not prohibit prosecution for intentional murder of a contemporaneous unintended victim where the intended victim is also successfully murdered. Smith v. Commonwealth, 734 S.W.2d 437, 1987 Ky. LEXIS 200 ( Ky. 1987 ), cert. denied, 484 U.S. 1036, 108 S. Ct. 762, 98 L. Ed. 2d 778, 1988 U.S. LEXIS 425 (U.S. 1988).

4.Defenses.

In order to reduce a homicide to voluntary manslaughter on the basis that the killing was done in the heat of passion, such passion must have been engendered by such provocation as would naturally overcome and suspend the self-control of a person of fair, ordinary and average disposition or willpower or cause such person to act rashly or without due deliberation or reflection. (Decided under prior law) Tarrence v. Commonwealth, 265 S.W.2d 40, 1953 Ky. LEXIS 1267 (Ky. Ct. App. 1953), cert. denied, 348 U.S. 899, 75 S. Ct. 220, 99 L. Ed. 706, 1954 U.S. LEXIS 1429 (U.S. 1954).

Defense counsel was ineffective for misadvising a 14-year-old accused of two murders that he would face the death penalty if he did not plead guilty. Relief was granted under 28 U.S.C. § 2254 because defendant could seek a lower sentence on retrial by proving the affirmative defense of extreme emotional disturbance under KRS 507.020(1)(a). Jennings v. Morgan, 2009 U.S. Dist. LEXIS 118577 (W.D. Ky. Dec. 17, 2009).

5.—Heat of Passion.

Sudden heat and passion, which may result in voluntary manslaughter, and premeditated design or malice aforethought, which are prerequisites of murder, are contradictory states of mind and cannot exist at same time with reference to homicide. (Decided under prior law) Pennington v. Commonwealth, 344 S.W.2d 407, 1961 Ky. LEXIS 233 ( Ky. 1961 ).

6.—Provocation.

Mere use of vile names is no excuse for homicide. (Decided under prior law) Salley v. Commonwealth, 277 Ky. 330 , 126 S.W.2d 438, 1939 Ky. LEXIS 649 ( Ky. 1939 ).

Statements made by the deceased to the defendant threatening to send the defendant’s son, who was AWOL and had failed to comply with a child support order, to jail or to Korea, were not of such a nature as to have caused substantial provocation justifying the reduction of the homicide of the deceased to voluntary manslaughter. (Decided under prior law) Tarrence v. Commonwealth, 265 S.W.2d 40, 1953 Ky. LEXIS 1267 (Ky. Ct. App. 1953), cert. denied, 348 U.S. 899, 75 S. Ct. 220, 99 L. Ed. 706, 1954 U.S. LEXIS 1429 (U.S. 1954).

To reduce homicide to voluntary manslaughter, the provocation must be substantial in nature, and while extremely abusive language may constitute lawful provocation, mere words or gestures, though insulting, or threats when unaccompanied by assault, are inadequate to reduce murder to manslaughter. (Decided under prior law) Tarrence v. Commonwealth, 265 S.W.2d 40, 1953 Ky. LEXIS 1267 (Ky. Ct. App. 1953), cert. denied, 348 U.S. 899, 75 S. Ct. 220, 99 L. Ed. 706, 1954 U.S. LEXIS 1429 (U.S. 1954).

Where both the defendant and his son allegedly killed the deceased and the defendant stated that he had entered into the conflict which had begun between his son and the deceased, the defendant’s right to rely on provocation was no greater than his son’s as a person who interferes in or espouses the quarrel of another stands in the place of the other and was as guilty of the crime as the person who committed it. (Decided under prior law) Tarrence v. Commonwealth, 265 S.W.2d 40, 1953 Ky. LEXIS 1267 (Ky. Ct. App. 1953), cert. denied, 348 U.S. 899, 75 S. Ct. 220, 99 L. Ed. 706, 1954 U.S. LEXIS 1429 (U.S. 1954).

7.—Self-Defense.

Where the defendant raised the issue of self-defense, neither the prosecutor’s suggestion in closing argument that the alleged weapon of the deceased could have been placed at the scene by a relative of defendant, since both the relative and deceased had access to such a weapon, nor denial of the defendant’s proffered testimony of specific incidents of violence by defendant, warranted reversal. Parrish v. Commonwealth, 581 S.W.2d 560, 1979 Ky. LEXIS 256 (Ky.), cert. denied, 444 U.S. 966, 100 S. Ct. 454, 62 L. Ed. 2d 378, 1979 U.S. LEXIS 3839 (U.S. 1979).

Self-protection and emotional disturbance are separate defenses and the presence of the former does not automatically trigger the latter, although under certain circumstances and with certain evidence, both might well be justified. Carwile v. Commonwealth, 656 S.W.2d 722, 1983 Ky. LEXIS 296 ( Ky. 1983 ), abrogated in part, Elery v. Commonwealth, 368 S.W.3d 78, 2012 Ky. LEXIS 87 ( Ky. 2012 ).

The inconclusive evidence in a murder case did not require a directed verdict for defendant based on a defense of self-protection where the victim had been highly intoxicated and lacked the dexterity to load his rifle; furthermore, defendant had made a number of statements contemporaneous with his arrest reflecting that he harbored malice against the deceased. Luttrell v. Commonwealth, 952 S.W.2d 216, 1997 Ky. LEXIS 110 ( Ky. 1997 ).

Because defendant knew that officers, seeking to serve him with felony fugitive warrants, were acting under color of official authority, defendant was not entitled to resist the arrest, and therefore could not claim justification for his actions in shooting officers. Baze v. Commonwealth, 965 S.W.2d 817, 1997 Ky. LEXIS 40 ( Ky. 1997 ), cert. denied, 523 U.S. 1083, 118 S. Ct. 1536, 140 L. Ed. 2d 685, 1998 U.S. LEXIS 2686 (U.S. 1998).

8.Double Jeopardy.

Defendants, who had already been convicted of armed robbery, could thereafter be tried for murder when the robbery victim died of wounds inflicted by the defendant during the course of the robbery, as the proof necessary to convict for the two offenses was not identical. (Decided under prior law) Centers v. Commonwealth, 318 S.W.2d 57, 1958 Ky. LEXIS 129 ( Ky. 1958 ).

Where the defendant was tried for murder on three occasions and each trial resulted in a hung jury, and the defendant sought a writ of prohibition to prevent his being tried a fourth time for the same offense, the Court of Appeals did not err in denying the writ of prohibition since the defendant did not show that the right of appeal was not an adequate remedy against double jeopardy, and the three hung juries did not constitute a double jeopardy defense. Jones v. Hogg, 639 S.W.2d 543, 1982 Ky. LEXIS 296 ( Ky. 1982 ).

Where in a murder prosecution, the evidence presented by the Commonwealth would have been sufficient to sustain a verdict of guilty had the jury agreed upon such a verdict, the inability of the jury to agree, either as to guilt or innocence, necessitated a mistrial, and a retrial on the murder charge was not precluded by the defendant’s plea of former jeopardy. Nichols v. Commonwealth, 657 S.W.2d 932, 1983 Ky. LEXIS 312 ( Ky. 1983 ), cert. denied, 465 U.S. 1028, 104 S. Ct. 1289, 79 L. Ed. 2d 691, 1984 U.S. LEXIS 1129 (U.S. 1984).

Even if the crime of drunk driving contained in KRS 189A.010 is a lesser included offense to murder, as set forth in this section, and had the trial court accepted the defendant’s guilty plea to the drunk driving charge, the Commonwealth would not have been barred by the double jeopardy clause to prosecute the defendant’s on the greater offense of murder where the defendant did not request separate trials. Keller v. Commonwealth, 719 S.W.2d 5, 1986 Ky. App. LEXIS 1459 (Ky. Ct. App. 1986).

Where an indictment encompassed murder as a principal and as an accomplice, and murder by conspiracy, but the jury was charged only on the conspiracy theory for which evidence was insufficient, double jeopardy protections barred a subsequent trial on the accomplice theory. Saylor v. Cornelius, 845 F.2d 1401, 1988 U.S. App. LEXIS 6066 (6th Cir. Ky. 1988 ).

Where the proof relied upon to elevate the offense of kidnapping to capital kidnapping is proof that the victim was murdered, the offenses merge. Cosby v. Commonwealth, 776 S.W.2d 367, 1989 Ky. LEXIS 92 ( Ky. 1989 ), cert. denied, 493 U.S. 1063, 110 S. Ct. 880, 107 L. Ed. 2d 963, 1990 U.S. LEXIS 508 (U.S. 1990), overruled in part, St. Clair v. Roark, 10 S.W.3d 482, 1999 Ky. LEXIS 148 ( Ky. 1999 ).

Murder does not require proof that the victim had been restrained, and kidnapping does not require proof of death of the victim; therefore, the offenses do not merge and there is no double jeopardy violation at the guilt/innocence phase of the trial; however, at the sentencing stage murder and kidnapping could merge since it is at this point that proof of the kidnapping victim’s death is necessary to enhance kidnapping to capital kidnapping. Harris v. Commonwealth, 793 S.W.2d 802, 1990 Ky. LEXIS 25 ( Ky. 1990 ), cert. denied, 499 U.S. 924, 111 S. Ct. 1319, 113 L. Ed. 2d 252, 1991 U.S. LEXIS 1524 (U.S. 1991), overruled in part, St. Clair v. Commonwealth, 451 S.W.3d 597, 2014 Ky. LEXIS 341 ( Ky. 2014 ).

Because there were three independently targeted victims and three independent acts of shooting and killing one patron, shooting and wounding another, and struggling with other patrons, that occurred in the diner that gave rise to the three charges against defendant for which he was convicted of intentional murder but mentally ill, attempted murder but mentally ill, and first-degree wanton endangerment but mentally ill, the verdict did not involve inconsistent mental states nor violate double jeopardy principles. Port v. Commonwealth, 906 S.W.2d 327, 1995 Ky. LEXIS 79 ( Ky. 1995 ).

Where defendant was indicted and tried for wanton murder and intentional murder and the jury was given one verdict form for each offense and found him guilty of wanton murder and left blank the forms for intentional murder and on appeal the conviction for wanton murder was reversed on the holding that the trial court had erred in denying defendant’s motion for directed verdict on charge of wanton murder because there was not doubt from the evidence that the shooting was intentional, the jury had ample opportunity to convict defendant of the intentional murder charge at the first trial and did not and thus the jeopardy on the intentional murder charge ended with that trial and he cannot be tried again for the same charge. Terry v. Potter, 111 F.3d 454, 1997 FED App. 0132P, 1997 U.S. App. LEXIS 7118 (6th Cir. Ky. 1997 ).

In light of controlling Double Jeopardy Clause precedent, after a defendant’s first trial concludes with a verdict fixing his punishment at life imprisonment without the possibility of parole, defendant has been acquitted of the aggravating factors permitting the imposition of the death penalty, and the Commonwealth is precluded from seeking the death penalty a second time when defendant’s conviction is reversed on appeal and the case is remanded for a new trial. Brown v. Commonwealth, 313 S.W.3d 577, 2010 Ky. LEXIS 148 ( Ky. 2010 ).

Defendant’s convictions for both attempted murder, in violation of KRS 507.020(1), and first-degree assault from the shooting of one victim resulted in a double jeopardy violation under KRS 505.020(1)(b); to convict defendant of both attempted murder and assault, the jury had to conclude that defendant intended to kill the victim and, at the same instant, intended not to kill the victim but only to injure the victim. Kiper v. Commonwealth, 399 S.W.3d 736, 2012 Ky. LEXIS 190 ( Ky. 2012 ), reprinted, 2012 Ky. LEXIS 409 (Ky. Nov. 21, 2012), modified, 2013 Ky. LEXIS 145 (Ky. Apr. 25, 2013).

Defendant’s convictions for both attempted murder and first-degree assault for shooting the same alleged victim did not violate the protections against double jeopardy under U.S. Const. amend. V and Ky. Const. § 13 because each crime contained an element that the other did not; the convictions did result in a double jeopardy violation of KRS 505.020(1)(b) because there were inconsistent and mutually exclusive findings of fact regarding defendant’s mens rea at the moment he fired the shots when the jury had to conclude that defendant intended to kill the alleged victim and, at the same instant, intended not to kill him but only to injure him. Kiper v. Commonwealth, 2012 Ky. LEXIS 409 (Ky. Nov. 21, 2012).

Defendant’s convictions for wanton murder and driving under the influence did not violate double jeopardy because, to convict defendant of wanton murder, a jury had to find he operated a motor vehicle under conditions manifesting extreme indifference to human life and thereby caused a victim’s death, which the jury did not have to find to convict him of driving under the influence. Bowling v. Commonwealth, 553 S.W.3d 231, 2018 Ky. LEXIS 279 ( Ky. 2018 ).

9.Due Process.

The fact that defendant was only 17 years old would not require reversal of a judgment imposing the death penalty for murder, where the crime was planned in advance and was committed in a cruel and vicious manner. (Decided under prior law) Gray v. Commonwealth, 293 Ky. 833 , 170 S.W.2d 870, 1943 Ky. LEXIS 718 ( Ky. 1943 ).

The technical rule of procedure that the court cannot consider alleged errors on appeal unless they have been set forth in motion for new trial or the bill of exceptions, gives way where defendant’s life is at stake and justice demands consideration. (Decided under prior law) Anderson v. Commonwealth, 302 Ky. 275 , 194 S.W.2d 530, 1946 Ky. LEXIS 658 ( Ky. 1946 ).

Where affidavit of Commonwealth, in support of verdict of jury in murder prosecution, showed that a juror had asked priest concerning morality of imposing death sentence and then had informed another juror of priest’s advice, misconduct on part of jury was established, thereby necessitating reversal of conviction. (Decided under prior law) Ne Camp v. Commonwealth, 311 Ky. 676 , 225 S.W.2d 109, 1949 Ky. LEXIS 1220 ( Ky. 1949 ).

A guilty finding and the imposition of a death sentence were reversed where the verdict was rendered in the absence of defendant’s counsel. (Decided under prior law) Powell v. Commonwealth, 346 S.W.2d 731, 1961 Ky. LEXIS 327 ( Ky. 1961 ).

In order to justify the granting of a severance in a trial for willful murder it must appear that the defendants have antagonistic defenses or that evidence concerning one defendant tends directly to incriminate another. (Decided under prior law) Tinsley v. Commonwealth, 495 S.W.2d 776, 1973 Ky. LEXIS 408 ( Ky. 1973 ), cert. denied, 414 U.S. 1077, 94 S. Ct. 595, 38 L. Ed. 2d 484, 1973 U.S. LEXIS 1709 (U.S. 1973), cert. denied, 414 U.S. 1145, 94 S. Ct. 898, 39 L. Ed. 2d 101, 1974 U.S. LEXIS 1673 (U.S. 1974).

Since the penal code is not retroactive, defendant was not denied due process by reason of a nonbifurcated trial on charges of murder and being an habitual criminal. (Decided under prior law) Cole v. Commonwealth, 553 S.W.2d 468, 1977 Ky. LEXIS 475 ( Ky. 1977 ).

There was no abuse of discretion on the part of the trial judge in overruling a motion for continuance where both defense attorneys had worked on the case the week prior to trial, the defendant was on bond and available to assist in his defense, there was no question of misidentification, and there was no problem pertaining to missing witnesses. Nickell v. Commonwealth, 565 S.W.2d 145, 1978 Ky. LEXIS 350 ( Ky. 1978 ).

In prosecution for murder, since the defendant was the only witness to testify about victim’s reputation for violence, although the defendant’s defense of self-protection turned on what he actually believed, the testimony of others about her reputation was critical to defendant’s defense; thus, trial court’s failure to grant a continuance in order to secure attendance of a witness effectively denied the defendant the opportunity to present his only defense and thus violated his Sixth and Fourteenth Amendment rights. Bennett v. Scroggy, 793 F.2d 772, 1986 U.S. App. LEXIS 26244 (6th Cir. Ky. 1986 ).

Where, in prosecution for murder, the victim’s husband, son, mother, and two daughters each in turn were called to testify, and in the penalty phase closing argument, the prosecutor renewed his argument to consider the impact of this crime on the victim’s family and followed it by reciting the victim’s favorite poem, and there was nothing in the record to indicate the deceased was even aware of the poem’s existence, the prosecutorial misconduct was designated as calculated to deny the accused’s right to a fair trial and due process of law as guaranteed by the Fifth and Fourteenth Amendments of the United States Constitution, and Const., § 11. Sanborn v. Commonwealth, 754 S.W.2d 534, 1988 Ky. LEXIS 35 ( Ky. 1988 ).

Where, in prosecution for murder, the sheriff was not only a key witness, but also a first cousin of the victim and a first cousin by affinity to a juror, the sheriff was placed in charge of and in contact with the jury, and at the crucial phase of the trial where the jury was to consider the death penalty, the same juror was informed of his father’s unexpected death, it was an abuse of discretion for the court not to declare a mistrial. Sanborn v. Commonwealth, 754 S.W.2d 534, 1988 Ky. LEXIS 35 ( Ky. 1988 ).

The trial court’s refusal to permit cross-examination of a witness for the Commonwealth, to bring out that he was on active probation for second-degree wanton endangerment at the time of trial, was error. Sanborn v. Commonwealth, 754 S.W.2d 534, 1988 Ky. LEXIS 35 ( Ky. 1988 ).

10.—Destruction of Evidence.

Cremation of murder victim’s body before defense counsel was able to secure an independent autopsy did not constitute a denial of due process where abundant evidence was preserved and part of the fault was attributable to defense counsel. Scott v. Commonwealth, 685 S.W.2d 184, 1984 Ky. LEXIS 272 ( Ky. 1984 ).

11.—Guilty Plea.

Although defendant had entered plea of guilty to charge of murder, it was duty of trial court to change his plea, where it was apparent from the evidence that the acts which defendant admitted performing were such as to make him guilty only of voluntary manslaughter, and it appeared defendant did not understand the effect of his plea. (Decided under prior law) Pool v. Commonwealth, 301 Ky. 531 , 192 S.W.2d 490, 1946 Ky. LEXIS 520 ( Ky. 1946 ).

12.—Improper Questioning.

Although improper for Commonwealth’s attorney to frame questions on assumption that victim was killed, prejudice to accused’s substantial rights did not result where accused’s counsel interrogating accused framed questions in like form. (Decided under prior law) Bates v. Commonwealth, 284 Ky. 1 , 143 S.W.2d 730, 1940 Ky. LEXIS 429 ( Ky. 1 940).

Question asked deceased’s widow as to how many children she had was improper, but not prejudicial. (Decided under prior law) Hicks v. Commonwealth, 291 Ky. 481 , 165 S.W.2d 1, 1942 Ky. LEXIS 258 ( Ky. 1942 ).

Where the evidence in a murder prosecution was wholly circumstantial, the prosecutor’s question as to whether a witness, the defendant’s stepdaughter, had ever been sexually molested by the defendant, was so inflammatory as to cause substantial prejudice, particularly in light of the fact that the prosecutor was simply on a fishing expedition and had no idea what the answer might be. Bowler v. Commonwealth, 558 S.W.2d 169, 1977 Ky. LEXIS 551 ( Ky. 1977 ).

Where, at the penalty phase of a murder prosecution, on the pretext of rebutting a casual comment by a defense witness to the effect that the appellant was “a peace lover,” the Commonwealth called to the stand the defendant’s ex-wife and stepdaughter, who gave highly inflammatory detailed testimony about uncharged crimes allegedly committed against them, involving assault upon family members and rape of the stepdaughter, the Commonwealth exceeded appropriate rebuttal. Sanborn v. Commonwealth, 754 S.W.2d 534, 1988 Ky. LEXIS 35 ( Ky. 1988 ).

13.—Jury Selection.

Reversible error occurred in a murder prosecution where many of the jurors who were on the panel from which the jury was selected for defendant’s second trial were present on a previous occasion when the defendant entered a guilty plea, later withdrawn, and a number of these jurors actually served on the first jury that tried him. Miracle v. Commonwealth, 646 S.W.2d 720, 1983 Ky. LEXIS 224 ( Ky. 1983 ).

Where, in prosecution for murder, before commencing individual voir dire, the trial court read to the prospective jurors, as a group, questions it intended to ask each of them individually when called before the court for questioning, and each juror was then given a copy of the questions, the court’s procedure allowed prospective jurors to study and formulate their responses outside the presence of the appellant and his counsel, violating the defendant’s right to be present at every critical stage of the trial including the impaneling of the jury, and permitting prospective jurors an opportunity to discuss their responses with one another while awaiting their turn to be questioned by the court. Sanborn v. Commonwealth, 754 S.W.2d 534, 1988 Ky. LEXIS 35 ( Ky. 1988 ).

The exclusion of any question as to the extent of knowledge about the murder prosecution possessed by the prospective jurors and the inability of counsel to learn what they had heard about it and from whom they had heard it, kept from the trial judge information important to the determination of whether a challenge for cause to a particular juror should have been sustained and kept from counsel information important to the determination of which jurors should have been peremptorily challenged. Grooms v. Commonwealth, 756 S.W.2d 131, 1988 Ky. LEXIS 36 ( Ky. 1988 ).

The trial court abused its discretion in denying the defendant’s challenge for cause to a juror who favored the death penalty to the exclusion of all other penalties as punishment for intentional murder. Grooms v. Commonwealth, 756 S.W.2d 131, 1988 Ky. LEXIS 36 ( Ky. 1988 ).

In a murder case where defendant sought a new trial based on juror misconduct, as he presented evidence that two jurors might have been “Facebook friends” with the victim’s mother, and because, during voir dire, one of them denied having a Facebook account, he was entitled to a post-trial hearing to examine this issue. Sluss v. Commonwealth, 381 S.W.3d 215, 2012 Ky. LEXIS 144 ( Ky. 2012 ).

14.—Prosecutor’s Comments.

Testimony by witness for Commonwealth that deceased referred to a former killing by defendant, in a conversation between deceased and defendant, did not constitute the former killing substantive evidence of defendant’s guilt and comment to jury on former killing as indication of defendant’s guilt, by counsel for Commonwealth, was so highly prejudicial as to require reversal of judgment. (Decided under prior law) Slone v. Commonwealth, 289 Ky. 653 , 159 S.W.2d 1013, 1942 Ky. LEXIS 618 ( Ky. 1942 ).

The remark by the Commonwealth’s attorney, during argument in a murder trial, that, as far as the case was concerned, the only time one man had the right to take the life of another was when he himself was in the possible danger of losing his life or suffering great bodily harm, was not prejudicial to the defendant where the argument was within the evidence. (Decided under prior law) Long v. Commonwealth, 265 S.W.2d 927, 1954 Ky. LEXIS 765 ( Ky. 1954 ).

In prosecution for homicide, argument of prosecutor, with reference to asserted leniency of trial juries in felony cases at that term of the court, was within the realm of permissible argument. (Decided under prior law) Grigsby v. Commonwealth, 304 S.W.2d 782, 1957 Ky. LEXIS 279 ( Ky. 1957 ).

Where defendant’s attorney did not object to evidence that the defendant had been involved in two accidental shootings until the evidence had been presented, the objection was too late and it was, therefore, permissible for the prosecutor to comment on such evidence to the jury. (Decided under prior law) Grigsby v. Commonwealth, 304 S.W.2d 782, 1957 Ky. LEXIS 279 ( Ky. 1957 ).

It was not improper for the prosecutor to call attention to the fact that the defendant had answered “no comment” to a question by a police officer who arrested the defendant as to whether the defendant had killed the deceased. (Decided under prior law) Anderson v. Commonwealth, 353 S.W.2d 381, 1961 Ky. LEXIS 8 ( Ky. 1961 ), cert. denied, 369 U.S. 829, 82 S. Ct. 847, 7 L. Ed. 2d 795, 1962 U.S. LEXIS 1582 (U.S. 1962), cert. denied, 369 U.S. 863, 82 S. Ct. 953, 8 L. Ed. 2d 20, 1962 U.S. LEXIS 1418 (U.S. 1962).

References by the prosecutor to the fact that none of the defendant’s witnesses had denied the killing were indirect references to the defendant’s failure to testify, and such references are not considered prejudicial unless reasonably certain to direct the jury’s attention to the defendant’s failure to testify. (Decided under prior law) Anderson v. Commonwealth, 353 S.W.2d 381, 1961 Ky. LEXIS 8 ( Ky. 1961 ), cert. denied, 369 U.S. 829, 82 S. Ct. 847, 7 L. Ed. 2d 795, 1962 U.S. LEXIS 1582 (U.S. 1962), cert. denied, 369 U.S. 863, 82 S. Ct. 953, 8 L. Ed. 2d 20, 1962 U.S. LEXIS 1418 (U.S. 1962).

It was not grounds for a mistrial where during his summation the Commonwealth’s attorney, after insisting upon a verdict of murder, said to the jury, “ . . . . . if you decide he is guilty, whatever you do, don’t hang up on what the punishment should be, and make us try this case over again,” and the jury was admonished to disregard the remark. (Decided under prior law) Napier v. Commonwealth, 426 S.W.2d 121, 1968 Ky. LEXIS 635 ( Ky. 1968 ).

The prosecutor’s opening statement that a witness would testify that the defendant said “Well, this is as good a time as any” before committing the murder was not prejudicial in light of the actual testimony that the defendant said “that was the best way to get him,” since both statements were equally damaging. Burch v. Commonwealth, 555 S.W.2d 954, 1977 Ky. LEXIS 517 ( Ky. 1977 ).

Where the prosecutor declared in his opening statement that it was not the season for squirrel hunting, but the witness who lent the murder weapon to the defendant testified that it was “squirrel season,” the prosecutor’s statement was not prejudicial as reflecting on the issue of premeditation. Burch v. Commonwealth, 555 S.W.2d 954, 1977 Ky. LEXIS 517 ( Ky. 1977 ).

Where the prosecutor asserted, in his closing argument, that the jury should disregard the possibility of accidental homicide because it was necessary to pull back the hammer of the murder weapon before pulling the trigger, such evidence did not inform the jury of facts not in evidence or deprive the defendant of a fair trial since the defendant testified that he cocked the gun and since expert evidence was not required to establish the method of firing a shotgun. Burch v. Commonwealth, 555 S.W.2d 954, 1977 Ky. LEXIS 517 ( Ky. 1977 ).

Where the prosecutor in a murder trial intentionally engaged in improper argument in the presence of the jury after the case was submitted to them, implying that the defense deliberately concealed evidence, such conduct constituted prejudicial error. Bowler v. Commonwealth, 558 S.W.2d 169, 1977 Ky. LEXIS 551 ( Ky. 1977 ).

The Commonwealth’s attorneys’ comparison of the death cord to similar electric extension cords found in the defendant’s home and his request to the jury to make a similar comparison were not improper. Taylor v. Commonwealth, 564 S.W.2d 8, 1978 Ky. LEXIS 345 ( Ky. 1978 ).

Prosecutor’s use, for impeachment purposes, of fact that the accused failed to deny his guilt when arrested was clearly improper. Campbell v. Commonwealth, 564 S.W.2d 528, 1978 Ky. LEXIS 376 ( Ky. 1978 ), overruled in part, Ray v. Commonwealth, 611 S.W.3d 250, 2020 Ky. LEXIS 403 ( Ky. 2020 ).

Where the prosecutor elicited testimony that a witness had received threatening phone calls, knowing that the witness was unable to identify the caller, and implied in closing argument that the threats came from the defendant, there was error requiring a reversal of the conviction. Campbell v. Commonwealth, 564 S.W.2d 528, 1978 Ky. LEXIS 376 ( Ky. 1978 ), overruled in part, Ray v. Commonwealth, 611 S.W.3d 250, 2020 Ky. LEXIS 403 ( Ky. 2020 ).

Where, during the closing argument of the Commonwealth’s attorney he expressed his personal opinion of appellant’s guilt, such comment was improper conduct. Scruggs v. Commonwealth, 566 S.W.2d 405, 1978 Ky. LEXIS 359 (Ky.), cert. denied, 439 U.S. 928, 99 S. Ct. 314, 58 L. Ed. 2d 321, 1978 U.S. LEXIS 3580 (U.S. 1978).

Where victim was killed with a .22 caliber revolver and defendant owned a .22 caliber revolver which had disappeared after the homicide, the prosecutor’s statement in his closing argument that “After [victim] comes out of the ground, that .22 caliber has vanished into thin air. Now, I’ll say again: I wonder what would happen if there was drain plug out in the Ohio River” might be argumentative, but it constituted no more than fair comment on the evidence and there was no error and no prejudice. Nugent v. Commonwealth, 639 S.W.2d 761, 1982 Ky. LEXIS 299 ( Ky. 1982 ).

The prosecutor’s conduct during the penalty phase was not reversible error where the prosecutor interjected his personal opinion into the argument; the prosecutor may express his view of defendant’s guilt as long as it is based upon the evidence in the case. Marlowe v. Commonwealth, 709 S.W.2d 424, 1986 Ky. LEXIS 253 (Ky.), cert. denied, 479 U.S. 946, 107 S. Ct. 427, 93 L. Ed. 2d 378, 1986 U.S. LEXIS 4620 (U.S. 1986).

Where the prosecutor told the jury that the defendant had walked a “demonic and satanic” trail and made other references to religion, he stated that he wished there were more graphic evidence, such as the smell of blood and the ability to watch the victim’s wife search for her husband, and he then began crying and told the jury that he represented the Commonwealth and the victims of crimes, the prosecutor did not exceed the reasonable latitude allowed in persuading the jurors that the matter should not be dealt with lightly, and any error committed by the prosecutor was harmless. Marlowe v. Commonwealth, 709 S.W.2d 424, 1986 Ky. LEXIS 253 (Ky.), cert. denied, 479 U.S. 946, 107 S. Ct. 427, 93 L. Ed. 2d 378, 1986 U.S. LEXIS 4620 (U.S. 1986).

The prosecutor’s reference to the defendant as a “black dog of a night,” a “monster,” a “coyote that roamed the road at night hunting women to use this knife on,” and a “wolf” was prosecutorial misconduct. Sanborn v. Commonwealth, 754 S.W.2d 534, 1988 Ky. LEXIS 35 ( Ky. 1988 ).

The prosecutor’s repeated suggestion, in argument to the jury, of the danger to the community if they “turned this man loose” was prosecutorial misconduct. Sanborn v. Commonwealth, 754 S.W.2d 534, 1988 Ky. LEXIS 35 ( Ky. 1988 ).

The prosecutor’s comments of a demeaning nature about defense counsel and the accused were improper, even though much was outside the presence of the jury. Sanborn v. Commonwealth, 754 S.W.2d 534, 1988 Ky. LEXIS 35 ( Ky. 1988 ).

The prosecutor’s improper definition of reasonable doubt to the jury was prosecutorial misconduct. Sanborn v. Commonwealth, 754 S.W.2d 534, 1988 Ky. LEXIS 35 ( Ky. 1988 ).

The prosecutor’s questioning an expert witness called by the defense about his fee served only to prejudice the jurors against the defendant. Sanborn v. Commonwealth, 754 S.W.2d 534, 1988 Ky. LEXIS 35 ( Ky. 1988 ).

Where the prosecutor argued to the jury that the defendant was hiding behind “secret defenses” because defense counsel had an exhibit marked for identification, but not shown to the jury, and at two different points in the record the prosecutor suggested to the jury that portions of exhibits which had been deleted on motion of the defense counsel were being unfairly hidden from the jury, the prosecutor committed reversible error. Sanborn v. Commonwealth, 754 S.W.2d 534, 1988 Ky. LEXIS 35 ( Ky. 1988 ).

In a murder prosecution in which the Commonwealth sought the death penalty, the prosecutor erred in referring to parole during the penalty phase, but the error did not affect the verdict and was thus harmless because the jury did not impose a death sentence. Emerson v. Commonwealth, 230 S.W.3d 563, 2007 Ky. LEXIS 166 ( Ky. 2007 ).

15.—Right of Confrontation.

A codefendant, who refused to testify, was not available for full and effective cross-examination, thus defendant’s right of confrontation was violated, where the only evidence that defendant committed murder during robbery of a gas station was the codefendant’s out-of-court statement to a police officer that defendant rather than codefendant did the actual killing. Mayes v. Sowders, 621 F.2d 850, 1980 U.S. App. LEXIS 17004 (6th Cir. Ky.), cert. denied, 449 U.S. 922, 101 S. Ct. 324, 66 L. Ed. 2d 151, 1980 U.S. LEXIS 3633 (U.S. 1980).

The defendant was not denied his right to confrontation when another person charged with the same murder was permitted to assert the privilege against self-incrimination on the witness stand, where there was no showing that the trial court or the prosecutor knew the witness would claim the privilege against self-incrimination, the witness was not asked even one question concerning the death of the victim, and the witness’s testimony was not critical to the prosecution’s case. Marlowe v. Commonwealth, 709 S.W.2d 424, 1986 Ky. LEXIS 253 (Ky.), cert. denied, 479 U.S. 946, 107 S. Ct. 427, 93 L. Ed. 2d 378, 1986 U.S. LEXIS 4620 (U.S. 1986).

16.—Self-Incrimination.

A single-verdict trial in a prosecution for willful murder, where the defendant chose not to testify in his own behalf on the question of his guilt or innocence, did not violate his constitutional rights against self-incrimination under Ky. Const., § 11 or U.S. Const., Amends. 5 and 14 on the grounds he was thereby precluded from testifying concerning mitigating circumstances bearing on the question of punishment. (Decided under prior law) Scott v. Commonwealth, 495 S.W.2d 800, 1972 Ky. LEXIS 10 ( Ky. 1972 ), cert. denied, 414 U.S. 1073, 94 S. Ct. 587, 38 L. Ed. 2d 479, 1973 U.S. LEXIS 1670 (U.S. 1973).

17.—Witnesses’ Comments.

Where a witness in a murder trial mentioned that the defendant had refused to take a lie detector test and the trial court then admonished the jury to disregard the testimony, the admonishment rendered the error harmless. Stallings v. Commonwealth, 556 S.W.2d 4, 1977 Ky. LEXIS 514 ( Ky. 1977 ).

Where a witness in a murder prosecution referred to the defendant’s nickname, “Killer,” such reference was not prejudicial given the totality of the evidence, including the defendant’s confession, coupled with the trial court’s admonition to ignore the reference. Brown v. Commonwealth, 558 S.W.2d 599, 1977 Ky. LEXIS 539 ( Ky. 1977 ).

18.Elements.

In homicide cases the corpus delicti is the dead body and the corpus delicti, as well as the identity of the victim, may be proved by circumstantial evidence. (Decided under prior law) Powell v. Commonwealth, 276 Ky. 234 , 123 S.W.2d 279, 1938 Ky. LEXIS 544 ( Ky. 1938 ).

“Corpus delicti” means the fact that an alleged crime has been committed by someone, and is made up of two elements; first, the existence of an act forming the basis of the criminal charge; and second, the existence of criminal agency as the cause of the act. (Decided under prior law) Witt v. Commonwealth, 305 Ky. 31 , 202 S.W.2d 612, 1947 Ky. LEXIS 730 ( Ky. 1947 ).

In establishing that death is the result of a criminal agency, it is not sufficient merely to establish that a crime has been committed; death must be shown to have been the result of the crime proved, moreover it is not always necessary to prove the cause of death by medical testimony, but where circumstantial evidence alone is relied upon to establish the cause of death, the facts proved must be such that a layman of average intelligence would know from his own knowledge and experience that the injuries described are sufficient to produce death. (Decided under prior law) Witt v. Commonwealth, 305 Ky. 31 , 202 S.W.2d 612, 1947 Ky. LEXIS 730 ( Ky. 1947 ).

In murder prosecution, determination that death resulted from a criminal agency must be made to the exclusion of reasonable doubt. (Decided under prior law) Witt v. Commonwealth, 305 Ky. 31 , 202 S.W.2d 612, 1947 Ky. LEXIS 730 ( Ky. 1947 ).

In murder prosecution, the agency of the person accused is not an element of corpus delicti, but is merely a necessary fact to be proved after corpus delicti is established. (Decided under prior law) Warnell v. Commonwealth, 246 S.W.2d 144, 1952 Ky. LEXIS 621 ( Ky. 1952 ).

In murder prosecution, Commonwealth must establish “corpus delicti” which consists of two elements, namely, a criminal act and agency of defendants in such act. (Decided under prior law) Hollin v. Commonwealth, 307 S.W.2d 910, 1957 Ky. LEXIS 118 ( Ky. 1957 ).

In prosecution for wanton murder, the defendant was not denied due process and equal protection when the lower court denied his motion for evaluation by an independent psychiatrist, in order to aid him in presenting a defense or mitigating through insanity, intoxication, or extreme emotional disturbance, because, irrespective of a psychiatric examination, intoxication would not have been a factor in his defense. Todd v. Commonwealth, 716 S.W.2d 242, 1986 Ky. LEXIS 290 ( Ky. 1986 ).

Evidence that defendants unlawfully entered the victim’s residence for the purpose of committing a crime, that she was murdered while in her residence, that defendants robbed her, and were armed with deadly weapons while in immediate flight from the residence, was sufficient to convict them of murder, robbery in the first degree, and burglary in the first degree; it was immaterial to the robbery convictions that the theft may have occurred after the murder so long as the theft and murder were part of the same criminal episode. Caudill v. Commonwealth, 120 S.W.3d 635, 2003 Ky. LEXIS 140 ( Ky. 2003 ).

Kentucky’s definition of murder does not violate due process because it prescribes two mental states—intent to kill and extreme indifference to human life—as alternative means for the mens rea element of that offense. Thomas v. Meko, 915 F.3d 1071, 2019 FED App. 0021P, 2019 U.S. App. LEXIS 4458 (6th Cir. Ky.), cert. denied, 139 S. Ct. 2726, 204 L. Ed. 2d 1119, 2019 U.S. LEXIS 4134 (U.S. 2019).

19.—Extreme Emotional Disturbance.

The absence of “extreme emotional disturbance” is an essential element of the offense of murder. Bartrug v. Commonwealth, 568 S.W.2d 925, 1978 Ky. LEXIS 373 ( Ky. 1978 ), overruled, Wellman v. Commonwealth, 694 S.W.2d 696, 1985 Ky. LEXIS 235 ( Ky. 1985 ).

While it is true that the “extreme emotional disturbance” phase of the murder instruction did not include the additional statutory language, “the reasonableness of which is to be determined from the standpoint of a person in the defendant’s circumstances as the defendant believed them to be,” the omission was proper, since that particular language was appropriate only when there was evidence suggesting that the emotional disturbance was precipitated by some event or circumstance the defendant believed to exist, and since there was no evidence to suggest that the appellant’s motivation involved any “belief” on his part with regard to the circumstances that induced the alleged emotional disturbance. Gall v. Commonwealth, 607 S.W.2d 97, 1980 Ky. LEXIS 291 ( Ky. 1980 ), cert. denied, 450 U.S. 989, 101 S. Ct. 1529, 67 L. Ed. 2d 824, 1981 U.S. LEXIS 1276 (U.S. 1981), overruled, Payne v. Commonwealth, 623 S.W.2d 867, 1981 Ky. LEXIS 286 ( Ky. 1981 ).

An instruction on murder need not require the jury to find that the defendant was not acting under the influence of extreme emotional disturbance unless there is something in the evidence to suggest that he was, thereby affording room for a reasonable doubt in that respect. Gall v. Commonwealth, 607 S.W.2d 97, 1980 Ky. LEXIS 291 ( Ky. 1980 ), cert. denied, 450 U.S. 989, 101 S. Ct. 1529, 67 L. Ed. 2d 824, 1981 U.S. LEXIS 1276 (U.S. 1981), overruled, Payne v. Commonwealth, 623 S.W.2d 867, 1981 Ky. LEXIS 286 ( Ky. 1981 ).

In lieu of sudden affray or sudden heat of passion upon reasonable provocation, the mitigating circumstance now reducing the crime from murder to manslaughter is that the defendant “acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be.” Gall v. Commonwealth, 607 S.W.2d 97, 1980 Ky. LEXIS 291 ( Ky. 1980 ), cert. denied, 450 U.S. 989, 101 S. Ct. 1529, 67 L. Ed. 2d 824, 1981 U.S. LEXIS 1276 (U.S. 1981), overruled, Payne v. Commonwealth, 623 S.W.2d 867, 1981 Ky. LEXIS 286 ( Ky. 1981 ).

Mitigation is not restricted to circumstances which would constitute provocation in the ordinary meaning of the term, i.e., an injury, injustice or affront perpetrated by the deceased upon the actor; in other words, it is possible for any event, or even words, to arouse extreme mental or emotional disturbance. Gall v. Commonwealth, 607 S.W.2d 97, 1980 Ky. LEXIS 291 ( Ky. 1980 ), cert. denied, 450 U.S. 989, 101 S. Ct. 1529, 67 L. Ed. 2d 824, 1981 U.S. LEXIS 1276 (U.S. 1981), overruled, Payne v. Commonwealth, 623 S.W.2d 867, 1981 Ky. LEXIS 286 ( Ky. 1981 ).

Where the circumstances in which a victim has been killed provides no justification or excuse and no other evidence is presented which would give rise to the subjective determination which establishes the reasonable explanation or excuse for extreme emotional disturbance under subsection (1)(a) of this section, there is nothing to be submitted to the jury, and the jury should not be allowed to speculate. Henley v. Commonwealth, 621 S.W.2d 906, 1981 Ky. LEXIS 279 ( Ky. 1981 ).

Where the evidence in a murder trial showed that after shooting his mother-in-law, the defendant, who had been drinking but was not drunk, drove directly to the police station, told the police that he was the one they were looking for, that he would have shot her more times if he had had more ammunition, and made a voluntary confession, there was no evidence that the defendant, who had no evidence of mental illness, was acting under “extreme emotional disturbance” so as to take the case out of this section and require an instruction on manslaughter in the first degree under KRS 507.030 . Henley v. Commonwealth, 621 S.W.2d 906, 1981 Ky. LEXIS 279 ( Ky. 1981 ).

The contention that mental illness and extreme emotional disturbance are one and the same is without merit. Prior to the adoption of this section and KRS 507.030 , the differentiating standard between the two, under the common law, was “sudden heat and passion.” The principal change in the statute does not lie in the difference in the definitions between “sudden heat and passion” and “extreme emotional disturbance,” if there is such. It lies in the fact that the former requires adequate provocation in the eyes of a reasonable man under the circumstances, while the latter requires the jury to place themselves in the actor’s position as he believed it to be at the time of the act. Wellman v. Commonwealth, 694 S.W.2d 696, 1985 Ky. LEXIS 235 ( Ky. 1985 ).

The proper application, and point thereof, of mental illness, like intoxication on alcohol or drugs, is in the test of the effect thereof in considering such factors as events, acts or words as they relate to the particular defendant who contends that he was under extreme emotional disturbance at the time of his act. Wellman v. Commonwealth, 694 S.W.2d 696, 1985 Ky. LEXIS 235 ( Ky. 1985 ).

Although the defendant presented extensive evidence of preexisting serious domestic problems, the evidence regarding the defendant’s conduct before, during, and after the crimes was more than sufficient to support the jury’s findings of capital murder, and it was not necessary for the Commonwealth to produce direct evidence, by confession or otherwise, of absence of extreme emotional disturbance. Matthews v. Commonwealth, 709 S.W.2d 414, 1985 Ky. LEXIS 257 ( Ky. 1985 ), cert. denied, 479 U.S. 871, 107 S. Ct. 245, 93 L. Ed. 2d 170, 1986 U.S. LEXIS 4150 (U.S. 1986).

Extreme emotional disturbance for which there is a reasonable explanation or excuse does not exonerate or relieve one of criminal responsibility; it simply reduces the degree of a homicide from murder to manslaughter, and in that respect, it serves the same function as “acting in sudden heat of passion” in pre-penal code times. McClellan v. Commonwealth, 715 S.W.2d 464, 1986 Ky. LEXIS 274 ( Ky. 1986 ), cert. denied, 479 U.S. 1057, 107 S. Ct. 935, 93 L. Ed. 2d 986, 1987 U.S. LEXIS 379 (U.S. 1987).

Extreme emotional disturbance is a temporary state of mind so enraged, inflamed, or disturbed as to overcome one’s judgment, and to cause one to act uncontrollably from the impelling force of the extreme emotional disturbance rather than from evil or malicious purposes; it is not a mental disease in itself, and an enraged, inflamed, or disturbed emotional state does not constitute an extreme emotional disturbance unless there is a reasonable explanation or excuse therefore, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under circumstances as defendant believed them to be. McClellan v. Commonwealth, 715 S.W.2d 464, 1986 Ky. LEXIS 274 ( Ky. 1986 ), cert. denied, 479 U.S. 1057, 107 S. Ct. 935, 93 L. Ed. 2d 986, 1987 U.S. LEXIS 379 (U.S. 1987).

A mental disease which does not in itself result in a lack of capacity to appreciate the criminality of one’s conduct or to conform one’s conduct to the requirements of law does not rise to the level of insanity, nor does it, in itself, constitute extreme emotional disturbance. McClellan v. Commonwealth, 715 S.W.2d 464, 1986 Ky. LEXIS 274 ( Ky. 1986 ), cert. denied, 479 U.S. 1057, 107 S. Ct. 935, 93 L. Ed. 2d 986, 1987 U.S. LEXIS 379 (U.S. 1987).

Extreme emotional disturbance is an element of murder under the statute, and the Commonwealth has the burden of proof to prove its absence. Gall v. Parker, 231 F.3d 265, 2000 FED App. 0379P, 2000 U.S. App. LEXIS 27039 (6th Cir. Ky. 2000 ).

Evidence was insufficient to allow a jury to find an absence of extreme emotional disturbance (EED) where (1) the Commonwealth did not rebut the defendant’s showing that he suffered from chronic paranoid schizophrenia at the time of the killing at issue, (2) the Commonwealth did not counter a defense expert’s explicit statement that the defendant was under EED when he committed the crime, and (3) not only did the Commonwealth’s expert state that he had no basis to contest such statement, but he acknowledged that other disorders, including chronic paranoid schizophrenia, were distinct possibilities, and that the defendant could have been in a state of exacerbation. Gall v. Parker, 231 F.3d 265, 2000 FED App. 0379P, 2000 U.S. App. LEXIS 27039 (6th Cir. Ky. 2000 ).

The mere presence of mental illness, standing alone, does not constitute extreme emotional disturbance (EED) but rather it is the presence of adequate provocation, not the absence of mental illness, which is essential to a finding of EED; conversely, the presence of mental illness does not preclude a finding of EED and is therefore entirely relevant to a subjective evaluation of the reasonableness of the defendant’s response to the provocation. Fields v. Commonwealth, 44 S.W.3d 355, 2001 Ky. LEXIS 1 ( Ky. 2001 ).

Defendant was properly convicted for murder, and evidence of his alleged character trait for reacting strongly when family members were attacked was properly excluded from his trial, as defendant was given ample opportunity to show whether an extreme emotional disturbance defense excused him from killing two people, allegedly in retaliation for them killing his stepfather. Sherroan v. Commonwealth, 142 S.W.3d 7, 2004 Ky. LEXIS 190 ( Ky. 2004 ).

Kentucky trial court followed the proper procedure in a murder trial pursuant to KRS 507.020(1)(a) and did not violate defendant’s constitutional rights by denying his motion at the close of all the evidence, rather than at the close of the Commonwealth’s case, nor by shifting the burden onto defendant to prove an element of the crime. A defendant was entitled to a directed verdict at the close of all the evidence only if he produced evidence that suggested that he acted under the influence of extreme emotional disturbance (EED) and the Commonwealth could not point to evidence from which a reasonable jury could have concluded otherwise. Matthews v. Simpson, 603 F. Supp. 2d 960, 2009 U.S. Dist. LEXIS 21501 (W.D. Ky. 2009 ).

Habeas relief was granted to a petitioner because the burden of proving the extreme emotional disturbance (EED) element of the murder was impermissibly shifted onto the petitioner; the state had failed to prove the EED element beyond a reasonable doubt. At the time of the crimes, the absence of EED was an element of murder under Kentucky law. Matthews v. Parker, 651 F.3d 489, 2011 FED App. 0163P, 2011 U.S. App. LEXIS 13091 (6th Cir. Ky. 2011 ).

Where a state supreme court found petitioner inmate’s evidence of extreme emotional disturbance far from overwhelming, rather than failing to raise reasonable doubt, the case was submitted to the jury with the burden on the state, the jury found it was carried, and the state supreme court found the evidence adequate to sustain the finding, granting the inmate habeas relief was error. Parker v. Matthews, 567 U.S. 37, 132 S. Ct. 2148, 183 L. Ed. 2d 32, 2012 U.S. LEXIS 4306 (U.S. 2012).

20.—Felony Murder.

The intent to perpetrate a different felony, during the commission of which a person is killed, supplies the element of intent and malice required for a murder conviction although the death is actually against the original intention of the accused. (Decided under prior law) Simpson v. Commonwealth, 293 Ky. 831 , 170 S.W.2d 869, 1943 Ky. LEXIS 717 ( Ky. 1943 ).

Where the Commonwealth proved an agreement between the defendant and another person to perpetrate a robbery, the defendant was guilty of murder when the robbery victim was killed by the defendant’s partner. (Decided under prior law) Simpson v. Commonwealth, 293 Ky. 831 , 170 S.W.2d 869, 1943 Ky. LEXIS 717 ( Ky. 1943 ).

When a homicide occurs during the commission of or an attempt to commit another felony, malice may be inferred even though the defendant in fact does not intend the killing and though the killing is actually done by one person, all those who participated in the other felony are also guilty of the homicide. (Decided under prior law) Tarrence v. Commonwealth, 265 S.W.2d 40, 1953 Ky. LEXIS 1267 (Ky. Ct. App. 1953), cert. denied, 348 U.S. 899, 75 S. Ct. 220, 99 L. Ed. 706, 1954 U.S. LEXIS 1429 (U.S. 1954).

21.—Intent.

A defendant may be presumed to intend the natural and probable consequences of his or her act, and thus a jury is entitled to find an intent to cause death from an act of which death is a natural and probable consequence. Smith v. Commonwealth, 737 S.W.2d 683, 1987 Ky. LEXIS 237 ( Ky. 1987 ).

Even though a jury may legitimately find intent to cause death from actions of which death is a natural and probable consequence, it is not always required to so find. Even when death is a natural and probable consequence of an act, there may exist circumstances which make it reasonable for the jury not to be convinced beyond a reasonable doubt that the defendant intended to cause death, and in such a case, the jury can rationally convict a defendant of a lesser-included offense and acquit him or her of the greater offense of intentional murder. Smith v. Commonwealth, 737 S.W.2d 683, 1987 Ky. LEXIS 237 ( Ky. 1987 ).

Under the doctrine of transferred intent, a defendant is guilty of intentional murder if he intended to kill one person, but instead killed another. Phillips v. Commonwealth, 17 S.W.3d 870, 2000 Ky. LEXIS 19 (Ky.), cert. denied, 531 U.S. 1016, 121 S. Ct. 577, 148 L. Ed. 2d 494, 2000 U.S. LEXIS 7878 (U.S. 2000).

The fact that defendant repeatedly fired a pistol in the general direction of a robbery victim was a substantial step in a course of conduct planned to end in the victim’s murder and as one shot actually struck the victim, the jury could properly have inferred defendant’s specific intent to kill the victim. Wright v. Commonwealth, 239 S.W.3d 63, 2007 Ky. LEXIS 246 ( Ky. 2007 ).

Defendant was not entitled to a directed verdict in a murder prosecution because sufficient evidence allowed a reasonable jury to infer the intent required from the wound defendant caused showing defendant created a grave risk of death with extreme indifference to human life. Craft v. Commonwealth, 483 S.W.3d 837, 2016 Ky. LEXIS 107 ( Ky. 2016 ).

22.—Motive.

Motive is not essential to a conviction; it becomes important only when the evidence, direct or circumstantial, fails to make a satisfactory case, and then only as evidence. (Decided under prior law) Duncan v. Commonwealth, 294 Ky. 783 , 172 S.W.2d 665, 1943 Ky. LEXIS 547 ( Ky. 1943 ), overruled, Burgin v. Commonwealth, 311 Ky. 728 , 225 S.W.2d 293, 1949 Ky. LEXIS 1227 ( Ky. 1949 ).

While motive is an important factual element in a prosecution for crime, it is not sufficient in itself to support a conviction. (Decided under prior law) Fyffe v. Commonwealth, 301 Ky. 165 , 190 S.W.2d 674, 1945 Ky. LEXIS 677 ( Ky. 1945 ).

Proof of motive is not essential to conviction for murder. (Decided under prior law) Pittman v. Commonwealth, 242 S.W.2d 875, 1951 Ky. LEXIS 1087 ( Ky. 1951 ); Asher v. Commonwealth, 275 S.W.2d 416, 1955 Ky. LEXIS 351 ( Ky. 1955 ).

23.—Person.

Where the defendant forced his hand up the vagina of his estranged pregnant wife with the intent to destroy the 28-30 weeks old fetus, and the allegedly viable fetus was killed and subsequently born dead, the defendant could have been criminally prosecuted for causing an abortion or for assault in the first degree on his wife, or both; however, the defendant could not be prosecuted for murder of another “person” under this section since this criminal homicide statute does not define “person,” and therefore, the term had to be given its common-law interpretation that is, for a “person” to be considered a murder victim that “person” had to have been previously born alive. Hollis v. Commonwealth, 652 S.W.2d 61, 1983 Ky. LEXIS 248 ( Ky. 1983 ), overruled, Commonwealth v. Morris, 142 S.W.3d 654, 2004 Ky. LEXIS 153 ( Ky. 2004 ).

24.—Premeditation.

“Malice aforethought” means predetermination to commit an act of killing without legal excuse, and it is immaterial at what time before the killing such determination was formed. (Decided under prior law) Hall v. Commonwealth, 207 Ky. 718 , 270 S.W. 5, 1925 Ky. LEXIS 169 ( Ky. 1925 ).

The words “malice aforethought” mean a predetermination to commit an act without legal justification or excuse, and may be proved by either direct or circumstantial evidence, or it may be established by the very fact of a killing itself. (Decided under prior law) Nichols v. Commonwealth, 283 S.W.2d 184, 1955 Ky. LEXIS 287 ( Ky. 1955 ).

“Malice aforethought” is a predetermination to do an act of killing without legal excuse and it is immaterial how suddenly or recently before the killing such determination was formed. (Decided under prior law) Moss v. Commonwealth, 332 S.W.2d 650, 1959 Ky. LEXIS 23 ( Ky. 1959 ), cert. denied, 364 U.S. 846, 81 S. Ct. 88, 5 L. Ed. 2d 70, 1960 U.S. LEXIS 671 (U.S. 1960).

25.—Wanton Conduct.

One who shoots into crowd of people, not actually intending to injure anyone, may be guilty of willful murder. (Decided under prior law) Bentley v. Commonwealth, 354 S.W.2d 495, 1962 Ky. LEXIS 40 ( Ky. 1962 ).

The firing of a pistol into an occupied car is a wanton act and if the occupant is killed unintentionally, it is nevertheless murder if the jury in convinced that the person firing the pistol wantonly engaged in conduct which created a grave risk of death under circumstances manifesting extreme indifference to human life. Nichols v. Commonwealth, 657 S.W.2d 932, 1983 Ky. LEXIS 312 ( Ky. 1983 ), cert. denied, 465 U.S. 1028, 104 S. Ct. 1289, 79 L. Ed. 2d 691, 1984 U.S. LEXIS 1129 (U.S. 1984).

The firing of a pistol into an occupied automobile which causes the death of the occupant is murder if the jury is convinced that the shooting was done with the intent to cause the death. Nichols v. Commonwealth, 657 S.W.2d 932, 1983 Ky. LEXIS 312 ( Ky. 1983 ), cert. denied, 465 U.S. 1028, 104 S. Ct. 1289, 79 L. Ed. 2d 691, 1984 U.S. LEXIS 1129 (U.S. 1984).

This section and KRS 502.020 have substantially altered the concept of the felony murder doctrine; the culpability of the defendant for the killing of the deceased must now be measured by the degree of wantonness or recklessness reflected by the extent of his participation in the underlying robbery rather than by the implication of intent to murder from the intent to participate in the robbery. Kruse v. Commonwealth, 704 S.W.2d 192, 1985 Ky. LEXIS 303 ( Ky. 1985 ).

Extreme emotional disturbance affects one’s formation of the specific intent to murder, but it has no carry-over application to one’s wanton behavior in creating a grave risk of death; thus, the defendant could not be heard to complain that he was unable to develop such through an independent psychiatric examination in his prosecution for wanton murder. Todd v. Commonwealth, 716 S.W.2d 242, 1986 Ky. LEXIS 290 ( Ky. 1986 ).

A homicide caused by wanton conduct is, at the very least, manslaughter in the second degree. If the jury finds that in addition to the wanton conduct of the defendant, the circumstances surrounding his or her conduct manifest an extreme indifference to human life, the offense is elevated to wanton murder; if, in addition to the wanton conduct and circumstances which manifest an extreme indifference to human life, the jury finds that the defendant intended to cause death, the offense is intentional murder. Smith v. Commonwealth, 737 S.W.2d 683, 1987 Ky. LEXIS 237 ( Ky. 1987 ).

The defendant’s claim that the evidence was not sufficient to establish wanton conduct on his part because the act was intentional rather than wanton was without merit; he could not establish prejudice by showing that he was subjected to a greater penalty because the penalty options for intentional murder and wanton murder are the same, and it defied reason to contend that a jury may have imposed a lesser penalty for intentional murder than it imposed for the wanton murder. Smith v. Commonwealth, 737 S.W.2d 683, 1987 Ky. LEXIS 237 ( Ky. 1987 ).

The difference between wanton murder and involuntary manslaughter continues to be, as the Penal Code originally intended, whether there is evidence from which the jury could find “circumstances manifesting extreme indifference to human life”; depending on the situation, drunk driving may be such a circumstance. Walden v. Commonwealth, 805 S.W.2d 102, 1991 Ky. LEXIS 3 ( Ky. 1991 ), overruled, Commonwealth v. Burge, 947 S.W.2d 805, 1996 Ky. LEXIS 82 ( Ky. 1997 ).

The extreme nature of the defendant’s intoxication was sufficient evidence from which a jury could infer wantonness so extreme as to manifest extreme indifference to human life. Walden v. Commonwealth, 805 S.W.2d 102, 1991 Ky. LEXIS 3 ( Ky. 1991 ), overruled, Commonwealth v. Burge, 947 S.W.2d 805, 1996 Ky. LEXIS 82 ( Ky. 1997 ).

The evidence was sufficient to support a wanton murder instruction, where defendant was carrying a loaded, cocked pistol, and admitted intent to point it at the victim but did not admit intent to cause her death. Harris v. Commonwealth, 793 S.W.2d 802, 1990 Ky. LEXIS 25 ( Ky. 1990 ), cert. denied, 499 U.S. 924, 111 S. Ct. 1319, 113 L. Ed. 2d 252, 1991 U.S. LEXIS 1524 (U.S. 1991), overruled in part, St. Clair v. Commonwealth, 451 S.W.3d 597, 2014 Ky. LEXIS 341 ( Ky. 2014 ).

Where no evidence was introduced of extreme or excess speed and evidence was introduced that the driver was not operating coal truck under the influence of drugs or alcohol, that coal truck was fully loaded, that he was making his third haul of the day, that he blew his horn and swerved to avoid impact, and that he may have run a red light, the evidence was not sufficient to establish the elements of wanton murder even viewed in a light most favorable to the Commonwealth and a directed verdict should have been granted. Johnson v. Commonwealth, 885 S.W.2d 951, 1994 Ky. LEXIS 115 ( Ky. 1994 ).

Sufficient evidence existed for the trier of fact to have found by inference that defendant acted wantonly under circumstances manifesting extreme indifference to human life to support his conviction for wanton murder under KRS 507.020(1)(b), and the trial court did not err in denying defendant’s motions for a directed verdict of acquittal on the primary offense of wanton murder, where such a directed verdict was proper only when the evidence was insufficient to permit a reasonable juror to believe that defendant acted with extreme indifference to human life and such indifference on defendant’s part was shown from evidence of his intoxication, extreme rate of speed, expressed desire to show off “what his car had,” and the spinning of his vehicle’s tires that resulted in the death of a pregnant woman who was struck by defendant’s vehicle. Cook v. Commonwealth, 129 S.W.3d 351, 2004 Ky. LEXIS 76 ( Ky. 2004 ).

Wanton murder statute, KRS 507.020(1)(b), is constitutional as the phrase “extreme indifference to human life” contained in the statute are words of common understanding and are not void for vagueness. Cook v. Commonwealth, 129 S.W.3d 351, 2004 Ky. LEXIS 76 ( Ky. 2004 ).

In a capital murder case, defendant was not entitled to instructions on wanton murder, under KRS 507.020(1)(b), as an alternative to intentional murder, because there was no evidence defendant shot either murder victim without an intent to kill, as both were shot at close range, and defendant did not claim in his confession that he did not intend to kill them. Soto v. Commonwealth, 139 S.W.3d 827, 2004 Ky. LEXIS 93 ( Ky. 2004 ), cert. denied, 544 U.S. 931, 125 S. Ct. 1670, 161 L. Ed. 2d 495, 2005 U.S. LEXIS 2608 (U.S. 2005).

One prosecution theory was that, if defendant killed the victim under a mistaken belief in the need to use deadly physical force in self-protection, that mistaken belief was so wantonly held as to manifest an extreme indifference to human life, thus rising to the level of wanton murder. Though this theory was invalid under binding precedent, defendant was not prejudiced by the trial court’s withholding its ruling on his motion for acquittal as to this theory until after he testified that he acted in self-defense, because that was his only defense. Saylor v. Commonwealth, 144 S.W.3d 812, 2004 Ky. LEXIS 220 ( Ky. 2004 ).

Where the evidence, even construed in the Commonwealth’s favor, did not support a finding of guilt beyond a reasonable doubt that a defendant behaved wantonly as defined by KRS 501.020(3) with regard to a murder, the trial court erred in denying the defendant’s motion for a directed verdict. The appellate court determined that it was simply an impermissible leap of logic to conclude that a reasonable person engaging in the defendant’s conduct — that is, ordering another to remove a set of keys from the pocket of the resisting owner — would be or should be aware that death by heart attack might result. Turner v. Commonwealth, 153 S.W.3d 823, 2005 Ky. LEXIS 3 ( Ky. 2005 ), overruled in part, Padgett v. Commonwealth, 312 S.W.3d 336, 2010 Ky. LEXIS 71 ( Ky. 2010 ).

Evidence that defendant, while driving at a high rate of speed, ignored road conditions and other vehicles and made no effort to swerve or slow down before ramming another vehicle established defendant’s extreme indifference to human life, and provided a sufficient basis for the jury to find the state of mind necessary to support a conviction for wanton murder. Berryman v. Commonwealth, 237 S.W.3d 175, 2007 Ky. LEXIS 206 ( Ky. 2007 ).

Where defendant provided the handguns that he and co-defendant used to commit a robbery, where both men fired their handguns at witnesses to the robbery, and where a bullet from co-defendant’s gun struck and killed a victim, the evidence was sufficient to support defendant’s conviction of complicity to murder because the evidence showed that defendant possessed the requisite culpability under KRS 507.020(1)(b) to make him an accomplice to the result under KRS 502.020(2) where defendant participated in, if not led, the armed robbery. Based upon the evidence, it would not be unreasonable for the jury to conclude that defendant acted as an accomplice in the murder of the victim with wantonness, creating a grave risk of death under circumstances manifesting an extreme indifference to human life. Beaumont v. Commonwealth, 295 S.W.3d 60, 2009 Ky. LEXIS 325 ( Ky. 2009 ).

Defendant was not entitled to have the trial court give the jury a first-degree manslaughter instruction pursuant to KRS 507.030 in a case where the defendant fatally injured the three-month old infant son of defendant’s girlfriend by engaging in unrestrained shaking of the infant after defendant became upset at the infant’s crying. Defendant engaged in wanton conduct, as contemplated by KRS 507.020(1)(b) and KRS 501.020(3), by disregarding a grave risk to the child’s life through the unrestrained shaking, and, thus, no reasonable juror could have believed that defendant meant to injure the child and was only guilty of a KRS 505.020 lesser included offense rather than the offense of wanton murder. Allen v. Commonwealth, 338 S.W.3d 252, 2011 Ky. LEXIS 85 ( Ky. 2011 ).

Defendant was not entitled to a directed verdict as to wanton murder, under KRS 507.020(1)(b), because a jury reasonably concluded defendant showed extreme indifference to human life, as defendant continued to operate defendant’s vehicle despite recognizing a substantial risk to the victim pinned under defendant’s tires. Hurt v. Commonwealth, 409 S.W.3d 327, 2013 Ky. LEXIS 397 ( Ky. 2013 ).

Defendant parents were not entitled to a directed verdict on a wanton murder charge where evidence that the child suffered catastrophic traumatic injury at a time when they were the only people with access to him permitted a jury to find that at least one of them either killed his deliberately or with wanton disregard for a grave risk of death. Futrell v. Commonwealth, 471 S.W.3d 258, 2015 Ky. LEXIS 1861 ( Ky. 2015 ).

Defendant was not entitled to a directed verdict as to wanton murder because the evidence showed defendant operated a motor vehicle after consuming excessive amounts of prescription medication. Bowling v. Commonwealth, 553 S.W.3d 231, 2018 Ky. LEXIS 279 ( Ky. 2018 ).

Trial court properly denied defendant’s motion for a directed verdict on the wanton murder and wanton endangerment charges because a reasonable jury could have concluded that defendant had reason to know that a shoot-out was rendered substantially more probable by his firing the initial, and multiple, shots into the air amid a late-night crowd gathered in a parking lot to socialize. Taylor v. Commonwealth, 617 S.W.3d 321, 2020 Ky. LEXIS 392 ( Ky. 2020 ).

26.Evidence.

Circumstantial evidence to the effect that two bodies, one male and one female, were found in the home destroyed by fire, that owners of the home have not been seen since, that defendants were seen in the company of the owners shortly before the fire and that one of the defendants had two of home owner’s suits in his possession when he was captured and other defendant had other property of owners in his possession when coupled with confessions of accused, sustained murder convictions. (Decided under prior law) Powell v. Commonwealth, 276 Ky. 234 , 123 S.W.2d 279, 1938 Ky. LEXIS 544 ( Ky. 1938 ).

Evidence alleged to be circumstantial, which clearly indicated accused as perpetrator of crime, and was irreconcilable with innocence and could induce jury to believe beyond reasonable doubt that accused committed the crime, sustained conviction under rule that conviction may be had on circumstantial evidence alone where it may not be reconciled with presumption of innocence and excludes every reasonable hypothesis thereof. (Decided under prior law) Bates v. Commonwealth, 284 Ky. 1 , 143 S.W.2d 730, 1940 Ky. LEXIS 429 ( Ky. 1 940).

Existence of a crime may be established by circumstantial evidence, subject to general rule that such evidence is not sufficient if it is as consistent with the absence of crime as it is with the perpetration thereof. (Decided under prior law) Hawk v. Commonwealth, 284 Ky. 217 , 144 S.W.2d 496, 1940 Ky. LEXIS 479 ( Ky. 1940 ).

In a prosecution under this section, it was the sole province of the jury to measure and weigh the evidence to the extent of believing one class of witness, and disbelieving the other, notwithstanding sharp conflict. (Decided under prior law) Satterfield v. Commonwealth, 288 Ky. 758 , 157 S.W.2d 89, 1941 Ky. LEXIS 166 ( Ky. 1941 ).

In prosecution for murder, where evidence was conflicting as to whether deceased or defendant was aggressor in controversy in which deceased was killed, jury was entitled to believe Commonwealth’s witnesses rather than defendant’s, although some of Commonwealth’s witnesses made conflicting statements. (Decided under prior law) Higginbotham v. Commonwealth, 291 Ky. 463 , 165 S.W.2d 19, 1942 Ky. LEXIS 264 ( Ky. 1942 ).

Circumstantial evidence which is as consistent with the absence of a crime as with the perpetration of a crime is insufficient to prove the corpus delicti. (Decided under prior law) Walters v. Commonwealth, 291 Ky. 573 , 165 S.W.2d 153, 1942 Ky. LEXIS 282 ( Ky. 1942 ); Fyffe v. Commonwealth, 301 Ky. 165 , 190 S.W.2d 674, 1945 Ky. LEXIS 677 ( Ky. 1945 ).

Where eyewitnesses give conflicting accounts of the actual killing, it is for the jury to weigh the evidence and draw its conclusions therefrom. (Decided under prior law) Cobb v. Commonwealth, 291 Ky. 715 , 165 S.W.2d 531, 1942 Ky. LEXIS 308 ( Ky. 1942 ).

A conviction may be had upon circumstantial evidence alone, where it may not be reconciled with the presumption of innocence and excludes every reasonable hypothesis of defendant’s innocence. (Decided under prior law) Birdsong v. Commonwealth, 289 Ky. 521 , 159 S.W.2d 41, 1942 Ky. LEXIS 588 ( Ky. 1942 ).

Circumstantial evidence that defendant set fire to dwelling in which several persons were killed was sufficient to support conviction of murder. (Decided under prior law) Taylor v. Commonwealth, 293 Ky. 823 , 170 S.W.2d 903, 1943 Ky. LEXIS 720 ( Ky. 1943 ).

Positive proof introduced by defendant to establish his innocence of charge of murder may be overcome by circumstantial evidence, but uncontradicted and unequivocal positive testimony of disinterested and unimpeached witnesses may not arbitrarily disregarded. (Decided under prior law) Fyffe v. Commonwealth, 301 Ky. 165 , 190 S.W.2d 674, 1945 Ky. LEXIS 677 ( Ky. 1945 ).

Circumstantial evidence tending to establish guilt is not sufficient if it only creates a suspicion, or if it does not form a complete chain and point directly and unerringly to the guilt of the accused and if the evidence may be reconciled with the presumption of innocence, it must be done. (Decided under prior law) Fyffe v. Commonwealth, 301 Ky. 165 , 190 S.W.2d 674, 1945 Ky. LEXIS 677 ( Ky. 1945 ).

Circumstantial evidence, including evidence that accused had in his possession, on the day after the alleged murder, a pistol which previously had been in victim’s possession, was sufficient to support conviction. (Decided under prior law) Gibson v. Commonwealth, 301 Ky. 402 , 192 S.W.2d 187, 1946 Ky. LEXIS 492 ( Ky. 1946 ).

“Clear and cogent evidence” means there must be present more than mere possibility that death resulted from the crime, though evidence need not be without contradiction. (Decided under prior law) Witt v. Commonwealth, 305 Ky. 31 , 202 S.W.2d 612, 1947 Ky. LEXIS 730 ( Ky. 1947 ).

In a murder prosecution, the Commonwealth was properly allowed to impeach defendant with his prior felony conviction under KRE 609(a), and his response to the prosecutor’s inquiry as to whether he had been convicted of a felony, in which he referred to a drinking and driving charge, was sufficiently equivocal to permit inquiry into the nature of the conviction. Blair v. Commonwealth, 144 S.W.3d 801, 2004 Ky. LEXIS 219 ( Ky. 2004 ).

Existence of defendant’s poem in a jailhouse informant’s notebook showed the closeness of their relationship, increasing the credibility of the informant’s claim that defendant confided to him that he had killed his aunt; this theory, though somewhat tenuous, satisfied the minimal threshold for relevancy under KRE 401, and as nothing in the poem tended to incriminate defendant or impugn his character, the trial court had not been obliged to exclude it under the balancing test of KRE 403. Blair v. Commonwealth, 144 S.W.3d 801, 2004 Ky. LEXIS 219 ( Ky. 2004 ).

27.—Accomplices.

In prosecution for murder, admission of evidence as to statements made by alleged accomplice, admitting guilt, after commission of crime, and not in presence of defendant, was prejudicially erroneous, and error was not corrected by admonition of court directing jury to disregard testimony, where admonition was confusing and jury could have understood that they could consider testimony for some purpose. (Decided under prior law) Bailey v. Commonwealth, 294 Ky. 355 , 171 S.W.2d 1005, 1943 Ky. LEXIS 456 ( Ky. 1943 ).

Where there was no witness to the actual murder, but defendant was identified as one of three men who were seen beating the victim, defendant’s motion for directed verdict was properly denied since the jury could have found him guilty as an accomplice in the murder. Campbell v. Commonwealth, 564 S.W.2d 528, 1978 Ky. LEXIS 376 ( Ky. 1978 ), overruled in part, Ray v. Commonwealth, 611 S.W.3d 250, 2020 Ky. LEXIS 403 ( Ky. 2020 ).

Where the evidence was equivocal concerning the activities of companion at the time of the killing, the issue of whether he was an accomplice on the occasion in question was properly left to the determination of the jury. Edwards v. Commonwealth, 573 S.W.2d 640, 1978 Ky. LEXIS 411 ( Ky. 1978 ).

Trial court did not err by denying defendant’s motion for a directed verdict on charges of murder, complicity to second-degree arson, and complicity to tampering with physical evidence because the testimony of two witnesses that defendant had a large amount of cash a few hours after the shooting, that he then appeared blackened by smoke, and that he admitted his role in the murder, as well as the evidence that defendant left town a few days after the shooting and remained in another city while the case was being investigated was sufficient corroboration to permit reliance on the testimony of defendant’s two accomplices. Harris v. Commonwealth, 313 S.W.3d 40, 2010 Ky. LEXIS 110 ( Ky. 2010 ).

Evidence that petitioner inmate was holding a .38 caliber handgun during the shooting and helped a codefendant drag the bodies out of the house was sufficient for a rational trier of fact to find the inmate guilty as an accomplice to all three murders; he was incorrect in arguing that because there was evidence that he shot two people, the jury could not convict him as an accomplice in their deaths. Halvorsen v. Simpson, 2014 U.S. Dist. LEXIS 150549 (E.D. Ky. Oct. 22, 2014), aff'd, 746 Fed. Appx. 489, 2018 FED App. 426N, 2018 U.S. App. LEXIS 23105 (6th Cir. Ky. 2018 ).

28.—Admissibility.

It was not error to exclude testimony of school teacher that in his opinion accused “did not possess an average normal mind” where witness was not an expert, and was later permitted to testify that accused was dull in school and learned slowly. (Decided under prior law) Powell v. Commonwealth, 276 Ky. 234 , 123 S.W.2d 279, 1938 Ky. LEXIS 544 ( Ky. 1938 ).

Testimony of doctor in murder prosecution as to manner in which a skull fracture may cause death was error, where there was no evidence that deceased had sustained such a fracture. (Decided under prior law) Witt v. Commonwealth, 305 Ky. 31 , 202 S.W.2d 612, 1947 Ky. LEXIS 730 ( Ky. 1947 ).

In prosecution for murder it was reversible error for court to allow over objection of accused evidence that accused was an army deserter. (Decided under prior law) Powell v. Commonwealth, 308 Ky. 467 , 214 S.W.2d 1002, 1948 Ky. LEXIS 964 ( Ky. 1948 ).

In prosecution for murder allegedly committed by administering strychnine to deceased, testimony of physician relative to the chemical analysis of the contents of a bottle of whiskey from which deceased had been drinking shortly before his death was inadmissible where the integrity of the bottle and its contents was not established by the testimony offered. (Decided under prior law) Lee v. Commonwealth, 312 Ky. 116 , 226 S.W.2d 759, 1950 Ky. LEXIS 598 ( Ky. 1950 ).

Where the defendant was alleged to have conspired with another person to kill the deceased, but there was no proof of such a conspiracy, it was prejudicial error to allow a witness to testify as to what the alleged coconspirator had told her about the crime. (Decided under prior law) Gammons v. Commonwealth, 305 S.W.2d 932, 1957 Ky. LEXIS 354 ( Ky. 1957 ).

Witness’s unsolicited hearsay statement that murder victim had told her that defendant was going to kill victim was prejudicial and was grounds for a mistrial. (Decided under prior law) Greenville v. Commonwealth, 467 S.W.2d 765, 1971 Ky. LEXIS 400 ( Ky. 1971 ).

Where a police officer stopped the defendants’ vehicle for a violation for which they were never convicted and at the same time saw guns in the car, evidence of the guns and ammunition found on the subsequent search was admissible in the trial for murder. (Decided under prior law) Ballard v. Commonwealth, 462 S.W.2d 905, 1971 Ky. LEXIS 557 ( Ky. 1971 ).

Admission of the testimony of a police officer as to an experiment which attempted to recreate an automobile accident used to cover up a murder was erroneous where the conditions of the experiment were not shown to be similar to actual conditions at the time of the accident and no proper foundation for such testimony had been laid. Smith v. Commonwealth, 556 S.W.2d 670, 1977 Ky. LEXIS 524 ( Ky. 1977 ).

Where a witness in a prosecution for murder and robbery testified that she heard one of three men make a statement indicating that criminal activity was planned, such evidence was properly admitted as a verbal act and did not deprive the defendants of their right to confrontation and cross-examination even though the witness could not identify the speaker and merely heard one of the men referred to by his first name. Darnell v. Commonwealth, 558 S.W.2d 590, 1977 Ky. LEXIS 537 ( Ky. 1977 ).

Where victim’s wife was not a witness to the tragic incident, and testified only as to when she last saw her husband alive and to the number and ages of her children, her testimony, although irrelevant to the issues in the case, was not prejudicial error. Nickell v. Commonwealth, 565 S.W.2d 145, 1978 Ky. LEXIS 350 ( Ky. 1978 ).

Where, in prosecution for wanton murder, the victim was beaten to death, it was error for the lower court to have permitted the Commonwealth to have pursued questioning about the shotgun found in the victim’s house. Todd v. Commonwealth, 716 S.W.2d 242, 1986 Ky. LEXIS 290 ( Ky. 1986 ).

Evidence that an investigating officer had participated in the theft of evidence in police custody was not admissible, under the version of KRE 608 applicable at the time this case was tried, to impeach the officer’s credibility but was admissible under KRE 404(b) to support defendant’s theory that the officer, not defendant, stole the robbery and murder victim’s money. Under KRE 403, the evidence’s probative value was not substantially outweighed by considerations of confusion of the issues, misleading the jury, or undue delay. Blair v. Commonwealth, 144 S.W.3d 801, 2004 Ky. LEXIS 219 ( Ky. 2004 ).

Testimony that a murder victim said she had saved money for her dental work was improperly admitted as it did not fall within an exception to the hearsay rule and was prejudicial to defendant, since it corroborated a witness’s claimed observation of cash in the victim’s purse and supported the inference that the money that another witness observed in defendant’s possession had been stolen from the victim. Blair v. Commonwealth, 144 S.W.3d 801, 2004 Ky. LEXIS 219 ( Ky. 2004 ).

Where a witness heard defendant and his aunt, whom defendant allegedly robbed and murdered, arguing while the witness was talking to them on the phone, the statements attributed to the victim were hearsay because they were offered to rebut defendant’s claim that the victim was holding his money for him; and as the witness did not testify that defendant agreed with or even heard the statements, they were not admissible as adoptive admissions under KRE 801A(b)(2). Blair v. Commonwealth, 144 S.W.3d 801, 2004 Ky. LEXIS 219 ( Ky. 2004 ).

Testimony that a robbery and murder victim complained that defendant was borrowing her money and “eating up her food” was hearsay and defendant had not opened the door to its admission by testifying that it was highly unlikely that the victim would have complained about his eating habits or his failure to get a job. Blair v. Commonwealth, 144 S.W.3d 801, 2004 Ky. LEXIS 219 ( Ky. 2004 ).

The trial court did not err under KRE 403 and KRE 404(b) in admitting defendant’ rap video montage. It referred to his actions and emotions regarding the crime, not a previous offense; it shed light on his extreme emotional disturbance defense; and it established premeditation and motive in defendant’s own words. Greene v. Commonwealth, 197 S.W.3d 76, 2006 Ky. LEXIS 140 ( Ky. 2006 ), cert. denied, 549 U.S. 1184, 127 S. Ct. 1157, 166 L. Ed. 2d 1001, 2007 U.S. LEXIS 1235 (U.S. 2007).

After a motor vehicle fatality, defendant was charged with wanton murder under KRS 507.020(1)(b) and convicted of manslaughter in the second degree under KRS 507.040(1)(a); to establish that defendant was voluntarily intoxicated, as opposed to accidental intoxication due to ingesting various drugs without reasonably anticipating the result, the Commonwealth of Kentucky was permitted to admit expert testimony from two physicians who had counseled defendant about the effects of alcohol when mixed with narcotics and warned him not to drink alcohol. The physician’s testimony was admissible under KRE. 404(b)(1) to show that defendant’s intoxication was not the result of an accident in mixing the drugs. Reed v. Commonwealth, 2009 Ky. App. LEXIS 171 (Ky. Ct. App. Sept. 18, 2009).

29.— —Facts About Decedent.

In prosecution for homicide, the deceased’s declarations or threats indicating a suicidal disposition, if made within a reasonable time before his death, are not within the hearsay rule and are admissible unless the facts preclude the possibility of suicide. (Decided under prior law) Marcum v. Commonwealth, 308 Ky. 740 , 215 S.W.2d 846, 1948 Ky. LEXIS 1033 ( Ky. 1948 ).

Where there was no indication that the deceased, who had died from strychnine poisoning, had committed suicide, it was proper to exclude evidence to the effect that the deceased had mentioned four weeks before his death that he was going to kill himself. (Decided under prior law) Lee v. Commonwealth, 312 Ky. 116 , 226 S.W.2d 759, 1950 Ky. LEXIS 598 ( Ky. 1950 ).

Evidence of individual acts of violence by a decedent is not admissible and evidence as to a decedent’s reputation for violence is admissible only to support a theory of self-defense or defense of another where such reputation is known to the defendant. (Decided under prior law) Tinsley v. Commonwealth, 495 S.W.2d 776, 1973 Ky. LEXIS 408 ( Ky. 1973 ), cert. denied, 414 U.S. 1077, 94 S. Ct. 595, 38 L. Ed. 2d 484, 1973 U.S. LEXIS 1709 (U.S. 1973), cert. denied, 414 U.S. 1145, 94 S. Ct. 898, 39 L. Ed. 2d 101, 1974 U.S. LEXIS 1673 (U.S. 1974).

Evidence of statements allegedly made by victim shortly before her murder regarding her intent to leave her husband and of a purported note written by her explaining her whereabouts were properly excluded where the evidence did not support the trustworthiness of such statements and they were not relevant to the guilt or innocence of defendant. Scruggs v. Commonwealth, 566 S.W.2d 405, 1978 Ky. LEXIS 359 (Ky.), cert. denied, 439 U.S. 928, 99 S. Ct. 314, 58 L. Ed. 2d 321, 1978 U.S. LEXIS 3580 (U.S. 1978).

Murder victim’s statement that she feared defendant would steal from her and that he was taking drugs fell within the “state-of-mind” exception of KRE 803(3) but was inadmissible because the victim’s state of mind was irrelevant. Blair v. Commonwealth, 144 S.W.3d 801, 2004 Ky. LEXIS 219 ( Ky. 2004 ).

30.— —Identity.

Where a defendant had used several different names, a detective’s testimony that one such name, which was on a social security card in the defendant’s possession, belonged to a murder victim was admissible in a prosecution for a different murder as evidence of a collateral fact by which the defendant’s identity was established. Williams v. Commonwealth, 560 S.W.2d 1, 1977 Ky. LEXIS 561 ( Ky. 1977 ).

In a trial for murder and assault in which the defendant claimed insanity, the rule that only past felony convictions that relate to the issue of credibility, i.e., past felony convictions involving dishonesty are admissible for the purposes of impeachment, was not applicable to an expert witness (a physician) for the reason that the conviction in no way related to his expertise as a physician. Burgess v. Commonwealth, 564 S.W.2d 532, 1978 Ky. LEXIS 377 ( Ky. 1978 ).

Expert testimony concerning blood-typing by identification of genetic factors in blood was admissible in murder trial although the particular method of testing had not yet come into general acceptance and use in this country. Brown v. Commonwealth, 639 S.W.2d 758, 1982 Ky. LEXIS 298 ( Ky. 1982 ), cert. denied, 460 U.S. 1037, 103 S. Ct. 1428, 75 L. Ed. 2d 788, 1983 U.S. LEXIS 4164 (U.S. 1983).

31.— —Intent.

Defendant’s flight immediately after commission of crime may be considered, under proper instructions, as evidence of his intent, guilty knowledge, and motive to escape the consequence of the homicide. (Decided under prior law) Hamilton v. Commonwealth, 292 Ky. 307 , 167 S.W.2d 56, 1942 Ky. LEXIS 128 ( Ky. 1942 ).

Previous threats against deceased, made by one charged with murder, are never admissible as substantive evidence that he committed the crime; they are competent to show the accused’s motive and state of mind, but, of themselves, are not sufficient to establish guilt. (Decided under prior law) Holman v. Commonwealth, 291 Ky. 622 , 165 S.W.2d 167, 1942 Ky. LEXIS 286 ( Ky. 1942 ).

In prosecution for murder, testimony as to defendant’s breaking, entering and stealing from garage, his flight from scene of crime, and his actions when apprehended in another county, was competent to show that previous to the homicide a felony had been committed and that deceased deputy sheriff had reasonable ground to believe occupants of defendant’s car were the perpetrators of the felony and had right to make an arrest, and to show motive and intent of defendant in resisting arrest and killing officer; however, upon request by counsel for defendant, trial court should have admonished jury that the foregoing reasons were the purpose for which the testimony might be considered and that it could be considered for no other purpose. (Decided under prior law) Patton v. Commonwealth, 289 Ky. 627 , 159 S.W.2d 1006, 1942 Ky. LEXIS 617 ( Ky. 1942 ).

It was competent for Commonwealth to show in evidence of defendant’s intent, guilty knowledge, and motive of desire to escape the consequences of the homicide, that he had fled from the scene of the crime, and, when accosted by officers in another county, he again attempted to escape, in furtherance of which he fired upon those warranted to make the arrest; however, upon request by counsel for defendant, trial court should have admonished jury that such evidence could be considered solely to show motive, intent and guilty knowledge and failure to so admonish the jury was error extremely prejudicial to the defendant. (Decided under prior law) Patton v. Commonwealth, 289 Ky. 627 , 159 S.W.2d 1006, 1942 Ky. LEXIS 617 ( Ky. 1942 ).

Where a defendant was being prosecuted for the murder of one of four persons whom the defendant had allegedly killed within a short period of time, it was proper to admit evidence of the defendant’s acts and statements prior to and subsequent to the killing for which he was being tried, including evidence as to the other killings, as such evidence is competent to establish identity, guilty knowledge, motive, plan, state of mind or intent. (Decided under prior law) Adkins v. Commonwealth, 301 Ky. 384 , 191 S.W.2d 935, 1945 Ky. LEXIS 747 ( Ky. 1945 ).

In murder prosecution, admission of testimony of witness concerning threats made against him by defendant after fatal stabbing would not have been prejudicially erroneous, since it would indicate defendant’s state of mind and attitude. (Decided under prior law) Hollin v. Commonwealth, 303 Ky. 816 , 199 S.W.2d 624, 1947 Ky. LEXIS 565 ( Ky. 1947 ).

In murder prosecution, evidence with reference to difficulty between deceased and children of the defendant was not admissible to show state of mind of deceased immediately preceding the killing, where such facts were not communicated to the defendant prior to the shooting, and hence could not have had any influence on his conduct or state of mind at that time. (Decided under prior law) Jackson v. Commonwealth, 275 S.W.2d 788, 1955 Ky. LEXIS 377 ( Ky. 1955 ).

Subsequent hostile declarations of accused are admissible on issue of malice and state of mind where relevant to such conditions as of time of offense. (Decided under prior law) White v. Commonwealth, 360 S.W.2d 198, 1962 Ky. LEXIS 214 ( Ky. 1962 ).

In murder trial where indigent defendant was examined by two physicians after a hearing and before the trial date and his counsel was not notified and such physicians testified at an in camera hearing as to his mental state at the time the offense was committed and his ability to stand trial, defendant’s rights to a fair trial and effective assistance of counsel were not denied where there was nothing in the record to indicate that defendant did not voluntarily submit to the examination nor that the physicians were not qualified to express an opinion. (Decided under prior law) Ragland v. Commonwealth, 515 S.W.2d 224, 1974 Ky. LEXIS 228 ( Ky. 1974 ).

In murder trial where indigent defendant was examined by two physicians after a hearing and before the trial date and such physicians testified at an in camera hearing as to his mental state at the time the offense was committed and his ability to stand trial and his counsel did not object to the physicians’ qualifications to testify on such matters, defendant’s rights under the Fifth or Fourteenth Amendments or under the Kentucky Constitution were not denied nor did the trial court err in refusing to supply defendant a psychiatrist at the expense of the Commonwealth. (Decided under prior law) Ragland v. Commonwealth, 515 S.W.2d 224, 1974 Ky. LEXIS 228 ( Ky. 1974 ).

Intent to commit murder may be shown in many ways, and the conduct of the accused both prior to and subsequent to the actual killing is admissible as evidence tending to show facts from which intent can and should be inferred. Wilson v. Commonwealth, 601 S.W.2d 280, 1980 Ky. LEXIS 226 ( Ky. 1980 ).

Where there was evidence that the defendant had purchased the fatal weapon shortly before the homicide, evidence to indicate that he sat up waiting for the victim to return to the apartment, that when denied entrance to the apartment, he shot the lock off the door and forced his way into the apartment; and within a very brief time shot and killed the victim, any rational trier of fact could have found beyond a reasonable doubt that the defendant entered the room with an intent to commit a crime. McClellan v. Commonwealth, 715 S.W.2d 464, 1986 Ky. LEXIS 274 ( Ky. 1986 ), cert. denied, 479 U.S. 1057, 107 S. Ct. 935, 93 L. Ed. 2d 986, 1987 U.S. LEXIS 379 (U.S. 1987).

The statement by defendant that he would have killed his wife had she been home, made immediately after he had shot and killed two (2) men, went to prove his state of mind on the night of the shooting and was admissible as tending to prove the element of intent in the crime of murder. Henson v. Commonwealth, 812 S.W.2d 718, 1991 Ky. LEXIS 95 ( Ky. 1991 ).

32.— —Murder Weapon.

In prosecution for homicide, the Commonwealth may show that defendant had in his possession at time of killing a weapon that could have caused the death and it is not necessary to prove that the instruments introduced in evidence were in fact used. (Decided under prior law) Tarrence v. Commonwealth, 265 S.W.2d 40, 1953 Ky. LEXIS 1267 (Ky. Ct. App. 1953), cert. denied, 348 U.S. 899, 75 S. Ct. 220, 99 L. Ed. 706, 1954 U.S. LEXIS 1429 (U.S. 1954).

It was proper to admit testimony by a police officer that defendant’s accomplice had identified, in the officer’s presence, one weapon as being his, and that the defendant did not deny such identification, and further stated that a second weapon, the murder weapon, was his own. (Decided under prior law) Smith v. Commonwealth, 366 S.W.2d 902, 1962 Ky. LEXIS 5 ( Ky. 1962 ).

Where the defendant was accused of murder during a robbery, it was permissible to allow testimony that the murder weapon was stolen in another robbery in which the defendant participated, as such testimony established defendant’s possession of the weapon and showed a plan or purpose to use it to obtain money by force. (Decided under prior law) Smith v. Commonwealth, 366 S.W.2d 902, 1962 Ky. LEXIS 5 ( Ky. 1962 ).

33.— —Other Offenses.

Admission of evidence, tending to prove that accused had been guilty of numerous other violations of law or subject to arrest for undeveloped but insinuated violations, was reversible error, where such evidence was not proper method of impeaching accused’s character, or general reputation for veracity, good or bad behavior, or for identification. (Decided under prior law) Butler v. Commonwealth, 284 Ky. 276 , 144 S.W.2d 510, 1940 Ky. LEXIS 484 ( Ky. 1940 ).

Evidence of other crimes or acts committed by an accused is not competent except in a few particular instances, such as to illustrate motive or to show knowledge, intent, plan or design and mere remarks of deceased addressed to appellant do not put former killing in evidence as substantive evidence of appellant’s guilt. (Decided under prior law) Slone v. Commonwealth, 289 Ky. 653 , 159 S.W.2d 1013, 1942 Ky. LEXIS 618 ( Ky. 1942 ).

Where a defendant was charged with the shooting death of his second wife, the trial court committed prejudicial error in permitting the prosecution to introduce evidence of the defendant’s illicit love affair with his second wife and of the shooting death of his first wife. Stallings v. Commonwealth, 556 S.W.2d 4, 1977 Ky. LEXIS 514 ( Ky. 1977 ).

While the evidence of prior assaults by the defendant on his children was incompetent in a prosecution for the murder of the defendant’s wife and assault of her companion, it was not error to admit evidence of prior assaults on his wife, which would illustrate the motive for the killing and the state of the defendant’s feelings toward his wife and, moreover, the remoteness of the assaults would affect only the weight, not the competency, of such evidence. Raeber v. Commonwealth, 558 S.W.2d 609, 1977 Ky. LEXIS 541 ( Ky. 1977 ).

It was error, in a homicide prosecution, to admit testimony relating to specific acts of violence and threats made by the defendant against parties other than the victim. Jones v. Commonwealth, 560 S.W.2d 810, 1977 Ky. LEXIS 577 ( Ky. 1977 ).

In prosecution of defendant for capital murder of husband and attempted murder of sister-in-law by arsenic poisoning, admission of evidence of death 12 years ago of man with whom defendant had been living due to chronic arsenic poisoning was highly prejudicial and improperly admitted, where such evidence did not show the commission of a crime, did not point sufficiently to defendant as the cause of the death, and failed to show a common scheme, plan or system on the part of defendant. O'Bryan v. Commonwealth, 634 S.W.2d 153, 1982 Ky. LEXIS 254 ( Ky. 1982 ).

Evidence of prior specific acts is inadmissible to show a victim’s character for violence or aggression even when the defendant claims that he acted in self-defense; accordingly, in a murder prosecution the trial court erred in admitting into evidence prior criminal convictions of the victim. Thompson v. Commonwealth, 652 S.W.2d 78, 1983 Ky. LEXIS 251 ( Ky. 1983 ), overruled, Shannon v. Commonwealth, 767 S.W.2d 548, 1988 Ky. LEXIS 80 ( Ky. 1988 ).

The trial court in a murder prosecution erred in introducing evidence of prior criminal convictions of an individual who did not testify but was alleged to have been present at the scene of the shooting; in that the individual was neither indicted, nor a witness at the trial, evidence of his prior criminal convictions was irrelevant; furthermore, such evidence was inadmissible. Thompson v. Commonwealth, 652 S.W.2d 78, 1983 Ky. LEXIS 251 ( Ky. 1983 ), overruled, Shannon v. Commonwealth, 767 S.W.2d 548, 1988 Ky. LEXIS 80 ( Ky. 1988 ).

The trial court erred in permitting introduction of an indictment pending against the defense witness as evidence of motive and bias in testifying. Holland v. Commonwealth, 703 S.W.2d 876, 1985 Ky. LEXIS 299 ( Ky. 1985 ).

Where the evidence introduced against defendant on trial for murder, rape and burglary was not that he had been charged with other offenses but that he had admitted his guilt as to them, and the evidence was not only that defendant had committed a similar crime within the previous six months, but that he had committed it in the same household and against the same person, the circumstances were so similar and were near enough in time as to constitute a signature of sorts of the defendant, and the evidence was therefore admissible. Adcock v. Commonwealth, 702 S.W.2d 440, 1986 Ky. LEXIS 222 ( Ky. 1986 ).

A rule of long standing in Kentucky prohibits introduction in criminal cases of evidence of the commission of crimes, other than the crime charged, subject to the exception that such evidence is competent to establish identity, guilty knowledge, intent or motive, pattern or scheme, or when other offenses are so interwoven with the one under trial that they cannot be properly separated. Adcock v. Commonwealth, 702 S.W.2d 440, 1986 Ky. LEXIS 222 ( Ky. 1986 ).

Surveillance tapes of the codefendants’ conversations, which presented evidence of other crimes for which the defendants were not being tried, portrayed their criminal propensity, and contained references to polygraph tests, were not admissible. Holland v. Commonwealth, 703 S.W.2d 876, 1985 Ky. LEXIS 299 ( Ky. 1985 ).

Where the defendant murdered his wife and mother-in-law and burglarized their home after a warrant had been issued charging him with burglary of the same house three days earlier, there was no error in admitting the burglary warrant, where there was other evidence tying the defendant to the previous break-in, and there were striking similarities between the vandalism on the previous occasion and the vandalism on the occasion of the burglary charged in the present indictment. Matthews v. Commonwealth, 709 S.W.2d 414, 1985 Ky. LEXIS 257 ( Ky. 1985 ), cert. denied, 479 U.S. 871, 107 S. Ct. 245, 93 L. Ed. 2d 170, 1986 U.S. LEXIS 4150 (U.S. 1986).

Where the defendant murdered his wife and mother-in-law five weeks after the wife had procured a warrant against the defendant charging him with sexual abuse of his stepdaughter, the warrant and the court order to stay away from the wife’s house were relevant not only as evidence of motive or state of mind, but also as part of the immediate circumstances bearing on the crimes charged. Matthews v. Commonwealth, 709 S.W.2d 414, 1985 Ky. LEXIS 257 ( Ky. 1985 ), cert. denied, 479 U.S. 871, 107 S. Ct. 245, 93 L. Ed. 2d 170, 1986 U.S. LEXIS 4150 (U.S. 1986).

In prosecution for wanton murder, the trial court did not err in admitting evidence of alleged prior assaults and one particular instance in which an arrest warrant was actually served upon the defendant for violence against the victim, as indicative of the “state of feeling” between the defendant and the victim as would tend to establish motive. Todd v. Commonwealth, 716 S.W.2d 242, 1986 Ky. LEXIS 290 ( Ky. 1986 ).

In prosecution for wanton murder, the trial court erred in admitting evidence of previous incidents where a police officer found the victim badly beaten, bullet holes around her bed and in her mattress, signs of a shotgun having been fired throughout the house, and food thrown against the bedroom walls, where no foundation was laid by the Commonwealth to connect this scene with the defendant. Todd v. Commonwealth, 716 S.W.2d 242, 1986 Ky. LEXIS 290 ( Ky. 1986 ).

The defendant in a murder case was not entitled to a directed verdict based on his defense of self-protection because the evidence supporting the claim of self-protection was not conclusive and because self-protection is not an element of the offense of murder to be proved by the prosecution. Luttrell v. Commonwealth, 952 S.W.2d 216, 1997 Ky. LEXIS 110 ( Ky. 1997 ).

Evidence properly excluded on relevancy grounds where, although the officer’s testimony that the victim had gang member status would have bolstered defendant’s own testimony that the victim was a member of a gang, the officer’s testimony would not have been relevant to defendant’s testimony that he was afraid of the victim because the victim was a member of a gang. Commonwealth v. Davis, 14 S.W.3d 9, 1999 Ky. LEXIS 161 ( Ky. 1999 ).

Evidence properly excluded on relevancy grounds where, although the officer’s testimony that the victim had gang member status would have bolstered defendant’s own testimony that the victim was a member of a gang, the officer’s testimony would not have been relevant to defendant’s testimony that he was afraid of the victim because the victim was a member of a gang. (Decided under prior law) Commonwealth v. Davis, 14 S.W.3d 9, 1999 Ky. LEXIS 161 ( Ky. 1999 ).

Trial court did not err when it permitted the Commonwealth to introduce evidence of illicit drugs during defendant’s trial on charges of wanton murder under KRS 507.020(1)(b), and first-degree assault under KRS 508.010(1)(b). The evidence was relevant and admissible because it helped the jury fully understand defendant’s misconduct in that he was so engrossed by his passenger counting illicit pills that he was not paying attention to his driving; any prejudice suffered by defendant due to the admission of the evidence was cured by the trial court’s limiting admonition to the jury. Berryman v. Commonwealth, 237 S.W.3d 175, 2007 Ky. LEXIS 206 ( Ky. 2007 ).

34.— —Photographs.

Photograph of body of deceased was admissible to show location of wounds. (Decided under prior law) Waters v. Commonwealth, 276 Ky. 315 , 124 S.W.2d 97, 1939 Ky. LEXIS 524 ( Ky. 1939 ).

Admission of photographs of the body of the deceased showing him lying in the weeds with disheveled clothing and bloody body was improper as the deceased’s wounds had been fully described, and the picture did not reveal any wounds in detail, but the error in admitting the photograph was not prejudicial where there was not a single fact to mitigate the murder. (Decided under prior law) Calhoun v. Commonwealth, 301 Ky. 789 , 193 S.W.2d 420, 1946 Ky. LEXIS 574 ( Ky. 1946 ).

Photographs which were taken a short time after the deceased’s death, and which accurately represented the condition of the body and the wounds, were properly admitted to assist the jury in determining the location of the deceased at the time of the shooting. (Decided under prior law) Baker v. Commonwealth, 311 Ky. 410 , 224 S.W.2d 433, 1949 Ky. LEXIS 1154 ( Ky. 1949 ), cert. denied, 339 U.S. 915, 70 S. Ct. 561, 94 L. Ed. 1340, 1950 U.S. LEXIS 2286 (U.S. 1950).

Admitting a picture of deceased taken just prior to burial and showing several face and head wounds was error, but the error was not prejudicial where there was sufficient evidence to sustain the conviction, and there were no mitigating circumstances. (Decided under prior law) Ellison v. Commonwealth, 311 Ky. 757 , 225 S.W.2d 470, 1949 Ky. LEXIS 1244 ( Ky. 1949 ).

Photographs of deceased, taken at funeral home, which showed stab wounds constituted visual evidence on material issues and were properly admitted as evidence in trial for conspiracy to murder. Sykes v. Commonwealth, 553 S.W.2d 44, 1977 Ky. LEXIS 470 ( Ky. 1977 ).

Photographs showing bullet casings in a pool of blood, bloody footprints and the victim’s bloody face were admissible in a prosecution for murder and armed robbery. Davis v. Commonwealth, 555 S.W.2d 575, 1977 Ky. LEXIS 509 ( Ky. 1977 ).

Where there were questions as to the entry of bullets and the range at which they were fired, it was not error to admit photographs of the murder victim in which powder burns were visible. Stallings v. Commonwealth, 556 S.W.2d 4, 1977 Ky. LEXIS 514 ( Ky. 1977 ).

Photographs revealing tire prints in the ground and a plaster cast taken from one such print, while of poor quality, were competent and admissible evidence to establish the defendant’s presence at a farm in the same time period in which a murder was committed. Smith v. Commonwealth, 556 S.W.2d 670, 1977 Ky. LEXIS 524 ( Ky. 1977 ).

Black and white photographs of the murder victim, which demonstrated the character, location and extent of her injuries, supported the testimony of the coroner and pathologist and were properly admitted into evidence. Smith v. Commonwealth, 556 S.W.2d 670, 1977 Ky. LEXIS 524 ( Ky. 1977 ).

Photographs of the deceased’s body, showing the fatal bullet wound, were properly admitted into evidence in a murder prosecution. Brown v. Commonwealth, 558 S.W.2d 599, 1977 Ky. LEXIS 539 ( Ky. 1977 ).

The introduction of photographs of the scene of the discovery of the bodies was not error since the photographs were relevant to the credibility of a participant in the murder. Sharp v. Commonwealth, 559 S.W.2d 727, 1977 Ky. LEXIS 558 ( Ky. 1977 ).

The court did not err in admitting photographs of decedent into evidence, where such photographs were neither inflammatory nor gory in detail, but simply depicted the scene of the crime and the condition of the body. Walker v. Commonwealth, 561 S.W.2d 656, 1977 Ky. LEXIS 578 ( Ky. 1977 ).

In a murder prosecution, a photograph of the victim was properly admitted despite its gruesomeness since a photograph which is otherwise admissible does not become inadmissible because it is gruesome and the crime is heinous. Butler v. Commonwealth, 560 S.W.2d 814, 1978 Ky. LEXIS 311 ( Ky. 1978 ).

All photographs of the scene of the crime are admissible, no matter how heinous the crime, to the extent that the photograph that is otherwise admissible does not become inadmissible simply because it is gruesome and the crime heinous. Taylor v. Commonwealth, 564 S.W.2d 8, 1978 Ky. LEXIS 345 ( Ky. 1978 ).

Where two (2) photos showed deceased with a white cord around her neck but only a third photo clearly showed it to be a white electric extension cord, such photo was not duplicative. Taylor v. Commonwealth, 564 S.W.2d 8, 1978 Ky. LEXIS 345 ( Ky. 1978 ).

Where in a pretrial stipulation in a murder prosecution, the prosecutor agreed that photographs of the mother and child victims would not be introduced as evidence, the defendant did not show grounds for reversal in that the use of the photographs in the penalty phase of the trial was prejudicial to him, since the death penalty was not imposed and the verbal description of the grisly murder of a child weeping over the body of his mother could not be further aggravated by the display of photographs. Harston v. Commonwealth, 638 S.W.2d 700, 1982 Ky. LEXIS 292 ( Ky. 1982 ).

It is the general rule that a photograph, otherwise admissible, does not become inadmissible simply because it is gruesome and the crime is heinous; however, the presentation of photographs depicting the animal mutilation of the corpse went far beyond demonstrating proof of a contested relevant fact where proof of identity, condition and lividity was amply established by the testimony of the pathologist and witnesses who found the body. Holland v. Commonwealth, 703 S.W.2d 876, 1985 Ky. LEXIS 299 ( Ky. 1985 ).

In defendant’s trial for murder, the trial court did not abuse its discretion admitting crime scene photographs under KRE 402 when their probative value was not substantially outweighed by their prejudicial effect. Although the photographs showing the extent of the victim’s injuries were, by their very nature, prejudicial, they clearly had significant value to the jury in determining the extent of defendant’s culpability based on his claim that he just poked the victim in the neck. Greene v. Commonwealth, 197 S.W.3d 76, 2006 Ky. LEXIS 140 ( Ky. 2006 ), cert. denied, 549 U.S. 1184, 127 S. Ct. 1157, 166 L. Ed. 2d 1001, 2007 U.S. LEXIS 1235 (U.S. 2007).

35.— —Physical Evidence.

Exhibiting clothing of deceased in evidence, under proper instructions that evidence was to be considered only for purpose of determining number of bullet holes, was proper, notwithstanding that bloody condition of clothing might influence jury. (Decided under prior law) Higginbotham v. Commonwealth, 291 Ky. 463 , 165 S.W.2d 19, 1942 Ky. LEXIS 264 ( Ky. 1942 ).

Where the defendant alleged that the deceased was wearing a button front shirt and had reached into the front of the shirt just prior to the killing and then threatened to kill the defendant, it was not error to allow a bloody shirt of the slip-on type which was taken from the deceased’s body to be exhibited to the jury. (Decided under prior law) Hollin v. Commonwealth, 303 Ky. 816 , 199 S.W.2d 624, 1947 Ky. LEXIS 565 ( Ky. 1947 ).

Where prosecution was endeavoring to prove that deceased was killed a short distance from railroad track, and that his body was then dragged to the track and left to be run over by train, it was proper to introduce in evidence the deceased’s clothing and hair, to supplement evidence as to finding of deceased’s hat and some strands of hair at a point away from the railroad track, and as to marks indicating that a heavy object was dragged from that point to the track. (Decided under prior law) Napier v. Commonwealth, 306 Ky. 75 , 206 S.W.2d 53, 1947 Ky. LEXIS 944 ( Ky. 1947 ).

In prosecution for murder of wife of defendant, deceased’s clothes were properly admitted where sheriff testified that the clothes had been in his possession since deceased’s body was found and that they were in the same condition as when removed from body. (Decided under prior law) Ellison v. Commonwealth, 311 Ky. 757 , 225 S.W.2d 470, 1949 Ky. LEXIS 1244 ( Ky. 1949 ).

Where no useful purpose was served, it was reversible error to allow introduction of bloody clothes as evidence in murder prosecution. (Decided under prior law) Horton v. Commonwealth, 312 Ky. 63 , 226 S.W.2d 526, 1950 Ky. LEXIS 590 ( Ky. 1950 ).

Where there was conflicting testimony on the issue of where the bullets had entered the body of the deceased, it was proper to admit the clothing of the deceased showing the bullet holes. (Decided under prior law) Bales v. Commonwealth, 313 Ky. 272 , 231 S.W.2d 61, 1950 Ky. LEXIS 881 ( Ky. 1950 ).

It was not proper to introduce bloody clothing worn by the deceased where the undertaker had already testified as to the number and location of the deceased’s wounds, and the defendant had not denied inflicting any of the wounds. (Decided under prior law) Burke v. Commonwealth, 249 S.W.2d 764, 1952 Ky. LEXIS 859 ( Ky. 1952 ).

36.— —Pre-trial Statements.

Where the defendant did not object to the admission of his pre-trial statement denying ownership of a gun, both that statement and trial testimony from a witness and from the defendant himself establishing his ownership of the murder weapon was relevant and admissible in a prosecution for murder and armed robbery. Davis v. Commonwealth, 555 S.W.2d 575, 1977 Ky. LEXIS 509 ( Ky. 1977 ).

Where the defendant in a murder prosecution, after being given Miranda warnings, made a statement in which he attempted to place the blame on other people, such statement was admissible as establishing his true identity and reason for using an alias, as an attempt to conceal the facts thereby indicating a guilty conscience, and as showing that he professed to know what happened at the time of the murder. Williams v. Commonwealth, 560 S.W.2d 1, 1977 Ky. LEXIS 561 ( Ky. 1977 ).

Where defendant testified that he had never harmed victim, trial judge did not err in admitting testimony of officer that defendant told him he had once slapped the victim unconscious. Taylor v. Commonwealth, 564 S.W.2d 8, 1978 Ky. LEXIS 345 ( Ky. 1978 ).

Threats against the victim made by the defendant seven months prior to the murder were not too remote to be admissible as evidence in murder trial. Scruggs v. Commonwealth, 566 S.W.2d 405, 1978 Ky. LEXIS 359 (Ky.), cert. denied, 439 U.S. 928, 99 S. Ct. 314, 58 L. Ed. 2d 321, 1978 U.S. LEXIS 3580 (U.S. 1978).

Where defendant made his first admissions of killing victim to fellow prisoner prior to any contact or relationship between such prisoner and the police, these disclosures were clearly voluntary and obviously admissible at trial. Conover v. Commonwealth, 568 S.W.2d 238, 1978 Ky. LEXIS 372 ( Ky. 1978 ).

Where the only evidence that defendant committed murder during robbery of a gas station was codefendant’s improperly admitted statement to a police officer that defendant rather than codefendant did the actual killing, but where defendant’s own testimony was that while he admitted getting $20 of the robbery money he had no prior knowledge that the codefendant was going to commit the robbery or murder the gas station attendant, the error in admitting codefendant’s out-of-court statement was not harmless beyond a reasonable doubt as to defendant’s murder conviction. Mayes v. Sowders, 621 F.2d 850, 1980 U.S. App. LEXIS 17004 (6th Cir. Ky.), cert. denied, 449 U.S. 922, 101 S. Ct. 324, 66 L. Ed. 2d 151, 1980 U.S. LEXIS 3633 (U.S. 1980).

Where defendant admitted by his own testimony that he participated in a jewelry store robbery knowing that codefendant had killed a gas station attendant during an earlier robbery, and where defendant also admitted participating in the purchase of the murder weapon and he knew where the weapon was hidden after the robberies, there was strong evidence based on defendant’s testimony that his participation at least manifested wantonness sufficient to find him guilty of murder during the second robbery, and thus the admission of an out-of-court statement by the codefendant indicating that defendant committed the first murder was harmless beyond a reasonable doubt with respect to the jewelry store murder. Mayes v. Sowders, 621 F.2d 850, 1980 U.S. App. LEXIS 17004 (6th Cir. Ky.), cert. denied, 449 U.S. 922, 101 S. Ct. 324, 66 L. Ed. 2d 151, 1980 U.S. LEXIS 3633 (U.S. 1980).

While the trial court had a sufficient basis to find that a conspiracy existed between defendant and her son, only three (3) of the thirteen (13) statements had other grounds of admissibility: (1) the son’s statement seeking help to make a silencer; (2) the son’s statement to another that he bought the gun to kill the victim; and (3) a statement that the mother wanted the son to find somebody to kill the victim. But, because the other ten (10) statements at issue were nothing more than the son confiding in his friends or casual comments, admission of these statements was clear error. Monroe v. Commonwealth, 244 S.W.3d 69, 2008 Ky. LEXIS 10 ( Ky. 2008 ).

37.— —Polygraph Examination.

While prior inconsistent statements elicited during a polygraph test are admissible if no mention is made that the statements were uttered during a polygraph examination and no reference is made to the fact that a polygraph examination was conducted, refusal to admit such statements was not prejudicial where the prior inconsistent statements of defendant at times other than during the polygraph examination were introduced into evidence in murder trial for the jury’s consideration. Edwards v. Commonwealth, 573 S.W.2d 640, 1978 Ky. LEXIS 411 ( Ky. 1978 ).

The trial court did not err by excluding the results of a polygraph examination. Grooms v. Commonwealth, 756 S.W.2d 131, 1988 Ky. LEXIS 36 ( Ky. 1988 ).

38.— —Post-Arrest Silence.

In the absence of the sort of affirmative assurances embodied in the Miranda warnings, it does not violate due process of law for a state to permit cross-examination as to post-arrest silence when a defendant chooses to take the stand. A state is entitled, in such situations, to leave to the judge and jury under its own rules of evidence the resolution of the extent to which post-arrest silence may be deemed to impeach a criminal defendant’s own testimony. Fletcher v. Weir, 455 U.S. 603, 102 S. Ct. 1309, 71 L. Ed. 2d 490, 1982 U.S. LEXIS 84 (U.S. 1982).

39.— —Prior Inconsistent Statement.

Where, during the guilt phase of a murder trial, the defendant’s wife testified as one of the defendant’s witnesses to substantiate his alibi defense, and the wife stated that she was not afraid of the defendant, the trial court did not err in permitting the prosecution to attempt to impeach her testimony by cross-examining her regarding a statement that she had earlier given before a grand jury, that the defendant had cut her with a butcher knife and that she was scared to death of him. Pace v. Commonwealth, 636 S.W.2d 887, 1982 Ky. LEXIS 280 ( Ky. 1982 ), overruled, Commonwealth v. Harrell, 3 S.W.3d 349, 1999 Ky. LEXIS 117 ( Ky. 1999 ).

The trial court did not commit error in admitting an out-of-court contradictory statement of a prosecution witness to the effect that defendant told witness he would kill victim if victim did not give defendant his (defendant’s) money. Nugent v. Commonwealth, 639 S.W.2d 761, 1982 Ky. LEXIS 299 ( Ky. 1982 ).

40.— —Threats by Decedent.

It was prejudicial error to refuse to permit accused to tell of communicated threats made against him by decedent, where threats were made within a year and there was a showing of continued ill-feeling. (Decided under prior law) Salley v. Commonwealth, 277 Ky. 330 , 126 S.W.2d 438, 1939 Ky. LEXIS 649 ( Ky. 1939 ).

Threats by decedent against accused, though they may not have been communicated, are admissible to show the state of decedent’s mind, and as evidence as to who was the aggressor and evidence that decedent was intoxicated is admissible for the same purpose. (Decided under prior law) Salley v. Commonwealth, 277 Ky. 330 , 126 S.W.2d 438, 1939 Ky. LEXIS 649 ( Ky. 1939 ).

On a plea of self-defense to a murder charge, evidence of threats made by deceased against accused, though not communicated to the accused, are competent to show the state of mind of the deceased and may be heard by the jury for the purpose of determining who was the aggressor. Wilson v. Commonwealth, 551 S.W.2d 569, 1977 Ky. LEXIS 453 ( Ky. 1977 ).

41.— —Statements of Victim.

In prosecution for murder, statements of deceased immediately after being shot, are admissible as res gestae. (Decided under prior law) Williams v. Commonwealth, 230 Ky. 327 , 19 S.W.2d 964, 1929 Ky. LEXIS 76 ( Ky. 1929 ).

Statements made by the deceased as he staggered into the house immediately after being shot were admissible as dying declaration. (Decided under prior law) Williams v. Commonwealth, 230 Ky. 327 , 19 S.W.2d 964, 1929 Ky. LEXIS 76 ( Ky. 1929 ).

A statement made by deceased before a county judge, the Commonwealth’s attorney and the court reporter was not admissible as a dying declaration where it was not shown that the statement was made in extremis. (Decided under prior law) Bailey v. Commonwealth, 288 Ky. 613 , 157 S.W.2d 100, 1941 Ky. LEXIS 170 ( Ky. 1941 ), overruled, White v. Commonwealth, 360 S.W.2d 198, 1962 Ky. LEXIS 214 ( Ky. 1962 ).

A statement made by the deceased to his brother, while deceased was in the hospital, was not admissible as a dying declaration where it followed by a day a previous statement by the deceased to the effect that he was dying, and there was no indication that the deceased was in extremis when the statement in issue was made. (Decided under prior law) Bailey v. Commonwealth, 288 Ky. 613 , 157 S.W.2d 100, 1941 Ky. LEXIS 170 ( Ky. 1941 ), overruled, White v. Commonwealth, 360 S.W.2d 198, 1962 Ky. LEXIS 214 ( Ky. 1962 ).

Where victim was shot in the back of the head, and died a short time later, his question to a bystander, “who shot me?”, asked a few minutes after the shooting, was admissible as part of the res gestae. (Decided under prior law) Pennington v. Commonwealth, 294 Ky. 266 , 171 S.W.2d 432, 1943 Ky. LEXIS 429 ( Ky. 1943 ).

In a murder prosecution, in which self-defense was claimed, the statement by the deceased, in a dying declaration, that, “I don’t know why he shot me” was admissible, being in the nature of a statement that the deceased was doing nothing at the time he was shot, rather than a mere conclusion by him. (Decided under prior law) Mayhew v. Commonwealth, 302 Ky. 783 , 196 S.W.2d 612, 1946 Ky. LEXIS 767 ( Ky. 1946 ).

42.— —Witnesses.

Exhibiting clothing of deceased in evidence, under proper instructions that evidence was to be considered only for purpose of determining number of bullet holes, was proper, notwithstanding that bloody condition of clothing might influence jury. (Decided under prior law) Higginbotham v. Commonwealth, 291 Ky. 463 , 165 S.W.2d 19, 1942 Ky. LEXIS 264 ( Ky. 1942 ).

It was clearly erroneous to admit into evidence witness’ opinion as to defendant’s guilt where such opinion was contained in written statement used to try to impeach witness’ credibility. Nugent v. Commonwealth, 639 S.W.2d 761, 1982 Ky. LEXIS 299 ( Ky. 1982 ).

43.—Causation.

Defendant in homicide prosecution was not required to introduce positive evidence that death was due to some incident other than his shooting the victim; rather the burden was on the Commonwealth to prove beyond a reasonable doubt that the death was a direct result of the gunshot wound inflicted by the defendant. Muse v. Commonwealth, 551 S.W.2d 564, 1977 Ky. LEXIS 452 ( Ky. 1977 ).

44.—Confessions.

Where defendant has made a confession, only corroborating proof required is evidence of the corpus delicti, and it is not necessary that there be other evidence tending to connect the defendant with the crime. (Decided under prior law) Williams v. Commonwealth, 306 Ky. 225 , 206 S.W.2d 922, 1947 Ky. LEXIS 986 ( Ky. 1947 ).

Appellant’s confession, as corroborated by the location of the victim’s body, the autopsy results, and the physical evidence obtained during the search of her residence, was sufficient to support her conviction for complicity to murder. Talbott v. Commonwealth, 968 S.W.2d 76, 1998 Ky. LEXIS 41 ( Ky. 1998 ).

45.—Corpus Delicti.

The corpus delicti must be proved either by direct testimony or by presumptive evidence of the most cogent and irresistible kind. (Decided under prior law) Coleman v. Commonwealth, 282 Ky. 203 , 138 S.W.2d 333, 1940 Ky. LEXIS 146 ( Ky. 1940 ).

Evidence that muffled screams were heard from upstairs room, that victim’s clothed body was found in bathtub with evidence of struggle and bruises on her head, that bloody towels were found under bathtub and pin worn by accused that morning was found under victim’s body, and dress worn by accused had blood splotches on it, sustained burden upon Commonwealth of proving death of victim and that it was due to criminal acts of accused. (Decided under prior law) Bates v. Commonwealth, 284 Ky. 1 , 143 S.W.2d 730, 1940 Ky. LEXIS 429 ( Ky. 1 940).

Proof of the corpus delicti has two component parts, namely, proof of death and proof that a crime has been actually committed. (Decided under prior law) Hawk v. Commonwealth, 284 Ky. 217 , 144 S.W.2d 496, 1940 Ky. LEXIS 479 ( Ky. 1940 ).

To establish the corpus delicti the prosecution must show that a death had occurred, and that a criminal agency caused it, and in order to sustain a conviction the prosecution must prove beyond a reasonable doubt that a criminal act of the accused was the cause of the death. (Decided under prior law) Bickett v. Commonwealth, 294 Ky. 671 , 172 S.W.2d 439, 1943 Ky. LEXIS 502 ( Ky. 1943 ); Bolin v. Commonwealth, 303 Ky. 75 , 196 S.W.2d 870, 1946 Ky. LEXIS 779 ( Ky. 1946 ).

The burden is upon the Commonwealth to establish the corpus delicti beyond a reasonable doubt, and it is not upon the accused to explain any doubtful fact. (Decided under prior law) Fyffe v. Commonwealth, 301 Ky. 165 , 190 S.W.2d 674, 1945 Ky. LEXIS 677 ( Ky. 1945 ).

Where, on day of alleged murder, home of alleged victim was burned to the ground, and evidence was that a skeleton was found near metal box in which victim was known to keep his money, the box was broken open, bullets were embedded in skeleton, and victim was never seen afterwards, such evidence was sufficient to establish the corpus delicti. (Decided under prior law) Gibson v. Commonwealth, 301 Ky. 402 , 192 S.W.2d 187, 1946 Ky. LEXIS 492 ( Ky. 1946 ).

The corpus delicti may be established by circumstantial evidence. (Decided under prior law) Witt v. Commonwealth, 305 Ky. 31 , 202 S.W.2d 612, 1947 Ky. LEXIS 730 ( Ky. 1947 ).

Corpus delicti was established where evidence showed that deceased, who had enjoyed good health, died of strychnine poisoning, that deceased had caused arrest of accused shortly before on charge of robbery, and that accused had been at deceased’s house the night of her death. (Decided under prior law) Powell v. Commonwealth, 308 Ky. 467 , 214 S.W.2d 1002, 1948 Ky. LEXIS 964 ( Ky. 1948 ).

The corpus delicti may be proved by circumstantial evidence, provided such evidence is more consistent with guilt than with innocence. (Decided under prior law) Powell v. Commonwealth, 308 Ky. 467 , 214 S.W.2d 1002, 1948 Ky. LEXIS 964 ( Ky. 1948 ).

In order to sustain a conviction for murder, both components of the corpus delicti, death resulting from a crime and the criminal agency of another as the means, must be established. (Decided under prior law) Warnell v. Commonwealth, 246 S.W.2d 144, 1952 Ky. LEXIS 621 ( Ky. 1952 ).

Where the evidence sufficiently identified the three burned torsos and showed circumstances indicating criminal agency as cause of death, such evidence sufficiently established the corpus delicti and sustained the murder conviction. (Decided under prior law) Peace v. Commonwealth, 489 S.W.2d 519, 1972 Ky. LEXIS 32 ( Ky. 1972 ).

Although neither the death certificate nor the autopsy results were introduced into evidence, the corpus delicti was established in a willful murder case where a deputy coroner who was a licensed embalmer testified that in his opinion deceased died from a bullet wound in the back of the head and in addition there was evidence of a plan to commit robbery, a pistol and deceased’s wallet were in the defendants’ possession, defendants were placed near the scene of the killing and a confederate testified he was an eyewitness. (Decided under prior law) Caine v. Commonwealth, 491 S.W.2d 824, 1973 Ky. LEXIS 605 (Ky.), cert. denied, 414 U.S. 876, 94 S. Ct. 80, 38 L. Ed. 2d 121, 1973 U.S. LEXIS 885 (U.S. 1973).

Where the evidence showed that the defendant enticed two (2) children into a car and made improper sexual advances to them, that he abducted one of them in the car and that the child’s body, which was found five (5) days later in a secluded area, showed signs of physical abuse and possible sexual molestation, the corpus delicti was established and a conviction for murder would be affirmed. Timmons v. Commonwealth, 555 S.W.2d 234, 1977 Ky. LEXIS 496 ( Ky. 1977 ).

Where the evidence, though conflicting, could be reasonably interpreted to show that the defendant killed his wife in order to recover insurance money and then staged a car accident to cover up the murder, the evidence established the corpus delicti and justified submission of the case to the jury. Smith v. Commonwealth, 556 S.W.2d 670, 1977 Ky. LEXIS 524 ( Ky. 1977 ).

46.—Emotional Distress.

The presence or absence of extreme emotional distress is a matter of evidence, not an element of the crime of murder. Wellman v. Commonwealth, 694 S.W.2d 696, 1985 Ky. LEXIS 235 ( Ky. 1985 ).

47.—Extreme Emotional Disturbance.

Mental illness may be considered by the jury with regard to the reaction of a particular defendant when there is probative, tangible and independent evidence of initiating circumstances, such as provocation at the time of his act, which it is contended aroused extreme emotional disturbance. Wellman v. Commonwealth, 694 S.W.2d 696, 1985 Ky. LEXIS 235 ( Ky. 1985 ).

Where evidence in a capital murder case showed that appellant was a 19-year old man of limited mental capabilities involved in a five-week marriage with victim that suffered from numerous separations and regular infidelities on the victim’s part, appellant and victim fought constantly, and appellant was aware that victim had been with another man on the night of her death, trial court’s failure to provide the jury with an instruction to consider extreme mental or emotional disturbance as a mitigating factor violated appellant’s constitutional right to individualized sentencing and due process. Hunter v. Commonwealth, 869 S.W.2d 719, 1994 Ky. LEXIS 14 ( Ky. 1994 ).

In trial for murder of two (2) officers who were attempting to serve felony fugitive warrants, trial judge did not err in limiting testimony as to family feud which defendant claimed caused his extreme emotional disturbance. Baze v. Commonwealth, 965 S.W.2d 817, 1997 Ky. LEXIS 40 ( Ky. 1997 ), cert. denied, 523 U.S. 1083, 118 S. Ct. 1536, 140 L. Ed. 2d 685, 1998 U.S. LEXIS 2686 (U.S. 1998).

Psychologist’s testimony, which discussed defendant’s mental state but did not address the issue of “extreme emotional disturbance” as defined under Kentucky law, was insufficient to establish such a finding, in the absence of other definitive, unspeculative evidence. Talbott v. Commonwealth, 968 S.W.2d 76, 1998 Ky. LEXIS 41 ( Ky. 1998 ).

State trial court did not interfere with the right of an inmate, who was convicted of the murder of two (2) officers who were trying to arrest him pursuant to an outstanding out-of-state warrant, to present evidence of his defense of extreme emotional disturbance under KRS 507.020(1)(a), because defendant was unable to show a dramatic triggering event in the on-going feud with his wife’s family that could have caused him to lose temporary control of right and wrong and thereby qualify him for mitigation under this defense. Baze v. Parker, 371 F.3d 310, 2004 FED App. 0173P, 2004 U.S. App. LEXIS 11312 (6th Cir. Ky. 2004 ), cert. denied, 544 U.S. 931, 125 S. Ct. 1670, 161 L. Ed. 2d 495, 2005 U.S. LEXIS 2606 (U.S. 2005).

Although defendant was not entitled to use deadly force against two (2) unarmed men, a jury could believe that defendant acted in retaliation for the beating the victims inflicted; consequently, the trial court erred in refusing to instruct the jury on the lesser-included offense of assault under extreme emotional disturbance under KRS 508.040 and 507.020(1)(a), and RCr 9.54(1). Thomas v. Commonwealth, 170 S.W.3d 343, 2005 Ky. LEXIS 310 ( Ky. 2005 ).

In defendant’s trial for murder, the trial court did not violate KRE 404(b)(1) by admitting evidence of defendant’s past affair. The affair spoke to his claim of extreme emotional disturbance as related to the emotional impact of the victim’s disclosures about her affairs, and it gained additional relevancy because defendant called his girlfriend numerous times on the night of murder, making it possible for the reasonable juror to find the existence of extreme emotial disturbance less probable. Greene v. Commonwealth, 197 S.W.3d 76, 2006 Ky. LEXIS 140 ( Ky. 2006 ), cert. denied, 549 U.S. 1184, 127 S. Ct. 1157, 166 L. Ed. 2d 1001, 2007 U.S. LEXIS 1235 (U.S. 2007).

If extreme emotional disturbance is made an issue by the evidence in a trial for murder, an instruction including it as an element of the crime should be given; it then becomes an element of the crime, and the burden of proof lies with the Commonwealth. Greene v. Commonwealth, 197 S.W.3d 76, 2006 Ky. LEXIS 140 ( Ky. 2006 ), cert. denied, 549 U.S. 1184, 127 S. Ct. 1157, 166 L. Ed. 2d 1001, 2007 U.S. LEXIS 1235 (U.S. 2007).

Under KRS 507.020(1)(a), there was no likelihood that defendant’s extreme emotional disturbance defense would have succeeded at trial because there was overwhelming evidence of guilt, and there was little reason to believe that a jury would have sympathized with defendant because he shot the victim in her daughter’s presence. Park v. Commonwealth, 413 S.W.3d 638, 2012 Ky. App. LEXIS 50 (Ky. Ct. App. 2012).

Record was sufficient to support an extreme emotional disturbance defense because, although defendant’s statements to a doctor would have been inconsistent with that defense, the statements that defendant made to police that he was angry and had lost his patience would not be inconsistent with that defense. Park v. Commonwealth, 413 S.W.3d 638, 2012 Ky. App. LEXIS 50 (Ky. Ct. App. 2012).

48.—Insanity.

Where there was conflicting testimony as to the sanity of a defendant in a murder trial, the defendant failed to meet his burden of proving insanity and the trial court did not err in failing to direct the jury to find defendant not guilty by reason of insanity. Wainscott v. Commonwealth, 562 S.W.2d 628, 1978 Ky. LEXIS 332 (Ky.), cert. denied, 439 U.S. 868, 99 S. Ct. 196, 58 L. Ed. 2d 179, 1978 U.S. LEXIS 3143 (U.S. 1978).

The statute does not include sanity as an element of murder and the burden of proving legal insanity sits squarely on a defendant’s shoulders. Gall v. Parker, 231 F.3d 265, 2000 FED App. 0379P, 2000 U.S. App. LEXIS 27039 (6th Cir. Ky. 2000 ).

Where the defendant in a murder prosecution asserted that he was not competent to stand trial, but at a pretrial hearing several psychiatrists, lay witnesses, prisoners in jail with the defendant, and police officers all testified as to normal behavior on the part of the defendant, there was substantial evidence to support the ruling of the trial court that the defendant was competent to stand trial and that he was not insane at the time of the homicide. Harston v. Commonwealth, 638 S.W.2d 700, 1982 Ky. LEXIS 292 ( Ky. 1982 ).

49.—Motive.

Evidence that deceased had taken steps to have a peace warrant issued against accused was admissible as bearing on the question of motive. (Decided under prior law) Waters v. Commonwealth, 276 Ky. 315 , 124 S.W.2d 97, 1939 Ky. LEXIS 524 ( Ky. 1939 ).

In prosecution for murder of his 12-year-old wife, it was competent for Commonwealth to prove that defendant married deceased to escape prosecution on charge of carnally knowing a girl under 12 years of age to show his motive for wanting to get rid of her. (Decided under prior law) Ellison v. Commonwealth, 311 Ky. 757 , 225 S.W.2d 470, 1949 Ky. LEXIS 1244 ( Ky. 1949 ).

Evidence that an assault and battery warrant had been issued for the defendant upon complaint of the victim two weeks prior to the shooting was admissible in prosecution for willful murder. (Decided under prior law) Scott v. Commonwealth, 495 S.W.2d 800, 1972 Ky. LEXIS 10 ( Ky. 1972 ), cert. denied, 414 U.S. 1073, 94 S. Ct. 587, 38 L. Ed. 2d 479, 1973 U.S. LEXIS 1670 (U.S. 1973).

While the evidence was sufficient to find a motive on defendant’s part, neither motive alone nor motive plus opportunity or presence at the scene was sufficient to justify a conviction for murder under this statute. (Decided under prior law) Marcum v. Commonwealth, 496 S.W.2d 346, 1973 Ky. LEXIS 382 ( Ky. 1973 ).

Where a warrant for terroristic threatening had been issued against the defendant on the complaint of the victim, testimony regarding such warrant was competent to show the state of feeling between the two and to establish a motive for the killing. Jones v. Commonwealth, 560 S.W.2d 810, 1977 Ky. LEXIS 577 ( Ky. 1977 ).

Where defendant offered a hired killer money for the murder of a codefendant’s husband, and where the defendant said that the money would come from the deceased’s life insurance, there was proof that the defendant was involved in the murder for the purpose of monetary gain and other profit; the fact that the insurance policy on the victim’s life was not directly payable to defendant did not mean she did not intend to share in the proceeds. Brown v. Commonwealth, 780 S.W.2d 627, 1989 Ky. LEXIS 106 ( Ky. 1989 ), cert. denied, 494 U.S. 1087, 110 S. Ct. 1825, 108 L. Ed. 2d 954, 1990 U.S. LEXIS 1938 (U.S. 1990).

Because defendant provided transportation for a robbery where a murder occurred, the evidence was sufficient to find defendant guilty of complicity to commit both first-degree robbery and wanton murder under KRS 502.020(1), 515.020 , 507.020 ; evidence of defendant’s child-support arrearage was relevant under KRE 404(b) to show defendant’s motive for the robbery. Meredith v. Commonwealth, 164 S.W.3d 500, 2003 Ky. LEXIS 303 ( Ky. 2005 ).

50.—Premeditation.

Malice, or the predetermination to kill without legal excuse, may be inferred by the jury from all the facts and circumstances and it is immaterial how recently or how suddenly before the killing such determination was formed. (Decided under prior law) Woods v. Commonwealth, 282 Ky. 596 , 139 S.W.2d 439, 1940 Ky. LEXIS 222 ( Ky. 1940 ).

The issue of malice was properly dealt with in an instruction which stated that the phrase “malice aforethought” means predetermination to do the act of killing without legal excuse, and it is immaterial at what time before the killing such a determination is formed. (Decided under prior law) Risner v. Commonwealth, 242 S.W.2d 623, 1951 Ky. LEXIS 1058 ( Ky. 1951 ).

Malice may be inferred from the circumstances, and the killing of a human being with a deadly weapon raises an inference of malice. (Decided under prior law) Pittman v. Commonwealth, 242 S.W.2d 875, 1951 Ky. LEXIS 1087 ( Ky. 1951 ).

Any homicide deliberately and cruelly committed is a fact from which the jury may find malice aforethought. (Decided under prior law) Nichols v. Commonwealth, 283 S.W.2d 184, 1955 Ky. LEXIS 287 ( Ky. 1955 ).

Where the defendant went to his truck, obtained a knife, returned to the victim’s car and fatally stabbed him, there was ample proof from which the jury could conclude that the murder was premeditated. Butler v. Commonwealth, 560 S.W.2d 814, 1978 Ky. LEXIS 311 ( Ky. 1978 ).

51.—Sufficient.

Evidence that defendant was aggressor in controversy resulting in homicide justified conviction of murder, notwithstanding conflict in testimony. (Decided under prior law) Hicks v. Commonwealth, 291 Ky. 481 , 165 S.W.2d 1, 1942 Ky. LEXIS 258 ( Ky. 1942 ).

The evidence, including evidence that son was belligerent and was drunk and had shooting on his mind, and that father started the fight with decedent’s companion without provocation, warranted conviction of father on charge of aiding and abetting his son in murder of decedent. (Decided under prior law) Warfield v. Commonwealth, 334 S.W.2d 913, 1960 Ky. LEXIS 237 ( Ky. 1960 ).

Where doctors testified that the defendant lacked the capacity to conform his conduct to the law, but lay witnesses testified that at the time of the murder the defendant did not act abnormally in any way, and the defendant did not challenge the competency of such evidence, a murder conviction was affirmed. Helmes v. Commonwealth, 558 S.W.2d 162, 1977 Ky. LEXIS 548 ( Ky. 1977 ).

Where a defendant, while intoxicated, drove at high speed through a red light at an intersection, colliding with another vehicle and killing the driver thereof, the evidence was sufficient to support a conviction for murder under former subdivision governing homicides resulting from wanton conduct and extreme indifference to human life. Hamilton v. Commonwealth, 560 S.W.2d 539, 1977 Ky. LEXIS 568 ( Ky. 1977 ).

Where evidence in a prosecution for murder indicated that defendant financed the trip to the decedent’s town and encouraged his companions in a conspiracy to commit the murder and where the defendant made no effort to prevent the crime, evidence did not support his claim of renunciation of criminal purposes. Walker v. Commonwealth, 561 S.W.2d 656, 1977 Ky. LEXIS 578 ( Ky. 1977 ).

A murder verdict cannot be successfully attacked upon the ground that the jurors could have believed either of two theories of the case, intentional murder or murder by wanton conduct, where both interpretations are supported by the evidence. Wallen v. Commonwealth, 657 S.W.2d 232, 1983 Ky. LEXIS 264 ( Ky. 1983 ).

Where witnesses saw the defendant near the time of the incident at the place of the murder, the defendant initially blamed another man for the crime and later retracted those statements, and a jail inmate testified to the defendant’s candid admission while in jail of shooting and beating the victim, the evidence was sufficient to sustain a conviction of murder. Marlowe v. Commonwealth, 709 S.W.2d 424, 1986 Ky. LEXIS 253 (Ky.), cert. denied, 479 U.S. 946, 107 S. Ct. 427, 93 L. Ed. 2d 378, 1986 U.S. LEXIS 4620 (U.S. 1986).

The defendant was properly convicted of wanton murder where he engaged in mutual combat with another and fired the first shot in such combat, and a shot fired by the other person killed the victim, who was an innocent bystander. Phillips v. Commonwealth, 17 S.W.3d 870, 2000 Ky. LEXIS 19 (Ky.), cert. denied, 531 U.S. 1016, 121 S. Ct. 577, 148 L. Ed. 2d 494, 2000 U.S. LEXIS 7878 (U.S. 2000).

Defendant’s conviction for murder with regard to the killing of his ex-wife’s boyfriend was upheld where sufficient evidence existed to support the Commonwealth’s theory that defendant’s motive in killing the victim was his continuous and extreme obsession with his ex-wife and his jealousy of any relationship she had with any other man. Evidence of a bullet in a rental car leased by defendant linked the car to the crime and defendant’s attempt to dispose of the victim’s body also was indicative of his guilt. Davis v. Commonwealth, 147 S.W.3d 709, 2004 Ky. LEXIS 189 ( Ky. 2004 ), modified, 2004 Ky. LEXIS 298 (Ky. Nov. 18, 2004).

The Trial Court properly denied defendant’s motion for a directed verdict as there was sufficient evidence to support defendant’s convictions for attempted murder and intimidating a witness where the victim, who, along with another witness who was murdered, had previously witnessed defendant’s uncle murder a man, testified as to being severely beaten and cut by defendant and others. Hatfield v. Commonwealth, 250 S.W.3d 590, 2008 Ky. LEXIS 12 ( Ky. 2008 ).

Evidence was sufficient to convict defendant of wanton murder of his girlfriend’s six-month-old child under KRS 508.100 and 507.020(1)(b) because the evidence that defendant was mildly retarded did not preclude the jury’s finding that he acted wantonly and sufficient evidence showed that defendant could understand the risk of death posed by severely striking an infant’s head. Rankin v. Commonwealth, 327 S.W.3d 492, 2010 Ky. LEXIS 287 ( Ky. 2010 ).

51.1.—Admission.

Evidence was sufficient for conviction of murder, where it contradicted accused’s claim of complete intoxication and showed that just prior to killing he indicated to others that he was going to make trouble. (Decided under prior law) Richardson v. Commonwealth, 284 Ky. 319 , 144 S.W.2d 492, 1940 Ky. LEXIS 478 ( Ky. 1940 ).

Testimony that defendant was seen in company of others implicated in the murder on the night of the murder plus testimony that defendant told witness that he had killed the deceased was sufficient to corroborate the testimony of an accomplice and, thus, to sustain a conviction for conspiracy to murder. Sykes v. Commonwealth, 553 S.W.2d 44, 1977 Ky. LEXIS 470 ( Ky. 1977 ).

Evidence showing that defendant discussed plans to rob decedent, that decedent was killed by a shotgun with shells identical to those used by defendant, which were of a type rarely found in the area, and that defendant had told several people that he had shot a man, was sufficient to uphold a murder conviction. Stewart v. Commonwealth, 561 S.W.2d 660, 1977 Ky. LEXIS 579 ( Ky. 1977 ).

51.2.—Witness Testimony.

Despite testimony by defendant’s brother, the only eyewitness, that the defendant shot in self-defense, there was enough evidence to sustain a conviction for murder, where none of the assertions of the events leading up to the killing or the fact that deceased had come at the defendant with a poker were related to any of the persons to whom defendant and his brother spoke after the killing, and where there was sharp conflict between the brother’s story and what had been told to other persons. (Decided under prior law) Baker v. Commonwealth, 322 S.W.2d 119, 1959 Ky. LEXIS 298 ( Ky. 1959 ).

Where the testimony of an absent witness could only have been cumulative and was available from another witness who was not called by the defense, the trial court properly refused a continuance and a conviction for murder was affirmed. (Decided under prior law) Davidson v. Commonwealth, 555 S.W.2d 269, 1977 Ky. LEXIS 506 ( Ky. 1977 ).

Circumstantial evidence presented, including testimony evidence that the child died of forcible asphyxiation that was an inflicted death and that defendant had the opportunity commit the acts of abuse, was adequate to survive defendant’s motion for directed verdicts of acquittal. Ratliff v. Commonwealth, 194 S.W.3d 258, 2006 Ky. LEXIS 170 ( Ky. 2006 ).

51.3.—Threats by Defendant.

Evidence as to threats made by accused, as to passion of accused aroused by attempts of deceased to collect debt, and as to circumstances surrounding killing, was sufficient to overcome accused’s plea of self-defense. (Decided under prior law) Huff v. Commonwealth, 275 Ky. 578 , 122 S.W.2d 143, 1938 Ky. LEXIS 470 ( Ky. 1938 ).

Where the evidence showed that the defendant accused the murder victim of stealing drugs from the defendant and made several threats to kill the victim and where the victim was last seen alive in the company of the defendant and the defendant’s brother, who committed the actual murder, a conviction for murder based on the defendant’s participation in a conspiracy to commit the crime was sustained. (Decided under prior law) Brown v. Commonwealth, 555 S.W.2d 252, 1977 Ky. LEXIS 501 ( Ky. 1977 ).

Evidence showing, among other things, that defendant and his brother threatened the victim, that they were the last persons seen with him, that victim was killed by a shotgun like the one owned by the defendant and that blood found on defendant’s boots was not his blood but could have been victim’s blood, was sufficient to sustain murder conviction. Brown v. Commonwealth, 639 S.W.2d 758, 1982 Ky. LEXIS 298 ( Ky. 1982 ), cert. denied, 460 U.S. 1037, 103 S. Ct. 1428, 75 L. Ed. 2d 788, 1983 U.S. LEXIS 4164 (U.S. 1983).

51.4.—Physical Evidence.

Where the defendant was seen with the victim shortly before the murder and had argued with him on numerous occasions and where the victim’s checkbook, blood and human tissue were found in the defendant’s car shortly after the murder, there was sufficient evidence to sustain a murder conviction. Bowers v. Commonwealth, 555 S.W.2d 241, 1977 Ky. LEXIS 497 ( Ky. 1977 ).

Evidence showing that defendant discussed plans to rob decedent, that decedent was killed by a shotgun with shells identical to those used by defendant, which were of a type rarely found in the area, and that defendant had told several people that he had shot a man, was sufficient to uphold a murder conviction. Stewart v. Commonwealth, 561 S.W.2d 660, 1977 Ky. LEXIS 579 ( Ky. 1977 ).

Although there were no witnesses to the murder, evidence from various witnesses who had seen the defendant with the victim immediately before and immediately after the estimated time of the crime near where the victim’s body was found and evidence of medals from defendant’s army uniform found near the victim was sufficient to sustain conviction. (Decided under prior law) Martin v. Commonwealth, 507 S.W.2d 485, 1974 Ky. LEXIS 707 ( Ky. 1974 ), overruled in part, Commonwealth v. Richardson, 674 S.W.2d 515, 1984 Ky. LEXIS 264 ( Ky. 1984 ).

51.5.—Victim’s Body.

Where the evidence showed that decedent’s body contained sufficient placidyl to have caused death in 2 percent of the cases, that decedent had multiple bruises indicating death by strangulation, that the victim and accused did not get along well, that their marriage had resulted in a temporary separation during which decedent had gone to Texas with another man and the accused had broken into her apartment, and that accused admitted dismembering and concealing the victim’s body, there was substantial and sufficient evidence to sustain a conviction under this section. Murtaugh v. Commonwealth, 579 S.W.2d 619, 1979 Ky. LEXIS 240 ( Ky. 1979 ).

Evidence was sufficient to sustain defendant’s murder, first-degree assault, and first-degree criminal abuse convictions because the medical evidence concerning the force required to inflict the injuries, the obviously battered state of the victim’s body, and defendant’s police statement admitting instances of “discipline” were sufficient to permit a reasonable juror to conclude that she intentionally abused the child, and that she murdered and assaulted him, either directly or by lending aid to the co-defendant. Peacher v. Commonwealth, 391 S.W.3d 821, 2013 Ky. LEXIS 11 ( Ky. 2013 ).

51.6.—Under the Influence.

Evidence that a defendant was driving under the influence of five prescription drugs which would impair her ability to drive a car was sufficient evidence for a jury to convict her of wanton murder in that she had operated a motor vehicle under circumstances manifesting extreme indifference to human life. Estep v. Commonwealth, 957 S.W.2d 191, 1997 Ky. LEXIS 104 ( Ky. 1997 ).

There was evidence to prove wanton murder under circumstances exhibiting extreme indifference to human life where the defendant was speeding, was intoxicated, and, most tellingly, did not slow down or attempt to stop upon seeing a police car blocking the road and, instead, attempted to swerve around the police car while traveling a reported 70 to 90 miles an hour. Love v. Commonwealth, 55 S.W.3d 816, 2001 Ky. LEXIS 28 ( Ky. 2001 ).

In a prosecution for extreme indifference murder, that testing showed the presence in defendant’s blood of two painkillers, an anti-anxiety medication, and a tranquilizer at or below “therapeutic levels” did not mean he was entitled to a directed verdict because 1) the combination of the four prescription drugs would likely have caused impairment; 2) his doctor warned him not to drive after taking any of the drugs; and 3) there was evidence he was driving erratically before he caused a fatal auto accident. Sluss v. Commonwealth, 381 S.W.3d 215, 2012 Ky. LEXIS 144 ( Ky. 2012 ).

Defendant’s convictions for murder, DUI, first-degree wanton endangerment, and first-degree criminal mischief were supported by the evidence; before the collision, which killed a child, defendant admitted that defendant had consumed around six beers and was under the influence of alcohol. Baumia v. Commonwealth, 2012 Ky. LEXIS 191 (Ky. Nov. 21, 2012), sub. op., 402 S.W.3d 530, 2012 Ky. LEXIS 503 ( Ky. 2012 ), sub. op., 402 S.W.3d 530, 2013 Ky. LEXIS 247 ( Ky. 2013 ).

51.7.—Opportunity and Motive.

Where the evidence showed, despite defendant’s claim that his wife shot herself, that the defendant had fired a weapon and his wife had not, that there were no fingerprints on the gun and that the defendant had quarreled with his wife earlier in the evening, there was sufficient evidence to take the case to the jury and to support a murder conviction. Hunter v. Commonwealth, 560 S.W.2d 808, 1977 Ky. LEXIS 576 ( Ky. 1977 ).

In a murder case, testimony that defendant and his brother visited the victim, that defendant and the victim fought, that defendant then asked his brother to lie about their whereabouts on that night, that defendant knew about the victim’s life insurance policy naming him as a beneficiary, and that defendant admitted to his brother that the insurance money was his motive was sufficient to allow a jury to find defendant guilty of intentional murder beyond a reasonable doubt. Bratcher v. Commonwealth, 151 S.W.3d 332, 2004 Ky. LEXIS 332 ( Ky. 2004 ).

In a murder prosecution, defendant was not entitled to a directed verdict in view of evidence that: (1) his nephew left him at the victim’s home, heard a fight, and promptly left; (2) defendant later told him to deny leaving defendant at the victim’s home; and (3) the victim’s friend discovered his body about an hour after defendant had been dropped off. Davenport v. Commonwealth, 177 S.W.3d 763, 2005 Ky. LEXIS 324 ( Ky. 2005 ), cert. denied, 549 U.S. 827, 127 S. Ct. 40, 166 L. Ed. 2d 46, 2006 U.S. LEXIS 5924 (U.S. 2006).

If a jury drew all reasonable inferences in favor of the prosecution, it would find that habeas petitioner was with the victim on the day of his murder, that the petitioner had a motive to kill the victim, and that the petitioner attempted to conceal evidence of the crime after the fact. Combined, this evidence could allow a rational tier of fact to find the essential elements of murder beyond a reasonable doubt. Bowling v. House, 2011 U.S. Dist. LEXIS 103524 (E.D. Ky. Sept. 13, 2011).

51.8.—Opportunity and Weapon.

Evidence that defendant was seen with deceased a short time before deceased’s body was run over by train, that at the time defendant had a blackjack in his pocket, that previously he had been arguing with the deceased, that later he attempted to convince possible witnesses to keep still, and fled from arrest, was sufficient to establish his connection with the crime. (Decided under prior law) Napier v. Commonwealth, 306 Ky. 75 , 206 S.W.2d 53, 1947 Ky. LEXIS 944 ( Ky. 1947 ).

Where there was evidence from several witnesses that the defendant was drunk on the night of the shooting, that he had a shotgun and a pistol, that his activities had led his family to flee their home in fear, and that he had made a number of threats against the deceased, this was sufficient to sustain a conviction of willful murder. (Decided under prior law) Starrett v. Commonwealth, 312 Ky. 76 , 226 S.W.2d 529, 1950 Ky. LEXIS 591 ( Ky. 1950 ).

Evidence showing that the defendant was with the victim on the night of the murder and that the electric cord with which she was killed and the bedspread in which the body was found were similar to ones in the defendant’s home was sufficient to support a conviction for murder. Taylor v. Commonwealth, 564 S.W.2d 8, 1978 Ky. LEXIS 345 ( Ky. 1978 ).

Circumstantial evidence showing that defendant and victim were alone and completed a drug transaction which involved a considerable sum of money, that victim was killed with a .22 caliber revolver and defendant owned a .22 caliber revolver which disappeared after the killing, and that one of defendant’s employees identified defendant as driving a payloader in the area where victim’s body was found during the approximate time when victim was killed, was sufficient to support murder conviction. Nugent v. Commonwealth, 639 S.W.2d 761, 1982 Ky. LEXIS 299 ( Ky. 1982 ).

Where in addition to the statements by a codefendant incriminating the defendant in the murder, there was testimony that defendant and codefendant were looking for the deceased a few hours before the murder, that defendant was twiddling a cord which fit the description of the murder weapon, and that a few days before the deceased was actually beaten and strangled, the defendant was heard agreeing to help the codefendant kill the deceased by beating and strangling her, the evidence was sufficient to support the defendant’s conviction for murder. Murphy v. Commonwealth, 652 S.W.2d 69, 1983 Ky. LEXIS 249 ( Ky. 1983 ), cert. denied, 465 U.S. 1072, 104 S. Ct. 1427, 79 L. Ed. 2d 751 (U.S. 1984).

Where the defendant participated in the planning of an armed robbery in which a .357 Magnum was used, the participants “cased” the store, there was a plan to steal weapons, and the participants used drugs and alcohol immediately prior to the robbery, there were sufficient circumstances surrounding the felony to submit this case to the jury and the determination of wanton murder and first degree assault by the jury under these circumstances was not contrary to the evidence. Kruse v. Commonwealth, 704 S.W.2d 192, 1985 Ky. LEXIS 303 ( Ky. 1985 ).

52.—Insufficient.

Where the sole evidence that accused was guilty of murder was that he had struck deceased with his fists and had kicked her, and she was later found dead in center of highway some distance away with broken bones, crushed skull and severe cuts, and there was evidence that she had been struck by automobile, there was a failure to establish the corpus delicti. (Decided under prior law) Coleman v. Commonwealth, 282 Ky. 203 , 138 S.W.2d 333, 1940 Ky. LEXIS 146 ( Ky. 1940 ).

Where testimony of all witnesses indicated that deceased was advancing upon defendant with evident purpose of making a violent assault upon him, and deceased had made a similar assault earlier in the day, court was not justified in denying directed verdict merely because size of gunshot wound in deceased’s body furnished basis for speculation that deceased was considerable distance from defendant when shot was fired. (Decided under prior law) Mason v. Commonwealth, 291 Ky. 538 , 165 S.W.2d 24, 1942 Ky. LEXIS 266 ( Ky. 1942 ).

Where only direct evidence connecting defendant with crime was that he was seen with deceased on the night of the death, no motive for homicide was shown, and it was wholly conjectural as to whether death was caused by assault or by accident, defendant was entitled to a directed verdict. (Decided under prior law) Walters v. Commonwealth, 291 Ky. 573 , 165 S.W.2d 153, 1942 Ky. LEXIS 282 ( Ky. 1942 ).

Evidence that defendant was seen striking and kicking a man named Smith, and that a few hours later a man named Smith was found dead on the highway two miles from defendant’s home, was not sufficient to sustain conviction where there was no proof that the two Smiths were the same person. (Decided under prior law) Bickett v. Commonwealth, 294 Ky. 671 , 172 S.W.2d 439, 1943 Ky. LEXIS 502 ( Ky. 1943 ).

There was a failure to establish the corpus delicti where body of woman was found near railroad crossing at night shortly after fast train had passed, body was badly mangled and woman’s clothing and belongings were scattered for some distance, and only evidence that her death was due to homicide was evidence that the accused had a motive for killing her and the contradicted and impeached testimony of two witnesses that they had seen accused with the deceased several hours before her body was found. (Decided under prior law) Fyffe v. Commonwealth, 301 Ky. 165 , 190 S.W.2d 674, 1945 Ky. LEXIS 677 ( Ky. 1945 ).

Where only evidence of accused’s guilt was that he was beneficiary of several insurance policies on deceased’s life, testimony of one witness that he saw accused talking to deceased on street of city some distance from place where body was found, six hours before it was found, which testimony was contradicted or made very doubtful by disinterested witnesses, and testimony of another witness that he saw accused and deceased together near scene of death three hours before body was found, which witness was clearly impeached, such evidence was insufficient to justify submission of case to jury. (Decided under prior law) Fyffe v. Commonwealth, 301 Ky. 165 , 190 S.W.2d 674, 1945 Ky. LEXIS 677 ( Ky. 1945 ).

In murder prosecution, evidence that wounds inflicted upon deceased were superficial, that he had been drinking heavily, that he had a heart ailment, and that death could have resulted either from over-indulgence in alcohol or from the blows producing the wounds, failed to establish the corpus delicti, but such evidence supported finding that defendants were guilty of assault. (Decided under prior law) Witt v. Commonwealth, 305 Ky. 31 , 202 S.W.2d 612, 1947 Ky. LEXIS 730 ( Ky. 1947 ).

Where the deceased’s wounds were of a superficial nature and the attending physician refused to express an opinion that the force which produced them caused the death of the deceased, there was no cogent evidence that the wounds were the cause of death. (Decided under prior law) Witt v. Commonwealth, 305 Ky. 31 , 202 S.W.2d 612, 1947 Ky. LEXIS 730 ( Ky. 1947 ).

There was not sufficient evidence to sustain a murder conviction where the only evidence was that the defendant had a motive, that he had been present in the vicinity of the crime and that he had made a cryptic statement which, given other evidence, could have been considered an admission. (Decided under prior law) Powell v. Commonwealth, 312 Ky. 219 , 226 S.W.2d 944, 1950 Ky. LEXIS 618 ( Ky. 1950 ).

In homicide cases where the defendant admits the killing and relies upon the plea of self-defense, defense of another, or of his home, supported by uncontradicted evidence, it is the duty of the trial court to direct the acquittal of the defendant or to set aside a verdict of conviction and it is further duty of the Court of Appeals to reverse such conviction. (Decided under prior law) Holcomb v. Commonwealth, 280 S.W.2d 499, 1955 Ky. LEXIS 159 ( Ky. 1955 ).

There was not sufficient evidence to sustain a conviction where there was testimony from several witnesses that the deceased had been engaged in an altercation with several of the witnesses, that during that altercation the defendant had merely held the deceased by the throat momentarily and that shortly thereafter the deceased had walked away from the altercation toward his own home and was not seen again until his body was found with injuries much more severe than those accounted for during the altercation. (Decided under prior law) Pennington v. Commonwealth, 364 S.W.2d 653, 1963 Ky. LEXIS 209 ( Ky. 1963 ).

Where the only evidence connecting defendant with the homicide was the fact that he was in the company of the victim three hours prior to the murder, such evidence was insufficient to prove a criminal act or agency. Campbell v. Commonwealth, 564 S.W.2d 528, 1978 Ky. LEXIS 376 ( Ky. 1978 ), overruled in part, Ray v. Commonwealth, 611 S.W.3d 250, 2020 Ky. LEXIS 403 ( Ky. 2020 ).

Where there was a reasonable likelihood that a witness’ testimony, and hence his reliability, may have been determinative of defendant’s guilt at trial, the failure by the prosecution to disclose evidence affecting his reliability required that defendant be given a new trial on charges of armed robbery and murder. (Decided under prior law) Williams v. Commonwealth, 569 S.W.2d 139, 1978 Ky. LEXIS 380 ( Ky. 1978 ).

Affidavit from prosecution’s expert witness indicating that he was mistaken in asserting at trial of defendant convicted of murder that blood stain on defendant’s boots could not have belonged to defendant, given the existence of ample evidence upon which jury could have based its verdict and the fact that expert was effectively cross-examined by defense counsel, was insufficient to support CR 60.06 motion to set aside verdict. Brown v. Commonwealth, 932 S.W.2d 359, 1996 Ky. LEXIS 85 ( Ky. 1996 ).

53.—Nonprejudicial.

Admission of testimony as to condition of scene of crime, including frequent references to “blood” in describing body and garments of deceased, and statement by prosecuting attorney that defendant had “blood on his hands,” were not prejudicial. (Decided under prior law) Penney v. Commonwealth, 292 Ky. 192 , 166 S.W.2d 18, 1942 Ky. LEXIS 44 ( Ky. 1942 ).

Testimony of mother of deceased that he was married and had children was not prejudicial in murder prosecution, where defendant admitted killing but relied on self-defense. (Decided under prior law) Higginbotham v. Commonwealth, 291 Ky. 463 , 165 S.W.2d 19, 1942 Ky. LEXIS 264 ( Ky. 1942 ).

The failure of the Commonwealth to furnish defendant with two of the cartridges found at the scene of the shooting and robbery was not prejudicial where neither cartridge was admitted as evidence. Brewster v. Commonwealth, 568 S.W.2d 232, 1978 Ky. LEXIS 371 ( Ky. 1978 ).

Any error in admitting during the prosecution’s case-in-chief a signed statement of the codefendant and a tape recording by the codefendant, both of which incriminated the defendant in the murder, was rendered harmless when the codefendant subsequently took the witness stand and gave testimony, subject to cross-examination, repeating the incriminatory statements he had made in the written statement and in the tape recording. Murphy v. Commonwealth, 652 S.W.2d 69, 1983 Ky. LEXIS 249 ( Ky. 1983 ), cert. denied, 465 U.S. 1072, 104 S. Ct. 1427, 79 L. Ed. 2d 751 (U.S. 1984).

In defendant’s trial for murder, the trial court erred in allowing a minor child to testify outside the courtroom via closed circuit TV because the minor was not a member of the class of minors authorized to testify under KRS 421.350 . However, that error was harmless under U.S. Const. amend. VI and Ky. Const. § 11 and did not require reversal under RCr 9.24 after defendant conceded that the minor’s testimony was redundant and therefore not critical to the Commonwealth’s case. Greene v. Commonwealth, 197 S.W.3d 76, 2006 Ky. LEXIS 140 ( Ky. 2006 ), cert. denied, 549 U.S. 1184, 127 S. Ct. 1157, 166 L. Ed. 2d 1001, 2007 U.S. LEXIS 1235 (U.S. 2007).

54.—Prejudicial.

In prosecution for wanton murder, the Commonwealth’s presentation of evidence suggesting that the victim was raped or sexually abused, consisting of a photograph of the victim, the testimony of a police officer that the defendant had submitted to a rape test, and the fact that pubic hairs of the victim were compared to those of the defendant, was prejudicial given the inflammatory nature of the suggestion. Todd v. Commonwealth, 716 S.W.2d 242, 1986 Ky. LEXIS 290 ( Ky. 1986 ).

Where no evidence was introduced that the defendant ever made the statement that he killed the wrong person, the prosecutor’s cross-examination which attributed to the defendant the statement that the defendant was not remorseful about the shooting or that he was sorry only because he had killed the wrong person, was prejudicial error. McClellan v. Commonwealth, 715 S.W.2d 464, 1986 Ky. LEXIS 274 ( Ky. 1986 ), cert. denied, 479 U.S. 1057, 107 S. Ct. 935, 93 L. Ed. 2d 986, 1987 U.S. LEXIS 379 (U.S. 1987).

Where the defendant gave a tape-recorded statement to a police officer and the Commonwealth attorney, it was prejudicial error to permit the prosecutor, over objection, to furnish his written version of the transcription of this statement to the jury, to assist in listening to the tape, where there were approximately 25 instances where the defense disagreed with the Commonwealth’s transcribed interpretation of the tape. Sanborn v. Commonwealth, 754 S.W.2d 534, 1988 Ky. LEXIS 35 ( Ky. 1988 ).

Where police continued to interrogate defendant in spite of his continued admonition that he had nothing further to say, finally extracting a confession, such confession taken in violation of Miranda was inadmissible and such admission was not harmless error where state did not prove beyond a reasonable doubt that the confession did not contribute to the verdict of capital murder. Kordenbrock v. Scroggy, 919 F.2d 1091, 1990 U.S. App. LEXIS 20424 (6th Cir. Ky. 1990 ), cert. denied, 499 U.S. 970, 111 S. Ct. 1608, 113 L. Ed. 2d 669, 1991 U.S. LEXIS 2023 (U.S. 1991).

55.Indictment.

An indictment charging defendant with murder instead of “willful murder” sufficiently charged the offense defined in this section. (Decided under prior law) Metcalfe v. Commonwealth, 86 S.W. 534, 27 Ky. L. Rptr. 704 (1905); Brown v. Commonwealth, 99 S.W. 236, 30 Ky. L. Rptr. 505 (1907).

The omission of the word “unlawfully” and of the phrase “not in his necessary self-defense” from an indictment for willful murder, does not render indictment demurrable. (Decided under prior law) Greer v. Commonwealth, 164 Ky. 396 , 175 S.W. 665, 1915 Ky. LEXIS 390 ( Ky. 1915 ).

Indictment which was on five counts, but only charged one crime, that of murder, was not demurrable for duplicity because its various counts stated different ways in which it was claimed that murder was committed. (Decided under prior law) Brannon v. Commonwealth, 215 Ky. 589 , 286 S.W. 785, 1926 Ky. LEXIS 764 ( Ky. 1926 ).

An indictment accusing three persons as being involved in willful murder naming two of them as having shot deceased, and the third with aiding and abetting charged only one offense and was not ambiguous. (Decided under prior law) Newsome v. Commonwealth, 236 Ky. 344 , 33 S.W.2d 36, 1930 Ky. LEXIS 756 ( Ky. 1930 ).

An indictment that charged that the defendants unlawfully, willfully, and feloniously, with malice aforethought and with intent to kill, shot and wounded the named deceased with pistols loaded with powder, ball and other hard substance, from which shooting and wounding the named deceased died within one (1) year and a day thereafter, was sufficient. (Decided under prior law) Harris v. Commonwealth, 275 Ky. 425 , 121 S.W.2d 693, 1938 Ky. LEXIS 417 ( Ky. 1938 ).

Indictment charging that defendants feloniously set fire to a house, “in which house at said time was Mary Lou Rardin,” sufficiently charged that house is a “dwelling,” and supported conviction of murder as the word “house” imports a dwelling. (Decided under prior law) Whitfield v. Commonwealth, 278 Ky. 111 , 128 S.W.2d 208, 1939 Ky. LEXIS 381 ( Ky. 1939 ).

In an indictment for murder it is not necessary to allege that the instrument used in causing the death was one capable of producing death in the manner in which it was employed at the time of the commission of the crime. (Decided under prior law) Gray v. Commonwealth, 293 Ky. 833 , 170 S.W.2d 870, 1943 Ky. LEXIS 718 ( Ky. 1943 ).

Indictment charging defendant and his accomplices with murder, alleged to have been committed pursuant to a conspiracy, was an indictment for murder, and not for conspiracy, and it was proper for the court to instruct on murder. (Decided under prior law) Napier v. Commonwealth, 306 Ky. 75 , 206 S.W.2d 53, 1947 Ky. LEXIS 944 ( Ky. 1947 ).

Where indictment charged that “murder” had been committed, it was not necessary to charge specifically that the crime was intentionally committed. (Decided under prior law) Delk v. Commonwealth, 308 Ky. 579 , 215 S.W.2d 109, 1948 Ky. LEXIS 981 ( Ky. 1948 ).

Where evidence indicated that the defendants were acting in concert, a joint indictment was not invalid on the basis that the defendants were acting independently. (Decided under prior law) Asher v. Commonwealth, 275 S.W.2d 416, 1955 Ky. LEXIS 351 ( Ky. 1955 ).

Indictment charging “offense by killing” and “offense by aiding and abetting . . . . . in the killing” were held to adequately charge felonious homicide and justify giving instructions on both murder and voluntary manslaughter. (Decided under prior law) Godby v. Commonwealth, 491 S.W.2d 647, 1973 Ky. LEXIS 577 ( Ky. 1973 ).

56.Instructions.

In murder prosecution where instructions on three degrees of homicide and upon self-defense were proper, instruction on reasonable doubt should mention all three degrees and should tell jury that if they believe from evidence beyond reasonable doubt that accused was guilty, yet have reasonable doubt as to degree of offense, they should give accused benefit of doubt and convict of lowest offense. (Decided under prior law) Sewell v. Commonwealth, 284 Ky. 183 , 144 S.W.2d 223, 1940 Ky. LEXIS 469 ( Ky. 1940 ).

Where the evidence showed that deceased was a much bigger man than defendant and his brother and was engaged in a fight with defendant’s brother when defendant struck him, evidence was insufficient to submit instruction on willful murder. (Decided under prior law) White v. Commonwealth, 333 S.W.2d 521, 1960 Ky. LEXIS 197 ( Ky. 1960 ).

The trial judge correctly declined to give jury instructions pertaining to the required mental states of lesser included offenses of intentional murder as found in this section, KRS 507.040 , and 507.050 when the defendant’s evidence consisted of a complete denial of any offense with respect to the injuries and death of his stepson and all evidence supported a finding that the defendant acted with intent to cause death rather than intent to discipline or scare the child. Parker v. Commonwealth, 952 S.W.2d 209, 1997 Ky. LEXIS 84 ( Ky. 1997 ), cert. denied, 522 U.S. 1122, 118 S. Ct. 1066, 140 L. Ed. 2d 126, 1998 U.S. LEXIS 1067 (U.S. 1998).

When the evidence will support either an intentional or wanton mental state beyond a reasonable doubt, a combination murder instruction is certainly proper. However, when intentional and wanton murder are included in a single instruction, the preferred practice is to include a form verdict that requires the jury to state whether guilt is found under the theory of intentional murder or under the theory of wanton murder. Benjamin v. Commonwealth, 266 S.W.3d 775, 2008 Ky. LEXIS 233 ( Ky. 2008 ).

57.—Accomplices.

Where the evidence clearly showed that two witnesses were accomplices it was error for the court to instruct the jury to determine whether the witnesses were in fact accomplices, but no prejudice resulted from allowing the jury to consider this issue since it was clear from the evidence, as a matter of law, that the testimony of the accomplices, upon which the conviction was based, was sufficiently corroborated in accordance with the requirements of RCr 9.62. (Decided under prior law) Caine v. Commonwealth, 491 S.W.2d 824, 1973 Ky. LEXIS 605 (Ky.), cert. denied, 414 U.S. 876, 94 S. Ct. 80, 38 L. Ed. 2d 121, 1973 U.S. LEXIS 885 (U.S. 1973).

Where, regardless of which of two versions the jury chose to believe, the evidence demonstrated a premeditated plan of murder and robbery, it would not be unreasonable for a jury to believe that the defendant and his friend were in the scheme together and, accordingly, an instruction to the effect that it was immaterial which of the two actually fired the fatal shots was proper. Lefevers v. Commonwealth, 558 S.W.2d 585, 1977 Ky. LEXIS 536 ( Ky. 1977 ).

Difference in semantics between soliciting, aiding, counseling and attempting to aid in the statutory definition and assisting, encouraging or holding himself ready to assist in the jury instructions, was not so much that it relieved the prosecution of its burden of proving every element of its case beyond a reasonable doubt. Halvorsen v. Simpson, 2014 U.S. Dist. LEXIS 150549 (E.D. Ky. Oct. 22, 2014), aff'd, 746 Fed. Appx. 489, 2018 FED App. 426N, 2018 U.S. App. LEXIS 23105 (6th Cir. Ky. 2018 ).

58.—Deadly Weapon.

Where proof was that death ensued when deceased was struck with an iron pipe, it was unnecessary to submit to the jury the question as to whether or not the pipe was a deadly weapon. (Decided under prior law) Combs v. Commonwealth, 292 Ky. 1 , 165 S.W.2d 832, 1942 Ky. LEXIS 17 ( Ky. 1 942 ).

59.—Death Penalty.

There was error in the jury instruction in the penalty phase which lessened the jurors’ ultimate responsibility for the fate of the defendant by over emphasis of the word “recommend” rather than placing upon the jury the onus of fixing punishment. Grooms v. Commonwealth, 756 S.W.2d 131, 1988 Ky. LEXIS 36 ( Ky. 1988 ).

60.—Defendant’s Confession.

Where the fact that the death was caused by the criminal violence of some person other than the deceased was not proved other than by the defendant’s confession, it was reversible error for the court not to have given an instruction pursuant to a former criminal rule which stated that a defendant’s confession would not warrant a conviction unless accompanied by other proof. (Decided under prior law) Hawk v. Commonwealth, 284 Ky. 217 , 144 S.W.2d 496, 1940 Ky. LEXIS 479 ( Ky. 1940 ).

Where there is a confession in evidence, properly obtained, there is no need to instruct on the lesser offenses of manslaughter or on self-defense. (Decided under prior law) Combs v. Commonwealth, 292 Ky. 1 , 165 S.W.2d 832, 1942 Ky. LEXIS 17 ( Ky. 1 942 ).

In a prosecution for willful murder, defendant was not entitled to an instruction or written admonition instructing the jury not to indulge any presumption against him by reason of his failure to testify. (Decided under prior law) Scott v. Commonwealth, 495 S.W.2d 800, 1972 Ky. LEXIS 10 ( Ky. 1972 ), cert. denied, 414 U.S. 1073, 94 S. Ct. 587, 38 L. Ed. 2d 479, 1973 U.S. LEXIS 1670 (U.S. 1973).

61.—Defendant’s Failure to Testify.

In a prosecution for willful murder, defendant was not entitled to an instruction on written admonition instructing the jury not to indulge any presumption against him by reason of his failure to testify. (Decided under prior law) Scott v. Commonwealth, 495 S.W.2d 800, 1972 Ky. LEXIS 10 ( Ky. 1972 ), cert. denied, 414 U.S. 1073, 94 S. Ct. 587, 38 L. Ed. 2d 479, 1973 U.S. LEXIS 1670 (U.S. 1973).

The jury was properly instructed on both intentional and wanton murder where, from the evidence presented, a jury could reasonably have believed either that (1) defendant intentionally killed his father, or that (2) he had an argument with his father, which deteriorated into a physical altercation, during which defendant choked his father ultimately to death without ever forming the specific intent to kill, but nonetheless creating a substantial and unjustifiable risk that death would result. Johnson v. Commonwealth, 12 S.W.3d 258, 1999 Ky. LEXIS 159 ( Ky. 1999 ).

62.—Definition of Terms.

In a prosecution for murder, an instruction that the word “felonious,” as used in the instruction, meant a deliberate or well-formed intention on part of the defendant to do an act known to him to be wrong was not erroneous nor prejudicial. (Decided under prior law) Hocker v. Commonwealth, 70 S.W. 291, 24 Ky. L. Rptr. 936 (1902).

The omission of court to define “feloniously” as used in instruction was not reversible error. (Decided under prior law) Metcalfe v. Commonwealth, 86 S.W. 534, 27 Ky. L. Rptr. 704 (1905); Hall v. Commonwealth, 207 Ky. 718 , 270 S.W. 5, 1925 Ky. LEXIS 169 ( Ky. 1925 ).

An instruction directing defendant’s acquittal if the jury found that defendant had killed deceased accidentally and unintentionally, was not erroneous for a failure to define the term “accidentally.” (Decided under prior law) Drake v. Commonwealth, 263 Ky. 107 , 91 S.W.2d 1009, 1936 Ky. LEXIS 141 ( Ky. 1936 ).

Instructions were not erroneous in failing to define deadly weapon. (Decided under prior law) Bates v. Commonwealth, 284 Ky. 1 , 143 S.W.2d 730, 1940 Ky. LEXIS 429 ( Ky. 1 940).

In prosecution for murder, failure to define the term “sudden affray” is not prejudicial error. (Decided under prior law) Slone v. Commonwealth, 289 Ky. 653 , 159 S.W.2d 1013, 1942 Ky. LEXIS 618 ( Ky. 1942 ).

63.—Extreme Emotional Disturbance.

An instruction setting out the mitigating circumstance of extreme emotional disturbance does not have to be given unless there is something in the evidence sufficient to raise a reasonable doubt whether defendant is guilty of murder or manslaughter. Moore v. Commonwealth, 634 S.W.2d 426, 1982 Ky. LEXIS 264 ( Ky. 1982 ).

A defendant accused of murder is not automatically entitled to a first-degree manslaughter instruction. Moore v. Commonwealth, 634 S.W.2d 426, 1982 Ky. LEXIS 264 ( Ky. 1982 ).

Where an examination of the record revealed that there was not a shred of evidence to show that at the time of the homicide defendant was operating under extreme emotional disturbance, no instruction on extreme emotional disturbance was required. Moore v. Commonwealth, 634 S.W.2d 426, 1982 Ky. LEXIS 264 ( Ky. 1982 ).

Failure of the lower court to give an instruction on extreme emotional disturbance was not error where there was no testimony which would justify such an instruction and the only emotional disturbance testified about occurred after the shooting, when the defendant fled from the scene. Carwile v. Commonwealth, 656 S.W.2d 722, 1983 Ky. LEXIS 296 ( Ky. 1983 ), abrogated in part, Elery v. Commonwealth, 368 S.W.3d 78, 2012 Ky. LEXIS 87 ( Ky. 2012 ).

Whether extreme emotional disturbance is used as an element of the trial court’s murder, manslaughter, or mitigating circumstance instructions, the jury should be instructed as to its definition. Dean v. Commonwealth, 777 S.W.2d 900, 1989 Ky. LEXIS 77 ( Ky. 1989 ), overruled in part, Caudill v. Commonwealth, 120 S.W.3d 635, 2003 Ky. LEXIS 140 ( Ky. 2003 ), limited, Quarels v. Commonwealth, 142 S.W.3d 73, 2004 Ky. LEXIS 186 ( Ky. 2004 ), overruled in part, Commonwealth v. McGorman, 489 S.W.3d 731, 2016 Ky. LEXIS 102 ( Ky. 2016 ).

Merely suffering from a mental illness or substance abuse is insufficient to warrant instructing upon extreme emotional disturbance. Stanford v. Commonwealth, 793 S.W.2d 112, 1990 Ky. LEXIS 55 ( Ky. 1990 ).

If the circumstances of a case indicate that a jury may find a defendant guilty of either intentional murder or manslaughter in the first degree, then there should be a separate instruction on extreme emotional disturbance so that the jury can understand how to apply extreme emotional disturbance to differentiate the two intentional homicide crimes. Holbrook v. Commonwealth, 813 S.W.2d 811, 1991 Ky. LEXIS 85 ( Ky. 1991 ), modified, 1991 Ky. LEXIS 148 (Ky. Sept. 26, 1991), overruled, Elliott v. Commonwealth, 976 S.W.2d 416, 1998 Ky. LEXIS 114 ( Ky. 1998 ).

An instruction defining extreme emotional disturbance was not necessary where the extent of murder defendant’s emotions was that he felt “uneasy” and “upset” because he believed victim was criticizing his work. Thompson v. Commonwealth, 862 S.W.2d 871, 1993 Ky. LEXIS 126 ( Ky. 1993 ), overruled in part, St. Clair v. Commonwealth, 140 S.W.3d 510, 2004 Ky. LEXIS 44 ( Ky. 2004 ).

The quantum of evidence necessary to sustain a penalty phase instruction on extreme mental or emotional disturbance is clearly less than is required for such an instruction during the guilt phase. Hunter v. Commonwealth, 869 S.W.2d 719, 1994 Ky. LEXIS 14 ( Ky. 1994 ).

Since the first degree manslaughter and murder statutes go hand in hand as the absence or presence of extreme emotional disturbance (EED) is an element of both statutes, there was no err in the inclusion of it in the instructions and requiring its determination beyond a reasonable doubt. Haight v. Commonwealth, 938 S.W.2d 243, 1996 Ky. LEXIS 125 ( Ky. 1996 ), cert. denied, 522 U.S. 837, 118 S. Ct. 110, 139 L. Ed. 2d 63, 1997 U.S. LEXIS 4990 (U.S. 1997).

The court rejected the assertion that an instruction on the defense of extreme emotional disturbance is warranted only when the killing occurs concurrently with the triggering event or shortly thereafter, as the precedents only require that the triggering event be “sudden and uninterrupted” and there is no definite time frame involved. Springer v. Commonwealth, 998 S.W.2d 439, 1999 Ky. LEXIS 56 ( Ky. 1999 ).

Instruction on murder did not require the jury to find that defendant was not acting under the influence of extreme emotional disturbance, as there was no evidence he was acting under extreme emotional disturbance at the time the victim was killed. Caudill v. Commonwealth, 120 S.W.3d 635, 2003 Ky. LEXIS 140 ( Ky. 2003 ).

McClellan definition of extreme mental or emotional disturbance (EED) applies only to EED as a defense under KRS 507.020(1)(a) and not to EED as a mitigating circumstance under KRS 532.025(2)(b)(2); even where the evidence is insufficient to warrant an instruction on EED as a defense to the crime, it could still be sufficient to warrant an instruction on EED as a mitigating circumstance. Caudill v. Commonwealth, 120 S.W.3d 635, 2003 Ky. LEXIS 140 ( Ky. 2003 ).

In trial of an inmate, who was convicted of the murder of two officers who were trying to arrest him pursuant to an outstanding out-of-state warrant, the state trial court properly instructed the jury pursuant to KRS 507.020(1)(a) that it could consider the mitigation defense of extreme emotional disturbance only if it found that one of the officers shot first in the altercation because this defense was only available if the inmate showed that there was a triggering event that caused him to lose temporary control of the sense of right and wrong and that there was no interruption between the triggering event and the acts constituting the criminal offense. Baze v. Parker, 371 F.3d 310, 2004 FED App. 0173P, 2004 U.S. App. LEXIS 11312 (6th Cir. Ky. 2004 ), cert. denied, 544 U.S. 931, 125 S. Ct. 1670, 161 L. Ed. 2d 495, 2005 U.S. LEXIS 2606 (U.S. 2005).

An instruction on murder need not list the absence of extreme emotional disturbance as an element unless there was something in the evidence to suggest that the defendant was, in fact, influenced by extreme emotional disturbance. Slaughter v. Parker, 450 F.3d 224, 2006 FED App. 0195P, 2006 U.S. App. LEXIS 14384 (6th Cir. Ky. 2006 ), cert. denied, 551 U.S. 1103, 127 S. Ct. 2914, 168 L. Ed. 2d 243, 2007 U.S. LEXIS 6833 (U.S. 2007).

Trial court erred in failing to include a jury instruction on extreme emotional disturbance as an element of the murder instruction where the evidence showed that the night before the murder defendant was confronted with allegations of infidelity and the news that the victim, defendant’s wife, had been having an affair with a family member, and the next morning the victim told defendant that he would never see his children again. Benjamin v. Commonwealth, 266 S.W.3d 775, 2008 Ky. LEXIS 233 ( Ky. 2008 ).

Court properly failed to instruct the jury on extreme emotional disturbance because defendant tried to introduce evidence of the triggering event with his out-of-court statements, through the expert witness, and the trial court did not require defendant to testify; it simply required him to produce some admissible evidence to support the extreme emotional disturbance instruction. The fact that defendant was only able to support the instruction by testifying did not implicate U.S. Const. amend. V. Padgett v. Commonwealth, 312 S.W.3d 336, 2010 Ky. LEXIS 71 ( Ky. 2010 ).

Instruction on extreme emotional disturbance was not supported by evidence that defendant’s mental illness could have caused him to stab the victim because there was no triggering event. Keeling v. Commonwealth, 381 S.W.3d 248, 2012 Ky. LEXIS 160 ( Ky. 2012 ).

Instruction on extreme emotional disturbance was not supported under a cumulative impact theory because defendant’s statement to law enforcement indicated that it was the completely unrelated event of his grandfather ignoring him that provoked him to retrieve a knife, walk back to the victim, and stab him. Keeling v. Commonwealth, 381 S.W.3d 248, 2012 Ky. LEXIS 160 ( Ky. 2012 ).

Because there was no evidence that petitioner inmate was acting under the influence of extreme emotional disturbance (EED), the trial court's decision not to give an EED jury instruction was reasonable and did not relieve the state from proving each element of murder beyond a reasonable doubt. Although EED was included in the definition of murder, the inmate did not automatically deserve the same instruction as a codefendant because he was not standing in the codefendant’s shoes when he decided to start shooting and did not testify about his mental state at the time of the murders. Halvorsen v. Simpson, 2014 U.S. Dist. LEXIS 150549 (E.D. Ky. Oct. 22, 2014), aff'd, 746 Fed. Appx. 489, 2018 FED App. 426N, 2018 U.S. App. LEXIS 23105 (6th Cir. Ky. 2018 ).

64.—Insanity.

Assuming that a mental disorder, whether or not it amounts to legal insanity, may constitute a reasonable “explanation or excuse” for extreme emotional disturbance, it was incumbent upon the trial court to require the negating of that factor in its instruction on murder. Gall v. Commonwealth, 607 S.W.2d 97, 1980 Ky. LEXIS 291 ( Ky. 1980 ), cert. denied, 450 U.S. 989, 101 S. Ct. 1529, 67 L. Ed. 2d 824, 1981 U.S. LEXIS 1276 (U.S. 1981), overruled, Payne v. Commonwealth, 623 S.W.2d 867, 1981 Ky. LEXIS 286 ( Ky. 1981 ).

There was no error in refusing to instruct jury on defense of insanity, since there was no proof in the record to substantiate such a defense. The appellant’s statement to police officer that she “had barely pulled the trigger and it went off” was by itself sufficient to rebut any claim that she was “unconscious of her act” or that she “did not have sufficient reason to know what she was doing.” Cecil v. Commonwealth, 888 S.W.2d 669, 1994 Ky. LEXIS 124 ( Ky. 1994 ).

65.—Intoxication.

In murder prosecution, arising out of death of decedent after ride in car with drunken companions, defendants were entitled to instructions on accidental death and death by heart failure from over-indulgence in alcohol, where evidence showed absence of motive, drunken condition of deceased and defendants, presence of instruments on car floor capable of producing wounds without defendants’ knowledge, open exposure of body in car, and decedent’s heart ailment affliction. (Decided under prior law) Witt v. Commonwealth, 305 Ky. 31 , 202 S.W.2d 612, 1947 Ky. LEXIS 730 ( Ky. 1947 ).

Where there was evidence of some intoxication, but not to the degree necessary to negate intent, and where, moreover, the defendant had already received instructions on self-defense and accident, the defendant was not entitled to an instruction on intoxication. Burch v. Commonwealth, 555 S.W.2d 954, 1977 Ky. LEXIS 517 ( Ky. 1977 ).

Where evidence of defendant’s intoxication is sufficient to require defense of voluntary intoxication to be submitted to jury in homicide case involving intentional or knowing offense and lesser included unintentional offenses, it must be accompanied by instruction to the effect that, although the jury might otherwise find the defendant guilty of murder or first-degree manslaughter, if at the time of the murder defendant was so drunk that he did not have intention to commit crime, he must be found not guilty of those charges. Brown v. Commonwealth, 575 S.W.2d 451, 1978 Ky. LEXIS 449 ( Ky. 1978 ).

The circumstances surrounding an intentional murder case did not justify any instruction on intoxication. There were five victims brutally killed over a period of approximately four hours. The victims each were shot at short range (some being contact wounds), stabbed repeatedly, crushed by a car, and in some instances, burned. They were then left for dead at three separate locations throughout the city. Defendant and her accomplice twice went to find additional bullets and once to repair a gun which they had been using to kill the victims. Defendant and her accomplice attempted to destroy evidence immediately before and after being arrested. No evidence of drug use on the day of the murders was presented. Defendant’s alcohol intoxication may have been at a level to support being arrested for public intoxication but still not be at a level where she did not know what she was doing. Foster v. Commonwealth, 827 S.W.2d 670, 1991 Ky. LEXIS 195 ( Ky. 1991 ), cert. denied, 506 U.S. 921, 113 S. Ct. 337, 121 L. Ed. 2d 254, 1992 U.S. LEXIS 6489 (U.S. 1992).

Where a trial court failed to instruct the jury on voluntary intoxication, such was found to be harmless error pursuant to RCr 9.24 with respect to defendant’s conviction for wanton murder, in violation of KRS 507.020 , as the intoxication would not have negated the mens rea of “wantonness” pursuant to KRS 501.020(3); however, the failure to give the instruction caused reversible error for defendant’s conviction of assault under extreme emotional disturbance in violation of KRS 508.010 , as the intoxication would have negated the necessary element of specific intent. Nichols v. Commonwealth, 142 S.W.3d 683, 2004 Ky. LEXIS 148 ( Ky. 2004 ).

66.—Lesser Offenses.

In a murder case, when the evidence is entirely circumstantial and there is no testimony by an eyewitness to the crime, it is the duty of the court to instruct the jury as to the law of manslaughter and self-defense as well as murder. (Decided under prior law) Frasure v. Commonwealth, 169 Ky. 620 , 185 S.W. 146, 1916 Ky. LEXIS 775 ( Ky. 1916 ).

Where a case was based merely on circumstantial evidence and the bodies of defendant’s deceased wife and daughter were found in two different locations on the premises, each being killed by a different means, and the defendant had an alibi and was not seen on the premises near the time of the crime, the instructions should have included voluntary manslaughter, involuntary manslaughter and self-defense. (Decided under prior law) Marcum v. Commonwealth, 305 Ky. 92 , 202 S.W.2d 1012, 1947 Ky. LEXIS 766 ( Ky. 1947 ).

If a reasonable inference can be drawn from the evidence that the defendant in a homicide case is guilty of a lesser crime than murder, instructions should be given consistent therewith. Bartrug v. Commonwealth, 568 S.W.2d 925, 1978 Ky. LEXIS 373 ( Ky. 1978 ), overruled, Wellman v. Commonwealth, 694 S.W.2d 696, 1985 Ky. LEXIS 235 ( Ky. 1985 ).

Although the substantive factors reducing murder to manslaughter are different, the procedural aspects remain unchanged; the Commonwealth still has the burden of proof, but in order to justify an instruction on the lower degree there must be something in the evidence sufficient to raise a reasonable doubt whether the defendant is guilty of murder or manslaughter. Gall v. Commonwealth, 607 S.W.2d 97, 1980 Ky. LEXIS 291 ( Ky. 1980 ), cert. denied, 450 U.S. 989, 101 S. Ct. 1529, 67 L. Ed. 2d 824, 1981 U.S. LEXIS 1276 (U.S. 1981), overruled, Payne v. Commonwealth, 623 S.W.2d 867, 1981 Ky. LEXIS 286 ( Ky. 1981 ).

In homicide prosecutions, a defendant is entitled to an instruction on a lesser-included offense if the evidence would permit a jury to rationally find him or her guilty of the lesser offense and acquit the defendant of the greater. Smith v. Commonwealth, 737 S.W.2d 683, 1987 Ky. LEXIS 237 ( Ky. 1987 ).

66.3.—Instructions Warranted.

Where defendant pleaded guilty to charge of willful and malicious murder, failure to instruct the jury on other degrees of homicide was not error. (Decided under prior law) Rice v. Commonwealth, 278 Ky. 43 , 128 S.W.2d 219, 1939 Ky. LEXIS 385 ( Ky. 1939 ).

In murder prosecution where there was no eyewitness, but evidence of struggle, and accused relied on alibi, instructions on murder, voluntary manslaughter, involuntary manslaughter and self-defense were proper, it being court’s duty to instruct on every degree of crime which might apply under evidence. (Decided under prior law) Sewell v. Commonwealth, 284 Ky. 183 , 144 S.W.2d 223, 1940 Ky. LEXIS 469 ( Ky. 1940 ).

If there is any evidence from which reasonable inference may be drawn that defendant is guilty of lesser crime than murder, instructions should be given consistent therewith. (Decided under prior law) Stanley v. Commonwealth, 380 S.W.2d 71, 1964 Ky. LEXIS 265 ( Ky. 1964 ).

Capital murder was simply a higher degree of intentional murder and thus it was entirely proper for the trial court to instruct on the lesser offense after determining that the evidence would not support a conviction for capital murder. Trowel v. Commonwealth, 550 S.W.2d 530, 1977 Ky. LEXIS 437 ( Ky. 1977 ).

Where proof of the facts charged in the indictment would establish the commission of both attempted murder and assault in the second degree, assault in the second degree is a lesser included offense and where the evidence raised the question of whether defendant intended to kill or to injure police officer, failure to give requested instruction on lesser included offense was reversible error. Luttrell v. Commonwealth, 554 S.W.2d 75, 1977 Ky. LEXIS 482 ( Ky. 1977 ).

The jury instruction which stated if the jury had a reasonable doubt as to defendant’s guilt it could nevertheless find him guilty was erroneous; the instruction should have told the jury that if it had no reasonable doubt that he was guilty of some offense, but had a reasonable doubt as to the degree of the offense of which he was guilty, it could find him guilty of the lower degree. Grooms v. Commonwealth, 756 S.W.2d 131, 1988 Ky. LEXIS 36 ( Ky. 1988 ).

A jury finding that defendant was voluntarily intoxicated so as to be unable to form the requisite intent for murder does not require acquittal, but rather could reduce the offense to second-degree manslaughter; the court’s failure to instruct the jury on second-degree manslaughter was therefore prejudicial error. Slaven v. Commonwealth, 962 S.W.2d 845, 1997 Ky. LEXIS 161 ( Ky. 1997 ).

66.6.—Instructions Not Warranted.

In prosecution for murder, where all circumstances and conditions indicated that victim was assassinated while in bed, court was justified in confining instructions to murder, and it was not necessary to instruct jury on every possible theory of homicide, although all the evidence was circumstantial and there was no eyewitness. (Decided under prior law) Canada v. Commonwealth, 281 Ky. 641 , 136 S.W.2d 1061, 1940 Ky. LEXIS 83 ( Ky. 1940 ).

Where evidence of a homicidal crime is entirely circumstantial and facts point inescapably to murder, defendant is not entitled to either of two manslaughter instructions or an instruction on self-defense; however, all three instructions must be included in giving whole law of case, where there is evidence of struggle or other unusual circumstances whereby jury can infer a lesser degree of the crime or an exoneration of it. (Decided under prior law) Marcum v. Commonwealth, 305 Ky. 92 , 202 S.W.2d 1012, 1947 Ky. LEXIS 766 ( Ky. 1947 ).

Where the defendant was indicted for but one offense, willful murder, the only instructions to which he was entitled were on this offense and the degrees thereof, and it would not have been proper to give robbery or assault instructions even though the deceased had been robbed of his money. (Decided under prior law) Page v. Commonwealth, 317 S.W.2d 879, 1958 Ky. LEXIS 110 ( Ky. 1958 ).

Where a defendant quarreled with the victim, went to his truck for a knife, then returned and fatally stabbed the victim, the evidence did not warrant instructions on second-degree manslaughter or reckless homicide. Butler v. Commonwealth, 560 S.W.2d 814, 1978 Ky. LEXIS 311 ( Ky. 1978 ).

While the present record revealed considerable evidence of mental illness, there appeared to be no evidence at all that the defendant, on trial for murder and robbery, was acting under the influence of extreme emotional disturbance at the time of the commission of the crimes, and the Commonwealth therefore had no burden to prove the absence of extreme emotional distress; moreover, because a manslaughter instruction is proper only where there is evidence to support the giving of the instruction, the trial court’s failure to instruct the jury on manslaughter in the first degree was not error. Sanders v. Commonwealth, 801 S.W.2d 665, 1990 Ky. LEXIS 93 ( Ky. 1990 ), cert. denied, 502 U.S. 831, 112 S. Ct. 107, 116 L. Ed. 2d 76, 1991 U.S. LEXIS 4767 (U.S. 1991).

There was no error in refusing to instruct on second-degree manslaughter or reckless homicide since the evidence was overwhelming that defendant shot the victim intentionally or, at the very least, under circumstances manifesting extreme indifference to the value of human life, by wantonly engaging in such conduct as would create a grave risk of death to the victim. Cecil v. Commonwealth, 888 S.W.2d 669, 1994 Ky. LEXIS 124 ( Ky. 1994 ).

Defendants were not entitled to an instruction on second-degree manslaughter as a lesser included offense of murder, on grounds that they were so intoxicated that they could not form the requisite intent necessary for a conviction of murder, as the evidence — including their pre-crime planning — did not support an intoxication defense. Caudill v. Commonwealth, 120 S.W.3d 635, 2003 Ky. LEXIS 140 ( Ky. 2003 ).

Where a victim was struck at least 15 times to the head with a hammer-like object, there was no reasonable doubt that whoever attacked her intended to kill, as opposed to merely injure, her; defendants were thus not entitled to an instruction on manslaughter in the first degree under KRS 507.030(1)(a) as a lesser-included offense of murder. Caudill v. Commonwealth, 120 S.W.3d 635, 2003 Ky. LEXIS 140 ( Ky. 2003 ).

Trial judge was not obliged to instruct the jury on manslaughter in the first degree under KRS 507.030(1)(b) as a lesser included offense of murder, as defendant’s drug dependency and her anger at the victim for refusing her demand for money did not entitle her to an instruction on extreme emotional disturbance. Caudill v. Commonwealth, 120 S.W.3d 635, 2003 Ky. LEXIS 140 ( Ky. 2003 ).

The request by defendant, on trial for murder, for an instruction on hindering prosecution as a lesser included offense thereof, was without merit as hindering prosecution is not a lesser included offense of murder. Turpin v. Commonwealth, 780 S.W.2d 619, 1989 Ky. LEXIS 108 ( Ky. 1989 ), cert. denied, 494 U.S. 1058, 110 S. Ct. 1530, 108 L. Ed. 2d 769, 1990 U.S. LEXIS 1576 (U.S. 1990).

67.— —Involuntary Manslaughter.

In the case where defendant fired at another, and missing her, killed his daughter, though he claimed accidentally when she grasped the pistol, there was no requirement for an instruction on involuntary manslaughter. (Decided under prior law) McFerrin v. Commonwealth, 206 Ky. 677 , 268 S.W. 318, 1925 Ky. LEXIS 1021 ( Ky. 1925 ).

Where instructions covered murder, voluntary manslaughter and self-defense, but omitted involuntary manslaughter, such omission, although erroneous, did not prejudice accused’s substantial rights, since by adopting murder theory and discarding voluntary manslaughter, jury shows that it found killing was with malice aforethought and would not have considered that killing was without malice and in sudden affray or passion without intent to kill. (Decided under prior law) Bates v. Commonwealth, 284 Ky. 1 , 143 S.W.2d 730, 1940 Ky. LEXIS 429 ( Ky. 1 940).

Where, in a prosecution for murder, appellant’s whole defense was that every act which he committed after encountering the deceased was in defense of his person and that the actual firing of the pistol was accidental, and where there was nothing in the testimony which would have justified an instruction on involuntary manslaughter, the court was not in error in failing to so instruct. (Decided under prior law) Hunt v. Commonwealth, 289 Ky. 527 , 159 S.W.2d 23, 1942 Ky. LEXIS 583 ( Ky. 1942 ).

In prosecution for murder, where defendant testified that gun went off accidentally, it was error not to give instruction on involuntary manslaughter, but error was not prejudicial where jury, under voluntary manslaughter instruction, fixed punishment at 12 years’ imprisonment, indicating that jury would not have found defendant guilty of lesser offense. (Decided under prior law) Ferguson v. Commonwealth, 291 Ky. 222 , 163 S.W.2d 449, 1942 Ky. LEXIS 197 ( Ky. 1942 ).

Where proof in murder prosecution was that defendant pulled pistol from pocket and shot deceased after being encountered by deceased and his sister on a public highway, and defendant’s plea was self-defense, he was not entitled to instruction on involuntary manslaughter. (Decided under prior law) Martin v. Commonwealth, 299 Ky. 1 , 184 S.W.2d 234, 1944 Ky. LEXIS 1024 ( Ky. 1 944).

68.— —Voluntary Manslaughter.

Where there are no eyewitnesses and circumstances indicate either murder or innocence, manslaughter instruction is not required. (Decided under prior law) Harris v. Commonwealth, 214 Ky. 787 , 283 S.W. 1063, 1926 Ky. LEXIS 418 ( Ky. 1926 ); Brannon v. Commonwealth, 215 Ky. 589 , 286 S.W. 785, 1926 Ky. LEXIS 764 ( Ky. 1926 ).

After giving of instruction on shooting with malice aforethought and in sudden affray (voluntary manslaughter), instruction that if jury found accused guilty and had reasonable doubt whether shooting was willful or such as to constitute voluntary manslaughter, that they should give accused benefit of doubt and inflict lesser penalty was not objectionable as vague, but was understood by jury, which returned verdict of lesser offense. (Decided under prior law) Couch v. Commonwealth, 284 Ky. 445 , 145 S.W.2d 49, 1940 Ky. LEXIS 516 ( Ky. 1940 ).

Although defendant had entered plea of guilty to charge of murder, it was error for trial court to fail to give and instruction on voluntary manslaughter, where the facts, as disclosed in defendant’s confession and testimony, indicated that the offense was committed in sudden heat and passion, and without premeditation, so as to constitute manslaughter rather than murder. (Decided under prior law) Pool v. Commonwealth, 301 Ky. 531 , 192 S.W.2d 490, 1946 Ky. LEXIS 520 ( Ky. 1946 ).

Where evidence relied upon to prove charge of murder was purely circumstantial, and there was evidence as to a scuffle on ground at point where deceased’s hat and blood spots were found, it was proper to instruct on voluntary manslaughter, as against contention of defendant that there was no evidence to sustain charge of manslaughter. (Decided under prior law) Napier v. Commonwealth, 306 Ky. 75 , 206 S.W.2d 53, 1947 Ky. LEXIS 944 ( Ky. 1947 ).

Where victim was killed by a shot fired from ambush, there was no evidence of a struggle, and the defense was an alibi, it was not error, in murder prosecution, to fail to give a voluntary manslaughter instruction. (Decided under prior law) Morris v. Commonwealth, 306 Ky. 349 , 208 S.W.2d 58, 1948 Ky. LEXIS 565 ( Ky. 1948 ).

In prosecution for willful murder, trial court improperly failed to instruct on voluntary manslaughter where evidence showed sufficient provocation for defendant to have committed the act in sudden heat and passion. (Decided under prior law) Adams v. Commonwealth, 312 Ky. 442 , 227 S.W.2d 999, 1950 Ky. LEXIS 675 ( Ky. 1950 ).

In a case where the defendant denied inflicting the fatal wound on the deceased stating that he was too drunk to have been capable of doing harm, it was not error for the court to fail to give instructions of lesser degrees of homicide and on drunkenness where instructions were given on murder and voluntary manslaughter. (Decided under prior law) Henson v. Commonwealth, 314 S.W.2d 197, 1958 Ky. LEXIS 285 ( Ky. 1958 ).

In murder trial where evidence indicated the victim and defendant had been fighting and the crime might have been one of passion and the defendant testified that the gun fired accidentally, court should give instructions on both voluntary and involuntary manslaughter. (Decided under prior law) Greenville v. Commonwealth, 467 S.W.2d 765, 1971 Ky. LEXIS 400 ( Ky. 1971 ).

Giving instructions on both murder and voluntary manslaughter was justified under indictment which charged “offense by killing” and “offense by aiding and abetting . . . . . in the killing.” (Decided under prior law) Godby v. Commonwealth, 491 S.W.2d 647, 1973 Ky. LEXIS 577 ( Ky. 1973 ).

Where the evidence reflected that defendant had a few drinks prior to the murder but the only witnesses who testified on this subject stated that he was not intoxicated, the defendant was not entitled to an instruction upon the lesser offense of voluntary manslaughter, his averment of intoxication being unsupported by the evidence. (Decided under prior law) Caine v. Commonwealth, 491 S.W.2d 824, 1973 Ky. LEXIS 605 (Ky.), cert. denied, 414 U.S. 876, 94 S. Ct. 80, 38 L. Ed. 2d 121, 1973 U.S. LEXIS 885 (U.S. 1973).

Where the conditions of the bathroom where victim was found and the adjoining bedroom were in such a state of disarray as to indicate an affray may have occurred, the court erred in not giving a voluntary manslaughter instruction as well as a murder instruction. (Decided under prior law) Henderson v. Commonwealth, 507 S.W.2d 454, 1974 Ky. LEXIS 706 ( Ky. 1974 ).

An instruction on voluntary manslaughter was not proper in a prosecution for murder in which the testimony indicated that the defendant shot the victim while the victim was in bed asleep. Burch v. Commonwealth, 555 S.W.2d 954, 1977 Ky. LEXIS 517 ( Ky. 1977 ).

68.— —Voluntary Manslaughter.

Trial court did not err in rejecting defendant's request for an instruction on first-degree manslaughter because the relatively minor disagreements defendant cited as the triggering event were not the types of enraging or inflaming events that could induce in the minds of a jury a reasonable belief that his judgment was overcome causing him to act uncontrollably. Spears v. Commonwealth, 448 S.W.3d 781, 2014 Ky. LEXIS 608 ( Ky. 2014 ).

69.—Mitigating Circumstances.

In a capital murder case, evidence that defendant believed his mother was trapped in an abusive marriage and that she pressured him to kill her husband entitled defendant to a jury instruction on the “moral justification” mitigator pursuant to KRS 532.025(2)(b)(4). Therefore, the trial court’s failure to give that instruction entitled him to a new sentencing hearing. Emerson v. Commonwealth, 230 S.W.3d 563, 2007 Ky. LEXIS 166 ( Ky. 2007 ).

70.—Self-defense.

Upon retrial of a defendant charged with, and convicted of intentional homicide, the defendant would be entitled to an instruction that if the jury finds he believed, reasonably or unreasonably, in the need to defend himself, they should find him innocent. Bennett v. Scroggy, 793 F.2d 772, 1986 U.S. App. LEXIS 26244 (6th Cir. Ky. 1986 ).

Even though a defendant asserts the defense of self-protection, when the evidence fails to sufficiently demonstrate that he did in fact possess at least a subjective belief in the need for self-defense, the jury can be properly instructed on the alternative of wanton murder along with intentional murder. Commonwealth v. Davis, 14 S.W.3d 9, 1999 Ky. LEXIS 161 ( Ky. 1999 ).

71.—Proper.

It is proper for the trial court in its instructions to give the law on the subject of both murder and manslaughter in one instruction. (Decided under prior law) Cavanaugh v. Commonwealth, 172 Ky. 799 , 190 S.W. 123, 1916 Ky. LEXIS 278 ( Ky. 1916 ).

An instruction on willful murder was proper where the evidence indicated that the defendant had come to the house in which his daughter, the deceased, was living intending to kill his daughter and the woman with whom his daughter was living. (Decided under prior law) McFerrin v. Commonwealth, 206 Ky. 677 , 268 S.W. 318, 1925 Ky. LEXIS 1021 ( Ky. 1925 ).

Where the defendant had pleaded guilty to a charge of willful murder, an instruction to find the defendant guilty was not erroneous even though no instructions on manslaughter and self-defense were given. (Decided under prior law) Houston v. Commonwealth, 270 Ky. 125 , 109 S.W.2d 45, 1937 Ky. LEXIS 34 ( Ky. 1937 ).

Instruction that “malice aforethought” means “a predetermination to commit the act of killing without legal excuse, and it is immaterial how recently or suddenly before the killing such determination was formed” was correct, though the words “legal excuse” were used instead of “legal justification.” (Decided under prior law) Greene v. Commonwealth, 282 Ky. 364 , 138 S.W.2d 996, 1940 Ky. LEXIS 199 ( Ky. 1940 ).

Where defendant admitted that he determined to kill the deceased on sight in order to protect his own life, and instruction on murder was justified. (Decided under prior law) Woods v. Commonwealth, 282 Ky. 596 , 139 S.W.2d 439, 1940 Ky. LEXIS 222 ( Ky. 1940 ).

In prosecution of defendant as principal and accessory for murder, where instructions as to liability as principal correctly used words “willfully and feloniously,” with regard to striking and wounding deceased, omission of such words in latter part of instruction as to liability as accessory was not error where court, in such instruction, used “so” before “strike and wound.” (Decided under prior law) Combs v. Commonwealth, 292 Ky. 1 , 165 S.W.2d 832, 1942 Ky. LEXIS 17 ( Ky. 1 942 ).

In a case where the defendant testified, and the evidence showed he was guilty of murder or nothing, the court correctly confined the instructions to murder and reasonable doubt. (Decided under prior law) Birdsong v. Commonwealth, 289 Ky. 521 , 159 S.W.2d 41, 1942 Ky. LEXIS 588 ( Ky. 1942 ).

While it is better practice for the court to give separate instructions on murder and manslaughter, it is not prejudicial to the accused when the court combines the law on the two in one instruction. (Decided under prior law) Gross v. Commonwealth, 308 Ky. 682 , 215 S.W.2d 571, 1948 Ky. LEXIS 1018 ( Ky. 1948 ).

In a prosecution under this section it was not error to combine murder and manslaughter in one instruction. (Decided under prior law) Woods v. Commonwealth, 310 Ky. 396 , 220 S.W.2d 1012, 1949 Ky. LEXIS 953 ( Ky. 1949 ).

Where both bullets entering the deceased’s body were sufficient to have caused death, and each bullet came from a weapon of a different caliber, one fired by the defendant and the other by his deputy, there was sufficient evidence to justify the phrase, “so as to cause or hasten death” which was contained in the instructions. (Decided under prior law) Jones v. Commonwealth, 281 S.W.2d 920, 1955 Ky. LEXIS 215 ( Ky. 1955 ).

Where the evidence showed that a murder victim was last seen in the company of the defendant, who had threatened to kill him on numerous occasions, and the defendant’s brother, who actually committed the crime, an instruction that the jury find the defendant guilty of murder if it believed beyond a reasonable doubt that he conspired with his brother to kill the victim was proper. (Decided under prior law) Brown v. Commonwealth, 555 S.W.2d 252, 1977 Ky. LEXIS 501 ( Ky. 1977 ).

Where the defendant fired a shotgun from the hip, in the direction of three unarmed men in close proximity with each other, killing one of them, there was no error in instruction including element of wanton indifference to human life. Carwile v. Commonwealth, 656 S.W.2d 722, 1983 Ky. LEXIS 296 ( Ky. 1983 ), abrogated in part, Elery v. Commonwealth, 368 S.W.3d 78, 2012 Ky. LEXIS 87 ( Ky. 2012 ).

Jury instruction that defendant could be convicted of murder if he caused victim’s death “intentionally” or “wantonly . . . . . under circumstances manifesting an extreme indifference to human life” did not deprive defendant of his right to a unanimous verdict as guaranteed by Ky. Const., § 7, or his right to due process of law, for although defendant complained that some jurors might believe “intentionally” and some “wantonly,” under either theory, “intentional” or “wanton,” murder is a capital offense; the argument that this form violates the unanimous verdict requirement is only viable in the case where one theory is not supported by the evidence, and where there was evidence from which the jurors could infer both an intentional act and wanton murder. Ice v. Commonwealth, 667 S.W.2d 671, 1984 Ky. LEXIS 212 (Ky.), cert. denied, 469 U.S. 860, 105 S. Ct. 192, 83 L. Ed. 2d 125, 1984 U.S. LEXIS 3642 (U.S. 1984).

Instruction that the jury might find the defendant guilty of murder if it believed that defendant beat and injured the victim and that her death was either caused or hastened by reason of the injury was correct. Adcock v. Commonwealth, 702 S.W.2d 440, 1986 Ky. LEXIS 222 ( Ky. 1986 ).

The presence of the aiding and abetting instruction, sandwiched between a definitional instruction and a reasonable doubt and presumption of innocence instruction, did not render the murder verdict improper because, under the language of the instruction, the jury had to find that the defendant “intentionally, willfully, and knowingly” aided the co-defendant, and this was a finding of sufficient intent to convict the defendant of murder. Marlowe v. Commonwealth, 709 S.W.2d 424, 1986 Ky. LEXIS 253 (Ky.), cert. denied, 479 U.S. 946, 107 S. Ct. 427, 93 L. Ed. 2d 378, 1986 U.S. LEXIS 4620 (U.S. 1986).

A verdict based on instructions encompassing alternative mental states for murder will not be overturned when the evidence supports each of the alternatives. Roston v. Commonwealth, 724 S.W.2d 221, 1986 Ky. App. LEXIS 1229 (Ky. Ct. App. 1986).

Where, as a trial tactic, counsel conceded that the homicide was intentional, there was no merit to the contention that the court should have defined the word “intentional” and should have instructed on wanton homicide, second degree manslaughter, or reckless homicide. Grooms v. Commonwealth, 756 S.W.2d 131, 1988 Ky. LEXIS 36 ( Ky. 1988 ).

Court did not err in giving a combination instruction at defendant’s trial for murder because defendant’s assault on the victim was sufficiently lethal to permit an inference that defendant intended the victim’s death, but was not so inherently lethal as to rule out the possibility that defendant shot wantonly without that intent. Malone v. Commonwealth, 364 S.W.3d 121, 2012 Ky. LEXIS 52 ( Ky. 2012 ).

In a trial for murder, no unanimity error occurred due to the inclusion of the phrase “hitting, shaking, or both” in the jury instruction, because the element the jury was required to find as that defendant did something to cause the victim’s death and there was sufficient evidence, including that defendant hit the victim and shoot him forcibly, under both theories of culpability. Cox v. Commonwealth, 553 S.W.3d 808, 2018 Ky. LEXIS 275 ( Ky. 2018 ).

72.—Improper.

An instruction on willful murder which did not require a finding of malice aforethought, was improper and was prejudicially erroneous. (Decided under prior law) Tiernay v. Commonwealth, 241 Ky. 201 , 43 S.W.2d 661, 1931 Ky. LEXIS 41 ( Ky. 1931 ).

Where part of instruction seemed to authorize finding of guilt if either of two defendants shot deceased, but other instructions made it clear that jury should not find both defendants guilty unless both shot deceased or unless one shot and the other aided and abetted him, the instruction was erroneous, but not prejudicial. (Decided under prior law) Allen v. Commonwealth, 278 Ky. 396 , 128 S.W.2d 719, 1939 Ky. LEXIS 420 ( Ky. 1939 ).

An instruction phrased so as to assume that deceased was killed by defendant, was improper. (Decided under prior law) Mullins v. Commonwealth, 269 S.W.2d 713, 1954 Ky. LEXIS 1012 ( Ky. 1954 ).

Requested instruction in prosecution for murder to the effect that if jury found defendant not guilty by reason of insanity, defendant would be institutionalized for treatment of her mental defect until further order of court was properly refused because the requested instruction could divert the jury’s attention from the issue to be decided by the jury, i.e., whether the defendant was mentally responsible when the criminal act occurred, and also misstates the law in this State regarding the disposition of a person acquitted of a charged offense because of a mental disease or defect. Edwards v. Commonwealth, 554 S.W.2d 380, 1977 Ky. LEXIS 494 (Ky.), cert. denied, 434 U.S. 999, 98 S. Ct. 642, 54 L. Ed. 2d 495, 1977 U.S. LEXIS 4342 (U.S. 1977).

Where the instructions given in a murder trial allowed the jury to find the defendant guilty of the murder of the victim if the jury believed that the defendant robbed the victim and that, during the robbery and while the defendant was present, a third party intentionally killed the victim, the jury need not have made any finding at all regarding the existence of any culpable mental state on defendant’s part (whether intentional or wanton) when the killing occurred; accordingly, the instructions were so defective as to require reversal of the judgment convicting the defendant of murder. Howard v. Commonwealth, 618 S.W.2d 177, 1981 Ky. LEXIS 257 ( Ky. 1981 ).

Where it was clearly unreasonable from the evidence for the jury to believe that the defendant’s conduct was anything other than intentional, a jury instruction permitting the defendant to be found guilty of murder under alternate theories of either intent or wantonness denied him the right to a unanimous verdict under Ky. Const., § 7. Hayes v. Commonwealth, 625 S.W.2d 583, 1981 Ky. LEXIS 307 ( Ky. 1981 ).

The trial court made a reversible error when it advised the jury that the court could change the punishment that the jury imposed upon the defendants and the prosecution repeatedly reiterated this to the jury. Holland v. Commonwealth, 703 S.W.2d 876, 1985 Ky. LEXIS 299 ( Ky. 1985 ).

73.—Properly Denied.

The failure of the court to instruct on the defense of protection of another, or on the offense of reckless homicide was not error where evidence showed defendant fired shotgun at group of three unarmed men one of whom had knocked defendant’s friend down. Carwile v. Commonwealth, 656 S.W.2d 722, 1983 Ky. LEXIS 296 ( Ky. 1983 ), abrogated in part, Elery v. Commonwealth, 368 S.W.3d 78, 2012 Ky. LEXIS 87 ( Ky. 2012 ).

There was no credible evidence of extreme emotional distress to support an instruction on first-degree manslaughter; nor was an instruction on wanton manslaughter or murder required, since there was no credible evidence that the murders were accidental. Tamme v. Commonwealth, 973 S.W.2d 13, 1998 Ky. LEXIS 46 ( Ky. 1998 ), cert. denied, 525 U.S. 1153, 119 S. Ct. 1056, 143 L. Ed. 2d 61, 1999 U.S. LEXIS 1229 (U.S. 1999).

Rational jury could not have found defendant’s participation in the crime to be simple wantonness as required for a second-degree manslaughter instruction; rather, his conduct in luring the victim to the crime scene was so obviously accompanied by the risk that the victim would be killed that it necessarily included the element of acting under circumstances manifesting extreme indifference to human life. Hudson v. Commonwealth, 385 S.W.3d 411, 2012 Ky. LEXIS 95 ( Ky. 2012 ).

74.Sentence.

Punishment for defendant convicted of murder, fixed by jury, would not be disturbed on ground that punishment was cruel or excessive, where it was within statutory limits. (Decided under prior law) Combs v. Commonwealth, 273 Ky. 787 , 117 S.W.2d 1000, 1938 Ky. LEXIS 723 ( Ky. 1938 ); Golden v. Commonwealth, 275 Ky. 208 , 121 S.W.2d 21, 1938 Ky. LEXIS 399 ( Ky. 1938 ).

A verdict imposing a life sentence may not be impeached by affidavits of nine jurors in which they assert that they have imposed only an eight year sentence. (Decided under prior law) Grider v. Commonwealth, 398 S.W.2d 496, 1966 Ky. LEXIS 495 ( Ky. 1966 ).

Although the legislative branch is responsible for the enactment of criminal penalties and has set the punishment for first degree murder as death or life with parole, the government nor has the power to commute a death sentence to a life term without parole. (Decided under prior law) Hamilton v. Ford, 362 F. Supp. 739, 1973 U.S. Dist. LEXIS 12418 (E.D. Ky. 1973 ).

Where jury chose to convict defendant of the most serious and aggravated offense possible under the circumstances and attempted to invoke the death penalty, defendant must be sentenced to life imprisonment in order not to frustrate the jury’s intent to impose the maximum punishment legally permissible. Boyd v. Commonwealth, 550 S.W.2d 507, 1977 Ky. LEXIS 429 ( Ky. 1977 ).

Where defendant rejected a plea bargaining offer, for a 20-year sentence by the prosecutor, but no mention of such offer was made in the closing argument, there was no evidence of prosecutorial vindictiveness in asking the jury for a sentence of life imprisonment. Wainscott v. Commonwealth, 562 S.W.2d 628, 1978 Ky. LEXIS 332 (Ky.), cert. denied, 439 U.S. 868, 99 S. Ct. 196, 58 L. Ed. 2d 179, 1978 U.S. LEXIS 3143 (U.S. 1978).

There are two prongs to the double jeopardy principle; a person cannot be twice convicted or twice punished for the same murder, and where the additional element that aggravates kidnapping to a capital offense is the murder, the defendant can be convicted and punished for both offenses, but not sentenced to death for kidnapping if he is sentenced to death for murder. Cosby v. Commonwealth, 776 S.W.2d 367, 1989 Ky. LEXIS 92 ( Ky. 1989 ), cert. denied, 493 U.S. 1063, 110 S. Ct. 880, 107 L. Ed. 2d 963, 1990 U.S. LEXIS 508 (U.S. 1990), overruled in part, St. Clair v. Roark, 10 S.W.3d 482, 1999 Ky. LEXIS 148 ( Ky. 1999 ).

A sentence imposed upon conviction for murder is not subject to persistent felony offender enhancement. Offutt v. Commonwealth, 799 S.W.2d 815, 1990 Ky. LEXIS 44 ( Ky. 1990 ).

Multiple death penalties have been handed down in a number of cases where a defendant was convicted of crimes against multiple victims, and there is no basis for a different result where multiple crimes, such as kidnapping and murder, are committed against the same victim. St. Clair v. Roark, 10 S.W.3d 482, 1999 Ky. LEXIS 148 ( Ky. 1999 ) sub. nom.St. Clair v. Commonwealth, 174 S.W.3d 474, 2005 Ky. LEXIS 334 ( Ky. 2005 ).

75.—Death Penalty.

The decision in Furman v. Georgia, 408 U.S. 238, 92 S. Ct. 2726, 33 L. Ed. 2d 346, 1972 U.S. LEXIS 169 (1972), decided after the imposition of death sentences in a murder prosecution but before the appeal of the conviction was considered, left the Court of Appeals no alternative but to reduce the penalty to life imprisonment, the only lesser penalty authorized by law that provided that a person who committed willful murder should be punished by life imprisonment or death. (Decided under prior law) Caine v. Commonwealth, 491 S.W.2d 824, 1973 Ky. LEXIS 605 (Ky.), cert. denied, 414 U.S. 876, 94 S. Ct. 80, 38 L. Ed. 2d 121, 1973 U.S. LEXIS 885 (U.S. 1973); Scott v. Commonwealth, 495 S.W.2d 800, 1972 Ky. LEXIS 10 ( Ky. 1972 ), cert. denied, 414 U.S. 1073, 94 S. Ct. 587, 38 L. Ed. 2d 479, 1973 U.S. LEXIS 1670 (U.S. 1973).

The decision of the United States Supreme Court prohibiting the death penalty required that the punishment of death assessed against the defendants be reduced to life imprisonment. (Decided under prior law) Lenston v. Commonwealth, 497 S.W.2d 561, 1973 Ky. LEXIS 355 (Ky.), cert. denied, 414 U.S. 1073, 94 S. Ct. 587, 38 L. Ed. 2d 479, 1973 U.S. LEXIS 1670 (U.S. 1973).

Where federal and Kentucky courts decided that the governor had powers of commutation as well as pardon and since the commuted sentence of life imprisonment without parole was less than that of the death penalty, defendant was collaterally estopped from relitigating the question. (Decided under prior law) Hamilton v. Ford, 362 F. Supp. 739, 1973 U.S. Dist. LEXIS 12418 (E.D. Ky. 1973 ).

In all criminal proceedings where the death penalty is sought, the trial judge must conduct a bifurcated proceeding; the first proceeding is the guilt or innocence phase and the second is the sentencing phase, and all evidence introduced in the first phase of the trial is admissible in the latter phase; new or additional evidence, when proposed to be used in aggravation, is that evidence which is required to be made known to the accused prior to the sentencing phase of the trial. Smith v. Commonwealth, 599 S.W.2d 900, 1980 Ky. LEXIS 223 ( Ky. 1980 ).

Where the evidence showed that the defendant murdered three elderly individuals by beating them so badly that they had to be buried in disaster pouches, the sentence of death was not imposed under the influence of passion, prejudice or any other arbitrary factor and the evidence supported the finding of an aggravating circumstance. White v. Commonwealth, 671 S.W.2d 241, 1983 Ky. LEXIS 317 ( Ky. 1983 ), cert. denied, 469 U.S. 963, 105 S. Ct. 363, 83 L. Ed. 2d 299, 1984 U.S. LEXIS 400 (U.S. 1984).

76.—Persistent Felony Offender Enhancement.

A persistent felony offender enhancement is not permissible following a conviction for murder. Murder is a capital crime and is not subject to such enhancement. Berry v. Commonwealth, 782 S.W.2d 625, 1990 Ky. LEXIS 7 ( Ky. 1990 ), overruled in part, Chestnut v. Commonwealth, 250 S.W.3d 288, 2008 Ky. LEXIS 113 ( Ky. 2008 ).

77.—Private Psychiatric Facilities.

When state facilities were available to and actually used by the defendant, the defendant did not establish that the lower court abused its discretion in denying payment for private psychiatric facilities, where nothing had been filed by the defendant to indicate that he intended to raise insanity as a defense, and the defendant’s mental health records were filed on a sealed basis, on his own request, to be opened only for appellate review. Todd v. Commonwealth, 716 S.W.2d 242, 1986 Ky. LEXIS 290 ( Ky. 1986 ).

78.—Aggravating Circumstances.

Defendant argued that he was denied due process of law because the prosecution used the same facts to prove two separate aggravating circumstances, murder committed during the commission of a robbery and murder committed for profit. The aggravating circumstance of robbery related to the taking of the victim’s property in the course of committing theft while the murder for profit aggravating circumstance went beyond the time when victim’s property was physically taken from her in the course of committing a theft. The credit cards of the victim were used the day after her death when co-defendants purchased a number of items for themselves with the cards. Clearly, they obtained something of monetary value which profited them. Use of the credit cards was not the same act as the robbery of the victim. The two aggravating circumstances were not the same as to either time or place and the jury properly found the existence of two distinct aggravating factors. Wilson v. Commonwealth, 836 S.W.2d 872, 1992 Ky. LEXIS 84 ( Ky. 1992 ), cert. denied, 507 U.S. 1034, 113 S. Ct. 1857, 123 L. Ed. 2d 479, 1993 U.S. LEXIS 2856 (U.S. 1993), overruled in part, St. Clair v. Roark, 10 S.W.3d 482, 1999 Ky. LEXIS 148 ( Ky. 1999 ).

In a capital murder case, as there was evidence that defendant murdered his stepfather at his mother’s request for money, the jury was appropriately instructed on the murder-for-gain aggravating factor pursuant to KRS 532.025(2)(a)(4). Emerson v. Commonwealth, 230 S.W.3d 563, 2007 Ky. LEXIS 166 ( Ky. 2007 ).

79.Voluntary Confession.

Where the evidence established that the Commonwealth’s attorney had given accused an assurance that he would recommend life imprisonment if the accused would confess and locate the body of the victim, but that such assurance had been withdrawn or dispelled by intervening circumstances prior to the time the confession was made, and the accused was aware of the withdrawal, the confession was voluntary, as the inducement ceased to operate on his mind. (Decided under prior law) Tarrence v. Commonwealth, 265 S.W.2d 52, 1953 Ky. LEXIS 1266 (Ky. Ct. App. 1953), cert. denied, 348 U.S. 899, 75 S. Ct. 220, 99 L. Ed. 706 (U.S. 1954).

Where defendant, after being advised of his rights, voluntarily confessed his participation in murder, burglary and theft, evidence did not support contention that confession was induced by promises of more lenient sentence coupled with fear of death penalty or that it was taken in violation of Miranda. Walker v. Commonwealth, 561 S.W.2d 656, 1977 Ky. LEXIS 578 ( Ky. 1977 ).

Where defendant confessed guilt to fellow prisoner who informed police who unsuccessfully attempted to “bug” conversation between the two prisoners, subsequent signed confession by defendant was fruit of first admission, not of “bugging” and was admissible in murder trial. Conover v. Commonwealth, 568 S.W.2d 238, 1978 Ky. LEXIS 372 ( Ky. 1978 ).

Where defendant was neither a suspect nor under arrest, but voluntarily went to police headquarters, and her inconsistent statements aroused suspicion of her complicity, but prior to those inconsistent statements she had been given Miranda warnings, and where she did not request an attorney and did not seek to terminate the interrogation, there was no error in the admission of her statements into evidence, and her conviction for complicity to commit murder would be affirmed. Pruitt v. Commonwealth, 700 S.W.2d 68, 1985 Ky. LEXIS 288 ( Ky. 1985 ).

Where interrogation of defendant leading to confession of murder continued for two and one-half to three hours, the interrogation was transcribed, defendant was told that the police would pick up the girls at the apartment where he had spent the prior night, no threats were made and the entire interrogation was conducted in a normal tone of voice, and defendant stated that the transcript was accurate except for remarks by the officers accusing him of other robberies, there was nothing in the record to suggest physical harm was threatened or implied, and the remarks by the police officers relative to the girls with defendant were not of such a nature as to overcome his will and coerce the confession. Kordenbrock v. Commonwealth, 700 S.W.2d 384, 1985 Ky. LEXIS 263 ( Ky. 1985 ), cert. denied, 476 U.S. 1153, 106 S. Ct. 2260, 90 L. Ed. 2d 704, 1986 U.S. LEXIS 1712 (U.S. 1986).

Where the defendant who was stopped while driving for speeding and driving under the influence of alcohol, spontaneously confessed to killing the victim, his intoxication affected only the statement’s credibility, not its admissibility. Rasmussen v. Commonwealth, 705 S.W.2d 914, 1986 Ky. LEXIS 236 ( Ky. 1986 ).

Cited in:

Jewell v. Commonwealth, 549 S.W.2d 807, 1977 Ky. LEXIS 412 ( Ky. 1977 ), overruled, Payne v. Commonwealth, 623 S.W.2d 867, 1981 Ky. LEXIS 286 ( Ky. 1981 ), overruled in part, Payne v. Commonwealth, 623 S.W.2d 867, 1981 Ky. LEXIS 286 ( Ky. 1981 ); Self v. Commonwealth, 550 S.W.2d 509, 1977 Ky. LEXIS 430 ( Ky. 1977 ); Eversole v. Commonwealth, 550 S.W.2d 513, 1977 Ky. LEXIS 432 (Ky. 1977); Jones v. Commonwealth, 554 S.W.2d 363, 1977 Ky. LEXIS 491 (Ky. 1977); Powell v. Commonwealth, 554 S.W.2d 386, 1977 Ky. LEXIS 495 (Ky. 1977); Richardson v. Commonwealth, 559 S.W.2d 738, 1977 Ky. App. LEXIS 871 (Ky. Ct. App. 1977); Huff v. Commonwealth, 560 S.W.2d 544, 1977 Ky. LEXIS 569 (Ky. 1977); Shannon v. Commonwealth, 562 S.W.2d 301, 1978 Ky. LEXIS 3 20 ( Ky. 1978 ); Wells v. Commonwealth, 562 S.W.2d 622, 1978 Ky. LEXIS 3 30 ( Ky. 1978 ), cert. denied, Wells v. Kentucky, 439 U.S. 861, 99 S. Ct. 181, 58 L. Ed. 2d 170, 1978 U.S. LEXIS 3066 (1978); Cleaver v. Commonwealth, 569 S.W.2d 166, 1978 Ky. LEXIS 385 (Ky. 1978); Hendley v. Commonwealth, 573 S.W.2d 662, 1978 Ky. LEXIS 416 (Ky. 1978); Gilbert v. Commonwealth, 575 S.W.2d 455, 1978 Ky. LEXIS 451 (Ky. 1978); Gunter v. Commonwealth, 576 S.W.2d 518, 1978 Ky. LEXIS 458 (Ky. 1978), cert. denied, Gunter v. Kentucky, 443 U.S. 905, 99 S. Ct. 3097, 61 L. Ed. 2d 872, 1979 U.S. LEXIS 2427 (1979); Bartrug v. Commonwealth, 582 S.W.2d 61, 1979 Ky. App. LEXIS 413 (Ky. Ct. App. 1979); Rutland v. Commonwealth, 590 S.W.2d 682, 1979 Ky. LEXIS 303 ( Ky. 1979 ); Smith v. Commonwealth, 634 S.W.2d 411, 1982 Ky. LEXIS 259 ( Ky. 1982 ); Williams v. Commonwealth, 644 S.W.2d 335, 1982 Ky. LEXIS 328 ( Ky. 1982 ); Jones v. Hogg, 732 F.2d 53, 1984 U.S. App. LEXIS 23609 (6th Cir. 1984); Harper v. Commonwealth, 694 S.W.2d 665, 1985 Ky. LEXIS 227 ( Ky. 1985 ); Ward v. Commonwealth, 695 S.W.2d 404, 1985 Ky. LEXIS 307 ( Ky. 1985 ); Bevins v. Commonwealth, 712 S.W.2d 932, 1986 Ky. LEXIS 252 ( Ky. 1986 ), cert. denied, Bevins v. Kentucky, 479 U.S. 1070, 107 S. Ct. 963, 93 L. Ed. 2d 1010, 1987 U.S. LEXIS 531 (1987); Corbett v. Commonwealth, 717 S.W.2d 831, 1986 Ky. LEXIS 288 ( Ky. 1986 ); Buchanan v. Kentucky, 483 U.S. 402, 107 S. Ct. 2906, 97 L. Ed. 2d 336, 1987 U.S. LEXIS 2877 (1987); Perry v. Commonwealth, 839 S.W.2d 268, 1992 Ky. LEXIS 138 ( Ky. 1992 ); Martin v. Commonwealth, 873 S.W.2d 832, 1993 Ky. App. LEXIS 181 (Ky. Ct. App. 1993); Skaggs v. Parker, 27 F. Supp. 2d 952, 1998 U.S. Dist. LEXIS 21264 (W.D. Ky. 1998 ); Robertson v. Commonwealth, — S.W.3d —, 2002 Ky. LEXIS 176 ( Ky. 2002 ); Carter v. Commonwealth, — S.W.3d —, 2003 Ky. App. LEXIS 26 (Ky. Ct. App. 2003); Ordway v. Commonwealth, 391 S.W.3d 762, 2013 Ky. LEXIS 3 ( Ky. 2013 ); Pettway v. Commonwealth, 2015 Ky. LEXIS 1862 (Sept. 24, 2015); Commonwealth v. Rank, 494 S.W.3d 476, 2016 Ky. LEXIS 325 ( Ky. 2016 ).

Notes to Unpublished Decisions

1.Evidence.
2.— Insufficient.

Unpublished decision: Following evidence was sufficient to convict defendant of murder: (1) he went to the victim’s home during the time frame in which she was killed and returned with several hundred dollars; (2) two persons who went to the victim’s home shortly thereafter obtained no response to their knocks and calls; (3) the victim had a large sum of cash in her purse before defendant went to her home and the purse was found open and empty near her body after her death; and (4) two witnesses testified that defendant confessed to the murder. Blair v. Commonwealth, 144 S.W.3d 801, 2004 Ky. LEXIS 219 ( Ky. 2004 ).

Research References and Practice Aids

Cross-References.

Corroboration of confession, RCr 9.60.

Felonies and misdemeanors, KRS 431.060 .

Felony, conviction for excludes one from suffrage, Ky. Const., § 145.

“Sweating” prohibited, KRS 422.110 .

Kentucky Bench & Bar.

Lewis and Monahan, The Death Penalty in Kentucky: The System Is Broken, Vol. 67, No. 6, Nov. 2003, Ky. Bench & Bar 7.

Smith, The Death Penalty in Kentucky: The Punishment Fits the Crime, Vol. 67, No. 6, Nov. 2003, Ky. Bench & Bar 8.

Kentucky Law Journal.

Kentucky Law Survey, Ashdown, Criminal Law, 64 Ky. L.J. 337 (1975-76).

Kentucky Law Survey: Quick, Criminal Procedure, 66 Ky. L.J. 605 (1977-1978).

Kentucky Law Survey, Brice and Taylor, Criminal Law, 67 Ky. L.J. 569 (1978-1979).

Kentucky Law Survey, Overstreet and Collier, Criminal Law, 68 Ky. L.J. 733 (1979-1980).

Kentucky Law Survey, Patterson, Juvenile Code, 70 Ky. L.J. 343 (1981-82).

Comment, Feticide: Murder in Kentucky?, 71 Ky. L.J. 933 (1982-83).

Cooper and Lawson, Self-Defense in Kentucky: A Need for Clarification or Revision, 76 Ky. L.J. 167 (1987-88).

Northern Kentucky Law Review.

Comments, Criminal Law — Murder by Auto, Kentucky’s Hard Line Stance Against Drunken Drivers, 5 N. Ky. L. Rev. 279 (1978).

Comments, Constitutional Law — Harmless Constitutional Error — Post-Arrest Silence of Accused Used by Prosecutor for Impeachment Purposes, 5 N. Ky. L. Rev. 287 (1978).

Note — Criminal Law — Murder — Intentional Killing of Viable Fetus Not Murder, 11 N. Ky. L. Rev. 213 (1984).

Note, Jones v. Commonwealth, 20 N. Ky. L. Rev. 831 (1993).

Hodge, Wanton Murder, Self-Defense, and Jury Instructions: Shannon v. Commonwealth is Revisited; But does it Remain?, 22 N. Ky. L. Rev. 435 (1995).

Drogin, To the Brink of Insanity: ‘Extreme Emotional Disturbance’ in Kentucky Law, 26 N. Ky. L. Rev. 99 (1999).

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Assaults and Restraints of Persons, Part 1 Definitions, § 3.03.

Kentucky Instructions to Juries (Criminal), 5th Ed., Assaults and Restraints of Persons, Part 2 Homicide, §§ 3.20, 3.21, 3.22, 3.23, 3.24, 3.30.

Kentucky Instructions to Juries (Criminal), 5th Ed., Assaults and Restraints of Persons, Part 3 Assault, §§ 3.56, 3.58.

Kentucky Instructions to Juries (Criminal), 5th Ed., Complicity and Inchoate Offenses, Part 2 Complicity, § 10.14.

Kentucky Instructions to Juries (Criminal), 5th Ed., Defenses, Part 3 Absence of Criminal Responsibility, § 11.30.

Kentucky Instructions to Juries (Criminal), 5th Ed., General Principles, Part 1 Matters of Substance, § 1.05.

Kentucky Instructions to Juries (Criminal), 5th Ed., Penalty Phase Instructions, Part 2 Capital Offenses, §§ 12.04A, 12.06.

507.030. Manslaughter in the first degree.

  1. A person is guilty of manslaughter in the first degree when:
    1. With intent to cause serious physical injury to another person, he causes the death of such person or of a third person;
    2. With intent to cause the death of another person, he causes the death of such person or of a third person under circumstances which do not constitute murder because he acts under the influence of extreme emotional disturbance, as defined in subsection (1)(a) of KRS 507.020 ; or
    3. Through circumstances not otherwise constituting the offense of murder, he or she intentionally abuses another person or knowingly permits another person of whom he or she has actual custody to be abused and thereby causes death to a person twelve (12) years of age or less, or who is physically helpless or mentally helpless.
  2. Manslaughter in the first degree is a Class B felony.

HISTORY: Enact. Acts 1974, ch. 406, § 62, effective January 1, 1975; 2015 ch. 64, § 2, effective June 24, 2015.

Legislative Research Commission Notes.

(6/24/2015). 2015 Ky. Acts ch. 64, sec. 3 provides that the amendments to this statute and KRS 507.010 made in 2015 Ky. Acts ch. 64, secs. 1 and 2 may be cited as “Conner's Law.”

NOTES TO DECISIONS

1.In General.

In order that a homicide can be considered voluntary manslaughter the killing must involve suddenness, heat of passion and adequate provocation, and heat of passion without adequate provocator or provocation, however great, which does not spontaneously arouse to a heat of passion will not be sufficient to reduce a killing to voluntary manslaughter. (Decided under prior law) McHargue v. Commonwealth, 231 Ky. 82 , 21 S.W.2d 115, 1929 Ky. LEXIS 212 ( Ky. 1929 ).

It is not necessary to the commission of the crime of manslaughter that a deadly weapon be employed. (Decided under prior law) Boggs v. Commonwealth, 285 Ky. 558 , 148 S.W.2d 703, 1941 Ky. LEXIS 425 ( Ky. 1941 ).

One who kills another intentionally but under sudden impulse and without premeditation is guilty of voluntary manslaughter. (Decided under prior law) Sikes v. Commonwealth, 304 Ky. 429 , 200 S.W.2d 956, 1947 Ky. LEXIS 662 ( Ky. 1947 ), overruled, White v. Commonwealth, 360 S.W.2d 198, 1962 Ky. LEXIS 214 ( Ky. 1962 ).

Voluntary manslaughter essentially differs from involuntary manslaughter in that in the former intention and impulsion to kill are present, while in the latter intent is absent and the impulse to do the act may or may not be sudden. (Decided under prior law) Sikes v. Commonwealth, 304 Ky. 429 , 200 S.W.2d 956, 1947 Ky. LEXIS 662 ( Ky. 1947 ), overruled, White v. Commonwealth, 360 S.W.2d 198, 1962 Ky. LEXIS 214 ( Ky. 1962 ).

2.Accomplices.

Where the evidence showed that when his two defendant sons were engaged in “shoot-out” with the victim, the defendant father, uninvited, went to the scene of the affray and shot and killed the victim, that the defendant sons did not even know of the arrival of their father until after the killing, that the one defendant son had stopped shooting before the father appeared and that the other defendant son never fired a shot during the entire incident, the evidence did not justify conviction of the sons as participants in the father’s act. (Decided under prior law) Haynes v. Commonwealth, 515 S.W.2d 240, 1974 Ky. LEXIS 235 ( Ky. 1974 ).

3.Indictment.

An indictment stating that the defendant committed manslaughter by unlawfully, willfully and feloniously killing another by shooting, from which shooting the victim died does not charge the common-law offense of manslaughter. (Decided under prior law) Commonwealth v. Mosser, 133 Ky. 609 , 118 S.W. 915, 1909 Ky. LEXIS 213 ( Ky. 1909 ).

An indictment charging voluntary manslaughter need not necessarily charge it was committed by use of a deadly weapon. (Decided under prior law) Payne v. Commonwealth, 289 Ky. 590 , 159 S.W.2d 430, 1942 Ky. LEXIS 607 ( Ky. 1942 ), overruled, White v. Commonwealth, 360 S.W.2d 198, 1962 Ky. LEXIS 214 ( Ky. 1962 ).

Indictments charging “offense by killing” and “offense by aiding and abetting . . . . . in the killing” were held to adequately charge felonious homicide and justify the giving of instructions on both murder and voluntary manslaughter. (Decided under prior law) Godby v. Commonwealth, 491 S.W.2d 647, 1973 Ky. LEXIS 577 ( Ky. 1973 ).

4.Due Process.

Although some of the errors appearing in this record standing alone would be insufficient upon which to base a reversal of the manslaughter conviction, nevertheless, the cumulative effect of the mechanical noise in the courtroom, the inability of the court reporter and the jury to hear all of the testimony, the refusal to grant leave to introduce the laboratory report of a blood test showing the decedent to be legally intoxicated at the time defendant shot him, the denial of a recess to subpoena the chemist who made the blood test, the voice level of the spectators and the failure to uphold the rule regarding separation of witnesses after the invocation all clearly demonstrate that defendant was denied a fair trial. Pennington v. Commonwealth, 577 S.W.2d 19, 1978 Ky. App. LEXIS 665 (Ky. Ct. App. 1978).

5.— Publicity.

Trial judge did not abuse his discretion in denying motions for new trial due to highly prejudicial pretrial and trial publicity where the record reflected that adequate voir dire of the jury occurred, that the trial judge admonished the jury regarding reading the newspaper and watching the televised news until the trial was concluded, polled the jury individually and collectively as to whether they had read newspaper articles or viewed newscasts regarding the trial, and the jurors were admonished at each recess by the judge. Lucas v. Commonwealth, 840 S.W.2d 212, 1992 Ky. App. LEXIS 151 (Ky. Ct. App. 1992).

6.Elements.

In “voluntary manslaughter” there must be the killing of another in the performance of an act which is being done in such a reckless and wanton manner as to indicate disregard for human life. (Decided under prior law) Frazier v. Commonwealth, 243 S.W.2d 914, 1951 Ky. LEXIS 1182 ( Ky. 1951 ).

Voluntary manslaughter is an intentional, unlawful homicide without malice aforethought. (Decided under prior law) Jones v. Commonwealth, 311 S.W.2d 190, 1958 Ky. LEXIS 181 ( Ky. 1958 ).

The fact that the defendant was in a state of voluntary drunkenness at the time the offense was committed would not entitle him to an acquittal, but could only have the effect of reducing his crime from murder to voluntary manslaughter. (Decided under prior law) Henson v. Commonwealth, 314 S.W.2d 197, 1958 Ky. LEXIS 285 ( Ky. 1958 ).

Where the accused unlawfully and intentionally killed the deceased without malice, in sudden affray or in sudden heat and passion, the offense is designated “voluntary manslaughter.” (Decided under prior law) Pennington v. Commonwealth, 344 S.W.2d 407, 1961 Ky. LEXIS 233 ( Ky. 1961 ).

Homicide by reckless and wanton conduct is voluntary manslaughter. (Decided under prior law) Bentley v. Commonwealth, 354 S.W.2d 495, 1962 Ky. LEXIS 40 ( Ky. 1962 ).

7.— Fright or Shock.

Death caused or accomplished through fright, fear or nervous shock may form basis for criminal responsibility. (Decided under prior law) Hubbard v. Commonwealth, 304 Ky. 818 , 202 S.W.2d 634, 1947 Ky. LEXIS 739 ( Ky. 1947 ).

8.— Heat and Passion.

To constitute a homicide, voluntary manslaughter, the “sudden heat and passion” prompting the killing must be upon provocation ordinarily calculated to excite the passion beyond control, and an instruction embodying the requirement is correct. (Decided under prior law) Cavanaugh v. Commonwealth, 172 Ky. 799 , 190 S.W. 123, 1916 Ky. LEXIS 278 ( Ky. 1916 ).

Premeditated design, or malice aforethought, and heat and passion are contradictory states of mind and cannot exist at the same time with reference to the same act of homicide. (Decided under prior law) McHargue v. Commonwealth, 231 Ky. 82 , 21 S.W.2d 115, 1929 Ky. LEXIS 212 ( Ky. 1929 ); Pennington v. Commonwealth, 344 S.W.2d 407, 1961 Ky. LEXIS 233 ( Ky. 1961 ).

In order to reduce a homicide to voluntary manslaughter on the basis that the killing was done in the heat of passion, such passion must have been engendered by such provocation as would naturally overcome and suspend the self-control of a person of fair, ordinary and average disposition or willpower or cause such person to act rashly or without due deliberation or reflection. (Decided under prior law) Tarrence v. Commonwealth, 265 S.W.2d 40, 1953 Ky. LEXIS 1267 (Ky. Ct. App. 1953), cert. denied, 348 U.S. 899, 75 S. Ct. 220, 99 L. Ed. 706, 1954 U.S. LEXIS 1429 (U.S. 1954).

9.— Intent.

While law that provided a penalty for voluntary manslaughter required an intentional killing, this intent, in the absence of express testimony, might have been inferred from the acts of the accused and even founded upon a manifest or reckless disregard for the safety of human life. (Decided under prior law) Boggs v. Commonwealth, 285 Ky. 558 , 148 S.W.2d 703, 1941 Ky. LEXIS 425 ( Ky. 1941 ).

One must be presumed to intend the consequences of an act, reckless in its character of human life, and committed under circumstances calculated to endanger it and if death results, it cannot be properly said either that it is an involuntary homicide or a killing per infortunium. (Decided under prior law) Titsworth v. Commonwealth, 298 Ky. 814 , 184 S.W.2d 228, 1944 Ky. LEXIS 1021 ( Ky. 1944 ).

Intent to kill cannot be inferred from sudden simple fist fight. (Decided under prior law) White v. Commonwealth, 360 S.W.2d 198, 1962 Ky. LEXIS 214 ( Ky. 1962 ).

10.— Motive.

While proof of motive is usually an important element where evidence is circumstantial, it is not absolutely necessary that motive be proved to sustain conviction. (Decided under prior law) Russell v. Commonwealth, 276 Ky. 38 , 122 S.W.2d 1009, 1938 Ky. LEXIS 528 ( Ky. 1938 ).

Although proof of motive is an important factor in case where the evidence is mostly circumstantial, such proof is not absolutely necessary in order to sustain a conviction for manslaughter. (Decided under prior law) Kratzwald v. Commonwealth, 299 Ky. 10 , 184 S.W.2d 120, 1944 Ky. LEXIS 1006 ( Ky. 1944 ).

No direct proof of motive is essential to a conviction of murder or voluntary manslaughter. (Decided under prior law) Jennings v. Commonwealth, 349 S.W.2d 828, 1961 Ky. LEXIS 68 ( Ky. 1961 ).

11.— Pre-existing Conditions.

In voluntary manslaughter prosecution, proof that defendant had inflicted severe head wounds upon victim, and that victim had died shortly thereafter, was sufficient for conviction, though victim was shown to be 67 years old, in failing health, and the injury perhaps merely accelerated physical ailments producing death, since guilt is fixed if injury contributes mediately or immediately to victim’s death provided other causes are not the proximate cause of death, and criminal responsibility was not lessened merely because injury inflicted would not have been fatal were it not for the victim’s physical condition. (Decided under prior law) Tucker v. Commonwealth, 303 Ky. 864 , 199 S.W.2d 631, 1947 Ky. LEXIS 568 ( Ky. 1947 ).

One cannot escape culpability for homicide because other factors than his act contribute to or hasten deceased’s death, as where deceased is suffering from fatal malady or has predisposed physical condition, such as feeble health, without which a blow or other wound will not be fatal. (Decided under prior law) Hubbard v. Commonwealth, 304 Ky. 818 , 202 S.W.2d 634, 1947 Ky. LEXIS 739 ( Ky. 1947 ).

12.— Provocation.

The legal adequacy of provocation is a question of law to be decided by the trial court. (Decided under prior law) McHargue v. Commonwealth, 231 Ky. 82 , 21 S.W.2d 115, 1929 Ky. LEXIS 212 ( Ky. 1929 ).

Statements made by the deceased to the defendant threatening to send the defendant’s son, who was AWOL and had failed to comply with a child support order, to jail or to Korea, were not of such a nature as to have caused substantial provocation justifying the reduction of the homicide of the deceased to voluntary manslaughter. (Decided under prior law) Tarrence v. Commonwealth, 265 S.W.2d 40, 1953 Ky. LEXIS 1267 (Ky. Ct. App. 1953), cert. denied, 348 U.S. 899, 75 S. Ct. 220, 99 L. Ed. 706, 1954 U.S. LEXIS 1429 (U.S. 1954).

To reduce homicide to voluntary manslaughter, the provocation must be substantial in nature, and while extremely abusive language may constitute lawful provocation, mere words or gestures, though insulting, or threats when unaccompanied by assault, are inadequate to reduce murder to manslaughter. (Decided under prior law) Tarrence v. Commonwealth, 265 S.W.2d 40, 1953 Ky. LEXIS 1267 (Ky. Ct. App. 1953), cert. denied, 348 U.S. 899, 75 S. Ct. 220, 99 L. Ed. 706, 1954 U.S. LEXIS 1429 (U.S. 1954).

13.— Proximate Cause.

Where death was not due to a corporal blow or injury or to some hostile demonstration or overt act directed toward the person of the decedent, there is no criminal liability unless death or serious bodily harm was the probable and natural consequence of an indirect, unlawful act of the accused. (Decided under prior law) Hubbard v. Commonwealth, 304 Ky. 818 , 202 S.W.2d 634, 1947 Ky. LEXIS 739 ( Ky. 1947 ).

To warrant conviction of homicide, accused’s act must be proximate cause of victim’s death, and accused is blameless if death would not have occurred but for intervening cause for which he was not responsible. (Decided under prior law) Hubbard v. Commonwealth, 304 Ky. 818 , 202 S.W.2d 634, 1947 Ky. LEXIS 739 ( Ky. 1947 ).

14.Evidence.
15.— Admissibility.

Where the only issue in the case was whether or not the defendant did the shooting, it was not error to allow a deputy sheriff to testify that he had examined empty cartridge shells found by others and he merely identified such shells when they were introduced into evidence. (Decided under prior law) Young v. Commonwealth, 276 Ky. 26 , 122 S.W.2d 1034, 1938 Ky. LEXIS 535 ( Ky. 1938 ).

Where controversy between defendant and victim arose partly out of illegal liquor transactions in which they were engaged, evidence of defendant’s engaging in illegal liquor business was proper in prosecution, for manslaughter. (Decided under prior law) Gadd v. Commonwealth, 305 Ky. 318 , 204 S.W.2d 215, 1947 Ky. LEXIS 808 ( Ky. 1947 ).

It was not error to allow testimony as to the drinking going on at the scene of the crime, even though the trial was conducted in a dry county, as the drinking could not be separated from the general circumstances with which the jury needed to be acquainted. (Decided under prior law) Barnett v. Commonwealth, 403 S.W.2d 40, 1966 Ky. LEXIS 323 ( Ky. 1966 ).

16.— Cause of Death.

Cause of death may be proved only by medical testimony, except where facts proved are such that any layman of average intelligence would know from his own knowledge and experience that injuries described are sufficient to produce death. (Decided under prior law) White v. Commonwealth, 360 S.W.2d 198, 1962 Ky. LEXIS 214 ( Ky. 1962 ).

17.— Corpus Delicti.

Threats may be proven to establish malice, or as tending to show who brought on the difficulty, but they are not substantive testimony and will not establish the corpus delicti nor the guilt of the accused. (Decided under prior law) Decker v. Commonwealth, 278 Ky. 145 , 128 S.W.2d 600, 1939 Ky. LEXIS 410 ( Ky. 1939 ).

Where the defendant, who was an eyewitness, testified as to how the homicide occurred, this took the case out of the rule that instructions on all phases of the crime must be given if there is no evidence of a struggle and no eyewitness testifies. (Decided under prior law) Radford v. Commonwealth, 292 Ky. 77 , 165 S.W.2d 990, 1942 Ky. LEXIS 37 ( Ky. 1942 ).

General rule that person accused of homicide is entitled to a directed verdict of acquittal in absence of any eyewitnesses if physical facts and circumstances are more consistent with innocence than with guilt, does not apply where circumstantial evidence is more consistent with guilt than with innocence, and in this latter case a conviction will be upheld even though based on circumstantial evidence. (Decided under prior law) Wells v. Commonwealth, 302 Ky. 15 , 193 S.W.2d 645, 1946 Ky. LEXIS 595 (Ky.), cert. denied, 329 U.S. 792, 67 S. Ct. 366, 91 L. Ed. 678, 1946 U.S. LEXIS 1636 (U.S. 1946).

Though the rule is that a conviction may be had on circumstantial evidence, such evidence must be stronger than a mere suspicion, and if the evidence is as consistent with innocence as with guilt, it is insufficient to sustain a conviction. (Decided under prior law) Jackson v. Commonwealth, 302 Ky. 227 , 194 S.W.2d 384, 1946 Ky. LEXIS 640 ( Ky. 1946 ).

In homicide prosecution the corpus delicti may be proved by circumstantial evidence. (Decided under prior law) Goodman v. Commonwealth, 285 S.W.2d 146, 1955 Ky. LEXIS 63 ( Ky. 1955 ).

18.— Emotional Disturbance.

The contention that mental illness and extreme emotional disturbance are one and the same is without merit. Prior to the adoption of KRS 507.020 and this section, the differentiating standard between the two, under the common law, was “sudden heat and passion.” The principal change in the statute does not lie in the difference in the definitions between “sudden heat and passion” and “extreme emotional disturbance,” if there is such. It lies in the fact that the former requires adequate provocation in the eyes of a reasonable man under the circumstances, while the latter requires the jury to place themselves in the actor’s position as he believed it to be at the time of the act. Wellman v. Commonwealth, 694 S.W.2d 696, 1985 Ky. LEXIS 235 ( Ky. 1985 ).

Evidence showed that the defendant acted with premeditation and out of extreme jealousy and failed to prove any “triggering” event for the shooting which is necessary to claim the defense of extreme emotional disturbance. Cecil v. Commonwealth, 888 S.W.2d 669, 1994 Ky. LEXIS 124 ( Ky. 1994 ).

In trial for murder of two officers who were attempting to serve felony fugitive warrants, trial judge did not err in limiting testimony as to family feud which defendant claimed caused his extreme emotional disturbance. Baze v. Commonwealth, 965 S.W.2d 817, 1997 Ky. LEXIS 40 ( Ky. 1997 ), cert. denied, 523 U.S. 1083, 118 S. Ct. 1536, 140 L. Ed. 2d 685, 1998 U.S. LEXIS 2686 (U.S. 1998).

The conviction of the defendant for first-degree manslaughter was proper since there were two (2) theories under which the jury could have reasonably concluded that the defendant was acting under the influence of extreme emotional disturbance (EED) when she killed her newborn infant: first, there was substantial evidence from lay witnesses, including the defendant, that the discovery of her out-of-wedlock pregnancy triggered an EED that remained uninterrupted until she killed her child; second, in view of the evidence of the defendant’s admitted state of denial with respect to her pregnancy, the jury could have reasonably concluded that the birth, itself, was so shocking to her as to constitute adequate provocation which triggered an EED. Fields v. Commonwealth, 44 S.W.3d 355, 2001 Ky. LEXIS 1 ( Ky. 2001 ).

19.— Facts About Decedent.

In a homicide prosecution, the trial court properly excluded evidence of the decedent’s convictions for grand larceny, vehicle taking and storehouse breaking, which evidence the defendant offered on the question of the deceased’s reputation for peace and quietude, because proof of decedent’s dangerous character can be made only by evidence of his general reputation in the community. (Decided under prior law) McGill v. Commonwealth, 365 S.W.2d 470, 1963 Ky. LEXIS 221 ( Ky. 1963 ).

20.— Impeachment.

In the absence of the sort of affirmative assurances embodied in the Miranda warnings, it does not violate due process of law for a state to permit cross-examination as to post-arrest silence when a defendant chooses to take the stand. A state is entitled, in such situations, to leave to the judge and jury under its own rules of evidence the resolution of the extent to which post-arrest silence may be deemed to impeach a criminal defendant’s own testimony. Fletcher v. Weir, 455 U.S. 603, 102 S. Ct. 1309, 71 L. Ed. 2d 490, 1982 U.S. LEXIS 84 (U.S. 1982).

21.— Intent.

Evidence that accused, a deputy constable, had arrested other persons and sought to obtain money from them for their release was admissible, as showing plan or scheme to extract money from persons under circumstances similar to those existing when accused sought to arrest victim, thus leading to scuffle resulting in shooting of victim. (Decided under prior law) Hatfield v. Commonwealth, 287 Ky. 467 , 153 S.W.2d 892, 1941 Ky. LEXIS 550 ( Ky. 1941 ).

Evidence as to controversy between other persons and defendant preceding killing of deceased was admissible to show defendant’s angered and belligerent state of mind. (Decided under prior law) Radford v. Commonwealth, 292 Ky. 77 , 165 S.W.2d 990, 1942 Ky. LEXIS 37 ( Ky. 1942 ).

Threats are not substantive evidence but are admissible to show malice. (Decided under prior law) Goodman v. Commonwealth, 285 S.W.2d 146, 1955 Ky. LEXIS 63 ( Ky. 1955 ).

Testimony of coroner that injuries to the face could have caused death was not competent to raise an inference of an intent to kill. (Decided under prior law) White v. Commonwealth, 360 S.W.2d 198, 1962 Ky. LEXIS 214 ( Ky. 1962 ).

A conviction of voluntary manslaughter was sustained where the defendant was indicted for murder, but the evidence showed that the defendant was fearful of his life and extremely nervous and apprehensive in the presence of the decedent so that the defendant’s state of mind could be translated into sudden heat and passion without malice, which elements constitute the crime of voluntary manslaughter. (Decided under prior law) Rice v. Commonwealth, 472 S.W.2d 512, 1971 Ky. LEXIS 204 ( Ky. 1971 ).

22.— Jury Question.

Where evidence was very conflicting in prosecution for manslaughter, the issue was one for jury to determine. (Decided under prior law) Campbell v. Commonwealth, 289 Ky. 34 , 157 S.W.2d 729, 1941 Ky. LEXIS 16 ( Ky. 1941 ).

Where eyewitnesses give conflicting accounts of the actual killing, it is for the jury to weigh the evidence and draw its conclusions therefrom. (Decided under prior law) Cobb v. Commonwealth, 291 Ky. 715 , 165 S.W.2d 531, 1942 Ky. LEXIS 308 ( Ky. 1942 ).

The fact that all eyewitnesses to killing supported defendant’s claim that he shot deceased in self-defense while deceased was striking at him with an open knife, did not entitle defendant to a directed verdict of acquittal, where defendant and his witnesses had fled the scene immediately after the shooting, and the only knife found at or near the scene was a closed one, free from blood, in deceased’s pocket. Under such circumstances, the physical facts so contradicted the testimony as to raise a jury question. (Decided under prior law) Prince v. Commonwealth, 303 Ky. 15 , 196 S.W.2d 872, 1946 Ky. LEXIS 780 ( Ky. 1946 ).

It was a jury question to determine whether or not defendant’s act of shooting deceased who was fighting with her husband after calling to deceased to “get off her man” constituted the crime of manslaughter or a justifiable killing in defense of defendant’s husband. (Decided under prior law) Baker v. Commonwealth, 305 Ky. 88 , 202 S.W.2d 1010, 1947 Ky. LEXIS 765 ( Ky. 1947 ).

Where one man first confessed to killing decedent, and thereafter stated that the defendant had in fact shot the deceased and forced the witness to confess, and defendant was at the scene of the killing, it was within the province of the jury to determine the credibility of the witness, and the case was properly submitted to the jury. (Decided under prior law) Howard v. Commonwealth, 395 S.W.2d 355, 1965 Ky. LEXIS 139 ( Ky. 1965 ), cert. denied, 384 U.S. 995, 86 S. Ct. 1905, 16 L. Ed. 2d 1012, 1966 U.S. LEXIS 1147 (U.S. 1966).

Where the evidence established the fact that the defendant first shot the deceased while he, the defendant, was getting up from the floor, the question of whether or not it was necessary for the defendant to shoot the deceased was for the jury. (Decided under prior law) Wilkey v. Commonwealth, 452 S.W.2d 420, 1970 Ky. LEXIS 367 ( Ky. 1970 ).

Where the evidence was undenied that the deceased was shot four times in all, it was for the jury to determine whether all the shooting was done in self-defense. (Decided under prior law) Wilkey v. Commonwealth, 452 S.W.2d 420, 1970 Ky. LEXIS 367 ( Ky. 1970 ).

23.— Motive.

Testimony of victim’s wife that few weeks prior to killing accused had threatened to kill victim, was admissible to show accused’s state of feeling and motive. (Decided under prior law) Thomas v. Commonwealth, 284 Ky. 548 , 145 S.W.2d 37, 1940 Ky. LEXIS 511 ( Ky. 1940 ).

Evidence of meretricious conduct of wife with another man was admissible to establish motive on part of wife in homicide prosecution for killing of husband, where such conduct consisted of more than isolated indiscreet acts. (Decided under prior law) Goodman v. Commonwealth, 285 S.W.2d 146, 1955 Ky. LEXIS 63 ( Ky. 1955 ).

Testimony of defendant’s daughter, that on day of killing, defendant had stated that he had the urge to kill, that he would kill someone else before the sun went down, and that it did not bother him and it would not hurt him one bit if he killed another, was competent as showing evil motive. (Decided under prior law) McGill v. Commonwealth, 365 S.W.2d 470, 1963 Ky. LEXIS 221 ( Ky. 1963 ).

24.— Nonprejudicial.

Admission of testimony of threats against victim made by one jointly indicted with accused was not prejudicial to accused, where jury was finally instructed to disregard the testimony, notwithstanding jury had first been instructed to consider such testimony only if a conspiracy were established, and later, although conspiracy was not established, motion by Commonwealth to exclude testimony was overruled. (Decided under prior law) Newsome v. Commonwealth, 287 Ky. 447 , 153 S.W.2d 949, 1941 Ky. LEXIS 568 ( Ky. 1941 ).

Where the defendant relied on self-defense it was error to refuse to admit evidence that the deceased had threatened the defendant but the error was not prejudicial where the substance of these threats was testified to by other witnesses and the omitted evidence was merely cumulative. (Decided under prior law) McQueen v. Commonwealth, 393 S.W.2d 787, 1965 Ky. LEXIS 244 ( Ky. 1965 ), overruled in part, Jett v. Commonwealth, 436 S.W.2d 788, 1969 Ky. LEXIS 489 ( Ky. 1969 ).

Where victim’s wife was not a witness to the tragic incident, and testified only as to when she last saw her husband alive and to the number and ages of her children, her testimony, although irrelevant to the issues in the case, was not prejudicial error. Nickell v. Commonwealth, 565 S.W.2d 145, 1978 Ky. LEXIS 350 ( Ky. 1978 ).

25.— Photographs.

Trial court correctly ruled that photographs of deceased’s body were admissible in homicide prosecution, since the photographs tended to show that deceased’s death was not accidental, but was due to a malicious and heinous attack upon his person. (Decided under prior law) Hollin v. Commonwealth, 307 S.W.2d 910, 1957 Ky. LEXIS 118 ( Ky. 1957 ).

It was not error to admit a photograph of the body of the deceased where there was no evidence of wounds or blood, deceased appeared merely to be in a peaceful sleep, and where the pictures were relevant in that they showed that the defendant could not have known of the location of the wounds on the body by merely observing the body as it lay on the floor. (Decided under prior law) Howard v. Commonwealth, 395 S.W.2d 355, 1965 Ky. LEXIS 139 ( Ky. 1965 ), cert. denied, 384 U.S. 995, 86 S. Ct. 1905, 16 L. Ed. 2d 1012, 1966 U.S. LEXIS 1147 (U.S. 1966).

Where in a pretrial stipulation in a murder prosecution, the prosecutor agreed that photographs of the mother and child victims would not be introduced as evidence, the defendant did not show grounds for reversal in that the use of the photographs in the penalty phase of the trial was prejudicial to him, since the death penalty was not imposed and the verbal description of the grisly murder of a child weeping over the body of his mother could not be further aggravated by the display of photographs. Harston v. Commonwealth, 638 S.W.2d 700, 1982 Ky. LEXIS 292 ( Ky. 1982 ).

Photographs of the skull of a victim who was bludgeoned to death, used to explain the testimony of the witness, were properly admitted, as the number and nature of the blows inflicted upon the victim were relevant to prove the corpus delicti and to refute a potential claim that the person who inflicted the blows lacked the intent to kill the victim, Caudill v. Commonwealth, 120 S.W.3d 635, 2003 Ky. LEXIS 140 ( Ky. 2003 ).

26.— Polygraph Tests.

The trial court’s admission of testimony concerning a polygraph test administered to a witness was reversible error, since not only are the results of polygraph tests inadmissible, but any reference to an offer or refusal to take a polygraph test is inadmissible as well. Roberts v. Commonwealth, 657 S.W.2d 943, 1983 Ky. LEXIS 285 ( Ky. 1983 ).

28.— Previous Offenses.

Although defendant, a deputy sheriff, had been acquitted of charge of manslaughter in killing of person he was attempting to arrest, evidence of facts and circumstances accompanying killing was admissible on trial of defendant for killing, at the same time, another person who had entered into the controversy over the arrest. (Decided under prior law) Baker v. Commonwealth, 281 Ky. 45 , 134 S.W.2d 997, 1939 Ky. LEXIS 17 ( Ky. 1939 ).

It was prejudicial error to admit evidence that officer, accused of voluntary manslaughter committed by shooting at automobile of person charged with misdemeanors, had shot at other automobiles under similar circumstances. (Decided under prior law) Siler v. Commonwealth, 280 Ky. 830 , 134 S.W.2d 945, 1939 Ky. LEXIS 219 ( Ky. 1939 ).

Evidence that pedestrians, other than one for whose killing prosecution was instituted, were struck at same time by truck driver was admissible since, where two acts are so closely connected in time that evidence cannot be separated upon trial for first act, verdict on first trial does not bar trial for second act. (Decided under prior law) Fleming v. Commonwealth, 284 Ky. 209 , 144 S.W.2d 220, 1940 Ky. LEXIS 467 ( Ky. 1940 ).

Rule against permitting Commonwealth to prove other crimes by accused was not violated where Commonwealth, to impeach accused’s credibility as witness, required him to testify that he had been convicted of hog stealing. (Decided under prior law) McGuire v. Commonwealth, 287 Ky. 717 , 155 S.W.2d 37, 1941 Ky. LEXIS 629 ( Ky. 1941 ).

In a homicide prosecution, it was error for the prosecution to ask whether the defendant had been indicted on certain other offenses and whether he had been implicated in other crimes. (Decided under prior law) Swanger v. Commonwealth, 255 S.W.2d 38, 1953 Ky. LEXIS 636 ( Ky. 1953 ).

29.— Statements by Defendant.

For evidence of hostile declaration by defendant to be admissible it must be interpretable as showing existence of intent to kill at time he struck. (Decided under prior law) White v. Commonwealth, 360 S.W.2d 198, 1962 Ky. LEXIS 214 ( Ky. 1962 ).

Hostile declaration not reasonably calculated to indicate anything more than that the defendant had eventually reached a homicidal frame of mind toward two others or possibly that, having learned that decedent was dead, he now considered it advisable to kill the others, was not properly admissible in evidence, since the declaration could only remotely show a pre-existing intent to kill decedent in view of the fact that there was nothing in the conduct of the defendant at the time he struck the decedent to justify an inference that he then had an intent to kill the decedent. (Decided under prior law) White v. Commonwealth, 360 S.W.2d 198, 1962 Ky. LEXIS 214 ( Ky. 1962 ).

30.— Statements by Victim.

The general rule in homicide cases is that where a declaration by defendant at or near the time of the killing is self-serving, its admissibility as part of the res gestae depends upon its spontaneity. (Decided under prior law) Amburgy v. Commonwealth, 300 Ky. 261 , 188 S.W.2d 437, 1945 Ky. LEXIS 528 ( Ky. 1945 ).

Trial court erred in failing to admit as part of the res gestae testimony by defendant and his witness that, within a minute after fatal shooting, defendant handed pistol to witness and told witness that victim had struck pistol and knocked defendant backward and that pistol fired accidentally. (Decided under prior law) Amburgy v. Commonwealth, 300 Ky. 261 , 188 S.W.2d 437, 1945 Ky. LEXIS 528 ( Ky. 1945 ).

31.— Threats by Defendant.

In prosecution for homicide of wife, admission of evidence of certain threats defendant made against his wife and her family were not an abuse of trial judge’s discretion. Hendricks v. Commonwealth, 550 S.W.2d 551, 1977 Ky. LEXIS 445 ( Ky. 1977 ).

32.— Sufficient.

There was sufficient evidence to support a conviction where it was shown that the defendant was drunk and boisterous, and that his pistol discharged when he fell from a store platform and the bullet inflicted the fatal wound on the deceased. (Decided under prior law) Lucas v. Commonwealth, 231 Ky. 76 , 21 S.W.2d 113, 1929 Ky. LEXIS 211 ( Ky. 1929 ).

Where several witnesses stated that the defendant shot the deceased, and that deceased was eating and had no weapon, and others stated that they heard the defendant tell the deceased to stop coming at him with a knife, and that there had been quarreling prior to the shooting, the evidence, though conflicting was sufficient to sustain a conviction. (Decided under prior law) Bigby v. Commonwealth, 273 Ky. 335 , 116 S.W.2d 659, 1938 Ky. LEXIS 640 ( Ky. 1938 ).

Conviction was supported by sufficient evidence where there was testimony that accused possessed automatic pistol shortly before shooting and several witnesses testified positively that they saw him fire shots with it, despite testimony for accused that shots were not fired by him but by another who then handed pistol to accused. (Decided under prior law) Roberts v. Commonwealth, 284 Ky. 377 , 144 S.W.2d 1043, 1940 Ky. LEXIS 507 ( Ky. 1940 ).

Conviction of voluntary manslaughter was not flagrantly against evidence, where evidence for Commonwealth showed that killing resulted from unlawful act of accused, in that victim was committing no offense at time of attempted arrest by accused, a deputy constable, and that therefore accused had no right to make arrest and victim was not required to submit thereto. (Decided under prior law) Hatfield v. Commonwealth, 287 Ky. 467 , 153 S.W.2d 892, 1941 Ky. LEXIS 550 ( Ky. 1941 ).

Evidence adduced by Commonwealth that accused attended tent meeting, fired pistol in direction of victim participating in exercises, and was seen with pistol in hand immediately after shooting, sustained conviction of voluntary manslaughter, despite evidence of witnesses for accused that he did not fire shots, and evidence that bullet entered victim’s body from direction other than that where accused was standing. (Decided under prior law) Amburgey v. Commonwealth, 287 Ky. 421 , 153 S.W.2d 918, 1941 Ky. LEXIS 557 ( Ky. 1941 ).

Conviction of voluntary manslaughter was sustained by evidence which showed that shooting occurred during sudden affray at labor meeting despite contention that shooting was in self-defense. (Decided under prior law) Newsome v. Commonwealth, 287 Ky. 447 , 153 S.W.2d 949, 1941 Ky. LEXIS 568 ( Ky. 1941 ).

Evidence sustained conviction, where it showed that, after argument over crap game, accused shot victim, who was drunk and staggering away, despite some testimony that victim, subsequently shown to have been unarmed, moved hands toward hip pocket. (Decided under prior law) McGuire v. Commonwealth, 287 Ky. 717 , 155 S.W.2d 37, 1941 Ky. LEXIS 629 ( Ky. 1941 ).

Where there was evidence that defendant was in an angry mood, and had made previous threats to kill someone, and that defendant requested witnesses not to tell what they had seen and heard, and only eyewitness besides defendant was not called as a witness by defendant, a verdict of voluntary manslaughter was proper notwithstanding defendant’s testimony that killing occurred accidentally in a drunken brawl. (Decided under prior law) Radford v. Commonwealth, 292 Ky. 77 , 165 S.W.2d 990, 1942 Ky. LEXIS 37 ( Ky. 1942 ).

Where deceased was found lying at side of city street with severe head wound about an hour after having left a tavern with defendant, a credible witness testified that defendant was only person in company of deceased shortly before wound was inflicted, that witness saw defendant leave place where deceased was found, that deceased and defendant had engaged in an argument in the tavern about Hitler, and that defendant had tried to induce witness to give false testimony, and defendant himself told conflicting stories as to time he left the tavern, such evidence was sufficient to sustain conviction of manslaughter, although evidence was wholly circumstantial and motive for killing was obscure. (Decided under prior law) Kratzwald v. Commonwealth, 299 Ky. 10 , 184 S.W.2d 120, 1944 Ky. LEXIS 1006 ( Ky. 1944 ).

In voluntary manslaughter prosecution, evidence that accused had previously wounded decedent in a controversy, had twice been convicted of felonies, and admitted shooting, though he claimed decedent approached him threateningly with brickbats, was sufficient to sustain verdict, where no brickbats or other weapons were found near deceased after shooting, and defendant’s testimony was contradicted by an eyewitness. (Decided under prior law) Mills v. Commonwealth, 305 Ky. 44 , 202 S.W.2d 1005, 1947 Ky. LEXIS 762 ( Ky. 1947 ).

In homicide prosecution, testimony of disinterested witnesses accompanying deceased that they were confident from sound of fatal shot that it had come from defendant’s residence, was sufficient proof of guilt to justify submission of case to jury, though witnesses saw no gun flash and did not know defendant at time. (Decided under prior law) Hornsby v. Commonwealth, 305 Ky. 747 , 205 S.W.2d 338, 1947 Ky. LEXIS 898 ( Ky. 1947 ).

Evidence that the defendant had shot the deceased in the back of the head while the deceased was sitting in a car was sufficient to sustain a conviction. (Decided under prior law) Howard v. Commonwealth, 240 S.W.2d 616, 1951 Ky. LEXIS 998 ( Ky. 1951 ).

Despite conflicting evidence, there was sufficient evidence to sustain a conviction where some testimony indicated that the defendant had been the first to fire his weapon at the deceased. (Decided under prior law) Joseph v. Commonwealth, 262 S.W.2d 673, 1953 Ky. LEXIS 1112 ( Ky. 1953 ).

Evidence that the defendant shot the deceased three times, when the deceased began to scuffle with the defendant, was sufficient to sustain a conviction. (Decided under prior law) Long v. Commonwealth, 265 S.W.2d 927, 1954 Ky. LEXIS 765 ( Ky. 1954 ).

Where evidence, though circumstantial, indicated that the gun, if fired deliberately, could only have been fired by the defendant, and where the defendant told police officers several conflicting stories about the shooting, such evidence was sufficient to sustain a conviction. (Decided under prior law) Click v. Commonwealth, 269 S.W.2d 203, 1954 Ky. LEXIS 960 ( Ky. 1954 ).

In prosecution, for voluntary manslaughter, of defendant who beat upon the head and knocked down a 63 year old victim who thereafter walked home and died from cerebral hemorrhage, evidence indicating that the exertion of the fight with the defendant increased the likelihood of a hemorrhage sustained conviction. (Decided under prior law) Flynn v. Commonwealth, 302 S.W.2d 851, 1957 Ky. LEXIS 225 ( Ky. 1957 ).

There was sufficient evidence to take the case to the jury, despite some evidence of self-defense or defense of another, when it was shown that the deceased was not facing the defendant at the time of the shooting and that one of the shots was fired when the deceased was lying face down on the floor. (Decided under prior law) Jones v. Commonwealth, 311 S.W.2d 190, 1958 Ky. LEXIS 181 ( Ky. 1958 ).

Where there was evidence that the defendant had come upon the scene of a fight and shot the deceased, who had been a bystander, as deceased approached him, this was sufficient to sustain a conviction. (Decided under prior law) France v. Commonwealth, 323 S.W.2d 868, 1959 Ky. LEXIS 348 ( Ky. 1959 ).

Conviction of voluntary manslaughter was justified, where defendant claimed to have accidently shot victim as she attempted to prevent him from committing suicide, since the shooting, though accidental and unintentional, was the result of or was occasioned by the voluntary and wrongful act of attempting to commit suicide, which is a common-law felony in Kentucky. (Decided under prior law) Dugan v. Commonwealth, 333 S.W.2d 755, 1960 Ky. LEXIS 202 ( Ky. 1960 ).

Where evidence indicated that the defendant had encouraged and participated in the affray in which the deceased was killed, and had fired shots at the deceased, this was sufficient to sustain a conviction for aiding and abetting. (Decided under prior law) Oldfield v. Commonwealth, 334 S.W.2d 346, 1960 Ky. LEXIS 225 ( Ky. 1960 ).

There was sufficient evidence to sustain a conviction, although defendant had asserted self-defense, where there was contradiction of the defendant’s statements that he did not stab the deceased and the wounds on deceased’s body indicated that they were inflicted with great force. (Decided under prior law) Ferguson v. Commonwealth, 373 S.W.2d 729, 1963 Ky. LEXIS 172 ( Ky. 1963 ).

Where there was testimony, by a person present during the slaying, that the deceased stated to the defendant that the defendant had “cut me bad,” and that she saw the deceased walk away from the defendant with blood streaming from a wound, there was sufficient evidence to prevail against the defendant’s request for a directed verdict. (Decided under prior law) Trevathan v. Commonwealth, 384 S.W.2d 500, 1964 Ky. LEXIS 103 ( Ky. 1964 ).

Where the evidence indicated that the defendant was intoxicated at the time of the crime, but was not so overwhelming as to compel a finding that he did not know what he was doing, the defendant was not entitled to a directed verdict and the evidence sustained his conviction for voluntary manslaughter. Salisbury v. Commonwealth, 556 S.W.2d 922, 1977 Ky. App. LEXIS 825 (Ky. Ct. App. 1977).

Where testimony showed that the victim reached back as if to get a weapon, but also showed that the defendant had left then returned to the scene with a gun tucked in his belt, approached the victim’s car, and shot him downwardly through the open window of his car so that the bullets entered the victim from the back, not the front, there was ample evidence to nullify the assertion of self-defense and support a conviction for manslaughter. Nickell v. Commonwealth, 565 S.W.2d 145, 1978 Ky. LEXIS 350 ( Ky. 1978 ).

Where the defendant in a murder prosecution asserted that he was not competent to stand trial, but at a pretrial hearing several psychiatrists, lay witnesses, prisoners in jail with the defendant, and police officers all testified as to normal behavior on the part of the defendant, there was substantial evidence to support the ruling of the trial court that the defendant was competent to stand trial and that he was not insane at the time of the homicide. Harston v. Commonwealth, 638 S.W.2d 700, 1982 Ky. LEXIS 292 ( Ky. 1982 ).

Where evidence was presented that the defendant disliked the victim, that he and the victim argued inside the house, that he obtained a gun from his bedroom, that he ordered the victim to leave the house, and even though the victim complied, he went to the front door and fired the gun twice, the evidence was more than sufficient to justify instructing the jury on manslaughter in the first degree. Simpson v. Commonwealth, 759 S.W.2d 224, 1988 Ky. LEXIS 54 ( Ky. 1988 ).

33.— Insufficient.

Where circumstantial evidence does not fairly and reasonably connect accused with crime, or point with more than a suspicion toward her guilt, conviction of voluntary manslaughter will be reversed. (Decided under prior law) Morgan v. Commonwealth, 285 Ky. 184 , 147 S.W.2d 378, 1941 Ky. LEXIS 358 ( Ky. 1941 ).

Where testimony of all witnesses indicated that deceased was advancing upon defendant with evident purpose of making a violent assault upon him, and deceased had made a similar assault earlier in the day, court was not justified in denying directed verdict merely because size of gunshot wound in deceased’s body furnished basis for speculation that deceased was considerable distance from defendant when shot was fired. (Decided under prior law) Mason v. Commonwealth, 291 Ky. 538 , 165 S.W.2d 24, 1942 Ky. LEXIS 266 ( Ky. 1942 ).

Evidence based upon an admission by accused that he had hit and choked deceased with a necktie eight days before she died, was insufficient to sustain a verdict of voluntary manslaughter in view of the testimony that deceased had said she had taken poison and had been beaten about the face and neck by drunkard, and the medical testimony that death could have been caused by a ruptured blood vessel rather than from choking. (Decided under prior law) Jackson v. Commonwealth, 302 Ky. 227 , 194 S.W.2d 384, 1946 Ky. LEXIS 640 ( Ky. 1946 ).

Where evidence showed that deceased met his death by accidently falling out of open cab of truck while drunk, conviction of other occupants of truck of manslaughter, on theory that they deliberately ran truck over deceased, was not supported by the evidence. (Decided under prior law) Bolin v. Commonwealth, 303 Ky. 75 , 196 S.W.2d 870, 1946 Ky. LEXIS 779 ( Ky. 1946 ).

Where jailer, knowing that he had serious heart condition, undertook to take to jail drunken soldier who resisted and struck deputy but not the jailer, and where jailer, after suffering heart attack, rolled and tumbled in pain on courthouse yard, instead of lying quiet, it is so speculative to say that the act of defendant soldier was sufficiently proximate to impose criminal responsibility upon him for the jailer’s death that the trial court should have directed his acquittal of voluntary manslaughter. (Decided under prior law) Hubbard v. Commonwealth, 304 Ky. 818 , 202 S.W.2d 634, 1947 Ky. LEXIS 739 ( Ky. 1947 ).

Where uncontradicted testimony showed that defendant, convicted of manslaughter for aiding and abetting murder of deceased, was drunk and asleep in car all during time of trouble which resulted in death of deceased, it was error not to sustain defendant’s motion for a directed verdict. (Decided under prior law) Crabtree v. Commonwealth, 312 Ky. 738 , 229 S.W.2d 752, 1950 Ky. LEXIS 758 ( Ky. 1950 ).

Verdict of voluntary manslaughter was flagrantly against the evidence, where defendant was a frail man 66 years old who bore a good reputation for being a peaceable man, and deceased was a much younger and heavier man and bore reputation, at least, of not being a man peaceably inclined, and where defendant shot deceased in defendant’s home after deceased had mistreated and threatened defendant. (Decided under prior law) Taul v. Commonwealth, 249 S.W.2d 45, 1952 Ky. LEXIS 793 ( Ky. 1952 ).

Circumstantial evidence, that was as consistent with defendants’ innocence as with their guilt, was insufficient to support manslaughter convictions, where there were two reasonable hypotheses, other than death occasioned by violence, that could explain the death of the deceased. (Decided under prior law) Hibbard v. Commonwealth, 291 S.W.2d 574, 1956 Ky. LEXIS 397 ( Ky. 1956 ).

Evidence, that defendants were with the deceased about two hours before his body was found, did not establish that his death was produced by the criminal act or agency of defendants, which the law imperatively demands in support of a conviction for voluntary manslaughter. (Decided under prior law) Hollin v. Commonwealth, 307 S.W.2d 910, 1957 Ky. LEXIS 118 ( Ky. 1957 ).

A verdict of acquittal should have been directed for a defendant, charged with aiding and abetting, where she was merely present at the scene of the crime and there was no other evidence to connect her with the killing. (Decided under prior law) Rose v. Commonwealth, 385 S.W.2d 202, 1964 Ky. LEXIS 149 ( Ky. 1964 ).

34.Instructions.

Where defendant’s evidence claimed that provocation for the killing was the slandering by deceased of defendant’s wife, it was error to refuse a charge on the law of manslaughter, in that deceased’s repetition of the slander in defendant’s presence afforded sufficient provocation to reduce the crime from murder to manslaughter. (Decided under prior law) Massie v. Commonwealth, 24 S.W. 611, 15 Ky. L. Rptr. 562 (1894).

Where evidence showed that two officers acted in concert in killing offender who attempted to escape arrest by fleeing, instructions should make no distinction between liability of principal and liability of aider and abettor. (Decided under prior law) Siler v. Commonwealth, 280 Ky. 830 , 134 S.W.2d 945, 1939 Ky. LEXIS 219 ( Ky. 1939 ).

Where shooting was in necessary defense of defendant’s father, question of neglect or refusal of defendant to furnish or permit medical aid should not be made basis of separate instructions unless action of defendant converted nonfatal injury into a fatal one. (Decided under prior law) King v. Commonwealth, 285 Ky. 654 , 148 S.W.2d 1044, 1941 Ky. LEXIS 440 ( Ky. 1941 ).

Where there was no evidence of probative value and of a substantial nature to support a theory contrary to that of defendants, the court should have given a peremptory instruction in their favor. (Decided under prior law) Slone v. Commonwealth, 285 Ky. 668 , 149 S.W.2d 1, 1941 Ky. LEXIS 448 ( Ky. 1941 ).

An instruction on voluntary manslaughter, as well as murder, was clearly proper, where Commonwealth’s testimony established typical case of voluntary manslaughter by reckless and unlawful use of dangerous instrumentalities. (Decided under prior law) Amburgey v. Commonwealth, 287 Ky. 421 , 153 S.W.2d 918, 1941 Ky. LEXIS 557 ( Ky. 1941 ).

Where a case was based merely on circumstantial evidence, the bodies of defendant’s deceased wife and daughter were found in two different locations on the premises, each was killed by a different means, and the defendant had an alibi and was not seen on the premises near the time of the crime, the instructions should have included voluntary manslaughter, involuntary manslaughter and self-defense. (Decided under prior law) Marcum v. Commonwealth, 305 Ky. 92 , 202 S.W.2d 1012, 1947 Ky. LEXIS 766 ( Ky. 1947 ).

Where evidence of a homicidal crime is entirely circumstantial and facts point inescapably to murder, defendant is not entitled to either of two manslaughter instructions or an instruction on self-defense; however, all three instructions must be included in giving whole law of case, where there is evidence of struggle or other unusual circumstances whereby jury can infer a lesser degree of the crime or an exoneration of it. (Decided under prior law) Marcum v. Commonwealth, 305 Ky. 92 , 202 S.W.2d 1012, 1947 Ky. LEXIS 766 ( Ky. 1947 ).

Where indictment is for voluntary manslaughter, charged to have been committed under a particular condition or specific circumstances, the evidence and the instructions must be confined to the allegations or charges. (Decided under prior law) Burris v. Commonwealth, 308 Ky. 145 , 213 S.W.2d 1014, 1948 Ky. LEXIS 886 ( Ky. 1948 ).

In prosecution for willful murder, trial court improperly failed to instruct on voluntary manslaughter where evidence showed sufficient provocation for defendant to have committed the act in sudden heat and passion. (Decided under prior law) Adams v. Commonwealth, 312 Ky. 442 , 227 S.W.2d 999, 1950 Ky. LEXIS 675 ( Ky. 1950 ).

Where the accused testified to a clear case of self-defense, and the evidence, including circumstances to the contrary and reasonable inferences, did not tend to disprove it, the court should have instructed a verdict of acquittal. (Decided under prior law) Taul v. Commonwealth, 249 S.W.2d 45, 1952 Ky. LEXIS 793 ( Ky. 1952 ).

The element of provocation ordinarily calculated to excite passion beyond control which must be present in order to reduce a homicide from murder to voluntary manslaughter has no place in the instruction when voluntary manslaughter is the highest offense submitted to the jury. (Decided under prior law) White v. Commonwealth, 333 S.W.2d 521, 1960 Ky. LEXIS 197 ( Ky. 1960 ).

The giving of instructions on both voluntary and willful murder was justified under indictments which charged “offense by killing” and “offense by aiding and abetting . . . . . in the killing.” (Decided under prior law) Godby v. Commonwealth, 491 S.W.2d 647, 1973 Ky. LEXIS 577 ( Ky. 1973 ).

Where the killing of the victim was planned because the defendant was “tired” of the way the victim had been behaving, the defendant was not entitled to an instruction on first-degree manslaughter. Smith v. Commonwealth, 737 S.W.2d 683, 1987 Ky. LEXIS 237 ( Ky. 1987 ).

Merely suffering from a mental illness or substance abuse is insufficient to warrant instructing upon extreme emotional disturbance. Stanford v. Commonwealth, 793 S.W.2d 112, 1990 Ky. LEXIS 55 ( Ky. 1990 ).

Trial court properly denied a second-degree manslaughter instruction where the ambiguous statements of defendant provided no more than speculative proof for his theory of first-degree manslaughter that was not suggested by any other evidence; as such, no rational juror could have concluded from the statements made in the interview that defendant intended, exclusively, an assault against the victim. Hudson v. Commonwealth, 385 S.W.3d 411, 2012 Ky. LEXIS 95 ( Ky. 2012 ).

State court did not err in failing to instruct the jury on first-degree manslaughter where the victims were each shot multiple times in the back of the head at close range, and thus, no jury could have reasonably concluded that defendant was guilty of first-degree manslaughter and not murder. Bowling v. Parker, 2012 U.S. Dist. LEXIS 88222 (E.D. Ky. June 26, 2012).

35.— Accident.

In murder prosecution evidence that accused thought he was shooting at a fox, when he shot and killed deceased, required a voluntary manslaughter instruction relating to shooting in reckless, wanton and felonious disregard of safety of human life, and an involuntary manslaughter instruction relating to reckless use of firearms, though not wanton and felonious but a voluntary manslaughter instruction relating to sudden heat and passion and sudden affray was not warranted. (Decided under prior law) Vires v. Commonwealth, 308 Ky. 707 , 215 S.W.2d 837, 1948 Ky. LEXIS 1027 ( Ky. 1948 ).

Where defendant in murder prosecution alleged that he shot decedent, not knowing he was a peace officer, instruction that if decedent and his companions approached the defendant in the dark, and did not announce to the defendant that they were placing him under arrest, and that the defendant willfully, knowingly and in sudden heat and passion or in sudden affray caused thereby, shot and killed decedent, then defendant was guilty of voluntary manslaughter, properly submitted defendant’s account of the incident to the jury. (Decided under prior law) Layne v. Commonwealth, 254 S.W.2d 724, 1953 Ky. LEXIS 612 ( Ky. 1953 ).

Where defendant and witnesses testified that shooting occurred when bystander grabbed or knocked gun which defendant was pointing at victim, defendant was entitled to an instruction on accidental killing. (Decided under prior law) May v. Commonwealth, 305 S.W.2d 525, 1957 Ky. LEXIS 317 ( Ky. 1957 ).

In murder trial where evidence indicated the victim and defendant had been fighting and the crime might have been one of passion and the defendant testified that the gun fired accidentally, court should give instructions on both voluntary and involuntary manslaughter. (Decided under prior law) Greenville v. Commonwealth, 467 S.W.2d 765, 1971 Ky. LEXIS 400 ( Ky. 1971 ).

Claim that killing was the result of an accident is not a “defense” which, under the Penal Code, must be negated if there is evidence to raise it and, hence, it is not necessary for the court to give a defensive instruction on the theory of accident. Hendricks v. Commonwealth, 550 S.W.2d 551, 1977 Ky. LEXIS 445 ( Ky. 1977 ).

36.— Battered Woman's Syndrome.

In trial for manslaughter in the first degree, failure of court to give instruction regarding the Battered Woman’s Syndrome was not error where instructions given were the same as requested by defendant with the exception that the defendant’s requested instruction included a specific reference to a reasonably prudent battered wife and required a finding that the defendant was not suffering from the Battered Woman Syndrome. The failure to give the requested instruction was not error since an appropriate self-protection instruction was given which included the defense’s theory of the case deducible from the evidence. Lucas v. Commonwealth, 840 S.W.2d 212, 1992 Ky. App. LEXIS 151 (Ky. Ct. App. 1992).

37.— Emotional Disturbance.

While it is true that the “extreme emotional disturbance” phase of the murder instruction did not include the additional statutory language, “the reasonableness of which is to be determined from the standpoint of a person in the defendant’s circumstances as the defendant believed them to be,” the omission was proper, since that particular language was appropriate only when there was evidence suggesting that the emotional disturbance was precipitated by some event or circumstance the defendant believed to exist, and since there was no evidence to suggest that the appellant’s motivation involved any “belief” on his part with regard to the circumstances that induced the alleged emotional disturbance. Gall v. Commonwealth, 607 S.W.2d 97, 1980 Ky. LEXIS 291 ( Ky. 1980 ), cert. denied, 450 U.S. 989, 101 S. Ct. 1529, 67 L. Ed. 2d 824, 1981 U.S. LEXIS 1276 (U.S. 1981), overruled, Payne v. Commonwealth, 623 S.W.2d 867, 1981 Ky. LEXIS 286 ( Ky. 1981 ).

An instruction on murder need not require the jury to find that the defendant was not acting under the influence of extreme emotional disturbance unless there is something in the evidence to suggest that he was, thereby affording room for a reasonable doubt in that respect. Gall v. Commonwealth, 607 S.W.2d 97, 1980 Ky. LEXIS 291 ( Ky. 1980 ), cert. denied, 450 U.S. 989, 101 S. Ct. 1529, 67 L. Ed. 2d 824, 1981 U.S. LEXIS 1276 (U.S. 1981), overruled, Payne v. Commonwealth, 623 S.W.2d 867, 1981 Ky. LEXIS 286 ( Ky. 1981 ).

Assuming that a mental disorder, whether or not it amounts to legal insanity, may constitute a reasonable “explanation or excuse” for extreme emotional disturbance, it was incumbent upon the trial court to require the negating of that factor in its instruction on murder. Gall v. Commonwealth, 607 S.W.2d 97, 1980 Ky. LEXIS 291 ( Ky. 1980 ), cert. denied, 450 U.S. 989, 101 S. Ct. 1529, 67 L. Ed. 2d 824, 1981 U.S. LEXIS 1276 (U.S. 1981), overruled, Payne v. Commonwealth, 623 S.W.2d 867, 1981 Ky. LEXIS 286 ( Ky. 1981 ).

While the present record revealed considerable evidence of mental illness, there appeared to be no evidence at all that the defendant, on trial for murder and robbery, was acting under the influence of extreme emotional disturbance at the time of the commission of the crimes, and the Commonwealth therefore had no burden to prove the absence of extreme emotional distress; moreover, because a manslaughter instruction is proper only where there is evidence to support the giving of the instruction, the trial court’s failure to instruct the jury on manslaughter in the first degree was not error. Sanders v. Commonwealth, 801 S.W.2d 665, 1990 Ky. LEXIS 93 ( Ky. 1990 ), cert. denied, 502 U.S. 831, 112 S. Ct. 107, 116 L. Ed. 2d 76, 1991 U.S. LEXIS 4767 (U.S. 1991).

There was no error in refusing to instruct on first degree manslaughter due to being under the influence of extreme emotional disturbance where actions of the defendant, who bought the murder weapon only a month or so before the killing, carried it in her automobile on the day of the murder, removed the pistol from the car and carried it on her person as she stalked couple into a store, drew the pistol, held it within a foot of the victim’s head, and pulled the trigger, failed to offer evidence of a “triggering” event necessary to claim the defense of extreme emotional disturbance and supported a conclusion of intentional murder. Cecil v. Commonwealth, 888 S.W.2d 669, 1994 Ky. LEXIS 124 ( Ky. 1994 ).

In light of recent decisions, where there was no evidence of extreme emotional disturbance (EED) offered at trial, it was prejudicial error to instruct the jury on first degree manslaughter; thus, judgment entered by jury of guilty of first degree manslaughter had to be reversed. Commonwealth v. DeHaven, 929 S.W.2d 187, 1996 Ky. LEXIS 92 ( Ky. 1996 ).

Since the first degree manslaughter and murder statutes go hand in hand as the absence or presence of extreme emotional disturbance (EED) is an element of both statutes, there was no err in the inclusion of it in the instructions and requiring its determination beyond a reasonable doubt. Haight v. Commonwealth, 938 S.W.2d 243, 1996 Ky. LEXIS 125 ( Ky. 1996 ), cert. denied, 522 U.S. 837, 118 S. Ct. 110, 139 L. Ed. 2d 63, 1997 U.S. LEXIS 4990 (U.S. 1997).

Trial court did not err in instructing jury that they could only find the presence of extreme emotional disturbance if they found that defendant was fired upon by officer, where such a finding would be the only possible evidentiary basis for such disturbance on the part of defendant. Baze v. Commonwealth, 965 S.W.2d 817, 1997 Ky. LEXIS 40 ( Ky. 1997 ), cert. denied, 523 U.S. 1083, 118 S. Ct. 1536, 140 L. Ed. 2d 685, 1998 U.S. LEXIS 2686 (U.S. 1998).

There was no credible evidence of extreme emotional distress to support an instruction on first-degree manslaughter; nor was an instruction on wanton manslaughter or murder required, since there was no credible evidence that the murders were accidental. Tamme v. Commonwealth, 973 S.W.2d 13, 1998 Ky. LEXIS 46 ( Ky. 1998 ), cert. denied, 525 U.S. 1153, 119 S. Ct. 1056, 143 L. Ed. 2d 61, 1999 U.S. LEXIS 1229 (U.S. 1999).

Trial judge was not obliged to instruct the jury on manslaughter in the first degree under KRS 507.030(1)(b) as a lesser included offense of murder, as defendant’s drug dependency and her anger at the victim for refusing her demand for money did not entitle her to an instruction on extreme emotional disturbance. Caudill v. Commonwealth, 120 S.W.3d 635, 2003 Ky. LEXIS 140 ( Ky. 2003 ).

Failure to include separate references to defendant’s extreme emotional disturbance in a first-degree manslaughter instruction was not palpable error. Lickliter v. Commonwealth, 142 S.W.3d 65, 2004 Ky. LEXIS 173 ( Ky. 2004 ).

Defendant was not entitled to an instruction on first-degree manslaughter pursuant to KRS 507.030(1)(b), because no evidence was presented of an extreme emotional disturbance (EED) or a triggering event; defendant’s substance abuse alone did not authorize a first-degree manslaughter instruction under an EED theory. Defendant’s fight with his girlfriend at his mother’s apartment did not constitute a triggering event where the girlfriend left the apartment and defendant stayed behind for a half hour with his brother smoking cigarettes, demonstrating an interruption of the supposed triggering event; a simple fight with a girlfriend did not provide a reasonable excuse or explanation for an enraged or inflamed state of mind. Fields v. Commonwealth, 274 S.W.3d 375, 2008 Ky. LEXIS 259 ( Ky. 2008 ), cert. denied, 558 U.S. 971, 130 S. Ct. 460, 175 L. Ed. 2d 310, 2009 U.S. LEXIS 7564 (U.S. 2009), overruled in part, Childers v. Commonwealth, 332 S.W.3d 64, 2010 Ky. LEXIS 306 ( Ky. 2010 ), overruled in part, Childers v. Commonwealth, 2010 Ky. LEXIS 285 (Ky. Dec. 16, 2010).

Court properly failed to instruct the jury on extreme emotional disturbance because defendant tried to introduce evidence of the triggering event with his out-of-court statements, through the expert witness, and the trial court did not require defendant to testify; it simply required him to produce some admissible evidence to support the extreme emotional disturbance instruction. The fact that defendant was only able to support the instruction by testifying did not implicate U.S. Const. amend. V. Padgett v. Commonwealth, 312 S.W.3d 336, 2010 Ky. LEXIS 71 ( Ky. 2010 ).

Where a state supreme court found petitioner inmate’s evidence of extreme emotional disturbance far from overwhelming, rather than failing to raise reasonable doubt, the case was submitted to the jury with the burden on the state, the jury found it was carried, and the state supreme court found the evidence adequate to sustain the finding, granting the inmate habeas relief was error. Parker v. Matthews, 567 U.S. 37, 132 S. Ct. 2148, 183 L. Ed. 2d 32, 2012 U.S. LEXIS 4306 (U.S. 2012).

38.— Insanity.

Instruction to acquit defendant if jury believed him to be of unsound mind, was not reversible error, even if evidence did not justify instruction, since it could not be prejudicial to accused, but merely gave jury unauthorized opportunity to acquit him. (Decided under prior law) South v. Commonwealth, 287 Ky. 99 , 152 S.W.2d 295, 1941 Ky. LEXIS 508 ( Ky. 1941 ).

Where there was no defense made embodying any kind of insanity plea, court did not err in refusing to instruct the jury on the theory of emotional insanity. (Decided under prior law) Shearer v. Commonwealth, 302 Ky. 250 , 194 S.W.2d 494, 1946 Ky. LEXIS 644 ( Ky. 1946 ).

Where there was no evidence that the defendant was insane or unconscious at the time the offense was committed instructions on insanity or unconsciousness were not necessary. (Decided under prior law) Corder v. Commonwealth, 278 S.W.2d 77, 1955 Ky. LEXIS 479 ( Ky. 1955 ), overruled in part, Cannon v. Commonwealth, 777 S.W.2d 591, 1989 Ky. LEXIS 68 ( Ky. 1989 ).

Defendant’s voluntary manslaughter conviction had to be reversed because the Court of Appeals changed the standard instruction covering the defense of insanity while the defendant’s conviction was pending on appeal. (Decided under prior law) Brumley v. Commonwealth, 375 S.W.2d 270, 1964 Ky. LEXIS 404 ( Ky. 1964 ).

39.— Intoxication.

Where defendant, at time of killing, was either intoxicated or under an insane delusion, it was proper, in prosecution for murder, to give a voluntary manslaughter instruction, in view of fact that defendant’s condition may have been such as to eliminate element of malice. (Decided under prior law) Horn v. Commonwealth, 292 Ky. 587 , 167 S.W.2d 58, 1942 Ky. LEXIS 129 ( Ky. 1942 ).

Where the evidence in a homicide case showed that the defendant had been drinking coupled with evidence of his prior difficulties with the victim, his expressed threats against the victim, and his anger against the victim’s alleged mistreatment of the defendant’s father, an instruction on voluntary manslaughter was proper. (Decided under prior law) Norton v. Commonwealth, 471 S.W.2d 302, 1971 Ky. LEXIS 233 ( Ky. 1971 ).

In prosecution for first-degree involuntary manslaughter, arising out of an automobile collision, it was error for trial court to read to the jury statutory provisions (KRS 189.520 ) establishing a factual presumption of drunkenness based on the percentage by weight of alcohol in the blood, but such error was not prejudicial in view of testimony of witnesses who observed defendant after the accident. (Decided under prior law) Overstreet v. Commonwealth, 522 S.W.2d 178, 1975 Ky. LEXIS 126 ( Ky. 1975 ).

Where evidence of defendant’s intoxication is sufficient to require defense of voluntary intoxication to be submitted to jury in homicide case involving intentional or knowing offense and lesser included unintentional offenses, it must be accompanied by instruction to the effect that, although the jury might otherwise find the defendant guilty of murder or first-degree manslaughter, if at the time of the murder defendant was so drunk that he did not have intention to commit crime, he must be found not guilty of those charges. Brown v. Commonwealth, 575 S.W.2d 451, 1978 Ky. LEXIS 449 ( Ky. 1978 ).

40.— Involuntary Manslaughter.

It was prejudicial error to omit instruction on involuntary manslaughter where defendant’s testimony was that he struck deceased with fist rather than blackjack, when deceased kept coming on and refused to stay back. (Decided under prior law) Cook v. Commonwealth, 285 Ky. 749 , 149 S.W.2d 507, 1941 Ky. LEXIS 463 ( Ky. 1941 ).

Where accused testified that he only meant to shoot deceased in the leg but that pistol jumped thereby causing fatal wound, accused was not entitled to an involuntary manslaughter instruction. (Decided under prior law) Bates v. Commonwealth, 307 Ky. 357 , 211 S.W.2d 130, 1948 Ky. LEXIS 740 ( Ky. 1948 ).

Where there was no evidence of a struggle in a homicide prosecution, and where the circumstances and proven facts did not leave any possible inference of involuntary manslaughter, defendant was not entitled to instructions on self-defense and involuntary manslaughter. (Decided under prior law) Hasty v. Commonwealth, 272 S.W.2d 325, 1954 Ky. LEXIS 1086 ( Ky. 1954 ).

Where the defendant stated that he intended the result produced by his shots he was not entitled to an instruction on involuntary manslaughter. (Decided under prior law) Jones v. Commonwealth, 311 S.W.2d 190, 1958 Ky. LEXIS 181 ( Ky. 1958 ).

Where no deadly weapons are involved and defendant is entitled to an instruction on involuntary manslaughter, an unintentional homicide, he is entitled to a further instruction on the theory of defense against ordinary assault and battery, against the menace of mere bodily harm as distinguished form the threat of death or great bodily harm. (Decided under prior law) White v. Commonwealth, 333 S.W.2d 521, 1960 Ky. LEXIS 197 ( Ky. 1960 ).

41.— Lesser Offenses.

Although the substantive factors reducing murder to manslaughter are different, the procedural aspects remain unchanged; the Commonwealth still has the burden of proof, but in order to justify an instruction on the lower degree there must be something in the evidence sufficient to raise a reasonable doubt whether the defendant is guilty of murder or manslaughter. Gall v. Commonwealth, 607 S.W.2d 97, 1980 Ky. LEXIS 291 ( Ky. 1980 ), cert. denied, Gall v. Kentucky, 450 U.S. 989, 101 S. Ct. 1529, 67 L. Ed. 2d 824, 1981 U.S. LEXIS 1276, 49 U.S.L.W. 3664 (1981), overruled, Payne v. Commonwealth, 623 S.W.2d 867, 1981 Ky. LEXIS 286 ( Ky. 1981 ), overruled in part, Payne v. Commonwealth, 623 S.W.2d 867, 1981 Ky. LEXIS 286 ( Ky. 1981 ), overruled, Matthews v. Parker, — F.3d —, 651 F.3d 489, 2011 U.S. App. LEXIS 13091 (6th Cir. 2011); overruled on other grounds, Payne v. Commonwealth, 623 S.W.2d 867, 1981 Ky. LEXIS 286 (Ky. 1981), cert. denied, 456 U.S. 909, 102 S. Ct. 1758, 72 L. Ed. 2d 167, 1982 U.S. LEXIS 1573 (U.S. 1982).

In homicide prosecutions, a defendant is entitled to an instruction on a lesser-included offense if the evidence would permit a jury to rationally find him or her guilty of the lesser offense and acquit the defendant of the greater. Smith v. Commonwealth, 737 S.W.2d 683, 1987 Ky. LEXIS 237 ( Ky. 1987 ).

Although murder victim was stabbed 24 times in the back, there was no evidence that defendant was acting under the influence of extreme emotional disturbance and thus, no need to instruct the jury on lesser included offense of first-degree manslaughter. Morgan v. Commonwealth, 878 S.W.2d 18, 1994 Ky. LEXIS 71 ( Ky. 1994 ).

In a prosecution for murder, the defendant was not entitled to have the jury instructed with regard to first-degree manslaughter since the evidence did not support an inference that the defendant set a fire with an intent to merely injure the victims where (1) the victims died not from injuries sustained during the robbery of their home, but from smoke inhalation sustained as a result of a fire set by the defendant, and (2) there was evidence that the defendant intended to set the fire, and an accelerant was found at the scene and on the clothing of one of the victims. Osborne v. Commonwealth, 43 S.W.3d 234, 2001 Ky. LEXIS 69 ( Ky. 2001 ).

Where a victim was struck at least 15 times to the head with a hammer-like object, there was no reasonable doubt that whoever attacked her intended to kill, as opposed to merely injure, her; defendants were thus not entitled to an instruction on manslaughter in the first degree under KRS 507.030(1)(a) as a lesser-included offense of murder. Caudill v. Commonwealth, 120 S.W.3d 635, 2003 Ky. LEXIS 140 ( Ky. 2003 ).

In a capital murder case, the trial court did not err by failing to instruct on first-degree manslaughter under KRS 507.030(1)(b); defense counsel reasonably chose not to request such an instruction, and the evidence of extreme emotional disturbance was not overwhelming. Garland v. Commonwealth, 127 S.W.3d 529, 2003 Ky. LEXIS 233 ( Ky. 2003 ), cert. denied, 543 U.S. 839, 125 S. Ct. 252, 160 L. Ed. 2d 63, 2004 U.S. LEXIS 5940 (U.S. 2004), modified, 2004 Ky. LEXIS 54 (Ky. Feb. 19, 2004), overruled in part, Lanham v. Commonwealth, 171 S.W.3d 14, 2005 Ky. LEXIS 244 ( Ky. 2005 ).

42.— Self-defense.

Where the defendant testified that a shooting was accidental but also that the decedent had threatened to kill her and attempted to wrest the gun from her an instruction on self-defense should have been given and insertion of phrase that defendant was not privileged to act in self-protection was, in itself, error. Pace v. Commonwealth, 561 S.W.2d 664, 1978 Ky. LEXIS 329 ( Ky. 1978 ), overruled, Grimes v. McAnulty, 957 S.W.2d 223, 1997 Ky. LEXIS 118 ( Ky. 1997 ).

Upon retrial of a defendant charged with, and convicted of intentional homicide, the defendant would be entitled to an instruction that if the jury finds he believed, reasonably or unreasonably, in the need to defend himself, they should find him innocent. Bennett v. Scroggy, 793 F.2d 772, 1986 U.S. App. LEXIS 26244 (6th Cir. Ky. 1986 ).

43.— Voluntary Manslaughter.

In a case where the defendant had killed a man for paying attention to his daughter and asserted that the killing was in self-defense, it was proper to give an instruction of voluntary manslaughter. (Decided under prior law) Lee v. Commonwealth, 203 Ky. 63 , 261 S.W. 842, 1924 Ky. LEXIS 840 ( Ky. 1924 ).

Where the defendant alleged that he killed the deceased when the deceased was in the process of stealing the defendant’s chickens, the defendant was entitled to an instruction of manslaughter based on heat of passion or sudden affray. (Decided under prior law) Commonwealth v. Beverly, 237 Ky. 35 , 34 S.W.2d 941, 1931 Ky. LEXIS 541 ( Ky. 1931 ).

Court properly gave manslaughter instruction as against contention of defendant it was murder or acquittal, where defendant acted under provocation occasioned by the knowledge of an illicit relationship existing between his wife and victim, and shooting was the result of sudden uncontrollable passion. (Decided under prior law) Cottrell v. Commonwealth, 271 Ky. 52 , 111 S.W.2d 445, 1937 Ky. LEXIS 195 ( Ky. 1937 ).

It was proper to give an instruction under law that provided a penalty for voluntary manslaughter where it was shown that the defendant shot the deceased after deceased and a close friend of the defendant’s had been fighting, because under such circumstances it might well be said that the defendant had shot the deceased in sudden heat and passion. (Decided under prior law) Young v. Commonwealth, 276 Ky. 26 , 122 S.W.2d 1034, 1938 Ky. LEXIS 535 ( Ky. 1938 ).

Instruction on voluntary manslaughter should not be deemed prejudicially erroneous, where there was evidence that at meeting shortly before shooting accused’s actions indicated anger toward victim. (Decided under prior law) Roberts v. Commonwealth, 284 Ky. 377 , 144 S.W.2d 1043, 1940 Ky. LEXIS 507 ( Ky. 1940 ).

In prosecution for murder, evidence of defendant’s recklessness and disregard for human life in handling of gun justified voluntary manslaughter instruction. (Decided under prior law) Radford v. Commonwealth, 292 Ky. 77 , 165 S.W.2d 990, 1942 Ky. LEXIS 37 ( Ky. 1942 ).

The instruction on voluntary manslaughter should require the jury to believe that the shooting of deceased by the defendant was willful and intentional but without malice. (Decided under prior law) Patton v. Commonwealth, 289 Ky. 627 , 159 S.W.2d 1006, 1942 Ky. LEXIS 617 ( Ky. 1942 ).

Where evidence for defendant was that he had pistol in his hands and was twirling cylinder and pulling back hammer and that gun went off when someone struck his arm, instructions authorizing jury to find defendant guilty of voluntary manslaughter, if they believed the killing was the result of reckless, wanton or grossly careless twirling, revolving or handling the pistol, or was the result of an unintentional or careless discharge of the pistol in doing a wrongful act, such as handling, twirling or flourishing the pistol, were proper. (Decided under prior law) Shoupe v. Commonwealth, 294 Ky. 254 , 171 S.W.2d 447, 1943 Ky. LEXIS 434 ( Ky. 1943 ).

In homicide prosecution, arising out of shooting of deceased as he and his companions were walking by defendant’s house, evidence that deceased and companions were causing sufficient disturbance to anger defendant as they walked by his house, and that there had been other disturbances in the vicinity a short time before the killing, was sufficient to warrant voluntary manslaughter instruction, as against contention of defendant that, if guilty at all, he was guilty of murder or nothing. (Decided under prior law) Hornsby v. Commonwealth, 305 Ky. 747 , 205 S.W.2d 338, 1947 Ky. LEXIS 898 ( Ky. 1947 ).

In murder prosecution, evidence of an altercation at time of killing, from which jury could conclude that killing was committed in sudden heat and passion, warranted instruction on voluntary manslaughter. (Decided under prior law) Lee v. Commonwealth, 305 Ky. 734 , 205 S.W.2d 509, 1947 Ky. LEXIS 916 ( Ky. 1947 ).

Where evidence relied upon to prove charge of murder was purely circumstantial, and there was evidence as to a scuffle on ground at point where deceased’s hat and blood spots were found, it was proper to instruct on voluntary manslaughter, as against contention of defendant that there was no evidence to sustain charge of manslaughter. (Decided under prior law) Napier v. Commonwealth, 306 Ky. 75 , 206 S.W.2d 53, 1947 Ky. LEXIS 944 ( Ky. 1947 ).

While intoxication alone does not reduce a homicide from murder to voluntary manslaughter, where the evidence showed that the defendant shot the victim in the course of a drunken argument over a card game, an instruction on voluntary manslaughter was proper, since such an instruction is warranted if, in addition to evidence of intoxication, there is evidence that the shooting occurred in sudden affray or sudden heat of passion. Salisbury v. Commonwealth, 556 S.W.2d 922, 1977 Ky. App. LEXIS 825 (Ky. Ct. App. 1977).

Defendant was not entitled to have the trial court give the jury a first-degree manslaughter instruction pursuant to KRS 507.030 in a case where the defendant fatally injured the three-month old infant son of defendant’s girlfriend by engaging in unrestrained shaking of the infant after defendant became upset at the infant’s crying. Defendant engaged in wanton conduct, as contemplated by KRS 507.020(1)(b) and KRS 501.020(3), by disregarding a grave risk to the child’s life through the unrestrained shaking, and, thus, no reasonable juror could have believed that defendant meant to injure the child and was only guilty of a KRS 505.020 lesser included offense rather than the offense of wanton murder. Allen v. Commonwealth, 338 S.W.3d 252, 2011 Ky. LEXIS 85 ( Ky. 2011 ).

44.— Valid.

The inclusion in an instruction on voluntary manslaughter of “without previous malice” in connection with “in sudden heat and passion” was not erroneous, as “without previous malice” was necessarily included in the term “in sudden heat and passion.” (Decided under prior law) Metcalfe v. Commonwealth, 86 S.W. 534, 27 Ky. L. Rptr. 704 (1905).

In prosecution for voluntary manslaughter, where court gave “sudden affray” instruction, omission of word “unlawful” from instruction was not harmful. (Decided under prior law) Fields v. Commonwealth, 287 Ky. 27 , 152 S.W.2d 281, 1941 Ky. LEXIS 502 ( Ky. 1941 ).

Where the only theory of defense supported by the evidence is one of self-defense, it is not error to omit the element of intention from the instruction on voluntary manslaughter, although it is better practice always to include it. (Decided under prior law) Quisenberry v. Commonwealth, 299 Ky. 390 , 185 S.W.2d 669, 1945 Ky. LEXIS 434 ( Ky. 1945 ).

In prosecution for voluntary manslaughter in which defendant claimed that fatal shooting was accidental and as a result of being struck or pushed by victim, it was not necessary for court to define “sudden affray” or “accidental shooting” as used in instructions, though such definition would not have been improper. (Decided under prior law) Amburgy v. Commonwealth, 300 Ky. 261 , 188 S.W.2d 437, 1945 Ky. LEXIS 528 ( Ky. 1945 ).

Use of term “heat of passion,” instead of “heat and passion,” in voluntary manslaughter instruction, was not error. (Decided under prior law) Roberts v. Commonwealth, 301 Ky. 294 , 191 S.W.2d 242, 1945 Ky. LEXIS 721 ( Ky. 1945 ).

Where the questions of murder, voluntary and involuntary manslaughter, were consolidated in one instruction, and the word “willful” was used to apply to both murder and voluntary manslaughter, and was subsequently defined to mean “intentional,” the failure to use the phrase “intentional and willful” did not render the instruction erroneous. (Decided under prior law) Wells v. Commonwealth, 302 Ky. 15 , 193 S.W.2d 645, 1946 Ky. LEXIS 595 (Ky.), cert. denied, 329 U.S. 792, 67 S. Ct. 366, 91 L. Ed. 678, 1946 U.S. LEXIS 1636 (U.S. 1946).

While it is better practice for the court to give separate instructions on murder and manslaughter, it is not prejudicial to the accused when the court combines the law on the two in one instruction. (Decided under prior law) Gross v. Commonwealth, 308 Ky. 682 , 215 S.W.2d 571, 1948 Ky. LEXIS 1018 ( Ky. 1948 ).

It is proper to combine murder and manslaughter into one instruction. (Decided under prior law) Woods v. Commonwealth, 310 Ky. 396 , 220 S.W.2d 1012, 1949 Ky. LEXIS 953 ( Ky. 1949 ).

Although it is much better form to include the “provocation” phrase in the voluntary manslaughter instruction, its omission was not an error. (Decided under prior law) Durham v. Commonwealth, 248 S.W.2d 709, 1952 Ky. LEXIS 750 ( Ky. 1952 ).

A felonious homicide, if it is committed due to adequate provocation and without previous malice is voluntary manslaughter, and in a prosecution under this section, an instruction which defined “felonious” as “proceeding from an evil heart or purpose, done with a deliberate intention to commit a crime,” while erroneous because it connotes previous malice rather than provocation, was not prejudicial to the defendant since it required a higher degree of proof than was necessary for a conviction. (Decided under prior law) Jones v. Commonwealth, 311 S.W.2d 190, 1958 Ky. LEXIS 181 ( Ky. 1958 ).

It was not error for the trial court to omit a definition of “provocation reasonably calculated” in an instruction on voluntary manslaughter. (Decided under prior law) Jones v. Commonwealth, 311 S.W.2d 190, 1958 Ky. LEXIS 181 ( Ky. 1958 ).

Instruction that if at time defendant struck deceased, defendant had reasonable cause to believe that deceased who was fighting with defendant’s brother would inflict bodily harm on his brother defendant should be found not guilty on ground of self-defense and apparent necessity, embraces an intentional killing in self-defense and is the proper counterpart to instructions on murder and voluntary manslaughter, which are intentional homicides. (Decided under prior law) White v. Commonwealth, 333 S.W.2d 521, 1960 Ky. LEXIS 197 ( Ky. 1960 ).

The fact that an instruction on murder was given, even if given erroneously, was not prejudicial in the light of the fact that the conviction was for voluntary manslaughter and not for murder. (Decided under prior law) Mason v. Commonwealth, 463 S.W.2d 930, 1971 Ky. LEXIS 597 ( Ky. 1971 ).

An instruction authorizing the jury to fix the punishment at not less than two nor more than twenty-one years was not erroneous for omitting the words “in your discretion.” (Decided under prior law) Godby v. Commonwealth, 491 S.W.2d 647, 1973 Ky. LEXIS 577 ( Ky. 1973 ).

45.— Invalid.

Evidence for accused that he was not wearing belt, but suspenders, and was wearing vest which would have concealed belt had he been wearing one, should have been considered as substantive evidence as opposed to evidence by Commonwealth’s witnesses that they saw accused wearing belt with automatic pistol under it; but instruction to consider accused’s evidence only as contradictory to Commonwealth’s, although error, did not prejudice substantial rights of accused who had already put before jury that he did not possess pistol at time of shooting, so that such testimony as to belt was, in effect, mere repetition of his earlier denial. (Decided under prior law) Roberts v. Commonwealth, 284 Ky. 377 , 144 S.W.2d 1043, 1940 Ky. LEXIS 507 ( Ky. 1940 ).

In manslaughter prosecution, where evidence only connected defendant with the crime as aider and abettor, it was prejudicial error to instruct jury to find defendant guilty if they believed he killed deceased by cutting and stabbing. (Decided under prior law) Howard v. Commonwealth, 304 Ky. 149 , 200 S.W.2d 148, 1947 Ky. LEXIS 601 ( Ky. 1947 ).

Instruction, in homicide case, authorizing conviction if jury believed either that defendant himself shot the deceased, or that defendant’s father did so and defendant aided and abetted him, was prejudicially erroneous when there was no evidence indicating that defendant’s father did the shooting. (Decided under prior law) Hobbs v. Commonwealth, 306 Ky. 66 , 206 S.W.2d 48, 1947 Ky. LEXIS 943 ( Ky. 1947 ).

Where indictment charged that defendant killed victim “unlawfully, willfully and feloniously, but without previous malice, by the reckless and grossly careless use of a pistol,” it was prejudicial error for court to give instruction authorizing conviction if killing was done in sudden affray or in sudden heat and passion for the instructions must be limited to the theory of the case set forth in the indictment. (Decided under prior law) Fox v. Commonwealth, 309 Ky. 204 , 217 S.W.2d 215, 1949 Ky. LEXIS 664 ( Ky. 1949 ).

Where defendant hit deceased while deceased was fighting defendant’s brother, giving instruction on murder and voluntary manslaughter while omitting the elements of sudden affray or sudden heat and passion leaving the jury to define voluntary manslaughter as it sees fit is error. (Decided under prior law) White v. Commonwealth, 333 S.W.2d 521, 1960 Ky. LEXIS 197 ( Ky. 1960 ).

Instruction that classified negligent homicide with the crime of voluntary manslaughter was erroneous. (Decided under prior law) Hemphill v. Commonwealth, 379 S.W.2d 223, 1964 Ky. LEXIS 221 ( Ky. 1964 ).

46.Mitigating Factors.

Contributory negligence is not a defense to a charge of negligent homicide though evidence of such negligence is competent as bearing on question of defendant’s negligence. (Decided under prior law) Penix v. Commonwealth, 313 Ky. 587 , 233 S.W.2d 89, 1950 Ky. LEXIS 926 ( Ky. 1950 ).

In lieu of sudden affray or sudden heat of passion upon reasonable provocation, the mitigating circumstance now reducing the crime from murder to manslaughter is that the defendant “acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be.” Gall v. Commonwealth, 607 S.W.2d 97, 1980 Ky. LEXIS 291 ( Ky. 1980 ), cert. denied, 450 U.S. 989, 101 S. Ct. 1529, 67 L. Ed. 2d 824, 1981 U.S. LEXIS 1276 (U.S. 1981), overruled, Payne v. Commonwealth, 623 S.W.2d 867, 1981 Ky. LEXIS 286 ( Ky. 1981 ).

Mitigation is not restricted to circumstances which would constitute provocation in the ordinary meaning of the term, i.e., an injury, injustice or affront perpetrated by the deceased upon the actor; in other words, it is possible for any event, or even words, to arouse extreme mental or emotional disturbance. Gall v. Commonwealth, 607 S.W.2d 97, 1980 Ky. LEXIS 291 ( Ky. 1980 ), cert. denied, 450 U.S. 989, 101 S. Ct. 1529, 67 L. Ed. 2d 824, 1981 U.S. LEXIS 1276 (U.S. 1981), overruled, Payne v. Commonwealth, 623 S.W.2d 867, 1981 Ky. LEXIS 286 ( Ky. 1981 ).

Where the evidence in a murder trial showed that after shooting his mother-in-law, the defendant, who had been drinking but was not drunk, drove directly to the police station, told the police that he was the one they were looking for and that he would have shot her more times if he had had more ammunition, and made a voluntary confession, there was no evidence that the defendant, who had no evidence of mental illness, was acting under “extreme emotional disturbance” so as to take the case out of KRS 507.020 and require an instruction on manslaughter in the first degree under this section. Henley v. Commonwealth, 621 S.W.2d 906, 1981 Ky. LEXIS 279 ( Ky. 1981 ).

Mental illness does not qualify as extreme emotional disturbance. Cecil v. Commonwealth, 888 S.W.2d 669, 1994 Ky. LEXIS 124 ( Ky. 1994 ).

The mere presence of mental illness, standing alone, does not constitute extreme emotional disturbance (EED) but rather it is the presence of adequate provocation, not the absence of mental illness, which is essential to a finding of EED; conversely, the presence of mental illness does not preclude a finding of EED and is therefore entirely relevant to a subjective evaluation of the reasonableness of the defendant’s response to the provocation. Fields v. Commonwealth, 44 S.W.3d 355, 2001 Ky. LEXIS 1 ( Ky. 2001 ).

Testimony that “anyone would be upset” upon learning that his wife was filing for divorce did not show that a murder defendant acted under extreme emotional disturbance. Bray v. Commonwealth, 68 S.W.3d 375, 2002 Ky. LEXIS 19 ( Ky. 2002 ).

47.Motion for Continuance.

There was no abuse of discretion on the part of the trial judge in overruling a motion for continuance where both defense attorneys had worked on the case the week prior to trial, the defendant was on bond and available to assist in his defense, there was no question of misidentification, and there was no problem pertaining to missing witnesses. Nickell v. Commonwealth, 565 S.W.2d 145, 1978 Ky. LEXIS 350 ( Ky. 1978 ).

48.Prosecutor's Statements.

Where the defendant’s brother was allegedly the only witness to the killing, the prosecutor’s argument which went entirely outside the record, referred to the brother’s previous misdemeanor convictions and to the fact that the brother had previously testified falsely about such convictions and so would be expected to testify falsely in the instant case was prejudicial and constituted reversible error. (Decided under prior law) Woods v. Commonwealth, 310 Ky. 396 , 220 S.W.2d 1012, 1949 Ky. LEXIS 953 ( Ky. 1949 ).

Statement made by Commonwealth’s attorney in open court that weapon which he brought from jury room was the gun with which deceased was killed was not reversible error, since the remark did nothing more than mention a fact that had previously been proven and there never was any question about the identity of the weapon that defendant employed in the commission of the crime. (Decided under prior law) Henson v. Commonwealth, 317 S.W.2d 158, 1958 Ky. LEXIS 69 ( Ky. 1958 ).

A prosecutor’s references to “murder” and his statement to the defendant that the defendant wanted to kill in cold blood were improper where the defendant was being tried for voluntary manslaughter, but such statements were not prejudicial where the judge gave sufficient admonitions to the jury with regard to the statements, and where the defendant was given only an eight (8) year sentence. (Decided under prior law) Jones v. Commonwealth, 311 S.W.2d 190, 1958 Ky. LEXIS 181 ( Ky. 1958 ).

A prosecutor’s statement that the defendant had been “caught” bootlegging once or twice, and that he personally believed that the deceased had never had a gun, and that he was killed in cold blood and a gun then put in his hand, was improper as beyond the scope of the evidence and of reasonable inferences which could be drawn from the evidence. (Decided under prior law) Barnett v. Commonwealth, 403 S.W.2d 40, 1966 Ky. LEXIS 323 ( Ky. 1966 ).

In prosecution for homicide in which defendant claimed that the fatal shot was accidentally fired, reference by prosecution to the deceased as the “victim” was not improper while reference to the place of the shooting as the “crime scene” was an improper expression of opinion; however, objections to the use of the latter phrase and admonishing the jury were adequate corrective measures. Hendricks v. Commonwealth, 550 S.W.2d 551, 1977 Ky. LEXIS 445 ( Ky. 1977 ).

In trial for manslaughter in the first degree, Commonwealth’s reference during closing statement to defendant’s failure to testify was not impermissible and did not constitute reversible error since the reference was to defendant’s various pretrial statements of denial coupled with her current acknowledgment that she caused the death, but in self-defense. Lucas v. Commonwealth, 840 S.W.2d 212, 1992 Ky. App. LEXIS 151 (Ky. Ct. App. 1992).

In trial for manslaughter in the first degree, prosecutor stated before the jury that the defense had tape recordings which the Commonwealth would produce and then failed to produce and enter the tapes into evidence. The record reflected that the jury was informed that the prosecutor had failed to give defense counsel proper notice of the tape recordings. Consequently, the tapes were not allowed to be submitted into evidence and heard by the jury. Since defense counsel was not accused of hiding evidence from the jury, such failure to present the tapes did not warrant reversal. Lucas v. Commonwealth, 840 S.W.2d 212, 1992 Ky. App. LEXIS 151 (Ky. Ct. App. 1992).

In trial where defendant was convicted of manslaughter in the first degree, Commonwealth’s reference in closing statement to the Bible stating that “the ten Commandments don’t say it’s okay to kill a spouse abuser,” while perhaps ill-considered, did not exceed a reasonable latitude and was harmless. Lucas v. Commonwealth, 840 S.W.2d 212, 1992 Ky. App. LEXIS 151 (Ky. Ct. App. 1992).

49.Theories of Defense.

Although the defenses of accident and self-protection are inherently contradictory, since an accidental shooting results from an involuntary act, while a shooting accomplished in self-defense results from a voluntary act, the mere fact that these defenses are inconsistent should not preclude a jury from considering both theories under appropriate circumstances. Pace v. Commonwealth, 561 S.W.2d 664, 1978 Ky. LEXIS 329 ( Ky. 1978 ), overruled, Grimes v. McAnulty, 957 S.W.2d 223, 1997 Ky. LEXIS 118 ( Ky. 1997 ).

50.Sentence.

A sentence of 21 years was not excessive where the evidence showed that the defendant shot the deceased when the deceased was unarmed and was not making any threatening moves toward the defendant. (Decided under prior law) Lane v. Commonwealth, 256 Ky. 78 , 75 S.W.2d 739, 1934 Ky. LEXIS 353 ( Ky. 1934 ).

Where several witnesses supported defendant’s story that fatal shooting was accidental and was occasioned by defendant falling backward off porch and against fence when pushed by deceased, but other witnesses testified as to argument and scuffle preceding the killing, both parties had been drinking, and defendant admitted that pistol could not be fired unless trigger was pulled, verdict fixing punishment at 15 years’ imprisonment was not so excessive as to evince passion, prejudice and bias. (Decided under prior law) Amburgy v. Commonwealth, 300 Ky. 261 , 188 S.W.2d 437, 1945 Ky. LEXIS 528 ( Ky. 1945 ).

A ten year sentence for voluntary manslaughter was not excessive, since the verdict might have been 21 years for the same offense, and where the record showed that defendant might have received a life sentence under habitual offender law because he had been twice previously convicted of a felony. (Decided under prior law) Mills v. Commonwealth, 305 Ky. 44 , 202 S.W.2d 1005, 1947 Ky. LEXIS 762 ( Ky. 1947 ).

Where instruction on voluntary manslaughter did not contain penalty that could be inflicted on accused, upon retrial, if evidence authorized voluntary manslaughter instructions, court would include penalty therefor in the instructions. (Decided under prior law) Swanger v. Commonwealth, 255 S.W.2d 38, 1953 Ky. LEXIS 636 ( Ky. 1953 ).

Where the defendant was convicted of voluntary manslaughter and sentenced to 21 years imprisonment he was not prejudiced when the court refused to allow him to question jurors as to whether they would inflict the death penalty. (Decided under prior law) Hemphill v. Commonwealth, 405 S.W.2d 956, 1965 Ky. LEXIS 6 ( Ky. 1965 ).

Cited in:

Jewell v. Commonwealth, 549 S.W.2d 807, 1977 Ky. LEXIS 412 ( Ky. 1977 ), overruled, Payne v. Commonwealth, 623 S.W.2d 867, 1981 Ky. LEXIS 286 ( Ky. 1981 ), overruled in part, Payne v. Commonwealth, 623 S.W.2d 867, 1981 Ky. LEXIS 286 ( Ky. 1981 ); Wilson v. Commonwealth, 551 S.W.2d 569, 1977 Ky. LEXIS 453 ( Ky. 1977 ); Powell v. Commonwealth, 554 S.W.2d 386, 1977 Ky. LEXIS 495 (Ky. 1977); Hayden v. Commonwealth, 563 S.W.2d 720, 1978 Ky. LEXIS 343 ( Ky. 1978 ); Royce v. Commonwealth, 577 S.W.2d 615, 1979 Ky. LEXIS 221 ( Ky. 1979 ); Charles v. Commonwealth, 634 S.W.2d 407, 1982 Ky. LEXIS 257 ( Ky. 1982 ); Bevins v. Commonwealth, 712 S.W.2d 932, 1986 Ky. LEXIS 252 ( Ky. 1986 ); McClellan v. Commonwealth, 715 S.W.2d 464, 1986 Ky. LEXIS 274 ( Ky. 1986 ); Coffey v. Messer, 945 S.W.2d 944, 1997 Ky. LEXIS 62 ( Ky. 1997 ); Robertson v. Commonwealth, — S.W.3d —, 2002 Ky. LEXIS 176 ( Ky. 2002 ); Sherroan v. Commonwealth, 142 S.W.3d 7, 2004 Ky. LEXIS 190 ( Ky. 2004 ).

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Ashdown, Criminal Law, 64 Ky. L.J. 337 (1975-76).

Kentucky Law Survey, Brice and Taylor, Criminal Law, 67 Ky. L.J. 569 (1978-1979).

Kentucky Law Survey, Patterson, Juvenile Code, 70 Ky. L.J. 343 (1981-82).

Cooper and Lawson, Self-Defense in Kentucky: A Need for Clarification or Revision, 76 Ky. L.J. 167 (1987-88).

Northern Kentucky Law Review.

Comments, Criminal Law — Murder by Auto, Kentucky’s Hard Line Stance Against Drunken Drivers, 5 N. Ky. L. Rev. 279 (1978).

Hodge, Wanton Murder, Self-Defense, and Jury Instructions: Shannon v. Commonwealth is Revisited; But does it Remain?, 22 N. Ky. L. Rev. 435 (1995).

Drogin, To the Brink of Insanity: ‘Extreme Emotional Disturbance’ in Kentucky Law, 26 N. Ky. L. Rev. 99 (1999).

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Assaults and Restraints of Persons, Part 2 Homicide, §§ 3.25, 3.26, 3.27.

507.040. Manslaughter in the second degree.

  1. A person is guilty of manslaughter in the second degree when he wantonly causes the death of another person, including but not limited to situations where the death results from the person’s:
    1. Operation of a motor vehicle;
    2. Leaving a child under the age of eight (8) years in a motor vehicle under circumstances which manifest an extreme indifference to human life and which create a grave risk of death to the child, thereby causing the death of the child; or
    3. Unlawful distribution for remuneration of a Schedule I or II controlled substance when the controlled substance is the proximate cause of death.
  2. Manslaughter in the second degree is a Class C felony.

History. Enact. Acts 1974, ch. 406, § 63, effective January 1, 1975; 1984, ch. 165, § 27, effective July 13, 1984; 2000, ch. 521, § 18, effective July 14, 2000; 2019 ch. 130, § 3, effective June 27, 2019.

NOTES TO DECISIONS

Analysis

1.Applicability.

A corporation could be indicted for second-degree manslaughter, a class C felony based on wanton conduct, under this section since the legislature under subsection (12) of KRS 500.080 has expanded the definition of “person” to include corporations to parallel the treatment of corporations in civil actions under KRS 446.010 , has extended liability for criminal offenses to conduct or non-conduct of corporate officers, directors and agents under KRS 502.050 , and has created a penalty structure providing for corporate fines for all classes of crimes under KRS 534.050 . Commonwealth v. Fortner LP Gas Co., 610 S.W.2d 941, 1980 Ky. App. LEXIS 416 (Ky. Ct. App. 1980).

Statutory language of Ky. Rev. Stat. Ann. § 507.040(1)(b) is clear: when the death of a child under eight is wantonly caused by leaving the child in a vehicle with extreme indifference to life and grave risk of death that results in death, those facts create the offense of manslaughter second degree and no other. Shouse v. Commonwealth, 481 S.W.3d 480, 2015 Ky. LEXIS 1852 ( Ky. 2015 ).

Commonwealth erred in charging defendant under Ky. Rev. Stat. Ann. § 502.020 (b) where the legislature had tied aggravated wantonness in Ky. Rev. Stat. Ann. § 507.040(1)(b) to the death of a child under eight wantonly left in a vehicle, the second-degree manslaughter statute was more specific, and thus, the prosecution could not elect which statute to apply. Shouse v. Commonwealth, 481 S.W.3d 480, 2015 Ky. LEXIS 1852 ( Ky. 2015 ).

2.Defenses.

Where the evidence of the defendant’s guilt of second-degree manslaughter was overwhelming, and the defendant’s claims that the victim had a weapon and that the defendant acted in self-defense were completely unsubstantiated and contradicted by all the credible evidence, the trial court’s error in allowing the prosecutor to cross-examine the defendant about his failure to claim self-defense when first arrested was harmless beyond a reasonable doubt. Blake v. Commonwealth, 646 S.W.2d 718, 1983 Ky. LEXIS 223 ( Ky. 1983 ).

Where defendant was convicted of second-degree manslaughter in violation of KRS 507.040 , the trial court did not err in denying defendant’s motion for directed verdict of acquittal on grounds of self-defense; the jury could have reasonably concluded that defendant’s belief in the need to defend defendant with deadly force was wantonly held, as some evidence indicated that defendant delivered the fatal wound before any blows had been thrown, and the jury could have found that, at that point, defendant could not have determined whether defendant was being threatened with serious physical injury as opposed to merely being restrained from further assaulting defendant’s wife. Wright v. Commonwealth, 2004 Ky. App. LEXIS 57 (Ky. Ct. App. Mar. 5, 2004).

3.Due Process.

In this case, in light of Grady v. Corbin , 495 U.S. 508, 110 S. Ct. 2084, 109 L. Ed. 2d 548, 1990 U.S. LEXIS 2698 (1990), which held that convictions for both driving while intoxicated and for vehicular homicide based on driving while intoxicated violated the double jeopardy clause, there was no error in refusing to accept defendant’s guilty plea, where defendant was well aware of the holding in Grady and intended to use it to bar a subsequent conviction of manslaughter. Cobb v. Commonwealth, 821 S.W.2d 817, 1992 Ky. App. LEXIS 11 (Ky. Ct. App. 1992).

4.Elements.

If the evidence suggests enough possibility of accident that the usual permissible inference of intentional killing would not be justified, the one who did the killing must risk being convicted of involuntary manslaughter in the highest degree unless he comes forward with an explanation sufficient to exculpate him or reduce the crime to second degree manslaughter. (Decided under prior law) Partin v. Commonwealth, 445 S.W.2d 433, 1969 Ky. LEXIS 159 ( Ky. 1969 ).

While driving under the influence of intoxicants would almost always be wanton, for manslaughter in the second degree under subsection (1) of this section, the state need not prove the element of intoxication needed to support the driving under the influence charge; thus, the crimes are separate and distinct. Keller v. Commonwealth, 719 S.W.2d 5, 1986 Ky. App. LEXIS 1459 (Ky. Ct. App. 1986).

This section specifies the act must result “in the death of a person,” but the statute does not specify that the victim must have reached a state of development that fits the legal definition of “a person” at the time the injury is inflicted. Jones v. Commonwealth, 830 S.W.2d 877, 1992 Ky. LEXIS 47 ( Ky. 1992 ).

5.—Leaving the Scene.

The act of leaving the scene of the accident without stopping to render aid, though it may have amounted to gross and wanton misconduct in itself, was a separate crime from the manslaughter charged as a result of the original striking. (Decided under prior law) Fugate v. Commonwealth, 445 S.W.2d 675, 1969 Ky. LEXIS 169 ( Ky. 1969 ), overruled, Commonwealth v. Sawhill, 660 S.W.2d 3, 1983 Ky. LEXIS 303 ( Ky. 1983 ).

The defendant’s flight from the scene of a fatal automobile accident, and his subsequent attempts at concealment or suppression of evidence, proved at most that he believed he was at fault, which was just as consistent with ordinary negligence or recklessness as it is with “wanton” conduct. (Decided under prior law) Fugate v. Commonwealth, 445 S.W.2d 675, 1969 Ky. LEXIS 169 ( Ky. 1969 ), overruled, Commonwealth v. Sawhill, 660 S.W.2d 3, 1983 Ky. LEXIS 303 ( Ky. 1983 ).

6.—Mens Rea.

The mens rea involved in committing involuntary manslaughter covers the mental state of the actor at the time when the criminal act is committed, but the mens rea does not require the actor intend the death of a particular person, or any person; it is only necessary that the consequence of the criminal act, immediate or subsequent, is the death of a person. The quality of the act is measured by the nature of the conduct; whether the victim is a “person” is a separate element of the offense that depends on the victim’s status at the time when death occurs. Jones v. Commonwealth, 830 S.W.2d 877, 1992 Ky. LEXIS 47 ( Ky. 1992 ).

A jury finding that defendant was voluntarily intoxicated so as to be unable to form the requisite intent for murder does not require acquittal, but rather could reduce the offense to second-degree manslaughter; the court’s failure to instruct the jury on second-degree manslaughter was therefore prejudicial error. Slaven v. Commonwealth, 962 S.W.2d 845, 1997 Ky. LEXIS 161 ( Ky. 1997 ).

7.—Wanton Conduct.

The firing of a pistol into an occupied car is a wanton act and if the occupant is killed unintentionally, it is nevertheless murder if the jury is convinced that the person firing the pistol wantonly engaged in conduct which created a grave risk of death under circumstances manifesting extreme indifference to human life. Nichols v. Commonwealth, 657 S.W.2d 932, 1983 Ky. LEXIS 312 ( Ky. 1983 ), cert. denied, 465 U.S. 1028, 104 S. Ct. 1289, 79 L. Ed. 2d 691, 1984 U.S. LEXIS 1129 (U.S. 1984).

A homicide caused by wanton conduct is, at the very least, manslaughter in the second degree. If the jury finds that in addition to the wanton conduct of the defendant, the circumstances surrounding his or her conduct manifest an extreme indifference to human life, the offense is elevated to wanton murder; if, in addition to the wanton conduct and circumstances which manifest an extreme indifference to human life, the jury finds that the defendant intended to cause death, the offense is intentional murder. Smith v. Commonwealth, 737 S.W.2d 683, 1987 Ky. LEXIS 237 ( Ky. 1987 ).

The difference between wanton murder and involuntary manslaughter continues to be, as the Penal Code originally intended, whether there is evidence from which the jury could find “circumstances manifesting extreme indifference to human life”; depending on the situation, drunk driving may be such a circumstance. Walden v. Commonwealth, 805 S.W.2d 102, 1991 Ky. LEXIS 3 ( Ky. 1991 ), overruled, Commonwealth v. Burge, 947 S.W.2d 805, 1996 Ky. LEXIS 82 ( Ky. 1997 ).

In driving his vehicle while intoxicated, movant could be found to have acted wantonly in circumstances that caused the death of another person. Protection against constitutionally impermissible vagueness does not require that the accused know the consequences of his act when he ran his car into another one. Jones v. Commonwealth, 830 S.W.2d 877, 1992 Ky. LEXIS 47 ( Ky. 1992 ).

Because an appellate court had to consider the same evidence as the trial court in its best light in favor of the Commonwealth, there was sufficient evidence of wantonness to support defendant’s convictions for second-degree manslaughter and assault after defendant caused a fatal head-on collision; there was evidence that defendant crossed the center line and evidence of defendant’s impairment from a drug recognition expert who did not personally observe defendant. Burton v. Commonwealth, 300 S.W.3d 126, 2009 Ky. LEXIS 253 ( Ky. 2009 ).

Although defendant juvenile disregarded his restricted operator’s license, other than having too many passengers in his vehicle, there was no other evidence that he was acting wantonly or with indifference to human life, and his passengers made a conscious decision to enter his vehicle and ride unrestrained; defendant turned into a park with an S-curve, did not see the speed limit sign, which was not properly marked or sized, and a tragic accident occurred, but defendant was not criminally responsible for manslaughter based on a license infraction for which the punishment was to extend the restricted license to 180 days. B. B. v. Commonwealth, 2014 Ky. App. LEXIS 77 (Ky. Ct. App. May 16, 2014).

8.Evidence.

Where the defendant after receiving the proper warnings of his rights made statements following the accident freely, voluntarily, and not in response to interrogation while he was under restraint, the statements were admissible. (Decided under prior law) Cody v. Commonwealth, 449 S.W.2d 749, 1970 Ky. LEXIS 471 ( Ky. 1970 ).

On an indictment for voluntary manslaughter in the first degree and leaving the scene of an accident, without any evidence of the extent, if any, to which driver’s intoxication impaired his capacity to understand and tell the truth, and without any evidence of coercion other than the simple fact that he was drunk and in police custody and had been advised that the occupier of the car had told the police what had happened, the trial court did not err in admitting defendant’s inculpatory statement made while intoxicated. (Decided under prior law) Britt v. Commonwealth, 512 S.W.2d 496, 1974 Ky. LEXIS 396 ( Ky. 1974 ).

Although evidence of the physical condition of the deceased motorist would be competent if it would be tied into the causation of the collision, testimony relating to pregnancy, not having been tied into the causation of the collision, constituted error. Neeley v. Commonwealth, 591 S.W.2d 366, 1979 Ky. LEXIS 310 ( Ky. 1979 ).

The physical strength of a person may be of probative value to show that he was capable or incapable of acting. Neeley v. Commonwealth, 591 S.W.2d 366, 1979 Ky. LEXIS 310 ( Ky. 1979 ).

Where the blood test was conducted by a private entity for diagnostic purposes, the admission of the results in a trial for second-degree manslaughter did not violate the defendant’s Fourth Amendment or due process rights. Marks v. Commonwealth, 698 S.W.2d 533, 1985 Ky. App. LEXIS 638 (Ky. Ct. App. 1985).

Defendant’s convictions of second-degree manslaughter, KRS 507.040 , and second-degree assault, KRS 508.010 , stemming from an automobile accident were affirmed; the trial court properly allowed a doctor to testify as to the effects of methadone and promethazine, which defendant had taken at the time of an automobile accident, as the doctor was qualified, the evidence was relevant under KRE 401, as the Commonwealth’s entire case was based on the argument that defendant was aware of and consciously disregarded, as defined in KRS 501.020 , the risk of driving while taking methadone and promethazine, the evidence of the risks and adverse effects of those drugs was not outweighed by any undue prejudice pursuant to KRE 403, and the expert opinion testimony would assist the trier of fact under KRE 702, as the effects of the drugs were not within the common knowledge of the jury. Smith v. Commonwealth, 181 S.W.3d 53, 2005 Ky. App. LEXIS 256 (Ky. Ct. App. 2005).

After a motor vehicle fatality, defendant was charged with wanton murder under KRS 507.020(1)(b) and convicted of manslaughter in the second degree under KRS 507.040(1)(a); to establish that defendant was voluntarily intoxicated, the Commonwealth of Kentucky was permitted to admit expert testimony from two physicians who had counseled defendant about the effects of alcohol when mixed with narcotics and warned him not to drink alcohol. The physician’s testimony was admissible under KRE. 404(b)(1) to show that defendant’s intoxication was not the result of an accident in mixing the drugs. Reed v. Commonwealth, 2009 Ky. App. LEXIS 171 (Ky. Ct. App. Sept. 18, 2009).

Because the act of getting multiple pain medication prescriptions was not strikingly similar to the charged offense of second-degree manslaughter under KRS 507.040(1)(a), it did not qualify for the pattern of conduct exception for admitting evidence of prior bad acts under KRE. 404(b)(1). Douglas v. Commonwealth, 374 S.W.3d 345, 2012 Ky. App. LEXIS 123 (Ky. Ct. App. 2012).

Under KRE. 401, 403, the evidence of defendant’s pain medication prescriptions was inadmissible in the second-degree manslaughter case under KRS 507.040(1)(a) because it was not relevant and because the danger of undue prejudice from its admission outweighed any probative value it provided as defendant did not have pain medication in her bloodstream at the time of the accident. Douglas v. Commonwealth, 374 S.W.3d 345, 2012 Ky. App. LEXIS 123 (Ky. Ct. App. 2012).

In a second-degree manslaughter case under KRS 507.040(1)(a), the Commonwealth attorney’s insinuation that defendant had been committing the crime of “doctor shopping” when she obtained the multiple pain medication prescriptions created undue prejudice under KRE. 403. Douglas v. Commonwealth, 374 S.W.3d 345, 2012 Ky. App. LEXIS 123 (Ky. Ct. App. 2012).

In a second-degree manslaughter case under KRS 507.040(1)(a), because, by erroneously introducing evidence that defendant had obtained multiple pain medication prescriptions and insinuating that she had been “doctor shopping,” the Commonwealth essentially suggested that she was a drug addict, despite the fact that she had no pain medication in her bloodstream at the time of the accident, the error in admitting the evidence was not harmless as there was a reasonable probability that absent the error she might have been convicted of the lesser included offense of reckless homicide. Douglas v. Commonwealth, 374 S.W.3d 345, 2012 Ky. App. LEXIS 123 (Ky. Ct. App. 2012).

9.—Death of a Person.

Defendant was properly found guilty of second-degree manslaughter when, while driving under the influence of alcohol, he collided with another vehicle whose driver was 32 weeks pregnant, and the collision inflicted prenatal injuries which caused the baby to die 14 hours after delivery; the victim was a fetus when the criminal act occurred, but a person when death occurred, so the criminal act resulted in the death of a person. Jones v. Commonwealth, 830 S.W.2d 877, 1992 Ky. LEXIS 47 ( Ky. 1992 ).

10.—Photographs.

Where the defendant claimed the decedent had somehow shot himself, a post mortem photograph of the victim’s face showing the bullet hole and other marks of the fray was admissible although deemed “grisly and gruesome” under the proposition that where the photographs revealed nothing more than the scene of the crime and the persons of the victims, they were not incompetent. (Decided under prior law) Napier v. Commonwealth, 426 S.W.2d 121, 1968 Ky. LEXIS 635 ( Ky. 1968 ).

11.—Pre-trial Statements.

Where the only evidence that defendant committed murder during robbery of a gas station was codefendant’s improperly admitted statement to a police officer that defendant rather than codefendant did the actual killing, but where defendant’s own testimony was that while he admitted getting $20 of the robbery money he had no prior knowledge that the codefendant was going to commit the robbery or murder the gas station attendant, the error in admitting codefendant’s out-of-court statement was not harmless beyond a reasonable doubt as to defendant’s murder conviction. Mayes v. Sowders, 621 F.2d 850, 1980 U.S. App. LEXIS 17004 (6th Cir. Ky.), cert. denied, 449 U.S. 922, 101 S. Ct. 324, 66 L. Ed. 2d 151, 1980 U.S. LEXIS 3633 (U.S. 1980).

A codefendant, who refused to testify, was not available for full and effective cross-examination, thus defendant’s right of confrontation was violated, where the only evidence that defendant committed murder during robbery of a gas station was the codefendant’s out-of-court statement to a police officer that defendant rather than codefendant did the actual killing. Mayes v. Sowders, 621 F.2d 850, 1980 U.S. App. LEXIS 17004 (6th Cir. Ky.), cert. denied, 449 U.S. 922, 101 S. Ct. 324, 66 L. Ed. 2d 151, 1980 U.S. LEXIS 3633 (U.S. 1980).

12.—Privileged Communications.

Communications between an insured and his or her insurer are privileged under the attorney-client relationship, and therefore, in a prosecution of an automobile driver for second-degree manslaughter arising from an automobile accident, the state was not entitled to obtain statements that the driver gave to her insurance company. Commonwealth v. Melear, 638 S.W.2d 290, 1982 Ky. App. LEXIS 240 (Ky. Ct. App. 1982).

13.—Sufficient.

Testimony of defendant’s companion was sufficient to sustain conviction for voluntary manslaughter arising out of an automobile collision, where such testimony showed that defendant acted in such a gross and wanton manner as to show a disregard for human life. (Decided under prior law) Rouse v. Commonwealth, 303 S.W.2d 265, 1957 Ky. LEXIS 237 ( Ky. 1957 ).

Where the 52-year-old defendant fought with a 72-year-old man who died shortly thereafter of a heart attack, the age of the victim, the surrounding circumstances, his struggle to live and his almost immediate death were sufficient proof upon which the jury could find that the death was caused and brought about by the acts of the accused. (Decided under prior law) Mason v. Commonwealth, 423 S.W.2d 532, 1967 Ky. LEXIS 31 ( Ky. 1967 ).

Where defendant admitted by his own testimony that he participated in a jewelry store robbery knowing that codefendant had killed a gas station attendant during an earlier robbery, and where defendant also admitted participating in the purchase of the murder weapon and he knew where the weapon was hidden after the robberies, there was strong evidence based on defendant’s testimony that his participation at least manifested wantonness sufficient to find him guilty of murder during the second robbery, and thus the admission of an out-of-court statement by the codefendant indicating that defendant committed the first murder was harmless beyond a reasonable doubt with respect to the jewelry store murder. Mayes v. Sowders, 621 F.2d 850, 1980 U.S. App. LEXIS 17004 (6th Cir. Ky.), cert. denied, 449 U.S. 922, 101 S. Ct. 324, 66 L. Ed. 2d 151, 1980 U.S. LEXIS 3633 (U.S. 1980).

Evidence placing the defendant near the apartment just prior to a fire which was deliberately set and caused two deaths was sufficient, apart from the defendant’s testimony at the trial and apart from his confession, to establish the corpus delicti and sustain the guilty verdicts for arson and manslaughter. Hendley v. Commonwealth, 573 S.W.2d 662, 1978 Ky. LEXIS 416 ( Ky. 1978 ).

Where the evidence in a murder prosecution included eyewitness testimony that the defendant fired a pistol into an automobile in which the deceased was sitting, as well as other evidence that the defendant and the deceased were drinking heavily before the incident and that they were quarreling and cursing just before they left the bar and went to the parking lot where the shooting occurred, the evidence was sufficient to support the defendant’s conviction for second-degree manslaughter. Nichols v. Commonwealth, 657 S.W.2d 932, 1983 Ky. LEXIS 312 ( Ky. 1983 ), cert. denied, 465 U.S. 1028, 104 S. Ct. 1289, 79 L. Ed. 2d 691, 1984 U.S. LEXIS 1129 (U.S. 1984).

Evidence that a criminal defendant was driving under the influence is sufficient to prove reckless conduct. Commonwealth v. Runion, 873 S.W.2d 583, 1993 Ky. App. LEXIS 168 (Ky. Ct. App. 1993).

Evidence was sufficient to support a conviction where (1) after being pulled over during a traffic stop, but before he was arrested or handcuffed, the defendant fled onto a bridge crossing the Ohio River; (2) while he was fleeing, the arresting officer radioed for assistance, and police officers from another department coming from the Cincinnati side of the bridge got out of their vehicle and joined in the chase of the defendant; and (3) one of those officers fell from the bridge and drowned. Robertson v. Commonwealth, 2000 Ky. App. LEXIS 53 (Ky. Ct. App. May 19, 2000), superseded, 82 S.W.3d 832, 2002 Ky. LEXIS 168 ( Ky. 2002 ).

Trial court did not err by denying defendant’s motion for directed verdict on the second-degree manslaughter charge because Commonwealth presented sufficient evidence, as defendant’s steering his vehicle toward other vehicles parked along the street created a risk of such a nature and degree that disregarding it was a gross deviation from the standard of conduct that a person would observe in the situation. Doneghy v. Commonwealth, 410 S.W.3d 95, 2013 Ky. LEXIS 290 ( Ky. 2013 ).

15.Indictment.

Where the indictment did not state the instrumentality by which the death was caused, the omission so to state was not fatal. (Decided under prior law) Wilson v. Commonwealth, 445 S.W.2d 446, 1969 Ky. LEXIS 165 ( Ky. 1969 ).

16.Instructions.

Where the defendant in a murder trial claimed that the deceased was accidently shot while the defendant protected himself from an unprovoked attack by a third party, it was error for the trial court to give an instruction on involuntary manslaughter and to characterize the scuffle as an “unlawful act.” (Decided under prior law) Owens v. Commonwealth, 430 S.W.2d 325, 1968 Ky. LEXIS 397 ( Ky. 1968 ).

Where the instructions given covered all three degrees of manslaughter, but the verdict was returned under the first degree instruction, the probative weight of the evidence had to be measured against the first degree instruction. (Decided under prior law) Fugate v. Commonwealth, 445 S.W.2d 675, 1969 Ky. LEXIS 169 ( Ky. 1969 ), overruled, Commonwealth v. Sawhill, 660 S.W.2d 3, 1983 Ky. LEXIS 303 ( Ky. 1983 ).

Where the defendant intended to defend herself against her husband and intended the consequences which would naturally flow from her action, an instruction on involuntary manslaughter was improper. (Decided under prior law) Brooks v. Commonwealth, 486 S.W.2d 695, 1972 Ky. LEXIS 112 ( Ky. 1972 ).

Where there was nothing in the record that indicated that the death could have been caused by negligent conduct of the defendant, the trial court did not err by not including an instruction on involuntary manslaughter. (Decided under prior law) Coleman v. Commonwealth, 501 S.W.2d 583, 1973 Ky. LEXIS 136 ( Ky. 1973 ), cert. denied, 416 U.S. 908, 94 S. Ct. 1615, 40 L. Ed. 2d 113, 1974 U.S. LEXIS 727 (U.S. 1974).

Where in a prosecution for murder, there was evidence of no scheme to kill the victim and of the use by defendant of drugs and alcohol on the day of the incident, it was clearly erroneous to fail to include the requested instruction on second degree manslaughter. Ward v. Commonwealth, 695 S.W.2d 404, 1985 Ky. LEXIS 307 ( Ky. 1985 ).

Where the injuries inflicted by the defendant upon the victim hastened the victim’s death, the injuries were the direct cause of her death, and language in the instruction relating to direct or proximate cause was not prejudicial error. Calvert v. Commonwealth, 708 S.W.2d 121, 1986 Ky. App. LEXIS 1084 (Ky. Ct. App. 1986).

A verdict based on instructions encompassing alternative mental states for murder will not be overturned when the evidence supports each of the alternatives. Roston v. Commonwealth, 724 S.W.2d 221, 1986 Ky. App. LEXIS 1229 (Ky. Ct. App. 1986).

Where the evidence showed that the defendant intentionally shot the victim, but it did not show that his conscious objective was to kill her, the jury could reasonably infer from the evidence that the defendant was aware of a substantial risk that shooting the victim might kill her and consciously disregarded it; therefore, the instruction of second-degree manslaughter was proper. Roston v. Commonwealth, 724 S.W.2d 221, 1986 Ky. App. LEXIS 1229 (Ky. Ct. App. 1986).

Where, in prosecution for second-degree manslaughter, there was no objection to the wanton instruction at trial, the defendant could not contend on appeal that only the intentional murder instruction should have been given. It was unfair to permit a defendant to claim on appeal that the jury should only have been instructed on the greater intentional offense or acquittal and then to plead an allegedly improper conviction of the lesser offense as an acquittal of the intentional crime under the double jeopardy standard. Commonwealth v. Duke, 750 S.W.2d 432, 1988 Ky. LEXIS 27 ( Ky. 1988 ).

Trial court properly denied defendant’s request for a jury instruction on second-degree manslaughter as defendant was not entitled to an instruction on voluntary intoxication. Lickliter v. Commonwealth, 142 S.W.3d 65, 2004 Ky. LEXIS 173 ( Ky. 2004 ).

Trial court had usurped the jury’s role in determining that the evidence did not support a second degree manslaughter instruction where it found that the jury could have reasonably believed either intentional or wanton murder. Parker v. Commonwealth, 241 S.W.3d 805, 2007 Ky. LEXIS 260 ( Ky. 2007 ).

17.—Intoxication.

Where evidence of defendant’s intoxication is sufficient to require defense of voluntary intoxication to be submitted to jury in homicide case involving intentional or knowing offense and lesser included unintentional offenses, it must be accompanied by instruction to the effect that, although the jury might otherwise find the defendant guilty of murder or first-degree manslaughter, if at the time of the murder defendant was so drunk that he did not have intention to commit crime, he must be found not guilty of those charges. Brown v. Commonwealth, 575 S.W.2d 451, 1978 Ky. LEXIS 449 ( Ky. 1978 ).

18.—Self-defense.

The definition of a wanton act required to be given as part of the instructions is a wrongful act done on purpose in complete disregard of the rights of others wherein the actor must have conscious knowledge of the probable consequences and a complete disregard for them. (Decided under prior law) Fugate v. Commonwealth, 445 S.W.2d 675, 1969 Ky. LEXIS 169 ( Ky. 1969 ), overruled, Commonwealth v. Sawhill, 660 S.W.2d 3, 1983 Ky. LEXIS 303 ( Ky. 1983 ).

Upon retrial of a defendant charged with, and convicted of intentional homicide, the defendant would be entitled to an instruction that if the jury finds he believed, reasonably or unreasonably, in the need to defend himself, they should find him innocent. Bennett v. Scroggy, 793 F.2d 772, 1986 U.S. App. LEXIS 26244 (6th Cir. Ky. 1986 ).

19.—Lesser Offenses.

Under a murder indictment the defendant was entitled to an instruction on involuntary manslaughter where there was no evidence of previous ill will and the deceased was struck with a bottle. (Decided under prior law) Combs v. Commonwealth, 378 S.W.2d 626, 1964 Ky. LEXIS 196 ( Ky. 1964 ).

In murder trial where evidence indicated the victim and the defendant had been fighting and the crime might have been one of passion and the defendant testified that the gun fired accidentally, court should give instructions on both voluntary and involuntary manslaughter. (Decided under prior law) Greenville v. Commonwealth, 467 S.W.2d 765, 1971 Ky. LEXIS 400 ( Ky. 1971 ).

In homicide prosecutions, a defendant is entitled to an instruction on a lesser-included offense if the evidence would permit a jury to rationally find him or her guilty of the lesser offense and acquit the defendant of the greater. Smith v. Commonwealth, 737 S.W.2d 683, 1987 Ky. LEXIS 237 ( Ky. 1987 ).

Where, in prosecution for murder and first-degree robbery, the defendant’s defense was that an unidentified other man actually committed the robbery-murder, an instruction on wanton murder was not appropriate, because there was no evidence of intent presented whatsoever, and no reasonable jury could conclude that the defendant consciously disregarded an unjustifiable risk he denied ever taking. Slaughter v. Commonwealth, 744 S.W.2d 407, 1987 Ky. LEXIS 257 ( Ky. 1987 ), cert. denied, 490 U.S. 1113, 109 S. Ct. 3174, 104 L. Ed. 2d 1036, 1989 U.S. LEXIS 2908 (U.S. 1989).

Defendants were not entitled to an instruction on second-degree manslaughter as a lesser included offense of murder, on grounds that they were so intoxicated that they could not form the requisite intent necessary for a conviction of murder, as the evidence — including their pre-crime planning — did not support an intoxication defense. Caudill v. Commonwealth, 120 S.W.3d 635, 2003 Ky. LEXIS 140 ( Ky. 2003 ).

Defendant was not entitled to an instruction on second-degree manslaughter as a lesser included offense of murder, as the evidence — including her own testimony — did not support the theory that she intended to rob the victim and that, during the course of the robbery, her co-defendant unexpectedly killed the victim. Caudill v. Commonwealth, 120 S.W.3d 635, 2003 Ky. LEXIS 140 ( Ky. 2003 ).

In a capital murder case, defendant was not entitled to an instructions on manslaughter in the second degree, under KRS 507.040 , as a lesser included offense of intentional murder, based on voluntary intoxication, because the evidence did not show not only that defendant was under the influence, but that he was so under the influence that he did not know what he was doing, as he walked three miles to the victims’ residence, hid in a tool shed to escape immediate detection, concealed the victims’ bodies and the weapon used to kill them, lay in wait for his next victim, had the presence of mind to flee the scene after shooting her and to conceal the weapon in a creek, and was able to find another person’s residence which he had not visited in almost three years. Soto v. Commonwealth, 139 S.W.3d 827, 2004 Ky. LEXIS 93 ( Ky. 2004 ), cert. denied, 544 U.S. 931, 125 S. Ct. 1670, 161 L. Ed. 2d 495, 2005 U.S. LEXIS 2608 (U.S. 2005).

20.—Reckless Homicide.

Before defendants can be found guilty of either reckless homicide or manslaughter, there must exist a legal duty owed by the defendants to the victim; thus, because there was presented substantial evidence from which the jury could have concluded that the brother of 54-year-old disabled woman who died from conditions attributed to caretaker neglect assumed the duty of care and that he was acting in the capacity of “caretaker” as that term is defined by the provisions of KRS 209.020 , the trial court did not err by instructing the jury with respect to reckless homicide and complicity to reckless homicide and evidence was sufficient to support convictions of brother and his wife. West v. Commonwealth, 935 S.W.2d 315, 1996 Ky. App. LEXIS 179 (Ky. Ct. App. 1996).

21.—Wanton Act.

The definition of a wanton act required to be given as part of the instructions is a wrongful act done on purpose in complete disregard of the rights of others wherein the actor must have conscious knowledge of the probable consequences and a complete disregard for them. (Decided under prior law) Fugate v. Commonwealth, 445 S.W.2d 675, 1969 Ky. LEXIS 169 ( Ky. 1969 ), overruled, Commonwealth v. Sawhill, 660 S.W.2d 3, 1983 Ky. LEXIS 303 ( Ky. 1983 ).

22.—Properly Denied.

Where death of deceased resulted from brutal beating and punishment fixed by jury was far greater than minimums for both voluntary and involuntary manslaughter, involving instruction was not required. (Decided under prior law) Levi v. Commonwealth, 405 S.W.2d 559, 1965 Ky. LEXIS 3 ( Ky. 1965 ), cert. denied, 385 U.S. 956, 87 S. Ct. 391, 17 L. Ed. 2d 303, 1966 U.S. LEXIS 187 (U.S. 1966).

Where the defendant was using a deadly weapon, namely a knife and where he admitted that he was attempting to defend and protect himself with the deadly weapon there is no room for argument that he did not intend the result of the actions taken by him and consequently an instruction on involuntary manslaughter was properly refused. (Decided under prior law) Shanks v. Commonwealth, 390 S.W.2d 888, 1965 Ky. LEXIS 376 ( Ky. 1965 ).

Where the deceased was killed by a deadly weapon and the defendant admitted that he used the weapon to protect himself against an assault by the deceased there was no justification for an instruction on involuntary manslaughter. (Decided under prior law) Martin v. Commonwealth, 406 S.W.2d 843, 1966 Ky. LEXIS 224 ( Ky. 1966 ).

In situations of mutual combat where one of the participants shoots, stabs, bludgeons or mauls his adversary to death, his acts being intentional and his victim known, involuntary manslaughter instruction should not be given. (Decided under prior law) Vinson v. Commonwealth, 412 S.W.2d 565, 1967 Ky. LEXIS 427 ( Ky. 1967 ).

The trial court properly refused to give an instruction on involuntary manslaughter where there was no evidence of any act of the defendant which could be characterized either as wanton or reckless. (Decided under prior law) Bartley v. Commonwealth, 478 S.W.2d 24, 1972 Ky. LEXIS 332 ( Ky. 1972 ).

Where there was no evidence to raise a reasonable doubt as to whether the defendant intended to kill the victim, the trial court’s denial of a request for an instruction on manslaughter was proper. Brown v. Commonwealth, 555 S.W.2d 252, 1977 Ky. LEXIS 501 ( Ky. 1977 ).

Where there was no evidence that a defendant acted wantonly, recklessly or negligently, the court did not err in refusing to instruct the jury on second-degree manslaughter since these elements must be present to constitute the crime. Garrett v. Commonwealth, 560 S.W.2d 805, 1977 Ky. LEXIS 575 ( Ky. 1977 ).

The trial judge correctly declined to give jury instructions pertaining to the required mental states of lesser included offenses of intentional murder as found in KRS 507.020 , this section, and KRS 507.050 when the defendant’s evidence consisted of a complete denial of any offense with respect to the injuries and death of his stepson and all evidence supported a finding that the defendant acted with intent to cause death rather than intent to discipline or scare the child. Parker v. Commonwealth, 952 S.W.2d 209, 1997 Ky. LEXIS 84 ( Ky. 1997 ), cert. denied, 522 U.S. 1122, 118 S. Ct. 1066, 140 L. Ed. 2d 126, 1998 U.S. LEXIS 1067 (U.S. 1998).

There was no credible evidence of extreme emotional distress to support an instruction on first-degree manslaughter; nor was an instruction on wanton manslaughter or murder required, since there was no credible evidence that the murders were accidental. Tamme v. Commonwealth, 973 S.W.2d 13, 1998 Ky. LEXIS 46 ( Ky. 1998 ), cert. denied, 525 U.S. 1153, 119 S. Ct. 1056, 143 L. Ed. 2d 61, 1999 U.S. LEXIS 1229 (U.S. 1999).

As defendant testified he intentionally killed the victim in self-defense, there was no evidentiary basis for his “stand alone” instructions on second degree manslaughter or reckless homicide premised on a theory that he unintentionally killed the victim. Saylor v. Commonwealth, 144 S.W.3d 812, 2004 Ky. LEXIS 220 ( Ky. 2004 ).

Rational jury could not have found defendant’s participation in the crime to be simple wantonness as required for a second-degree manslaughter instruction; rather, his conduct in luring the victim to the crime scene was so obviously accompanied by the risk that the victim would be killed that it necessarily included the element of acting under circumstances manifesting extreme indifference to human life. Hudson v. Commonwealth, 385 S.W.3d 411, 2012 Ky. LEXIS 95 ( Ky. 2012 ).

Cited in:

Pilon v. Bordenkircher, 593 F.2d 264, 1979 U.S. App. LEXIS 16638 (6th Cir. 1979), vacated, 444 U.S. 1, 100 S. Ct. 7, 62 L. Ed. 2d 1, 1979 U.S. LEXIS 149 (1979); Kruse v. Commonwealth, 704 S.W.2d 192, 1985 Ky. LEXIS 303 ( Ky. 1985 ); Davis v. Secretary of Health & Human Services, 867 F.2d 336, 1989 U.S. App. LEXIS 1510 (6th Cir. 1989).

Notes to Unpublished Decisions

1.Armed Career Criminal.

Unpublished decision: Where defendant was convicted of possession of cocaine, possession with intent to distribute cocaine, and being a felon in possession of a firearm, defendant’s 15-year sentence was upheld because (1) defendant was sentenced correctly as an armed career criminal since, inter alia, defendant’s manslaughter conviction under KRS 507.040(1) counted as a violent felony, and (2) any error was harmless. United States v. Briggs, 431 Fed. Appx. 389, 2011 FED App. 0403N, 2011 U.S. App. LEXIS 12547 (6th Cir. Ky. 2011 ).

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Ashdown, Criminal Law, 64 Ky. L.J. 337 (1975-76).

Kentucky Law Survey, Brice and Taylor, Criminal Law, 67 Ky. L.J. 569 (1978-1979).

Kentucky Law Survey, Overstreet and Collier, Criminal Law, 68 Ky. L.J. 733 (1979-1980).

Kentucky Law Survey, Patterson, Juvenile Code, 70 Ky. L.J. 343 (1981-82).

Cooper and Lawson, Self-Defense in Kentucky: A Need for Clarification or Revision, 76 Ky. L.J. 167 (1987-88).

Northern Kentucky Law Review.

Comments, Criminal Law — Murder by Auto, Kentucky’s Hard Line Stance Against Drunken Drivers, 5 N. Ky. L. Rev. 279 (1978).

Note, Jones v. Commonwealth, 20 N. Ky. L. Rev. 831 (1993).

Hodge, Wanton Murder, Self-Defense, and Jury Instructions: Shannon v. Commonwealth is Revisited; But does it Remain?, 22 N. Ky. L. Rev. 435 (1995).

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Assaults and Restraints of Persons, Part 2 Homicide, §§ 3.28, 3.28A, 3.30.

Kentucky Instructions to Juries (Criminal), 5th Ed., Complicity and Inchoate Offenses, Part 2 Complicity, § 10.14.

507.050. Reckless homicide.

  1. A person is guilty of reckless homicide when, with recklessness he causes the death of another person.
  2. Reckless homicide is a Class D felony.

History. Enact. Acts 1974, ch. 406, § 64, effective January 1, 1975.

NOTES TO DECISIONS

1.Elements.

The gravamen of the offense of reckless homicide is the failure to perceive a substantial and unjustified risk when such failure is a gross deviation from the standard of care that a reasonable person would observe in the situation; thus no specific intent that the act or omission cause injury is required, nor is there any requirement to show a subjective realization on the part of the actor that his conduct creates a substantial risk. Robinson v. Commonwealth, 569 S.W.2d 183, 1978 Ky. App. LEXIS 557 (Ky. Ct. App. 1978).

This section, in using the objective standard of the reasonable man, authorizes a conviction when a person fails to perceive a substantial danger in his conduct, but only if he should have perceived it under the circumstances which existed. Robinson v. Commonwealth, 569 S.W.2d 183, 1978 Ky. App. LEXIS 557 (Ky. Ct. App. 1978).

Examination of the Kentucky statutory elements for reckless homicide shows that it is a crime of violence for purposes of U.S. Sentencing Guidelines Manual § 4B1.1 because it involves conduct posing a serious risk of physical injury to another. United States v. Adams, 51 Fed. Appx. 507, 2002 U.S. App. LEXIS 22114 (6th Cir. Ky. 2002 ).

2.Evidence.
3.— Death Certificate.

In the prosecution for involuntary manslaughter, death certificate was properly admitted where it was offered only to establish the cause of death from a factual standpoint. (Decided under prior law) Bralley v. Commonwealth, 525 S.W.2d 123, 1975 Ky. LEXIS 103 ( Ky. 1975 ).

4.— Photographs.

It was error to admit photographs of a mangled body of one victim of an accident and to allow testimony of other persons involved in the accident as to their injuries where the force of the collisions had been amply demonstrated by other exhibits and testimony. (Decided under prior law) Jordan v. Commonwealth, 371 S.W.2d 632, 1963 Ky. LEXIS 106 ( Ky. 1963 ).

5.— Testimony on Mental State.

A clinical psychologist’s testimony as to the degree of mental retardation was sufficient to permit a jury to conclude, but would not require it to conclude, that the accused was not mentally able to perceive the danger in her conduct; therefore, it was prejudicial error to exclude the testimony. Robinson v. Commonwealth, 569 S.W.2d 183, 1978 Ky. App. LEXIS 557 (Ky. Ct. App. 1978).

6.— Sufficient.

Evidence that defendant motorist did not maintain a lookout for pedestrians supported conviction of manslaughter. (Decided under prior law) Swango v. Commonwealth, 276 Ky. 467 , 124 S.W.2d 768, 1939 Ky. LEXIS 548 ( Ky. 1939 ).

Evidence that defendant was driving at speed of 30 or 35 miles per hour as he approached children playing at side of road, and did not sound horn, or bring his automobile under reasonable control, was sufficient to take case to jury in manslaughter prosecution. (Decided under prior law) Cornett v. Commonwealth, 282 Ky. 322 , 138 S.W.2d 492, 1940 Ky. LEXIS 171 ( Ky. 1940 ).

Evidence showing that defendant, while under influence of intoxicating liquor, was driving his truck at a high rate of speed on left side of highway and collided head-on with another automobile coming from opposite direction, while attempting to pass an automobile on a curve in heavy fog, resulting in the death of four persons sustained a verdict of voluntary manslaughter. (Decided under prior law) Dixon v. Commonwealth, 302 Ky. 353 , 194 S.W.2d 655, 1946 Ky. LEXIS 672 ( Ky. 1946 ).

Circumstantial evidence was sufficient to sustain conviction of manslaughter based on charge that defendant, while drunk, ran into victim with automobile, although there was no direct evidence that victim had been struck by an automobile or that defendant was the one who struck him. (Decided under prior law) Bolen v. Commonwealth, 303 Ky. 611 , 198 S.W.2d 309, 1946 Ky. LEXIS 903 ( Ky. 1946 ).

Where there was evidence that the defendant may have been driving at an excessive speed immediately before he struck the deceased, and that the defendant had failed to keep a proper lookout, this was sufficient to take the case to the jury and to sustain a conviction. (Decided under prior law) Smith v. Commonwealth, 282 S.W.2d 840, 1955 Ky. LEXIS 272 ( Ky. 1955 ).

Where the evidence showed that in total disregard of three warning signs, the last one directing a reduction of speed to 15 m.p.h., and with clear vision of a congested condition on the highway, with the left side completely occupied by a backhoe and with workmen occupying various positions on or near the pavement, the defendant proceeded at an unreduced speed of 40 miles per hour and struck a workman who was not on the pavement, reasonable minds could consider such conduct to evince an indifference to the rights of others and to whether wrong or injury might result. (Decided under prior law) Smith v. Commonwealth, 424 S.W.2d 835, 1967 Ky. LEXIS 27 ( Ky. 1967 ).

In a prosecution for involuntary manslaughter the corpus delicti was established where there was testimony by the investigating officer that deceased was the victim of an auto accident, that she suffered massive, multiple injuries, coupled with the introduction into evidence of a death certificate reflecting the cause of death as multiple injuries as a result of an auto accident. (Decided under prior law) Bralley v. Commonwealth, 525 S.W.2d 123, 1975 Ky. LEXIS 103 ( Ky. 1975 ).

Evidence was sufficient for a reasonable jury to believe beyond a reasonable doubt that the methamphetamine that defendant injected into the victim’s vein caused the victim’s death, where the Commonwealth introduced evidence that: (1) both the methamphetamine and the water used to dissolve it into liquid form suitable for injection belonged to defendant; (2) defendant injected the methamphetamine into the victim’s vein knowing that the effect would be “different” than if only injected subcutaneously as the victim had done; (3) defendant knew that the victim had suffered a severe adverse reaction from ingesting methamphetamine on a previous occasion though the victim “had pulled through it;” and (4) the amount of methamphetamine found in the victim’s blood during the postmortem examination was sufficient to be lethal. Powell v. Commonwealth, 189 S.W.3d 535, 2006 Ky. LEXIS 110 ( Ky. 2006 ).

Evidence supported defendant’s KRS 507.050(1) reckless homicide conviction under an imperfect self-defense theory because, under KRS 503.120(1), a rational juror could believe beyond a reasonable doubt defendant subjectively thought the victim was about to harm defendant, but, objectively, defendant recklessly did not perceive a risk that defendant’s belief was mistaken, as nothing showed defendant evaluated that risk. Commonwealth v. Hasch, 421 S.W.3d 349, 2013 Ky. LEXIS 393 ( Ky. 2013 ).

7.— Insufficient.

Motorist was not guilty of voluntary manslaughter by recklessly driving overtaking automobile against pedestrian, where there was evidence that he saw pedestrian when 1,000 feet away, that she looked toward car and then walked alongside of highway, but, as he reached her, turned and walked in front of car, notwithstanding he gave no warning signal. (Decided under prior law) Hawpe v. Commonwealth, 234 Ky. 27 , 27 S.W.2d 394, 1930 Ky. LEXIS 108 ( Ky. 1930 ).

8.Instructions.

In a criminal prosecution, where the defendant was found guilty of voluntary manslaughter in wrongfully causing the death of another through the negligent operation of his automobile, and where the evidence as to the degree of defendant’s negligence was conflicting, the failure of the court to give instruction on involuntary manslaughter constituted reversible error. (Decided under prior law) Kelly v. Commonwealth, 267 S.W.2d 536, 1954 Ky. LEXIS 844 ( Ky. 1954 ).

Instruction in voluntary manslaughter prosecution against motorist who had struck and killed pedestrian, that defendant should not be acquitted if the jury found that defendant knew that he was likely to have blackouts and that it was dangerous and hazardous to the lives of others on the highways for him to operate motor vehicles upon the highways was erroneous. (Decided under prior law) Smith v. Commonwealth, 268 S.W.2d 937, 1954 Ky. LEXIS 934 ( Ky. 1954 ).

Manslaughter conviction for death of child, who was walking on road and was struck by defendant’s truck, where evidence conflicted as to manner in which accident happened, had to be reversed since defendant was entitled to have jury instructed on involuntary manslaughter based upon theory of gross negligence as well as instructions on voluntary manslaughter and involuntary manslaughter based upon theory of ordinary negligence. (Decided under prior law) Helton v. Commonwealth, 272 S.W.2d 47, 1954 Ky. LEXIS 1081 ( Ky. 1954 ).

In an instruction on involuntary manslaughter, second degree, it was not prejudicial error to define recklessness as meaning “having little or slight regard for the safety of others, gross carelessness” rather than as being “conduct done with indifference to the rights of others, and indifference whether wrong or injury will result from the act done.” (Decided under prior law) Smith v. Commonwealth, 424 S.W.2d 835, 1967 Ky. LEXIS 27 ( Ky. 1967 ).

Evidence that defendant’s vehicle veered into another lane and struck an oncoming vehicle and that the driver of the oncoming vehicle died as a result of injuries suffered in the accident warranted the giving of instructions regarding second degree involuntary manslaughter. (Decided under prior law) Bralley v. Commonwealth, 525 S.W.2d 123, 1975 Ky. LEXIS 103 ( Ky. 1975 ).

Where evidence of defendant’s intoxication is sufficient to require defense of voluntary intoxication to be submitted to jury in homicide case involving intentional or knowing offense and lesser included unintentional offenses, it must be accompanied by instruction to the effect that, although the jury might otherwise find the defendant guilty of murder or first-degree manslaughter, if at the time of the murder defendant was so drunk that he did not have intention to commit crime, he must be found not guilty of those charges. Brown v. Commonwealth, 575 S.W.2d 451, 1978 Ky. LEXIS 449 ( Ky. 1978 ).

No reasonable person could fail to perceive that a severe beating of an 80-year-old woman such as was administered by the defendant posed a substantial and totally unjustifiable risk that death would result; therefore, it was not error to refuse the instruction on reckless homicide. Adcock v. Commonwealth, 702 S.W.2d 440, 1986 Ky. LEXIS 222 ( Ky. 1986 ).

Upon retrial of a defendant charged with, and convicted of intentional homicide, the defendant would be entitled to an instruction that if the jury finds he believed, reasonably or unreasonably, in the need to defend himself, they should find him innocent. Bennett v. Scroggy, 793 F.2d 772, 1986 U.S. App. LEXIS 26244 (6th Cir. Ky. 1986 ).

In homicide prosecutions, a defendant is entitled to an instruction on a lesser-included offense if the evidence would permit a jury to rationally find him or her guilty of the lesser offense and acquit the defendant of the greater. Smith v. Commonwealth, 737 S.W.2d 683, 1987 Ky. LEXIS 237 ( Ky. 1987 ).

Before defendants can be found guilty of either reckless homicide or manslaughter, there must exist a legal duty owed by the defendants to the victim; thus, because there was presented substantial evidence from which the jury could have concluded that the brother of 54-year-old disabled woman who died from conditions attributed to caretaker neglect assumed the duty of care and that he was acting in the capacity of “caretaker” as that term is defined by the provisions of KRS 209.020 , the trial court did not err by instructing the jury with respect to reckless homicide and complicity to reckless homicide and evidence was sufficient to support convictions of brother and his wife. West v. Commonwealth, 935 S.W.2d 315, 1996 Ky. App. LEXIS 179 (Ky. Ct. App. 1996).

The trial judge correctly declined to give jury instructions pertaining to the required mental states of lesser included offenses of intentional murder as found in KRS 507.020 , 507.040 , and this section when the defendant’s evidence consisted of a complete denial of any offense with respect to the injuries and death of his stepson and all evidence supported a finding that the defendant acted with intent to cause death rather than intent to discipline or scare the child. Parker v. Commonwealth, 952 S.W.2d 209, 1997 Ky. LEXIS 84 ( Ky. 1997 ), cert. denied, 522 U.S. 1122, 118 S. Ct. 1066, 140 L. Ed. 2d 126, 1998 U.S. LEXIS 1067 (U.S. 1998).

In a prosecution for murder, the defendant was not entitled to have the jury instructed with regard to first-degree manslaughter since the evidence did not support an inference that the defendant could have failed to perceive the risk of setting a fire to the victims’ home where (1) the victims died not from injuries sustained during the robbery of their home, but from smoke inhalation sustained as a result of a fire set by the defendant, and (2) there was evidence that the defendant intended to set the fire, and an accelerant was found at the scene and on the clothing of one of the victims. Osborne v. Commonwealth, 43 S.W.3d 234, 2001 Ky. LEXIS 69 ( Ky. 2001 ).

As defendant testified he intentionally killed the victim in self-defense, there was no evidentiary basis for his “stand alone” instructions on second degree manslaughter or reckless homicide premised on a theory that he unintentionally killed the victim. Saylor v. Commonwealth, 144 S.W.3d 812, 2004 Ky. LEXIS 220 ( Ky. 2004 ).

Trial court properly declined to instruct the jury on facilitation to reckless homicide because defendant knew that an offender intended to commit a crime other than reckless homicide, and the crime for which defendant was convicted, reckless homicide, was appropriate for his conduct based on the evidence presented at trial; one cannot facilitate reckless homicide because facilitation requires knowledge that a person intends to commit a crime, and a person cannot intend to commit reckless homicide. Finnell v. Commonwealth, 295 S.W.3d 829, 2009 Ky. LEXIS 254 ( Ky. 2009 ).

Trial court did not err in denying defendant’s request for a reckless homicide instruction where it was manifestly apparent that defendant could not reasonably have failed to perceive the substantial and unjustifiable risk that the victim would be killed; especially where defendant had comprehensive knowledge of the circumstances and he admitted to hearing discussions of a plan to possibly kill her. Hudson v. Commonwealth, 385 S.W.3d 411, 2012 Ky. LEXIS 95 ( Ky. 2012 ).

9.— Accident.

In prosecution for voluntary manslaughter, arising out of automobile collision, where evidence conclusively showed that defendant’s truck was on wrong side of road when it struck deceased’s automobile, and sole defense was that defendant’s truck was not the one involved in the collision, mere testimony of one witness that defendant’s truck was on its own side of the road several hundred feet from the point of the collision, was not sufficient to require an instruction on “accident.” (Decided under prior law) Patton v. Commonwealth, 303 Ky. 684 , 199 S.W.2d 129, 1947 Ky. LEXIS 542 ( Ky. 1947 ).

While this action was not prosecuted under the voluntary manslaughter statute, the holdings in Monson v. Commonwealth , 294 S.W.2d 78, 1956 Ky. LEXIS 110 ( Ky. 1956 ), Marye v. Commonwealth , 240 S.W.2d 852, 1951 Ky. LEXIS 1029 ( Ky. 1951 ), and Hill v. Commonwealth , 339 S.W.2d 170, 1960 Ky. LEXIS 433 ( Ky. 1960 ), to the extent that they required an accident instruction in prosecution for voluntary manslaughter, involuntary manslaughter and negligent homicide from the use of a vehicle, were overruled. (Decided under prior law) Owens v. Commonwealth, 487 S.W.2d 897, 1972 Ky. LEXIS 77 ( Ky. 1972 ), overruled in part, Commonwealth v. Roberts, 122 S.W.3d 524, 2003 Ky. LEXIS 255 ( Ky. 2003 ).

10.— Corroboration.

In prosecution for manslaughter arising out of an automobile collision, where evidence established that defendant stopped his car and pushed a 13-year-old girl under the steering wheel and told her to drive, and defendant placed his foot on the accelerator, and the car ran off the road and ran into the path of the other car, the girl was not an accomplice so as to require an instruction with respect to corroboration of testimony of an accomplice. (Decided under prior law) Rouse v. Commonwealth, 303 S.W.2d 265, 1957 Ky. LEXIS 237 ( Ky. 1957 ).

11.— Sudden Emergency.

Trial court properly refused to give sudden emergency instruction in manslaughter prosecution arising out of killing which occurred when defendant’s truck struck pedestrian, wherein defendant claimed that sudden emergency existed when right door of truck flew open and defendant’s companion who was next to the door was holding defendant’s baby on his lap, and defendant reached across and grabbed the baby, since such situation was adequately covered by the instructions defining “reckless,” “wanton,” “carelessly,” “negligently” and “ordinary care.” (Decided under prior law) Moore v. Commonwealth, 264 S.W.2d 272, 1954 Ky. LEXIS 666 ( Ky. 1954 ).

A special instruction on sudden emergency in a case involving manslaughter with a motor vehicle is not warranted unless the accused had a choice of alternatives to avoid the consequences of his acts. (Decided under prior law) Cody v. Commonwealth, 449 S.W.2d 749, 1970 Ky. LEXIS 471 ( Ky. 1970 ).

Where there was ample evidence that the defendant was intoxicated and that the accident occurred when he attempted to pass the car ahead of him, he was not entitled to an instruction on sudden emergency. (Decided under prior law) Cody v. Commonwealth, 449 S.W.2d 749, 1970 Ky. LEXIS 471 ( Ky. 1970 ).

12.Reckless Conduct.

Wanton conduct requires conscious knowledge of the probable consequences, whereas reckless conduct merely requires a state of indifference as to the result. (Decided under prior law) Cody v. Commonwealth, 449 S.W.2d 749, 1970 Ky. LEXIS 471 ( Ky. 1970 ).

In a prosecution for second degree involuntary manslaughter involving death resulting from an auto accident, the court improperly submitted to the jury the issue of gross carelessness and negligence. (Decided under prior law) Bralley v. Commonwealth, 525 S.W.2d 123, 1975 Ky. LEXIS 103 ( Ky. 1975 ).

Evidence that a criminal defendant was driving under the influence is sufficient to prove reckless conduct. Commonwealth v. Runion, 873 S.W.2d 583, 1993 Ky. App. LEXIS 168 (Ky. Ct. App. 1993).

A violation of the seat belt statute does not provide the mental state necessary for a reckless homicide conviction. Commonwealth v. Mitchell, 41 S.W.3d 434, 2001 Ky. LEXIS 10 ( Ky. 2001 ).

Defendant who caused an auto accident that killed three people and injured a third, and who tested positive for prescription drugs and marijuana in his urine, was improperly convicted of reckless homicide under KRS 507.050 . He did not drive erratically; there was no evidence he was under influence of drugs; and driving with excessively worn tires was insufficient evidence of recklessness. Ison v. Commonwealth, 271 S.W.3d 533, 2008 Ky. App. LEXIS 301 (Ky. Ct. App. 2008).

13.— Furnishing Controlled Substances.

The court rejected both the defendant’s proposition that furnishing controlled substances to one who subsequently dies from their ingestion can never support a conviction of criminal homicide and the Commonwealth’s proposition that such will always support a conviction; instead, guilt in such a circumstance depends upon proof. Lofthouse v. Commonwealth, 13 S.W.3d 236, 2000 Ky. LEXIS 23 ( Ky. 2000 ).

Evidence was insufficient to support a conviction based on the defendant’s furnishing of cocaine and heroin to the victim, who died after voluntarily ingesting such substances, where there was no proof that the defendant or any other layperson should have been aware that there was a substantial risk that the victim would die from ingesting those substances or that the defendant’s failure to perceive that risk constituted a gross deviation from the standard of care that a reasonable person would observe in the situation. Lofthouse v. Commonwealth, 13 S.W.3d 236, 2000 Ky. LEXIS 23 ( Ky. 2000 ).

14.— Relationship to federal sentencing provisions.

“Use of physical force” clause of 18 U.S.C.S. § 924(e)(2)(B)(i) required more than reckless conduct, and since petitioner inmate’s KRS 507.050(1) reckless homicide only required the mens rea of recklessness, it did qualify as a violent felony under § 924(e)(2)(B)(i). Jones v. United States, 689 F.3d 621, 2012 FED App. 0235P, 2012 U.S. App. LEXIS 15736 (6th Cir. Ky. 2012 ).

“Otherwise” clause of 18 U.S.C.S. § 924(e)(2)(B)(ii) included only convictions involving purposeful, violent, and aggressive conduct, and thus excluded reckless conduct, and since petitioner inmate’s KRS 507.050(1) reckless homicide only required the mens rea of recklessness, it did qualify as a violent felony under § 924(e)(2)(B)(ii). Jones v. United States, 689 F.3d 621, 2012 FED App. 0235P, 2012 U.S. App. LEXIS 15736 (6th Cir. Ky. 2012 ).

15.— Homicide by Automobile.

Accused was guilty of voluntary manslaughter by reckless driving, where, after drinking whiskey, he drove car with defective steering gear, following zigzagging course on highway and, when overtaking and passing another vehicle at 30 miles per hour on curving upgrade which obstructed view, collided with oncoming automobile, killing occupant thereof. (Decided under prior law) Largent v. Commonwealth, 265 Ky. 598 , 97 S.W.2d 538, 1936 Ky. LEXIS 543 ( Ky. 1936 ).

A motorist who struck and killed a pedestrian, while violating a statute against drunken driving, was guilty of manslaughter, where drunkenness was obvious cause of failure to maintain a lookout. (Decided under prior law) Newcomb v. Commonwealth, 276 Ky. 362 , 124 S.W.2d 486, 1939 Ky. LEXIS 532 ( Ky. 1939 ).

The use of an automobile or other instrumentality which is dangerous to life only when improperly handled must, in order to constitute voluntary manslaughter, amount to “reckless and wanton carelessness.” (Decided under prior law) Newcomb v. Commonwealth, 276 Ky. 362 , 124 S.W.2d 486, 1939 Ky. LEXIS 532 ( Ky. 1939 ).

In order to constitute manslaughter, driving must amount to gross and reckless operation of automobile. (Decided under prior law) Swango v. Commonwealth, 276 Ky. 467 , 124 S.W.2d 768, 1939 Ky. LEXIS 548 ( Ky. 1939 ).

One who operates an auto in such a manner as is likely to injure other persons using the highway, and recklessly, wantonly and with gross carelessness strikes and kills another, is guilty of voluntary manslaughter. (Decided under prior law) Carnes v. Commonwealth, 278 Ky. 771 , 129 S.W.2d 543, 1939 Ky. LEXIS 493 ( Ky. 1939 ); Cornett v. Commonwealth, 282 Ky. 322 , 138 S.W.2d 492, 1940 Ky. LEXIS 171 ( Ky. 1940 ); Lewis v. Commonwealth, 301 Ky. 268 , 191 S.W.2d 416, 1945 Ky. LEXIS 736 ( Ky. 1945 ); Dixon v. Commonwealth, 302 Ky. 353 , 194 S.W.2d 655, 1946 Ky. LEXIS 672 ( Ky. 1946 ).

In prosecution for manslaughter, it was prejudicial error to admit evidence of speed at which defendant was driving at a point two and one half miles from the place where defendant struck the deceased, since the direction and speed of an automobile can be changed very quickly. (Decided under prior law) Cornett v. Commonwealth, 282 Ky. 322 , 138 S.W.2d 492, 1940 Ky. LEXIS 171 ( Ky. 1940 ).

The Court of Appeals has been reluctant to affirm judgments of conviction of felonies in automobile accident cases where the element of intoxication is absent, but has upheld numerous convictions of voluntary manslaughter where there is evidence of intoxication and reckless driving. (Decided under prior law) Penix v. Commonwealth, 313 Ky. 587 , 233 S.W.2d 89, 1950 Ky. LEXIS 926 ( Ky. 1950 ); Peoples v. Commonwealth, 313 Ky. 618 , 233 S.W.2d 265, 1950 Ky. LEXIS 946 ( Ky. 1950 ).

A motorist operating an old automobile at speed of 50 miles per hour on narrow road in well built-up community in utter disregard of human life would be guilty of reckless negligence subjecting him to punishment for voluntary manslaughter if his conduct caused another’s death. (Decided under prior law) Kelly v. Commonwealth, 267 S.W.2d 536, 1954 Ky. LEXIS 844 ( Ky. 1954 ).

In prosecution for manslaughter arising out of automobile accident, court should not admit testimony as to speed of unidentified automobile unless there is further testimony identifying the car as being operated by defendant, and should confine testimony relating to the speed the accused was driving to the immediate scene of the accident. (Decided under prior law) Hodge v. Commonwealth, 287 S.W.2d 426, 1956 Ky. LEXIS 459 ( Ky. 1956 ).

Though defendants may have acted foolishly in the operation of their own vehicle, they could not be found guilty of aiding and abetting in the death which resulted in the involuntary manslaughter conviction of another defendant who caused the accident as a result of his recklessness in driving another vehicle. (Decided under prior law) Birmingham v. Commonwealth, 503 S.W.2d 499, 1972 Ky. LEXIS 7 ( Ky. 1972 ).

16.Result or Circumstance.

The definitions of “wantonly” and “recklessly” in KRS 501.020 explain that those terms apply both to “a result or to a circumstance described by a statute defining an offense.” A subjective belief in the need for self-defense, which is objectively wanton or reckless, is a “circumstance” falling within the definition of wanton or reckless behavior, punishable under Manslaughter II or Reckless Homicide, as the case may be. Shannon v. Commonwealth, 767 S.W.2d 548, 1988 Ky. LEXIS 80 ( Ky. 1988 ), limited, McGinnis v. Commonwealth, 875 S.W.2d 518, 1994 Ky. LEXIS 37 ( Ky. 1994 ), overruled, Elliott v. Commonwealth, 976 S.W.2d 416, 1998 Ky. LEXIS 114 ( Ky. 1998 ).

17.Venue.

Where the defendant’s trial was held a year after the sensational accident and the news coverage occurred only at the time of the accident, the trial court did not abuse its discretion in denying the motion for a change of venue. (Decided under prior law) Helton v. Commonwealth, 476 S.W.2d 621, 1971 Ky. LEXIS 62 ( Ky. 1971 ).

18.Chance to Retreat.

In a reckless homicide prosecution, evidence of defendant’s chance to retreat was inadmissible because it was only relevant to show defendant’s response to defendant’s belief the victim was about to kill defendant was not defendant’s only alternative, but such evidence undermined KRS 503.055(3)’s “stand your ground” provision. Commonwealth v. Hasch, 421 S.W.3d 349, 2013 Ky. LEXIS 393 ( Ky. 2013 ).

Cited:

Kruse v. Commonwealth, 704 S.W.2d 192, 1985 Ky. LEXIS 303 ( Ky. 1985 ); Kentucky Bar Asso. v. Jones, 759 S.W.2d 61, 1988 Ky. LEXIS 73 ( Ky. 1988 ); Commonwealth v. Harrell, 3 S.W.3d 349, 1999 Ky. LEXIS 117 ( Ky. 1999 ).

Opinions of Attorney General.

A prosecution of reckless driving under KRS 189.290 would not bar a later prosecution of reckless homicide under this section arising out of the same conduct. OAG 78-301 .

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Ashdown, Criminal Law, 64 Ky. L.J. 337 (1975-76).

Kentucky Law Survey, Brice and Taylor, Criminal Law, 67 Ky. L.J. 569 (1978-1979).

Kentucky Law Survey, Overstreet and Collier, Criminal Law, 68 Ky. L.J. 733 (1979-1980).

Cooper and Lawson, Self-Defense in Kentucky: A Need for Clarification or Revision, 76 Ky. L.J. 167 (1987-88).

Northern Kentucky Law Review.

Comments, Criminal Law — Murder by Auto, Kentucky’s Hard Line Stance Against Drunken Drivers, 5 N. Ky. L. Rev. 279 (1978).

Hodge, Wanton Murder, Self-Defense, and Jury Instructions: Shannon v. Commonwealth is Revisited; But does it Remain?, 22 N. Ky. L. Rev. 435 (1995).

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Assaults and Restraints of Persons, Part 2 Homicide, §§ 3.29, 3.30.

Kentucky Instructions to Juries (Criminal), 5th Ed., Complicity and Inchoate Offenses, Part 2 Complicity, § 10.14.

CHAPTER 507A Fetal Homicide

507A.010. Definitions — Exceptions.

  1. As used in this chapter:
    1. “Abortion” has the same meaning as in KRS 311.720 ;
    2. “Health care provider” has the same meaning as in KRS 304.17A-005 ; and
    3. “Unborn child” means a member of the species homo sapiens in utero from conception onward, without regard to age, health, or condition of dependency.
  2. In a prosecution for the death of an unborn child, nothing in this chapter shall apply to acts performed by or at the direction of a health care provider that cause the death of an unborn child if those acts were committed:
    1. During any abortion for which the consent of the pregnant woman has been obtained or for which the consent is implied by law in a medical emergency; or
    2. As part of or incident to diagnostic testing or therapeutic medical or fertility treatment, provided that the acts were performed with that degree of care and skill which an ordinarily careful, skilled, and prudent health care provider or a person acting under the provider’s direction would exercise under the same or similar circumstances.
  3. Nothing in this chapter shall apply to any acts of a pregnant woman that caused the death of her unborn child.

History. Enact. Acts 2004, ch. 1, § 1, effective Feburary 20, 2004.

Research References and Practice Aids

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Assaults and Restraints of Persons, Part 1 Definitions, § 3.19B.

Kentucky Instructions to Juries (Criminal), 5th Ed., Assaults and Restraints of Persons, Part 2 Homicide, § 3.20A.

507A.020. Fetal homicide in the first degree.

  1. A person is guilty of fetal homicide in the first degree when:
    1. With intent to cause the death of an unborn child or with the intent necessary to commit an offense under KRS 507.020(1)(a), he causes the death of an unborn child; except that in any prosecution, a person shall not be guilty under this subsection if he acted under the influence of extreme emotional disturbance for which there was a reasonable explanation or excuse, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under the circumstances as the defendant believed them to be. However, nothing contained in this section shall constitute a defense to a prosecution for or preclude a conviction of fetal homicide in the second degree or any other crime; or
    2. Including but not limited to the operation of a motor vehicle under circumstances manifesting extreme indifference to human life, he wantonly engages in conduct which creates a grave risk of death to an unborn child and thereby causes the death of an unborn child.
  2. Fetal homicide in the first degree is a capital offense.

History. Enact. Acts 2004, ch. 1, § 2, effective Feburary 20, 2004.

Research References and Practice Aids

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Assaults and Restraints of Persons, Part 2 Homicide, §§ 3.20A, 3.21A, 3.22A, 3.23A, 3.24A.

507A.030. Fetal homicide in the second degree.

  1. A person is guilty of fetal homicide in the second degree when:
    1. With intent to cause serious physical injury to an unborn child or with the intent necessary to commit an offense under KRS 507.030(1)(a), he causes the death of an unborn child; or
    2. With intent to cause the death of an unborn child or with the intent necessary to commit an offense under KRS 507.030(1)(b), he causes the death of an unborn child under circumstances which do not constitute fetal homicide in the first degree because he acts under the influence of extreme emotional disturbance, as defined in KRS 507A.020(1)(a).
  2. Fetal homicide in the second degree is a Class B felony.

History. Enact. Acts 2004, ch. 1, § 3, effective Feburary 20, 2004.

Research References and Practice Aids

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Assaults and Restraints of Persons, Part 2 Homicide, §§ 3.25A, 3.26A, 3.27A.

507A.040. Fetal homicide in the third degree.

  1. A person is guilty of fetal homicide in the third degree when he wantonly causes the death of an unborn child, including but not limited to situations where the death results from the person’s operation of a motor vehicle.
  2. Fetal homicide in the third degree is a Class C felony.

History. Enact. Acts 2004, ch. 1, § 4, effective Feburary 20, 2004.

Research References and Practice Aids

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Assaults and Restraints of Persons, Part 2 Homicide, § 3.27B.

507A.050. Fetal homicide in the fourth degree.

  1. A person is guilty of fetal homicide in the fourth degree when, with recklessness, he causes the death of an unborn child.
  2. Fetal homicide in the fourth degree is a Class D felony.

History. Enact. Acts 2004, ch. 1, § 5, effective Feburary 20, 2004.

Research References and Practice Aids

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Assaults and Restraints of Persons, Part 2 Homicide, § 3.29A.

507A.060. Death sentence prohibited.

The death of an unborn child shall not result in the imposition of a sentence of death, either as a result of the violation of KRS 507A.020 or as a result of the aggravation of another capital offense under KRS 532.025(2).

History. Enact. Acts 2004, ch. 1, § 6, effective Feburary 20, 2004.

CHAPTER 508 Assault and Related Offenses

508.010. Assault in the first degree.

  1. A person is guilty of assault in the first degree when:
    1. He intentionally causes serious physical injury to another person by means of a deadly weapon or a dangerous instrument; or
    2. Under circumstances manifesting extreme indifference to the value of human life he wantonly engages in conduct which creates a grave risk of death to another and thereby causes serious physical injury to another person.
  2. Assault in the first degree is a Class B felony.

History. Enact. Acts 1974, ch. 406, § 65, effective January 1, 1975.

NOTES TO DECISIONS

1.Construction.

This chapter was intended to include vehicular accidents within the meaning of “assaults.” Martin v. Commonwealth, 873 S.W.2d 832, 1993 Ky. App. LEXIS 181 (Ky. Ct. App. 1993).

Inmate’s guilty plea to charges of first-degree assault, KRS 508.010 , necessarily meant that his victims suffered serious physical injury, and thus the inmate was properly considered a violent offender for sentencing purposes pursuant to KRS 439.3401(1); even though the inmate’s final judgment did not expressly state that he had been convicted of a class B felony involving the death or serious injury of the victim, the inmate was still properly considered a “violent offender,” and the inmate’s mandamus petition was properly dismissed. Jackson v. Taylor, 153 S.W.3d 842, 2004 Ky. App. LEXIS 36 (Ky. Ct. App. 2004).

2.Double Jeopardy.

The evidence of shooting an officer in a patrol wagon at another location would not support a conviction under this section for maliciously shooting an officer at another place, hence, a conviction for shooting the officer in the patrol wagon was not a bar to the prosecution under this section for shooting the other officer. (Decided under prior law) Wallace v. Commonwealth, 207 Ky. 122 , 268 S.W. 809, 1925 Ky. LEXIS 30 ( Ky. 1925 ).

Prior conviction for stabbing victim is no defense to prosecution for malicious shooting at a later time than stabbing. The length of time intervening between two offenses is wholly immaterial. (Decided under prior law) Dilley v. Commonwealth, 243 Ky. 464 , 48 S.W.2d 1070, 1932 Ky. LEXIS 110 ( Ky. 1932 ).

A prosecution for malicious assault was barred as double jeopardy by a prior acquittal of unlawfully and maliciously assaulting another with intent to rob where the shooting relied on in each indictment was the same act. (Decided under prior law) Rogers v. Commonwealth, 257 Ky. 495 , 78 S.W.2d 340, 1935 Ky. LEXIS 43 ( Ky. 1935 ).

Where under three indictments and separate trials defendant was convicted of maliciously striking and wounding another with a deadly weapon with intent to kill, and in the last of the cases for which he was tried, he entered a plea of former jeopardy on the ground he had been convicted of conspiracy in the previous trials and the crime proven was that of maliciously striking and wounding another by his own hand or by acting in concert with others who committed the specific act, each assault constituted a separate crime and plea of former jeopardy was unfounded. (Decided under prior law) Helton v. Commonwealth, 244 S.W.2d 762, 1951 Ky. LEXIS 1248 ( Ky. 1951 ).

In a prosecution for maliciously cutting and wounding a police officer, where record did not show defendant requested an instruction or an admonition on prior convictions admitted by defendant in court, it was not prejudicial error for the court to fail to admonish the jury that testimony concerning prior convictions, admitted by defendant in open court, could only be considered for purpose of affecting his credibility as a witness. (Decided under prior law) Patton v. Commonwealth, 273 S.W.2d 841, 1954 Ky. LEXIS 1216 ( Ky. 1954 ).

Where defendant was prosecuted for malicious shooting under an original indictment in Circuit Court and two years after conviction applied for a writ of habeas corpus, his retrial under the same indictment did not constitute double jeopardy, since upon grant of habeas corpus defendant was in same position as if there had been no trial at all. (Decided under prior law) Rice v. Commonwealth, 387 S.W.2d 4, 1965 Ky. LEXIS 452 ( Ky. 1965 ).

In a prosecution for both first-degree assault under this section and first-degree escape under KRS 520.020 there was no violation of the defendants’ protection against double jeopardy, despite the showing of the common element of the use of force, since first-degree assault does not require proof of escape from custody and first-degree escape does not require proof of physical injury. McClain v. Commonwealth, 607 S.W.2d 421, 1980 Ky. LEXIS 261 ( Ky. 1980 ).

It was not improper for state to prosecute defendant on both charge of possession of a handgun by a convicted felon under KRS 527.040 and on first-degree assault charge under this section even though a single course of conduct establishes the commission of both offenses because of KRS 505.020 ; and conviction for both crimes is not double jeopardy under Ky. Const., § 13 because neither offense is necessarily included within the other and each requires proof of an element not required by the other. Boulder v. Commonwealth, 610 S.W.2d 615, 1980 Ky. LEXIS 288 ( Ky. 1980 ), overruled, Dale v. Commonwealth, 715 S.W.2d 227, 1986 Ky. LEXIS 284 ( Ky. 1986 ).

Escape from a detention facility or custody is not an element of this section which defines assault in the first degree; thus, double jeopardy did not prohibit punishing the defendant for escape from a detention facility as well as for an assault he committed during the escape. Cope v. Commonwealth, 645 S.W.2d 703, 1983 Ky. LEXIS 215 ( Ky. 1983 ).

Where defendant was first tried on a charge of first degree robbery, that trial ending in a mistrial because the jury could not agree on a verdict, no aspect of the double jeopardy doctrine precluded his retrial on the lesser included offenses of assault in the first and second degree, since he could have been retried on the greater crime of robbery in the first degree. Commonwealth v. Varney, 690 S.W.2d 758, 1985 Ky. LEXIS 211 ( Ky. 1985 ), overruled, Goodman v. Commonwealth, 2015 Ky. Unpub. LEXIS 19 (Ky. Feb. 19, 2015).

Criminal contempt conviction for violating domestic violent order prohibiting defendant from committing further acts of violence upon his wife did not bar action against him for first degree assault; double jeopardy did not attach because the contempt conviction required proof of an element unnecessary to convict him of burglary. Commonwealth v. Burge, 1996 Ky. LEXIS 82 (Ky. Aug. 29, 1996).

In a prosecution for assault under KRS 508.010 , the trial court did not violate the double jeopardy ban or KRS 505.020 by submitting the case to the jury with instructions for three (3) counts of first-degree assault as defendant shot an officer three (3) separate times and inflicted three (3) separate wounds. Welborn v. Commonwealth, 157 S.W.3d 608, 2005 Ky. LEXIS 92 ( Ky. 2005 ).

Applying the Blockburger test, codified at KRS 505.020 , first-degree rape under KRS 510.040 , premised on serious physical injury, and first-degree assault under KRS 508.010 were separate offenses, as each contained an element that the other did not. First-degree rape requires sexual intercourse and assualt does not; first-degree assault requires that the serious physical injury was obtained by use of a deadly weapon or dangerous instrument, but first-degree rape involving serious physical injury to the victim contains no such deadly weapon or dangerous instrument requirement. Dixon v. Commonwealth, 263 S.W.3d 583, 2008 Ky. LEXIS 138 ( Ky. 2008 ).

Defendant’s convictions for both attempted murder and first-degree assault, in violation of KRS 508.010(1), from the shooting of one victim resulted in a double jeopardy violation under KRS 505.020(1)(b); to convict defendant of both attempted murder and assault, the jury had to conclude that defendant intended to kill the victim and, at the same instant, intended not to kill the victim but only to injure the victim. Kiper v. Commonwealth, 399 S.W.3d 736, 2012 Ky. LEXIS 190 ( Ky. 2012 ), reprinted, 2012 Ky. LEXIS 409 (Ky. Nov. 21, 2012), modified, 2013 Ky. LEXIS 145 (Ky. Apr. 25, 2013).

Defendant’s convictions for both attempted murder and first-degree assault for shooting the same alleged victim did not violate the protections against double jeopardy under U.S. Const. amend. V and Ky. Const. § 13 because each crime contained an element that the other did not; the convictions did result in a double jeopardy violation of KRS 505.020(1)(b) because there were inconsistent and mutually exclusive findings of fact regarding defendant’s mens rea at the moment he fired the shots when the jury had to conclude that defendant intended to kill the alleged victim and, at the same instant, intended not to kill him but only to injure him. Kiper v. Commonwealth, 2012 Ky. LEXIS 409 (Ky. Nov. 21, 2012).

3.Due Process.

In prosecution for malicious shooting denial of continuance, under the circumstances, was denial of defendant’s constitutional right to counsel. (Decided under prior law) Perkins v. Commonwealth, 305 S.W.2d 937, 1957 Ky. LEXIS 356 ( Ky. 1957 ).

In prosecution for malicious striking and wounding, refusal of trial court to permit defendant to change his plea of guilty to not guilty before the judgment had been finally pronounced was within the discretion of the trial court and was not a matter of right. (Decided under prior law) Hurt v. Commonwealth, 333 S.W.2d 951, 1960 Ky. LEXIS 217 ( Ky. 1960 ).

Defendant, who was not afforded effective assistance of counsel at his trial for malicious shooting at which no transcript of evidence was made, was entitled to full and complete hearing on writ of habeas corpus. (Decided under prior law) Rice v. Davis, 366 S.W.2d 153, 1963 Ky. LEXIS 4 ( Ky. 1963 ).

Where on cross-examination the defendant’s wife was asked to strike the barrel of the shotgun against the car door in a manner simulating the way the gun was struck by the door at the scene of the incident, the reenactment was proper and was not error. (Decided under prior law) Stevens v. Commonwealth, 462 S.W.2d 182, 1970 Ky. LEXIS 649 ( Ky. 1970 ).

Since the arraignment it had been patent to the defendant and his counsel that the first charge, first-degree assault, would require proof of the element of intent therefore, the Commonwealth’s failure to file a bill of particulars was not proper justification in support of a motion for continuance and there was no error in denying it. Abbott v. Commonwealth, 822 S.W.2d 417, 1992 Ky. LEXIS 1 ( Ky. 1992 ).

There was no error in a trial court’s refusal to exclude a potential juror for cause. While the juror indicated that he might have had trouble acquitting defendant, if the jury found that he had committed the assault and unlawful imprisonment crimes with which he was charged but was so voluntarily intoxicated that he did not know what he was doing, the decision to exclude a juror was within the court’s sound discretion, the court was eventually satisfied that the juror had adequately indicated his ability to follow the jury instructions, and if there was any error, it did not rise to the level of an abuse of discretion. Arnold v. Commonwealth, 192 S.W.3d 420, 2006 Ky. LEXIS 141 ( Ky. 2006 ).

4.—Change of Venue.

On second trial for malicious shooting and wounding there was no abuse of discretion in overruling motion for change of venue where publicity given the case was of facts and circumstances which are ordinarily reported by the press and radio in cases of that character. (Decided under prior law) Claypoole v. Commonwealth, 355 S.W.2d 652, 1962 Ky. LEXIS 71 ( Ky. 1962 ).

5.—Prosecutor Comments.

In prosecution for maliciously shooting and wounding companion of defendant’s wife, there was no evidence to indicate that there was any contract or writing of any sort between defendant and his wife and there was no basis in the record for statement of Commonwealth’s attorney regarding such contract but although such statement was irrelevant it was not prejudicial to the rights of defendant since there was strong evidence against him. (Decided under prior law) Harris v. Commonwealth, 303 Ky. 769 , 199 S.W.2d 445, 1947 Ky. LEXIS 554 ( Ky. 1947 ).

In prosecution for malicious cutting and wounding prosecuting witness with intent to kill, statement of prosecuting attorney in closing argument to jury that he was familiar with records of defendant and his wife was not prejudicial to defendant where on cross-examination defendant admitted he had been convicted of a felony and his wife also testified that she had been convicted of a felony. (Decided under prior law) Carnes v. Commonwealth, 306 Ky. 55 , 206 S.W.2d 44, 1947 Ky. LEXIS 941 ( Ky. 1947 ).

Where the special counsel who conducted the prosecution, during argument, made a number of highly improper statements, all drawn from outside the record, and the court overruled the objection of the defendant to each statement, the effect was to produce a prejudicial result at the hands of the jury, and judgment of conviction was reversible because of misconduct of counsel for Commonwealth in his argument before the jury. (Decided under prior law) Adams v. Commonwealth, 263 S.W.2d 103, 1953 Ky. LEXIS 1232 (Ky. Ct. App. 1953).

In prosecution for shooting and wounding with pistol, there was no prejudice resulting from prosecutor’s remarks relating to alleged unsavory reputation of defendant’s restaurant, allegedly made without specific proof. (Decided under prior law) Mills v. Commonwealth, 300 S.W.2d 787, 1957 Ky. LEXIS 471 ( Ky. 1957 ).

In prosecution for malicious shooting and wounding with intent to kill, argument of prosecuting attorney during his summation to jury that defendant had left tavern with intention in his mind of hunting down victim and shooting him like you would a dog, and that as victim lay in dirt with blood flowing out of him he looked up to defendant and asked him not to shoot again, was not inflammatory or prejudicial under the circumstances. (Decided under prior law) Claypoole v. Commonwealth, 355 S.W.2d 652, 1962 Ky. LEXIS 71 ( Ky. 1962 ).

In prosecution for shooting and wounding with intent to kill and with being an habitual criminal where, in his closing argument, the Commonwealth’s attorney referred to a penitentiary sentence of 21 years which was the punishment the Commonwealth sought on the principal charge, no prejudicial error was committed in overruling the defendant’s objection to such statement. (Decided under prior law) Taylor v. Commonwealth, 449 S.W.2d 208, 1969 Ky. LEXIS 28 ( Ky. 1969 ).

Where the verdict was fully justified under the evidence and the punishment that the jury imposed showed that it was not arrived at as a result of passion or prejudice since the proof established all elements of the crime, remarks concerning the “draft” or “Vietnam” in the prosecution’s closing argument did not constitute prejudicial error. (Decided under prior law) Webb v. Commonwealth, 451 S.W.2d 397, 1970 Ky. LEXIS 385 ( Ky. 1970 ).

Where in his closing argument the Commonwealth attorney charged that if the police were removed in two weeks people wouldn’t be able to go to church, such argument was not prejudicially improper. (Decided under prior law) Clemons v. Commonwealth, 462 S.W.2d 919, 1971 Ky. LEXIS 562 ( Ky. 1971 ).

A prosecutor calling the defendant’s conduct “bizarre” during argument was not cause for a mistrial in defendant’s trial for first degree assault under KRS 508.010 and first degree unlawful imprisonment under KRS 509.020 . The prosecutor’s comments did not imply that defendant should have been convicted because he was abnormal. Arnold v. Commonwealth, 192 S.W.3d 420, 2006 Ky. LEXIS 141 ( Ky. 2006 ).

4.Complicity.

Evidence that defendant assisted codefendants in restraining the victim, throwing her against a kitchen counter twice and possibly kicking her in the head, and stowing her in a bathroom supported defendant’s conviction for complicity to first degree assault. McCoy v. Commonwealth, 553 S.W.3d 816, 2018 Ky. LEXIS 281 ( Ky. 2018 ).

6.Elements.

This section brings together two distinct culpable mental states (intent and wantonness manifesting extreme indifference to the value of human life) and punishes them equally under specified circumstances; either mental state will support a conviction of assault in the first degree and punishment for such crime. Wells v. Commonwealth, 561 S.W.2d 85, 1978 Ky. LEXIS 314 ( Ky. 1978 ).

There are three elements which comprise the crimes of assault: the assailant’s mental state, the means of attack, and the resultant injury. Commonwealth v. Hammond, 633 S.W.2d 73, 1982 Ky. App. LEXIS 214 (Ky. Ct. App. 1982).

Defendant’s conviction for assault in the first degree was affirmed because the evidence was sufficient to convict defendant for the assault under either a theory that defendant intended to cause injury to the victim or that defendant acted wantonly by manifesting an extreme indifference for human life. The evidence established that defendant hit the victim over the head with a glass beer mug, causing defendant to be hospitalized and to receive over 400 stitches. Johnson v. Commonwealth, 2006 Ky. App. LEXIS 295 (Ky. Ct. App. Sept. 29, 2006).

Defendant who caused an auto accident that killed three people and injured a third, and who tested positive for prescription drugs and marijuana in his urine, was improperly convicted of first-degree assault under KRS 508.010 . As he did not drive erratically and there was no evidence he was under the influence of drugs, he lacked the necessary mental state; his actions did not occur under circumstances manifesting extreme indifference to human life. Ison v. Commonwealth, 271 S.W.3d 533, 2008 Ky. App. LEXIS 301 (Ky. Ct. App. 2008).

7.—Dangerous Instrument.

An assault with one’s fists could not be considered an assault with a dangerous instrument so as to constitute assault in the first degree, where it was not clear whether the General Assembly intended that fists be considered to be a dangerous instrument as that term is used in this section. Roney v. Commonwealth, 695 S.W.2d 863, 1985 Ky. LEXIS 267 ( Ky. 1985 ).

8.—Deadly Weapon.

The physical strength of the person using the instrument or weapon, such as rock or club, is also to be considered by the jury in determining whether it is a deadly weapon and instruction embodying these essential elements should be given. (Decided under prior law) Cosby v. Commonwealth, 115 Ky. 221 , 72 S.W. 1089, 24 Ky. L. Rptr. 2050 , 1903 Ky. LEXIS 89 ( Ky. 1903 ).

A weapon is per se deadly when it is made and designated for offensive or defensive purposes only. (Decided under prior law) Perry v. Commonwealth, 286 Ky. 587 , 151 S.W.2d 377, 1941 Ky. LEXIS 299 ( Ky. 1941 ).

What constitutes dangerous or deadly missile must often depend on type of missile and manner in which it is used. (Decided under prior law) Harrison v. Commonwealth, 373 S.W.2d 156, 1963 Ky. LEXIS 153 ( Ky. 1963 ).

9.— —Ax Handle.

An ax handle is a deadly weapon. (Decided under prior law) Moore v. Commonwealth, 35 S.W. 283, 18 Ky. L. Rptr. 129 (1896).

10.— —Bottle.

If it should turn out that the bottle used was not a deadly weapon, defendant might still be found guilty of assault and battery. (Decided under prior law) Commonwealth v. Yarnell, 68 S.W. 136, 24 Ky. L. Rptr. 144 , 1902 Ky. LEXIS 256 (Ky. Ct. App. 1902).

A bottle may be a deadly weapon, for not only the character of the weapon used, but the manner of its use, is to be considered, and the question of whether it be a deadly weapon left with the jury, unless its deadly character be beyond question. (Decided under prior law) Commonwealth v. Yarnell, 68 S.W. 136, 24 Ky. L. Rptr. 144 , 1902 Ky. LEXIS 256 (Ky. Ct. App. 1902).

11.— —Cane.

Whether walking cane which defendant used was a deadly weapon, was question for determination of jury from size and manner of use, it being error to assume cane was a deadly weapon. (Decided under prior law) Ward v. Commonwealth, 218 Ky. 217 , 291 S.W. 47, 1927 Ky. LEXIS 135 ( Ky. 1927 ).

12.— —Hands and Feet.

Hands and feet are not “deadly weapons” within the meaning of law that provided a penalty for malicious and willful cutting or stabbing with a deadly weapon. (Decided under prior law) Lyon v. Commonwealth, 194 Ky. 570 , 239 S.W. 1046, 1922 Ky. LEXIS 188 ( Ky. 1922 ); McIntosh v. Commonwealth, 275 Ky. 126 , 120 S.W.2d 1031, 1938 Ky. LEXIS 383 ( Ky. 1938 ); Bradley v. Commonwealth, 314 Ky. 457 , 236 S.W.2d 266, 1951 Ky. LEXIS 678 ( Ky. 1951 ); Reed v. Commonwealth, 248 S.W.2d 911, 1952 Ky. LEXIS 768 ( Ky. 1952 ); Jones v. Commonwealth, 256 S.W.2d 520, 1953 Ky. LEXIS 751 ( Ky. 1953 ); Crumbaugh v. Commonwealth, 259 S.W.2d 67, 1953 Ky. LEXIS 934 ( Ky. 1953 ).

13.— —Knife.

An indictment alleging the act was committed with a knife, need not allege that the knife used by the defendant was a deadly weapon. (Decided under prior law) Sprague v. Commonwealth, 58 S.W. 430, 22 Ky. L. Rptr. 519 , 1900 Ky. LEXIS 665 ( Ky. 1900 ).

Under law that referred to knife as a deadly weapon, a very small knife worn on a watch chain and customarily used for paring and cleaning fingernails was not a deadly weapon per se . (Decided under prior law) Philpot v. Commonwealth, 247 S.W.2d 499, 1952 Ky. LEXIS 704 ( Ky. 1952 ).

Where victim’s throat was cut by ordinary pocket knife, blood gushed from wound and there was left a scar five or six inches long on victim’s throat, the pocket knife which inflicted such wound was a deadly weapon per se . (Decided under prior law) Philpot v. Commonwealth, 247 S.W.2d 499, 1952 Ky. LEXIS 704 ( Ky. 1952 ).

In a prosecution for malicious cutting and wounding, where the knife allegedly used by the defendant was described as a pocket knife with a one and one half inch blade, such knife could produce death and a definition of “deadly weapon” in the instruction was unnecessary. (Decided under prior law) Hall v. Commonwealth, 276 S.W.2d 441, 1955 Ky. LEXIS 418 ( Ky. 1955 ).

14.— —Knucks.

Metallic knucks constitute a deadly weapon. (Decided under prior law) Martin v. Commonwealth, 257 Ky. 591 , 78 S.W.2d 786, 1935 Ky. LEXIS 59 ( Ky. 1935 ); Perry v. Commonwealth, 286 Ky. 587 , 151 S.W.2d 377, 1941 Ky. LEXIS 299 ( Ky. 1941 ).

15.— —Lug Wrench.

In prosecution for allegedly maliciously striking and wounding another with a deadly weapon with intent to kill, it was reversible error for court to fail to submit to jury question of whether or not lug wrench, considering the manner of its use, was a deadly weapon. (Decided under prior law) Broaddus v. Commonwealth, 339 S.W.2d 154, 1960 Ky. LEXIS 426 ( Ky. 1960 ).

16.— —Pistol.

A jury could determine that a pistol used in striking another was a deadly weapon. (Decided under prior law) Riggs v. Commonwealth, 33 S.W. 413, 17 Ky. L. Rptr. 1015 (1895); Smallwood v. Commonwealth, 40 S.W. 248, 19 Ky. L. Rptr. 344 (1897).

Where a pistol is used as a bludgeon it is not necessarily a deadly weapon; its deadly character depends upon the manner and circumstances of its use and the question is one of fact for the jury. (Decided under prior law) Angel v. Commonwealth, 289 Ky. 281 , 158 S.W.2d 640, 1942 Ky. LEXIS 546 ( Ky. 1942 ).

Where a pistol is used as a firearm, it is a deadly weapon per se . (Decided under prior law) Angel v. Commonwealth, 289 Ky. 281 , 158 S.W.2d 640, 1942 Ky. LEXIS 546 ( Ky. 1942 ).

Where pistol was allegedly used as a club, question as to its deadly character should have been left to jury. (Decided under prior law) Delph v. Commonwealth, 300 Ky. 722 , 190 S.W.2d 340, 1945 Ky. LEXIS 642 ( Ky. 1945 ).

17.— —Shoes.

In a prosecution for assault with intent to kill, an instruction with respect to whether shoes on defendant’s feet, used by him in stomping and kicking victim, constituted a deadly weapon was proper. (Decided under prior law) Jones v. Commonwealth, 256 S.W.2d 520, 1953 Ky. LEXIS 751 ( Ky. 1953 ).

Shoes may be regarded as within the term “deadly weapon” when employed in such a manner as may be reasonably calculated to produce great bodily injury or death. (Decided under prior law) Jones v. Commonwealth, 256 S.W.2d 520, 1953 Ky. LEXIS 751 ( Ky. 1953 ).

18.— —Stick.

In order to convict defendant of malicious wounding, the jury should have been required to find that the stick used was, as used, a deadly weapon. (Decided under prior law) Parrott v. Commonwealth, 47 S.W. 452, 20 Ky. L. Rptr. 761 (1898).

19.— —Tobacco Hook.

Any club, stick or instrument with which a person strikes another comes within the definition of a deadly weapon, if, as applied to the facts of the case, the jury believes beyond a reasonable doubt it was such a weapon as was reasonably calculated to produce death or great bodily harm. A piece of round iron, with horn and handle, known as tobacco hook, may be a deadly weapon. (Decided under prior law) Burgess v. Commonwealth, 176 Ky. 326 , 195 S.W. 445, 1917 Ky. LEXIS 35 ( Ky. 1917 ); Payne v. Commonwealth, 255 Ky. 533 , 75 S.W.2d 14, 1934 Ky. LEXIS 289 ( Ky. 1934 ).

20.—Intent.

Intent to kill is not a part of the crime of maliciously shooting at another without wounding, hence, court did not err in omitting that element from the instructions. (Decided under prior law) Keys v. Commonwealth, 260 Ky. 465 , 86 S.W.2d 121, 1935 Ky. LEXIS 483 ( Ky. 1935 ).

Intent to kill is an essential element of offense of willfully and maliciously striking another with a deadly weapon with intent to kill. (Decided under prior law) Delph v. Commonwealth, 300 Ky. 722 , 190 S.W.2d 340, 1945 Ky. LEXIS 642 ( Ky. 1945 ).

Every man is presumed to intend the natural and probable consequence of his acts, thus, intent may be presumed from nature and consequence of act and a specific or expressed intent or preparation is not required to be proven. (Decided under prior law) Powell v. Commonwealth, 313 Ky. 532 , 233 S.W.2d 113, 1950 Ky. LEXIS 937 ( Ky. 1950 ).

In prosecution for feloniously shooting and wounding another with intent to kill, whether shooting of town marshal was accidental as claimed by defendant or was done maliciously or feloniously was for jury. (Decided under prior law) Powell v. Commonwealth, 313 Ky. 532 , 233 S.W.2d 113, 1950 Ky. LEXIS 937 ( Ky. 1950 ).

Felonious intent may be presumed from nature and consequences of act and specific or express intent is not required to be shown in prosecution for shooting and wounding. (Decided under prior law) Mills v. Commonwealth, 300 S.W.2d 787, 1957 Ky. LEXIS 471 ( Ky. 1957 ).

In prosecution for malicious shooting and wounding another with intent to kill, since a necessary element of the crime is that the act must have been done with intent to kill, testimony tending to establish that fact is admissible. (Decided under prior law) Claypoole v. Commonwealth, 337 S.W.2d 30, 1960 Ky. LEXIS 359 ( Ky. 1960 ).

In prosecution for willfully and maliciously shooting and wounding wife, the question of whether defendant maliciously fired with intent to kill his wife was for the jury. (Decided under prior law) Davidson v. Commonwealth, 340 S.W.2d 243, 1960 Ky. LEXIS 28 ( Ky. 1960 ).

Seriousness of injury was factor to be considered in determining whether injury was inflicted with intent to kill. (Decided under prior law) Claypoole v. Commonwealth, 355 S.W.2d 652, 1962 Ky. LEXIS 71 ( Ky. 1962 ).

The intent to kill is not an element of the offense of maliciously shooting at another without wounding him and there was no error in omitting the requirement of intent to kill from the instructions. (Decided under prior law) Stevens v. Commonwealth, 462 S.W.2d 182, 1970 Ky. LEXIS 649 ( Ky. 1970 ).

Because defendant juvenile’s conduct did not amount to wantonness, he was not criminally liable for assault or wanton endangerment; none of the passengers testified that defendant acted wantonly, and there was no evidence that violating a license restriction was wanton conduct. B. B. v. Commonwealth, 2014 Ky. App. LEXIS 77 (Ky. Ct. App. May 16, 2014).

21.—Malice.

Malice may be inferred from the actions of the accused, the circumstances of the crime, and the manner of its commission. (Decided under prior law) Crawford v. Commonwealth, 279 Ky. 224 , 130 S.W.2d 17, 1939 Ky. LEXIS 244 ( Ky. 1939 ).

“Malice” means a predetermination to commit an act without legal justification or excuse; it is immaterial at what time before the act the determination was formed, and malice may be inferred from the circumstances attending the act. (Decided under prior law) Harrison v. Commonwealth, 279 Ky. 510 , 131 S.W.2d 454, 1939 Ky. LEXIS 306 ( Ky. 1939 ).

“Malice” in its legal sense is the intentional doing of a wrongful act toward another without legal justification or excuse; it may be inferred or implied from any cruel or injurious act, and it is not required that malice in esse be proven. (Decided under prior law) Childers v. Commonwealth, 279 Ky. 737 , 132 S.W.2d 81, 1939 Ky. LEXIS 353 ( Ky. 1939 ).

Malice may be inferred from the act of shooting another with a deadly weapon after the person shot berated and abused the defendant without just cause. (Decided under prior law) Childers v. Commonwealth, 279 Ky. 737 , 132 S.W.2d 81, 1939 Ky. LEXIS 353 ( Ky. 1939 ).

Not only is a failure to submit the question of malice to the jury prejudicial error, but an indictment not containing the word “maliciously” will not support a conviction. (Decided under prior law) Pack v. Commonwealth, 282 Ky. 835 , 140 S.W.2d 626, 1940 Ky. LEXIS 267 ( Ky. 1940 ).

Malice aforethought may be shown by proof of threats, or may be inferred from actions of the accused, from the circumstances of the crime, and the manner of its commission. (Decided under prior law) Stevens v. Commonwealth, 286 Ky. 511 , 151 S.W.2d 404, 1941 Ky. LEXIS 305 ( Ky. 1941 ).

“Malice aforethought” means the doing of an unlawful act without justification or excuse. (Decided under prior law) Powell v. Commonwealth, 313 Ky. 532 , 233 S.W.2d 113, 1950 Ky. LEXIS 937 ( Ky. 1950 ).

In prosecution for malicious assault with deadly weapon with intent to kill, in view of the age and condition of three year old stepdaughter, the nature of the weapon used and the manner and frequency with which it was used, and the serious injuries that were inflicted, both malice and intent could reasonably be inferred. (Decided under prior law) Taylor v. Commonwealth, 302 S.W.2d 378, 1957 Ky. LEXIS 191 ( Ky. 1957 ).

In prosecution for malicious assault with deadly weapon with intent to kill, malice may be inferred from a wilfully cruel or injurious act and intent to kill may be presumed from the nature and consequences of the act. (Decided under prior law) Taylor v. Commonwealth, 302 S.W.2d 378, 1957 Ky. LEXIS 191 ( Ky. 1957 ).

Evidence of the Commonwealth, if accepted as true, that the defendant acted intentionally and cut victim without legal excuse, inferred the existence of malice. (Decided under prior law) Damron v. Commonwealth, 313 S.W.2d 854, 1958 Ky. LEXIS 274 ( Ky. 1958 ).

“Malice” in its legal sense means the intentional doing of a wrongful act towards another without legal justification or excuse. It may be inferred from actions of accused and from the manner in which the crime is committed. (Decided under prior law) Damron v. Commonwealth, 313 S.W.2d 854, 1958 Ky. LEXIS 274 ( Ky. 1958 ).

The very act of shooting a pistol at or into a moving automobile, which defendant must have known was occupied, constituted evidence of malice, which may be manifested or inferred from the circumstances. (Decided under prior law) Neely v. Commonwealth, 325 S.W.2d 79, 1959 Ky. LEXIS 36 ( Ky. 1959 ).

For conviction, it is sufficient if malice existed at time of offense, and malice may instantly form in mind of accused at time he acts, and pre-existing hatred and malevolence toward victim need not be shown. (Decided under prior law) Wright v. Commonwealth, 335 S.W.2d 930, 1960 Ky. LEXIS 302 ( Ky. 1960 ).

“Malice” means intentional doing of a wrong act without legal justification or excuse. (Decided under prior law) Wright v. Commonwealth, 335 S.W.2d 930, 1960 Ky. LEXIS 302 ( Ky. 1960 ).

22.—Serious Physical Injury.

Defendant was lawfully charged with first-degree assault for neglecting her disabled son because the statute outlawed not a particular sort of overt act but rather the infliction of a serious physical injury. Bartley v. Commonwealth, 400 S.W.3d 714, 2013 Ky. LEXIS 291 ( Ky. 2013 ).

22.—Serious physical injury.

Trial court did not err in denying defendant’s motion for a directed verdict on assault in the first degree because the evidence was sufficient for a reasonable jury to find serious physical injury; the victim testified to sharp pain and decreased mobility approximately five years after the assault, and her attending physician testified that she presented with a gunshot wound on the side of her leg and another wound on the back side of her calf. Hunter v. Commonwealth, 587 S.W.3d 298, 2019 Ky. LEXIS 434 ( Ky. 2019 ).

23.Evidence.

Malice may be shown by proof of threats, or may be inferred from actions of accused and circumstance of crime and manner of commission. (Decided under prior law) Perkins v. Commonwealth, 218 Ky. 802 , 292 S.W. 498, 1927 Ky. LEXIS 261 ( Ky. 1927 ).

Evidence relative to three previous difficulties between defendant and injured person served the purpose of aiding jury to determine purpose parties may have had, malice they may have entertained, and which was the aggressor, and their admission was not prejudicial error. (Decided under prior law) Hamilton v. Commonwealth, 230 Ky. 207 , 18 S.W.2d 995, 1929 Ky. LEXIS 57 ( Ky. 1929 ).

Exhibiting wound to the jury was not prejudicial error. (Decided under prior law) Abdon v. Commonwealth, 237 Ky. 21 , 34 S.W.2d 742, 1931 Ky. LEXIS 533 ( Ky. 1931 ); Davidson v. Commonwealth, 261 Ky. 158 , 87 S.W.2d 119, 1935 Ky. LEXIS 604 ( Ky. 1935 ).

Where there is sufficient proof to indicate guilt of willfully and feloniously striking another with a deadly weapon, the court must pass the case to the jury. (Decided under prior law) Turner v. Commonwealth, 267 Ky. 74 , 101 S.W.2d 214, 1937 Ky. LEXIS 284 ( Ky. 1937 ).

It is not necessary for the state to prove that any ill will had existed between defendant and victim previous to the attack. (Decided under prior law) Harrison v. Commonwealth, 279 Ky. 510 , 131 S.W.2d 454, 1939 Ky. LEXIS 306 ( Ky. 1939 ).

In prosecution for malicious shooting and wounding, the Commonwealth may prove the nature and extent, and future disabling effect, of the wound inflicted. (Decided under prior law) Gambrell v. Commonwealth, 282 Ky. 620 , 139 S.W.2d 454, 1940 Ky. LEXIS 225 ( Ky. 1940 ).

In prosecution for malicious shooting with intent to kill, testimony of young woman that accused had insulted her in presence of other men in cafe was admissible, since it bore on fact that accused and victim, young woman’s uncle, who resented the insult, left the cafe and were together on street when shooting occurred. (Decided under prior law) McClain v. Commonwealth, 284 Ky. 359 , 144 S.W.2d 816, 1940 Ky. LEXIS 500 ( Ky. 1940 ).

Evidence of cutting in scuffle between boys at dance justified submission of case either as malicious and willful cutting or as cutting in sudden affray. (Decided under prior law) Ewers v. Commonwealth, 284 Ky. 780 , 146 S.W.2d 1, 1940 Ky. LEXIS 578 ( Ky. 1940 ).

In prosecution for willfully and maliciously cutting, testimony of Commonwealth’s witness referring to an irrelevant and collateral matter was reversible error. (Decided under prior law) Coomer v. Commonwealth, 288 Ky. 598 , 157 S.W.2d 97, 1941 Ky. LEXIS 168 ( Ky. 1941 ).

The fact that husband of wounded woman, on the night of the shooting, had made the statement that he supposed he was the one who shot his wife does not have the effect of disproving his testimony as a matter of law and it was proper for the jury to consider this testimony for the effect, if any it had, upon his credibility as a witness. (Decided under prior law) Newsom v. Commonwealth, 289 Ky. 677 , 160 S.W.2d 4, 1942 Ky. LEXIS 623 ( Ky. 1942 ).

In action for maliciously cutting and stabbing, the testimony and proof made out a clear case where the jury had the right to accept testimony of one side in preference to that of the other, and the appellate court would not disturb the finding by encroaching on the functions of the jury. (Decided under prior law) Johnson v. Commonwealth, 299 Ky. 147 , 184 S.W.2d 882, 1945 Ky. LEXIS 383 ( Ky. 1945 ).

In joint prosecution of four defendants for malicious and willful cutting, failure of specific identification of the one or the other as having done the cutting in each case was immaterial so far as their joint guilt was concerned as they were acting in concert and all participated in the assault. (Decided under prior law) Maloney v. Commonwealth, 305 Ky. 549 , 204 S.W.2d 939, 1947 Ky. LEXIS 855 ( Ky. 1947 ).

Evidence as to improper remarks made by victim to defendant’s wife, three months before the attack, was too remote to constitute provocation, and properly was excluded. (Decided under prior law) Carnes v. Commonwealth, 306 Ky. 55 , 206 S.W.2d 44, 1947 Ky. LEXIS 941 ( Ky. 1947 ).

In prosecution for maliciously shooting and wounding another with intent to kill, it is not necessary to show previous ill will or animosity and the absence of evidence pertaining to motive did not preclude a finding of guilty. (Decided under prior law) Teeters v. Commonwealth, 310 Ky. 546 , 221 S.W.2d 85, 1949 Ky. LEXIS 965 ( Ky. 1949 ).

Conflicting evidence justified acceptance of the persuasive evidence of the prosecution, rather than the word of the defendant, and sustained conviction for willfully and maliciously shooting and wounding another with a pistol with intent to kill. (Decided under prior law) Nolan v. Commonwealth, 311 Ky. 852 , 226 S.W.2d 27, 1950 Ky. LEXIS 566 ( Ky. 1950 ).

Where conflict in evidence could have been intentional or due to faulty memory, possibly induced by “Election Day spirits” or otherwise, credibility of witnesses and weight to be given evidence was function of the jury. (Decided under prior law) Shepherd v. Commonwealth, 277 S.W.2d 42, 1955 Ky. LEXIS 461 ( Ky. 1955 ).

In prosecution for malicious shooting, the contrariety in the evidence made the question one for the jury. (Decided under prior law) Daniels v. Commonwealth, 404 S.W.2d 446, 1966 Ky. LEXIS 294 ( Ky. 1966 ).

It is in the province of the jury to believe or disbelieve the testimony of the accused with respect to justification. (Decided under prior law) Bagby v. Commonwealth, 424 S.W.2d 119, 1968 Ky. LEXIS 441 ( Ky. 1968 ).

Where evidence was presented by the Commonwealth tending to show that defendant committed the act and he denied his guilt and presented alibi evidence, the question of whether it was defendant or someone else who cut the girl was an issue of fact for the jury. (Decided under prior law) Meekey v. Commonwealth, 467 S.W.2d 360, 1971 Ky. LEXIS 374 ( Ky. 1971 ).

24.—Deadly Weapon.

When the weapon was of such a character as to admit of but one conclusion in that respect, the question whether or not it was deadly, within the meaning of the law that provided a penalty for malicious and willful shooting, was one of law, but where the weapon employed was such that its deadly character depended upon the manner and circumstances of its use, the question was one of fact for the jury. (Decided under prior law) Owens v. Commonwealth, 187 Ky. 207 , 218 S.W. 719, 1920 Ky. LEXIS 103 ( Ky. 1920 ).

The question of whether chair was used in such a manner and under such circumstances as to constitute a deadly weapon should have been submitted to jury. (Decided under prior law) McIntosh v. Commonwealth, 275 Ky. 126 , 120 S.W.2d 1031, 1938 Ky. LEXIS 383 ( Ky. 1938 ).

Where testimony of two witnesses, if true, clearly showed defendant guilty of attack with deadly weapon, fact that defendant’s witnesses far outnumbered those for the Commonwealth would not authorize setting aside verdict as palpably against the evidence. (Decided under prior law) Gillenwater v. Commonwealth, 291 Ky. 493 , 165 S.W.2d 35, 1942 Ky. LEXIS 271 ( Ky. 1942 ).

In prosecution for malicious cutting, the court properly submitted to the jury the issue of whether hands, feet and bunch of jail keys used in assaulting jailer were deadly weapons. (Decided under prior law) Vogg v. Commonwealth, 308 Ky. 212 , 214 S.W.2d 86, 1948 Ky. LEXIS 895 ( Ky. 1948 ).

Where weapon is of such character as to make it deadly per se, there is nothing to submit to jury, but where deadly character of weapon depends on manner and circumstances in which it was used, a question of fact arises for jury to determine whether it is a deadly weapon. (Decided under prior law) Philpot v. Commonwealth, 247 S.W.2d 499, 1952 Ky. LEXIS 704 ( Ky. 1952 ); Hall v. Commonwealth, 276 S.W.2d 441, 1955 Ky. LEXIS 418 ( Ky. 1955 ).

In a prosecution for malicious cutting and wounding, where Commonwealth, over objection of defendant, introduced and exhibited a knife to the jury, but evidence failed to show how the Commonwealth acquired possession of the knife, or who had possession of it from the date of the fight to the date of the trial, or actually whose knife it was, or that it was the knife used by defendant, the knife was introduced in evidence without proper identification and its introduction was erroneous. (Decided under prior law) Hall v. Commonwealth, 276 S.W.2d 441, 1955 Ky. LEXIS 418 ( Ky. 1955 ).

Question of whether particular bottle allegedly thrown by defendant was a dangerous or deadly missile should have been submitted to jury. (Decided under prior law) Harrison v. Commonwealth, 373 S.W.2d 156, 1963 Ky. LEXIS 153 ( Ky. 1963 ).

25.—Force and Physical Injury.

A charge of malicious shooting without wounding is supported by proof of a shooting with wounding, and neither the fact that an unnecessary element was proved, nor an instruction authorizing a conviction, whether the person shot at was wounded or not, can be regarded as prejudicial. (Decided under prior law) Martin v. Commonwealth, 207 Ky. 519 , 269 S.W. 556, 1925 Ky. LEXIS 126 ( Ky. 1925 ).

In prosecution under law that provided a penalty for malicious and willful shooting, cutting or stabbing, the use of a deadly weapon, not in self-defense, was evidence of malice. (Decided under prior law) Crawford v. Commonwealth, 279 Ky. 224 , 130 S.W.2d 17, 1939 Ky. LEXIS 244 ( Ky. 1939 ).

In order to prove an assault, the evidence must show that the defendant used force and caused physical injury. McClain v. Commonwealth, 607 S.W.2d 421, 1980 Ky. LEXIS 261 ( Ky. 1980 ).

In a prosecution for first degree assault, evidence of the victim’s medical bills was relevant since such evidence tended to make the fact that he suffered serious physical injuries more probable. Justice v. Commonwealth, 987 S.W.2d 306, 1998 Ky. LEXIS 164 ( Ky. 1998 ).

Where the Commonwealth proved multiple acts of assault and multiple injures, some occurring in different time frames, the evidence was sufficient to prove that defendant’s conduct caused the victim’s injuries. Schrimsher v. Commonwealth, 190 S.W.3d 318, 2006 Ky. LEXIS 104 ( Ky. 2006 ).

One of the elements necessary to prove an assault in the first degree is that the behavior caused serious physical injury, and the indictment in this case for this offense erroneously cited a broken leg for this element, but it was changed to soft tissue damage, and the court was not persuaded that there had been harmful error as a result of the amendment, as the leg was only mentioned in the indictment form and was a clerical error, and there was enough evidence for the jury to have found that the victim suffered a serious physical injury, but the jury found that an assault in the fourth degree had occurred; an element of assault in the fourth degree is that physical injury occurred, not the serious physical injury required for a conviction of assault in the first degree, for purposes of KRS 508.030 , and the jury was not presented with evidence about a broken leg, such that the court could not find appellant suffered any prejudice from the indictment. Moran v. Commonwealth, 399 S.W.3d 35, 2013 Ky. App. LEXIS 71 (Ky. Ct. App. 2013).

26.—Insanity.

In a trial for murder and assault in which the defendant claimed insanity, the rule that only past felony convictions that relate to the issue of credibility, i.e., past felony convictions involving dishonesty are admissible for the purposes of impeachment, was not applicable to an expert witness (a physician) for the reason that the conviction in no way related to his expertise as a physician. Burgess v. Commonwealth, 564 S.W.2d 532, 1978 Ky. LEXIS 377 ( Ky. 1978 ).

27.—Intoxication.

In a prosecution for first degree assault arising from a motor vehicle accident, evidence of the defendant’s intoxication was relevant to prove the wantonness of his conduct at the time of the accident. Johnson v. Commonwealth, 36 S.W.3d 763, 2001 Ky. App. LEXIS 9 (Ky. Ct. App. 2001).

Where a trial court failed to instruct the jury on voluntary intoxication, such was found to be harmless error pursuant to RCr 9.24 with respect to defendant’s conviction for wanton murder, in violation of KRS 507.020 , as the intoxication would not have negated the mens rea of “wantonness” pursuant to KRS 501.020(3); however, the failure to give the instruction caused reversible error for defendant’s conviction of assault under extreme emotional disturbance in violation of KRS 508.010 , as the intoxication would have negated the necessary element of specific intent. Nichols v. Commonwealth, 142 S.W.3d 683, 2004 Ky. LEXIS 148 ( Ky. 2004 ).

No abuse of discretion occurred when a trial court permitted the Commonwealth to introduce the testimony of its own expert witness to rebut defendant’s defense of mental illness or defect, which was based on his claim that he was in an alcoholic blackout when he allegedly assaulted a woman with a hammer in a parking lot and tried to drag her away from her car. RCr 7.24(3)(B)(ii) allowed a rebuttal of the evidence that defendant had introduced, which could have reduced his criminal culpability, so that the expert’s testimony was not outside the scope of rebuttal testimony allowed. Arnold v. Commonwealth, 192 S.W.3d 420, 2006 Ky. LEXIS 141 ( Ky. 2006 ).

Because voluntary intoxication was a mental condition within the confines of Ky. R. Crim. P. 7.24(3)(B)(ii), as it bore on the issue of his guilt or punishment, the Commonwealth of Kentucky had a right to introduce the testimony of its own expert witness to rebut defendant’s defense of mental illness or defect, which was based on his claim that he was in an alcoholic blackout when he allegedly assaulted a woman with a hammer in a parking lot and tried to drag her away from her car. Once defendant introduced evidence as to his defense, which could have reduced his criminal culpability, the Commonwealth had a right and a duty to rebut that defense, which rebuttal necessarily included obtaining its own expert to examine defendant. Arnold v. Commonwealth, 192 S.W.3d 420, 2006 Ky. LEXIS 141 ( Ky. 2006 ).

28.—Photographs.

In prosecution for maliciously shooting and wounding with intent to kill, it was proper for witness to point out on photograph taken of premises a window from which he looked, and locations of participants in shooting when he saw them. (Decided under prior law) Nolan v. Commonwealth, 311 Ky. 852 , 226 S.W.2d 27, 1950 Ky. LEXIS 566 ( Ky. 1950 ).

In prosecution for maliciously shooting and wounding with intent to kill, photographs of the premises taken immediately after shooting were relevant and were not inadmissible on the grounds that they did not show the entire premises or particular place where participants said they were when incident began. (Decided under prior law) Nolan v. Commonwealth, 311 Ky. 852 , 226 S.W.2d 27, 1950 Ky. LEXIS 566 ( Ky. 1950 ).

Photographs showing persons posing in what they claim were the precise positions of the parties or of an automobile or other moving objects at time of occurrence upon which the action was based are not admissible because they are self-serving and are hearsay on part of photographer. (Decided under prior law) Nolan v. Commonwealth, 311 Ky. 852 , 226 S.W.2d 27, 1950 Ky. LEXIS 566 ( Ky. 1950 ).

Where a defendant was charged with assault by recklessly driving an automobile onto the median of a four-lane road, striking his victim and dragging him for several hundred feet, photographs of the car and of the clothing of the victim, though gruesome, were competent evidence to depict the scene of the crime and show how the victim sustained his injuries. Moore v. Commonwealth, 556 S.W.2d 161, 1977 Ky. App. LEXIS 809 (Ky. Ct. App. 1977).

29.—Prior Assaults.

Evidence of prior assaults by the defendant against his children was incompetent in a prosecution charging the defendant with murdering his wife and assaulting her companion. Raeber v. Commonwealth, 558 S.W.2d 609, 1977 Ky. LEXIS 541 ( Ky. 1977 ).

In a trial for defendant’s assault on his wife, there was no error in admitting evidence of prior bad acts against the victim to show the absence of accident, given that the victim was minimizing the significance of the violence. However, it was error to admit evidence of prior bad acts against defendant’s former wife that occurred 12 years prior to the charged violent acts. Driver v. Commonwealth, 361 S.W.3d 877, 2012 Ky. LEXIS 22 ( Ky. 2012 ).

30.—Prior Convictions.

Where the trial court did not admonish the jury that evidence of a former conviction should not be considered by them unless they first found the defendant guilty of the principal offense of which he was charged, but the defendant did not request such an admonition, no error was committed that was preserved for review. (Decided under prior law) Taylor v. Commonwealth, 449 S.W.2d 208, 1969 Ky. LEXIS 28 ( Ky. 1969 ).

Evidence in the penalty phase of defendant’s trial that defendant’s prior convictions were for gun-related crimes complied with KRS 532.055(2)(a)1-2; defendant’s history of gun-related convictions was relevant to the appropriate punishment for a gun-related assault. Warfield v. Commonwealth, 2004 Ky. App. LEXIS 330 (Ky. Ct. App. Nov. 12, 2004, sub. op., 2004 Ky. App. Unpub. LEXIS 931 (Ky. Ct. App. Nov. 12, 2004), review denied, ordered not published, 2005 Ky. LEXIS 217 (Ky. Aug. 17, 2005).

31.—Self-defense.

Where defendant contended that he shot victim because victim had previously threatened to kill him and was advancing upon him in a hostile manner with something shiny in his hand which he “guessed” to be a knife, defendant was entitled to introduce testimony of witness that she found a knife near the place of the shooting the next morning, with the result that the refusal to admit such testimony was prejudicial error, although the evidence in the record did not justify introducing the knife found by the witness as an exhibit. (Decided under prior law) Claypoole v. Commonwealth, 355 S.W.2d 652, 1962 Ky. LEXIS 71 ( Ky. 1962 ).

32.—Serious Physical Injury.

In prosecution for malicious shooting and wounding with intent to kill, testimony of physician that injury could have caused death, and testimony of victim that he was hospitalized for 48 1/2 days was competent as tending to show seriousness of injury. (Decided under prior law) Claypoole v. Commonwealth, 355 S.W.2d 652, 1962 Ky. LEXIS 71 ( Ky. 1962 ).

Police officer who was shot in the chest did not suffer injury so serious as to support conviction of first-degree assault. Luttrell v. Commonwealth, 554 S.W.2d 75, 1977 Ky. LEXIS 482 ( Ky. 1977 ).

Although assault in the first degree is also a class B felony and requires proof of “serious physical injury,” it is not a violation of equal protection rights to convict on the class B felony of robbery on a showing of physical injury alone as opposed to serious physical injury; assault in the first degree only requires injury to the victim, robbery in the first degree requires both a theft and a physical injury, with the injury being an aggravating factor. Hubbard v. Commonwealth, 932 S.W.2d 381, 1996 Ky. App. LEXIS 90 (Ky. Ct. App. 1996).

Defendant’s motion for a directed verdict on a charge of first degree assault under KRS 508.010 was properly denied because the evidence was sufficient to induce a reasonable juror to believe beyond a reasonable doubt that the victim had suffered “serious physical injury,” as that term was defined in KRS 500.080(15). Defendant, in assaulting a woman in a parking lot and struck her on the head with a hammer, and the woman suffered a concussion and a loss of blood, she needed five staples to close her wound she continued to suffer vertigo and dizziness, and she had a permanent dent in her head where her hair did not grow properly. Arnold v. Commonwealth, 192 S.W.3d 420, 2006 Ky. LEXIS 141 ( Ky. 2006 ).

Injury suffered by the victim after being shot did not amount to a “serious physical injury,” as the only proof was the victim’s testimony that it took “a couple of months” to get her hand back to full strength using a therapy ball, but she did not describe her exercises with any particularity or mention seeking a physical therapist. McDaniel v. Commonwealth, 415 S.W.3d 643, 2013 Ky. LEXIS 645 ( Ky. 2013 ).

Defendant's conviction for first-degree assault was reversed as the prosecution did not prove the serious physical injury prong of the assault charge because the Commonwealth only presented evidence through the victim's testimony that he had been shot, that he had headaches off and on, and that he had a small scar; although the Commonwealth presented evidence that the victim might suffer from twitchy and watery eyes from time to time, no evidence was presented establishing the frequency of the alleged eye twitch or watering, the amount of water that ran from his eye, or how he was affected by the eye twitching and watering; and there was no evidence presented connecting the headaches, eye watering, and eye twitching to the gunshot. Forte v. Commonwealth, 2016 Ky. App. LEXIS 182 (Ky. Ct. App. Nov. 4, 2016).

33.—Sufficient.

Even though a number of witnesses corroborated the defendant’s story that the victim fired the first shot there were others who stated that the defendant fired first and, therefore, there was sufficient evidence to sustain a conviction. (Decided under prior law) Childers v. Commonwealth, 279 Ky. 737 , 132 S.W.2d 81, 1939 Ky. LEXIS 353 ( Ky. 1939 ).

Evidence, although conflicting, was sufficient to sustain conviction where it showed, that although victim was aggressor in earlier difficulty, accused left scene, obtained gun, hid behind rock, and, as victim who was also carrying a gun, approached on road leading to his home, accused stepped from behind rock and shot him. (Decided under prior law) Combs v. Commonwealth, 284 Ky. 546 , 145 S.W.2d 36, 1940 Ky. LEXIS 510 ( Ky. 1940 ).

Conspiracy between two persons accused of malicious wounding was shown by evidence that one of them remained with other during flight from law and that he stated he had been in shooting match with officers and, after arrest, showed officers where part of officer’s car, which had been removed therefrom, was thrown. (Decided under prior law) Hurst v. Commonwealth, 284 Ky. 599 , 145 S.W.2d 520, 1940 Ky. LEXIS 543 ( Ky. 1940 ).

Conviction of maliciously shooting and wounding victim was sustained by evidence for Commonwealth showing that both prior to and at time of shooting accused was not provoked by indignities which victim allegedly offered to accused’s wife, credibility of witnesses giving conflicting evidence being solely for jury. (Decided under prior law) Higgins v. Commonwealth, 287 Ky. 767 , 155 S.W.2d 209, 1941 Ky. LEXIS 637 ( Ky. 1941 ), overruled, Woodard v. Commonwealth, 147 S.W.3d 63, 2004 Ky. LEXIS 244 ( Ky. 2004 ).

Evidence of prosecuting witness and his wife that defendant, after altercation with prosecuting witness, came out of his house with a gun and sat on railroad tracks across from prosecuting witness’s house for 20 or 30 minutes, and then shot into latter’s house, was sufficient to take to jury question of defendant’s guilt of willfully and maliciously shooting into a dwelling house, defendant’s claim being only that gun accidentally discharged when he was holding it across his lap. (Decided under prior law) Grigsby v. Commonwealth, 299 Ky. 32 , 184 S.W.2d 77, 1944 Ky. LEXIS 991 ( Ky. 1944 ).

In prosecution for maliciously shooting and wounding companion of defendant’s wife, questions asked defendant concerning fact that he had been placed under a peace bond by his wife were competent to prove motive, common scheme, or intent, and in view of the minimum sentence given defendant, such evidence would not have been prejudicial had it been incompetent. (Decided under prior law) Harris v. Commonwealth, 303 Ky. 769 , 199 S.W.2d 445, 1947 Ky. LEXIS 554 ( Ky. 1947 ).

Evidence that defendant began affray and that final melee, wherein plaintiff was stabbed in a dozen places about the chest and back, was a mutual combat, was sufficient to sustain conviction. (Decided under prior law) Williams v. Commonwealth, 304 Ky. 359 , 200 S.W.2d 926, 1947 Ky. LEXIS 653 ( Ky. 1947 ).

Testimony by the victims, which was corroborated by other witnesses, that the defendants had assaulted the victims without provocation was sufficient to sustain a conviction. (Decided under prior law) Maloney v. Commonwealth, 305 Ky. 549 , 204 S.W.2d 939, 1947 Ky. LEXIS 855 ( Ky. 1947 ).

Testimony by the victim which was corroborated by other witness that the defendant had hit and kicked him during a jail escape was sufficient to sustain a conviction. (Decided under prior law) Vogg v. Commonwealth, 308 Ky. 212 , 214 S.W.2d 86, 1948 Ky. LEXIS 895 ( Ky. 1948 ).

Where four police officers testified that they went to the defendant’s residence to investigate reported shooting and that they found the defendant on the landing and that the defendant fired repeatedly at them, this was sufficient evidence to sustain a conviction. (Decided under prior law) Helton v. Commonwealth, 312 Ky. 268 , 226 S.W.2d 939, 1949 Ky. LEXIS 1260 ( Ky. 1949 ).

The evidence was insufficient to take the case to the jury where testimony indicated that the prosecuting witness and the defendant became engaged in a hand scuffle during which the defendant’s brother struck the prosecuting witness several times with a gun and there was no indication that the defendant had ever asked his brother for such assistance. (Decided under prior law) Smiddy v. Commonwealth, 240 S.W.2d 565, 1951 Ky. LEXIS 974 ( Ky. 1951 ).

Testimony by the victim that either the defendant or his brother struck him with a chair was sufficient to take the case to the jury. (Decided under prior law) Lee v. Commonwealth, 244 S.W.2d 163, 1951 Ky. LEXIS 1205 ( Ky. 1951 ).

In prosecution of police officer for maliciously striking and wounding with intent to kill in arresting prosecuting witness for public drunkenness there was sufficient evidence to support conviction for common-law offense of assault and battery. (Decided under prior law) Palmer v. Commonwealth, 252 S.W.2d 677, 1952 Ky. LEXIS 1013 ( Ky. 1952 ).

There was ample evidence to take case to jury and support conviction for maliciously striking and wounding a victim with intent to kill. (Decided under prior law) Parsley v. Commonwealth, 273 S.W.2d 372, 1954 Ky. LEXIS 1165 ( Ky. 1954 ).

The testimony of the prosecuting witness, although confused, indefinite and uncertain on various points, was sufficient to sustain a conviction. (Decided under prior law) Shepherd v. Commonwealth, 277 S.W.2d 42, 1955 Ky. LEXIS 461 ( Ky. 1955 ).

In prosecution for assault with a deadly weapon with intent to kill, wherein son of complaining witness was permitted, in rebuttal, to testify that he had cut defendant with a knife taken from him shortly after difficulty between complaining witness and defendant, testimony sought to be introduced by defendant in surrebuttal to show that he had his knife at hospital and that it had no blood stains on it was properly refused since it related to a later occurrence and shed no light on the first trouble. (Decided under prior law) Charles v. Commonwealth, 321 S.W.2d 253, 1959 Ky. LEXIS 274 ( Ky. 1959 ).

Although victim, who was cut in back by defendant while holding defendant in bear hug to prevent defendant from participating in fight, could not say who had dangerously cut victim in stomach immediately after he released defendant, evidence sustained conviction of defendant for malicious cutting and wounding of victim. (Decided under prior law) Wright v. Commonwealth, 335 S.W.2d 930, 1960 Ky. LEXIS 302 ( Ky. 1960 ).

That defendant and victim had quarreled violently shortly before defendant fired two shots at him, one of which caused serious wound, was sufficient evidence from which jury could infer that shooting was done maliciously and with intent to kill. (Decided under prior law) Claypoole v. Commonwealth, 355 S.W.2d 652, 1962 Ky. LEXIS 71 ( Ky. 1962 ).

All the evidence warranted the jury in finding defendant guilty of the felony of maliciously shooting and wounding with intent to kill, rather than the misdemeanor of shooting in sudden heat and passion. (Decided under prior law) Combs v. Commonwealth, 356 S.W.2d 761, 1962 Ky. LEXIS 101 ( Ky. 1962 ).

Testimony of the prosecuting witness that the defendant fired a shotgun blast that hit her house after he had threatened to kill the witness and had broken a window with the barrel of the gun was sufficient to sustain a conviction. (Decided under prior law) Lewis v. Commonwealth, 357 S.W.2d 31, 1962 Ky. LEXIS 106 ( Ky. 1962 ).

In prosecution for malicious cutting and wounding with intent to kill, evidence sustained conviction for lesser degree of offense of cutting in a sudden affray or in sudden heat and passion. (Decided under prior law) Watkins v. Commonwealth, 378 S.W.2d 614, 1964 Ky. LEXIS 190 ( Ky. 1964 ).

Evidence pointed unerringly to the guilt of defendant, and sustained conviction for willfully shooting and wounding brother with intent to kill. (Decided under prior law) Stephens v. Commonwealth, 382 S.W.2d 397, 1964 Ky. LEXIS 346 ( Ky. 1964 ).

In prosecution for maliciously striking and wounding with a deadly weapon evidence that first defendant hit victim with a pistol and that while victim was unconscious second defendant beat him with a club was sufficient to hold second defendant guilty, and first defendant guilty of aiding and abetting him. (Decided under prior law) Miller v. Commonwealth, 395 S.W.2d 598, 1965 Ky. LEXIS 158 ( Ky. 1965 ).

The testimony of the sheriff that the defendant fired one shot at him and attempted to fire the second shot combined with the evidence that the defendant had threatened to shoot the officer who sought to arrest him was a sufficient showing of malice and intent. (Decided under prior law) Stevens v. Commonwealth, 462 S.W.2d 182, 1970 Ky. LEXIS 649 ( Ky. 1970 ).

Testimony of witnesses for the Commonwealth that defendant had shot at and hit an occupied automobile was sufficient to present a jury question. (Decided under prior law) Estep v. Commonwealth, 481 S.W.2d 93, 1972 Ky. LEXIS 232 ( Ky. 1972 ).

Law that provided penalty for maliciously and willfully shooting at or into dwelling house was sufficiently broad to convict a defendant who was physically within a dwelling house when he fired a shot into the floor. (Decided under prior law) Gaines v. Commonwealth, 505 S.W.2d 174, 1974 Ky. LEXIS 767 ( Ky. 1974 ).

Where the defendant participated in the planning of an armed robbery in which a .357 Magnum was used, the participants “cased” the store, there was a plan to steal weapons, and the participants used drugs and alcohol immediately prior to the robbery, there were sufficient circumstances surrounding the felony to submit this case to the jury and the determination of wanton murder and first degree assault by the jury under these circumstances was not contrary to the evidence. Kruse v. Commonwealth, 704 S.W.2d 192, 1985 Ky. LEXIS 303 ( Ky. 1985 ).

Evidence was sufficient to convict defendant of wanton first-degree assault as defendant fired from 50 to 75 feet away while the victim was standing with a number of people near the front door of a tavern, defendant fired several shots in the direction of the people, and defendant never testified as to why or at whom he was shooting. Warfield v. Commonwealth, 2004 Ky. App. LEXIS 330 (Ky. Ct. App. Nov. 12, 2004, sub. op., 2004 Ky. App. Unpub. LEXIS 931 (Ky. Ct. App. Nov. 12, 2004), review denied, ordered not published, 2005 Ky. LEXIS 217 (Ky. Aug. 17, 2005).

Trial court properly denied defendant’s motion for a directed verdict on the charge of first-degree assault under KRS 508.010(1)(b), in light of the evidence that defendant, while driving at a high rate of speed, ignored road conditions and other vehicles and made no effort to swerve or slow down before ramming another vehicle. This conduct manifested an extreme indifference to human life, and provided a sufficient basis for the jury to find that defendant had engaged in wanton conduct. Berryman v. Commonwealth, 237 S.W.3d 175, 2007 Ky. LEXIS 206 ( Ky. 2007 ).

Evidence was sufficient to sustain defendant’s murder, first-degree assault, and first-degree criminal abuse convictions because the medical evidence concerning the force required to inflict the injuries, the obviously battered state of the victim’s body, and defendant’s police statement admitting instances of “discipline” were sufficient to permit a reasonable juror to conclude that she intentionally abused the child, and that she murdered and assaulted him, either directly or by lending aid to the co-defendant. Peacher v. Commonwealth, 391 S.W.3d 821, 2013 Ky. LEXIS 11 ( Ky. 2013 ).

34.—Insufficient.

The failure to use the words “with a deadly weapon” in accusatory part of indictment was not erroneous where the words were used in the descriptive part of the indictment. (Decided under prior law) Easterling v. Commonwealth, 216 Ky. 541 , 287 S.W. 972, 1926 Ky. LEXIS 944 ( Ky. 1926 ).

An indictment charging the defendant in the accusatory part with malicious shooting, and using no other words to describe the offense, charged no offense in the accusatory part, and was bad on demurrer although descriptive part alleged malicious shooting and wounding with intent to kill. (Decided under prior law) Puckett v. Commonwealth, 264 Ky. 577 , 95 S.W.2d 242, 1936 Ky. LEXIS 369 ( Ky. 1936 ).

Failure of accusatory part of indictment to allege crime was willful did not render indictment defective where facts showing the crime was willful and committed with intent to kill were stated in descriptive part. (Decided under prior law) Hensley v. Commonwealth, 264 Ky. 718 , 95 S.W.2d 564, 1936 Ky. LEXIS 387 ( Ky. 1936 ).

Indictment charging defendant in accusatory part with malicious shooting and wounding with intent to kill was not at variance with descriptive part making same charge but omitting words “with intent to kill.” (Decided under prior law) McClain v. Commonwealth, 284 Ky. 359 , 144 S.W.2d 816, 1940 Ky. LEXIS 500 ( Ky. 1940 ).

Conviction of malicious wounding and conspiracy to commit it was not sustained against one of three persons jointly indicted, where there was no evidence that he fired the shots or conspired with others to do so, but shortly after shooting got out of car from which shots had been fired and went home. (Decided under prior law) Hurst v. Commonwealth, 284 Ky. 599 , 145 S.W.2d 520, 1940 Ky. LEXIS 543 ( Ky. 1940 ).

Malicious shooting and wounding with intent to kill, by three of indictees, was not shown by evidence that four men were in highway and refused to step aside until automobile reached them and that shots were fired from one pistol into passing automobile, wounding driver, but evidence did not show that the three indictees, directly or indirectly, instigated, aided, or encouraged act of man who fired shots. (Decided under prior law) Carpenter v. Commonwealth, 284 Ky. 629 , 145 S.W.2d 833, 1940 Ky. LEXIS 555 ( Ky. 1940 ).

Defect in accusatory part of indictment, consisting of omission of words “wilfully” and “maliciously” before “cutting,” and “another” after “kill,” was not fatal where crime was sufficiently charged in descriptive part of indictment. (Decided under prior law) Adkins v. Commonwealth, 292 Ky. 67 , 165 S.W.2d 983, 1942 Ky. LEXIS 33 ( Ky. 1942 ).

Where descriptive part of indictment charged defendant with felony defined by law that provided penalty for malicious and willful shooting, cutting or poisoning of another, but accusatory part omitted the word “maliciously” and thus alleged only the common-law offense of assault and battery, the indictment was good to extent it charged a misdemeanor. (Decided under prior law) Armstrong v. Commonwealth, 289 Ky. 758 , 160 S.W.2d 159, 1942 Ky. LEXIS 640 ( Ky. 1942 ).

In prosecution for shooting into railroad car, indictment which did not contain word “maliciously” in accusatory part, nor in proper place in descriptive part, but which did, in one place in descriptive part, state that shooting was “with malicious intent,” was improper but not fatally defective. (Decided under prior law) Deaton v. Commonwealth, 303 Ky. 5 , 196 S.W.2d 742, 1946 Ky. LEXIS 775 ( Ky. 1946 ).

Evidence that defendants were seen outside dwelling house with a shotgun, and that after two or three shots were heard the glass fell from a window, was not sufficient to take case to jury, where physical evidence showed that no shot had passed through the window and there was no evidence that the defendants had shot the gun at the house, or at all. (Decided under prior law) Deaton v. Commonwealth, 303 Ky. 5 , 196 S.W.2d 742, 1946 Ky. LEXIS 775 ( Ky. 1946 ).

Circumstantial evidence relative to motive and opportunity was sufficient to create a suspicion that defendant was guilty of shooting into dwelling house, but was insufficient to exclude every reasonable hypothesis of innocence, the presumption of which must be accorded defendant throughout the trial. (Decided under prior law) Johnson v. Commonwealth, 312 Ky. 674 , 229 S.W.2d 445, 1950 Ky. LEXIS 730 ( Ky. 1950 ).

Evidence was insufficient to support conviction under law that provided a penalty for maliciously and willfully shooting and wounding another with intent to kill as no intent to kill was proven, nor was there any testimony that defendant used a deadly weapon. (Decided under prior law) Reed v. Commonwealth, 248 S.W.2d 911, 1952 Ky. LEXIS 768 ( Ky. 1952 ).

Where evidence indicated defendant had been beaten by prosecuting witness, and after defendant and his companions had left, prosecuting witness discovered he had been cut on the left arm and shoulder but no description of the nature of the cut was given, the bare statement alone was of no value in determining what might have caused the wound and trial court should have directed a verdict for defendant. (Decided under prior law) Bradley v. Commonwealth, 314 Ky. 457 , 236 S.W.2d 266, 1951 Ky. LEXIS 678 ( Ky. 1951 ).

Where it was stated in the descriptive part of the indictment that the shooting was done willfully, maliciously and not in self-defense or the defense of the defendant’s son, and that the shotgun so used was loaded with lead and shots or other hard substance, but the accusatory part of the indictment omitted the word “willfully” and the phrase “loaded with a leaden bullet or other hard substance,” the indictment was not defective, since it fully notified the defendant of the offense with which he was charged. (Decided under prior law) Turner v. Commonwealth, 260 S.W.2d 646, 1953 Ky. LEXIS 978 ( Ky. 1953 ).

Where the evidence was merely cumulative and in the main attacked the credibility of complaining witness and his wife and in no way actually refuted the circumstances of the shooting, the court did not commit error in overruling motion for new trial. (Decided under prior law) Chambers v. Commonwealth, 264 S.W.2d 61, 1953 Ky. LEXIS 1255 (Ky. Ct. App. 1953).

Where defendant, who was under a domestic violence emergency protective order regarding his wife which order did not contain a no contact provision, sought admission to wife’s apartment and was admitted after wife had her male visitor wait in locked bedroom and defendant hearing a noise in the bedroom, went to investigate, forced the door and observed the friend diving out the window, whereupon the defendant proceeded to break several items and grab his wife by the neck, the facts do not support a finding that an assault occurred since no weapon or dangerous instrument was used and since there was no serious injury, and as the facts did not support a finding of assault and therefore the “intent to commit a crime” element of KRS 511.030(1) cannot be satisfied court’s overruling of defendant’s motion for directed verdict on burglary charge was error. Hedges v. Commonwealth, 937 S.W.2d 703, 1996 Ky. LEXIS 122 ( Ky. 1996 ).

There was insufficient evidence of a “serious physical injury” to convict defendant of first degree assault in violation of KRS 508.010 where the only proof of victim’s injury was that he had a laceration on the jaw line, was given IV medication for an elevated heart rate, the laceration was sutured and then he was sent home. Anderson v. Commonwealth, 352 S.W.3d 577, 2011 Ky. LEXIS 115 ( Ky. 2011 ).

35.—Prejudicial.

In prosecution for maliciously shooting at and wounding prosecution witness, trial court did not err in excluding statement of defendant’s witness, who had testified that he had done the shooting, that he had been run off the road and “they,” identified as two individuals who were with prosecution witness, had threatened to kill him and used abusive language, and, further, court did not err in admonishing jury not to consider statement. (Decided under prior law) Whitaker v. Commonwealth, 302 S.W.2d 601, 1957 Ky. LEXIS 203 ( Ky. 1957 ).

Because the trial court’s failure to hold a Daubert hearing pursuant to KRE 702 before admitting shaken baby syndrome opinion evidence was not harmless error under RCr 9.24, it erred in finding defendant guilty of wanton first-degree assault. Hamilton v. Commonwealth, 293 S.W.3d 413, 2009 Ky. App. LEXIS 138 (Ky. Ct. App. 2009).

36.—Nonprejudicial.

In prosecution for willfully and maliciously shooting into an occupied dwelling house, trial court did not err in permitting deputy sheriff to testify as to acts and conduct of defendant when he was arrested. (Decided under prior law) Grigsby v. Commonwealth, 299 Ky. 32 , 184 S.W.2d 77, 1944 Ky. LEXIS 991 ( Ky. 1944 ).

In prosecution for malicious assault with deadly weapon with intent to kill three year old stepdaughter, there was no error in permitting lay witnesses to give their opinions that a fall from a high chair could not have caused all of injuries suffered by the child. (Decided under prior law) Taylor v. Commonwealth, 302 S.W.2d 378, 1957 Ky. LEXIS 191 ( Ky. 1957 ).

In prosecution for shooting and wounding with pistol, it was proper to permit the Commonwealth to introduce as an exhibit the shirt which such victim had worn at time he was shot to show that the shirt was free of powder burns and thus rebut defendant’s contention that victim was close upon him with a knife at the time he was shot by defendant. (Decided under prior law) Mills v. Commonwealth, 300 S.W.2d 787, 1957 Ky. LEXIS 471 ( Ky. 1957 ).

Evidence that defendant left the country after the grand jury met, and stayed away for almost a year, was admissible to establish presumption of guilt, though defendant had sent word to the sheriff that he was leaving to earn money to employ a lawyer and he voluntarily surrendered later. (Decided under prior law) Damron v. Commonwealth, 313 S.W.2d 854, 1958 Ky. LEXIS 274 ( Ky. 1958 ).

Where defendant testified his son hit victim with a knife but qualified it by saying he did not see him do it, his son testified that he drew his pocket knife and cut victim, and the prosecution had no one who definitely said they saw defendant use a knife, but their version of the happening was such that if their testimony was believed no one but defendant could have done the cutting, the question of whether defendant or his son cut victim with a knife was for the jury. (Decided under prior law) Damron v. Commonwealth, 313 S.W.2d 854, 1958 Ky. LEXIS 274 ( Ky. 1958 ).

Permitting victim to testify concerning the limited use of his hand because of the wound was not improper. (Decided under prior law) Damron v. Commonwealth, 313 S.W.2d 854, 1958 Ky. LEXIS 274 ( Ky. 1958 ).

Question asking whether witness was present when defendant stabbed at the brother of witness was not prejudicial on the ground that it assumed that defendant had stabbed the brother, although it could have been in better form. (Decided under prior law) Damron v. Commonwealth, 313 S.W.2d 854, 1958 Ky. LEXIS 274 ( Ky. 1958 ).

In prosecution for willfully and maliciously shooting at and into occupied motor vehicle, evidence that defendant had been placed under bond to keep the peace, because of threats of violence he had made toward driver of automobile, was clearly for the purpose of proving threats and animosity, and, hence, failure to admonish jury to consider evidence only for such purpose was not error. (Decided under prior law) Neely v. Commonwealth, 325 S.W.2d 79, 1959 Ky. LEXIS 36 ( Ky. 1959 ).

In prosecution for willfully and maliciously shooting into dwelling house, court properly overruled defendant’s objection to testimony of his victim relating to the threat defendant had made against her life, and correctly admonished jury to consider her testimony for sole purpose of determining whether principal offense had been maliciously perpetrated. (Decided under prior law) Perkins v. Commonwealth, 342 S.W.2d 102, 1960 Ky. LEXIS 88 ( Ky. 1960 ).

In prosecution for malicious cutting with intent to kill, it was not prejudicial error to introduce into evidence the dress worn by the prosecuting witness, to show the location and number of cuts inflicted, where there was sufficient other evidence to support the charges and where no attempt was made by the prosecutor to dramatize the introduction of the dress for the purpose of inflaming the jury. (Decided under prior law) McClure v. Commonwealth, 344 S.W.2d 382, 1961 Ky. LEXIS 222 ( Ky. 1961 ).

In prosecution for malicious wounding, testimony by witness for prosecution that defendant was the man who shot him immediately prior to the shooting of the person for whom defendant was charged with malicious wounding, which contradicted the contention of defendant that another and not defendant shot the witness and a few seconds later also shot the person with whom defendant was charged with maliciously wounding, was admissible as tending to identify the person who did the shooting. (Decided under prior law) Moore v. Commonwealth, 346 S.W.2d 39, 1961 Ky. LEXIS 291 ( Ky. 1961 ).

Trial court was under no affirmative duty to admonish jury to consider evidence of the shooting of witness only for purpose of identifying person who shot another, where no objection and no request for admonition was made. (Decided under prior law) Moore v. Commonwealth, 346 S.W.2d 39, 1961 Ky. LEXIS 291 ( Ky. 1961 ).

Where the Commonwealth introduced evidence of the defendant’s reputation for killing people to which the defendant objected and which objection was sustained, but the defendant did not move for a mistrial or ask the court to take other action, the trial court did not commit any error which, under RCr 9.22, was preserved for appellate review. (Decided under prior law) Taylor v. Commonwealth, 449 S.W.2d 208, 1969 Ky. LEXIS 28 ( Ky. 1969 ).

There was harmless error in failing to exclude a shotgun shell found in the defendant’s car as an exhibit in his trial on a charge of shooting and wounding. (Decided under prior law) Jackson v. Commonwealth, 450 S.W.2d 244, 1970 Ky. LEXIS 435 ( Ky. 1970 ).

Where the identification evidence in a prosecution for robbery and assault was not impermissibly suggestive, denial of a pretrial motion for a suppression hearing on such evidence was not prejudicial and did not deny defendant a fair trial. Watkins v. Commonwealth, 565 S.W.2d 630, 1978 Ky. LEXIS 356 ( Ky. 1978 ).

Where the testimony relating to other offenses was activity unrelated to the defendant but was that of other individuals not on trial, admission of such evidence was not error. Watkins v. Commonwealth, 565 S.W.2d 630, 1978 Ky. LEXIS 356 ( Ky. 1978 ).

The failure of the Commonwealth to furnish defendant with two of the cartridges found at the scene of the shooting and robbery was not prejudicial where neither cartridge was admitted as evidence. Brewster v. Commonwealth, 568 S.W.2d 232, 1978 Ky. LEXIS 371 ( Ky. 1978 ).

Defendant’s convictions of second-degree manslaughter, KRS 507.040 , and second-degree assault, KRS 508.010 , stemming from an automobile accident were affirmed; the trial court properly allowed a doctor to testify as to the effects of methadone and promethazine, which defendant had taken at the time of an automobile accident, as the doctor was qualified, the evidence was relevant under KRE 401, as the Commonwealth’s entire case was based on the argument that defendant was aware of and consciously disregarded, as defined in KRS 501.020 , the risk of driving while taking methadone and promethazine, the evidence of the risks and adverse effects of those drugs was not outweighed by any undue prejudice pursuant to KRE 403, and the expert opinion testimony would assist the trier of fact under KRE 702, as the effects of the drugs were not within the common knowledge of the jury. Smith v. Commonwealth, 181 S.W.3d 53, 2005 Ky. App. LEXIS 256 (Ky. Ct. App. 2005).

Trial court did not err when it permitted the Commonwealth to introduce evidence of illicit drugs during defendant’s trial on charges of wanton murder under KRS 507.020(1)(b), and first-degree assault under KRS 508.010(1)(b). The evidence was relevant and admissible because it helped the jury fully understand defendant’s misconduct in that he was so engrossed by his passenger counting illicit pills that he was not paying attention to his driving; any prejudice suffered by defendant due to the admission of the evidence was cured by the trial court’s limiting admonition to the jury. Berryman v. Commonwealth, 237 S.W.3d 175, 2007 Ky. LEXIS 206 ( Ky. 2007 ).

37.Indictment.

Where indictment in accusatory part charged defendant with offense of cutting “with intent to kill him,” it need not in descriptive part again charge that cutting was done “with intent to kill.” (Decided under prior law) Shouse v. Commonwealth, 95 Ky. 621 , 26 S.W. 814, 16 Ky. L. Rptr. 142 , 1894 Ky. LEXIS 71 ( Ky. 1894 ).

Where body of indictment charges defendant with willfully and maliciously cutting “with intent to kill,” but introductory part merely charges defendant with crime of malicious cutting and wounding, the indictment is sufficient. (Decided under prior law) Clark v. Commonwealth, 38 S.W. 489, 18 Ky. L. Rptr. 758 (1896).

An indictment charging that the shooting and wounding was from ambush and a place of concealment, with intent to kill, charged an offense under law that provided a penalty for the malicious and willful shooting of another, even though another law made shooting from ambush or place of concealment a crime. (Decided under prior law) Collins v. Commonwealth, 70 S.W. 187, 24 Ky. L. Rptr. 884 (1902).

The indictment was not bad for duplicity where it charged three defendants with shooting and wounding a named person with a pistol, and striking and wounding him with a shotgun, and striking and stabbing him with a knife all with intent to kill though alleged in separate counts, there being but one offense charged, the malicious wounding with intent to kill. (Decided under prior law) Greenwell v. Commonwealth, 125 Ky. 192 , 100 S.W. 852, 30 Ky. L. Rptr. 1282 , 1907 Ky. LEXIS 269 ( Ky. 1907 ); Commonwealth v. Lawson, 165 Ky. 4 , 176 S.W. 359, 1915 Ky. LEXIS 471 ( Ky. 1915 ).

The indictment need not have charged that defendant, when he fired, was at such distance that death or serious bodily harm could have resulted from his shooting, since the offense was a statutory one, fully described in the statute, and was complete when a person shot at another with the intent of killing him although he may not have wounded him, and the question of whether the person doing the shooting was close enough to the person shot at to wound and kill him was for the jury. (Decided under prior law) Wrist v. Commonwealth, 110 S.W. 849, 33 Ky. L. Rptr. 718 (1908).

Any error committed by the trial court, in not sustaining demurrer to an indictment which charged two persons with the single act of shooting and wounding another with intent to kill, was cured by a dismissal before trial of the indictment as to one of the persons charged. (Decided under prior law) Hemphill v. Commonwealth, 178 Ky. 843 , 200 S.W. 2, 1918 Ky. LEXIS 461 ( Ky. 1918 ).

Indictment not containing the word “maliciously” will not support conviction. (Decided under prior law) Coates v. Commonwealth, 235 Ky. 683 , 32 S.W.2d 34, 1930 Ky. LEXIS 443 ( Ky. 1930 ).

Joint indictment was valid since aider and abettor was punishable as principal. (Decided under prior law) Short v. Commonwealth, 240 Ky. 477 , 42 S.W.2d 696, 1931 Ky. LEXIS 427 ( Ky. 1931 ).

Indictment charging defendant and his codefendants with the malicious shooting of two named persons stated two offenses. (Decided under prior law) Canada v. Commonwealth, 242 Ky. 71 , 45 S.W.2d 834, 1932 Ky. LEXIS 221 ( Ky. 1932 ).

Indictment properly charged offense where accusatory part charged that accused unlawfully shot and wounded another with intent to kill, but descriptive part merely charged that accused unlawfully shot and wounded victim omitting words “with intent to kill.” (Decided under prior law) Smith v. Commonwealth, 284 Ky. 80 , 143 S.W.2d 859, 1940 Ky. LEXIS 441 ( Ky. 1940 ).

Indictment that charged offenses of malicious and willful cutting, and of cutting in sudden affray, which was degree of former offense, was not duplicitous. (Decided under prior law) Ewers v. Commonwealth, 284 Ky. 780 , 146 S.W.2d 1, 1940 Ky. LEXIS 578 ( Ky. 1940 ).

Indictment may jointly charge two persons with commission of an offense. (Decided under prior law) Deaton v. Commonwealth, 288 Ky. 246 , 156 S.W.2d 94, 1941 Ky. LEXIS 89 ( Ky. 1941 ).

Indictment charging the stabbing of two persons was subject to demurrer, but Commonwealth had privilege of electing which offense it would try. (Decided under prior law) Deaton v. Commonwealth, 288 Ky. 246 , 156 S.W.2d 94, 1941 Ky. LEXIS 89 ( Ky. 1941 ).

An indictment within the words of the statute is sufficient. (Decided under prior law) Watkins v. Commonwealth, 290 Ky. 416 , 161 S.W.2d 625, 1942 Ky. LEXIS 417 ( Ky. 1942 ).

A variance between the indictment charging defendant with shooting a pistol, and the proof showing the defendant shot a shoulder weapon is immaterial as long as the weapon discharged a deadly missile. (Decided under prior law) Campbell v. Commonwealth, 295 Ky. 511 , 174 S.W.2d 778, 1943 Ky. LEXIS 280 ( Ky. 1943 ).

Where first count in indictment charged defendant with maliciously striking and wounding another with deadly weapons with intent to kill, and second count charged him with entering into a conspiracy for the purpose of maliciously striking and wounding, two separate and distinct offenses were not charged, but the second count described a different means by which crime of maliciously striking and wounding was committed as authorized by former criminal rule that provided that if the offense could have been committed in different means the indictment could allege such means. (See RCr 6.10.) (Decided under prior law) Helton v. Commonwealth, 244 S.W.2d 762, 1951 Ky. LEXIS 1248 ( Ky. 1951 ).

Where the indictment accused the defendant of maliciously striking and wounding another with intent to kill and recited that the act was done with a shotgun, but the evidence established that a .22 caliber rifle was employed in the assault, there was not a fatal variance between the offense charged and the evidence introduced. (Decided under prior law) Oliver v. Commonwealth, 262 S.W.2d 693, 1953 Ky. LEXIS 1123 ( Ky. 1953 ).

Words “intent to kill” in indictment charging accused with shooting at another without wounding with “intent to kill,” were purely surplusage. (Decided under prior law) Profitt v. Commonwealth, 281 S.W.2d 898, 1955 Ky. LEXIS 207 ( Ky. 1955 ).

Indictment which charged in part that defendant “with force and arms, unlawfully, willfully, maliciously and feloniously did, strike and wound . . . . . [another] with his fist, which in manner used, considering defendant’s size, build in relation to . . . . . [other person’s] size, was, a deadly weapon, on and upon the head, body, arms, limbs and person . . . . . with the felonious and malicious intent to kill him, but from which striking and wounding death did not ensue” was insufficient to charge crime of assault with a deadly weapon, since the fist has been held not to constitute a deadly weapon, but was sufficient to sustain a conviction on the lesser offense of assault and battery. (Decided under prior law) Charles v. Commonwealth, 321 S.W.2d 253, 1959 Ky. LEXIS 274 ( Ky. 1959 ).

Indictment following the statute and charging that defendant and another, maliciously and with intent to kill, shot and wounded named person adequately notified defendant of offense charged. (Decided under prior law) Moore v. Commonwealth, 346 S.W.2d 39, 1961 Ky. LEXIS 291 ( Ky. 1961 ).

An indictment which charged that the shooting was done with the intent to kill and that the victim did not die from his wounds was sufficient. (Decided under prior law) Cavitt v. Commonwealth, 397 S.W.2d 54, 1965 Ky. LEXIS 58 ( Ky. 1965 ).

Amendment of the indictment at the close of the evidence in a trial for robbery and assault so as to change the name of robbery victim, did not prejudice the defendant or expose him to double jeopardy. Watkins v. Commonwealth, 565 S.W.2d 630, 1978 Ky. LEXIS 356 ( Ky. 1978 ).

38.—Completeness.

The omission of word “willful” in accusatory part of indictment, where descriptive part alleges that it was “willfully and maliciously” done, does not render the indictment insufficient; it is not necessary to allege shooting was “feloniously” done. (Decided under prior law) Gregory v. Commonwealth, 187 Ky. 188 , 218 S.W. 999, 1920 Ky. LEXIS 97 ( Ky. 1920 ).

39.—Bill of Particulars.

Where defendant and another were indicted jointly for maliciously cutting and wounding with intent to kill, and defendant would have been called upon to make the same defense regardless of whether he was tried as principal offender or as one who had aided or abetted the principal, overruling of defendant’s motion for bill of particulars was not abuse of discretion. (Decided under prior law) Chaplin v. Commonwealth, 274 S.W.2d 55, 1954 Ky. LEXIS 1222 ( Ky. 1954 ).

40.Instructions.

Assault and battery by cutting with a knife is punished by statute, and instructions under the statutes are all that are necessary. (Decided under prior law) Lewis v. Commonwealth, 156 Ky. 336 , 160 S.W. 1061, 1913 Ky. LEXIS 428 ( Ky. 1913 ); Noral v. Commonwealth, 202 Ky. 318 , 259 S.W. 706, 1924 Ky. LEXIS 713 ( Ky. 1924 ); Muncy v. Commonwealth, 265 Ky. 730 , 97 S.W.2d 606, 1936 Ky. LEXIS 566 ( Ky. 1936 ).

Where evidence warranted the conclusion that defendant wounded another in a reckless shooting, and not in sudden affray, an instruction on common-law offense should have been given. (Decided under prior law) Balle v. Commonwealth, 153 Ky. 558 , 156 S.W. 147, 1913 Ky. LEXIS 896 ( Ky. 1913 ).

Defendant was not entitled to instruction under malicious assault law or on shooting and wounding in sudden affray since a defendant is not entitled to specific instruction on intent unless the nature of the evidence is such as to make specific issue as to intent. (Decided under prior law) Luttrell v. Commonwealth, 250 Ky. 334 , 63 S.W.2d 292, 1933 Ky. LEXIS 698 ( Ky. 1933 ).

Instruction that defendant should be acquitted if shooting was accidental, defining “accident” as an unusual and unexpected happening, was sufficient, together with self-defense instruction, without adding that gun might have been discharged while defendant was attempting to frighten another person. (Decided under prior law) Crawford v. Commonwealth, 279 Ky. 224 , 130 S.W.2d 17, 1939 Ky. LEXIS 244 ( Ky. 1939 ).

In prosecution for willful and malicious shooting, an instruction on shooting and wounding in sudden affray or in sudden heat and passion should be given, where the evidence justifies it. (Decided under prior law) Eve v. Commonwealth, 278 Ky. 123 , 128 S.W.2d 616, 1939 Ky. LEXIS 414 ( Ky. 1939 ).

Where defendant, in prosecution for willful and malicious shooting, relied upon an alibi, a lower degree instruction was not authorized. (Decided under prior law) Eve v. Commonwealth, 278 Ky. 123 , 128 S.W.2d 616, 1939 Ky. LEXIS 414 ( Ky. 1939 ).

Where the indictment named defendant and charged him with having fired shots into a church, an instruction charging that jury should find defendant guilty if it believed he aided and abetted another in firing the shots is erroneous as one may not be convicted of aiding and abetting unless so charged or the indictment names two or more persons as the perpetrators. (Decided under prior law) Cupp v. Commonwealth, 296 Ky. 464 , 177 S.W.2d 581, 1944 Ky. LEXIS 566 ( Ky. 1944 ).

In a prosecution for cutting or striking another with a knife or other deadly weapon, where the proof showed that the weapon used was an ordinary pocket knife, it was not necessary for the instructions to define “deadly weapon.” (Decided under prior law) Williams v. Commonwealth, 304 Ky. 359 , 200 S.W.2d 926, 1947 Ky. LEXIS 653 ( Ky. 1947 ).

Where defendant, while drunk and without apparent motive, drew a gun on two brothers who grappled with him, and in the struggle the gun was discharged, wounding one of the brothers, in a subsequent prosecution for maliciously shooting and wounding with intent to kill, defendant was entitled to an instruction on accidental shooting. (Decided under prior law) Teeters v. Commonwealth, 310 Ky. 546 , 221 S.W.2d 85, 1949 Ky. LEXIS 965 ( Ky. 1949 ).

In prosecution for maliciously shooting a pistol at another with intent to kill, conflicting evidence as to whether or not accused did the actual shooting and whether or not shots were fired at prosecuting witness put in issue the lesser offense, making the drawing, pointing or flourishing a deadly weapon on a public highway a misdemeanor, so as to require that a misdemeanor instruction be included. (Decided under prior law) Johnson v. Commonwealth, 310 Ky. 621 , 221 S.W.2d 440, 1949 Ky. LEXIS 974 ( Ky. 1949 ).

In maliciously shooting prosecution failure to instruct on accidental killing, where there is evidence to establish such a theory, is reversible error. (Decided under prior law) Burkhart v. Commonwealth, 312 Ky. 448 , 227 S.W.2d 988, 1950 Ky. LEXIS 669 ( Ky. 1950 ).

In prosecution for shooting and wounding with intent to kill, an instruction defining the terms maliciously and willfully is not necessary. (Decided under prior law) Stringer v. Commonwealth, 240 S.W.2d 638, 1951 Ky. LEXIS 1015 ( Ky. 1951 ).

In prosecution for maliciously shooting at another without wounding him, wherein defendant testified that he shot in self-defense of his family and admitted that he was shooting at prosecuting witness, not to kill him, but only to bluff him, defendant was not entitled to instruction on reckless use of deadly weapon. (Decided under prior law) Profitt v. Commonwealth, 281 S.W.2d 898, 1955 Ky. LEXIS 207 ( Ky. 1955 ).

In prosecution for malicious cutting and wounding, in view of the conflicting testimony concerning the incident and the circumstances peculiar to the case, the court should have defined the term “sudden affray.” (Decided under prior law) Hall v. Commonwealth, 276 S.W.2d 441, 1955 Ky. LEXIS 418 ( Ky. 1955 ).

In prosecution for malicious shooting at and wounding an individual, trial court did not err in failing to give an affirmative instruction covering defendant’s special defense of alibi, where instruction in submitting Commonwealth’s theory of the case was couched in language the ordinary juror could easily understand, and its negative completely and adequately covered the defense of defendant. (Decided under prior law) Whitaker v. Commonwealth, 302 S.W.2d 601, 1957 Ky. LEXIS 203 ( Ky. 1957 ).

In prosecution for willfully and maliciously shooting another with intent to kill, evidence that defendants were intoxicated entitled them to an instruction on the lesser offense of shooting and wounding in sudden affray or heat and passion without previous malice. (Decided under prior law) Cummins v. Commonwealth, 344 S.W.2d 611, 1961 Ky. LEXIS 238 ( Ky. 1961 ).

When instructions embrace all three degrees of shooting and wounding, and defense of accidental shooting as well, accidental shooting instruction must contain proviso that act was neither willful nor result of wanton, reckless, or grossly careless handling of weapons. (Decided under prior law) Bentley v. Commonwealth, 354 S.W.2d 495, 1962 Ky. LEXIS 40 ( Ky. 1962 ).

Failure to give an instruction for recklessly throwing a missile at a motor vehicle was not erroneous where there was no factual basis upon which to predicate such an instruction. (Decided under prior law) Harrison v. Commonwealth, 373 S.W.2d 156, 1963 Ky. LEXIS 153 ( Ky. 1963 ).

Where the only instruction on reasonable doubt instructed the jury to find the defendant guilty of the lesser offense if they had reasonable doubt of his guilt of the primary offense, it was error not to give a separate instruction on reasonable doubt. (Decided under prior law) Medley v. Commonwealth, 450 S.W.2d 811, 1970 Ky. LEXIS 460 ( Ky. 1970 ).

Although assault in the first degree is an included offense of the crime of murder, an instruction on this issue need not be given unless the evidence leaves room for some doubt as to whether the act of the accused was the cause of death and, at the same time, all elements necessary to prove an assault in the first degree are present. Muse v. Commonwealth, 551 S.W.2d 564, 1977 Ky. LEXIS 452 ( Ky. 1977 ).

Where trial instructions provided, as alternative grounds for a finding of guilt, either that defendant intended to cause serious physical injury or that he wantonly engaged in conduct which created risk of death to victim, and the state of the evidence was such that it would clearly be unreasonable for a juror to believe that defendant’s conduct was other than intentional, the conviction for first-degree assault under this section was reversed with instructions for a new trial because it could not be ascertained whether all jurors based their decision on the first theory, which was the only one supported by the evidence; thus, the Supreme Court could not say that the verdict was unanimous as required by RCr 9.82. Boulder v. Commonwealth, 610 S.W.2d 615, 1980 Ky. LEXIS 288 ( Ky. 1980 ), overruled, Dale v. Commonwealth, 715 S.W.2d 227, 1986 Ky. LEXIS 284 ( Ky. 1986 ).

Where the evidence showed that injury to victim for which defendant was on trial was caused by a gunshot wound, the Circuit Court in order to differentiate instructions on first and second-degree assault, should have adopted Commonwealth’s tendered Instruction No. II, which permitted a guilty verdict on second-degree assault upon a finding that defendant intentionally shot the victim with a pistol, resulting in nonserious physical injury, or that defendant wantonly shot the victim with a pistol, resulting in serious physical injury. Commonwealth v. Hammond, 633 S.W.2d 73, 1982 Ky. App. LEXIS 214 (Ky. Ct. App. 1982).

The trial court did not commit error by instructing the jury on first degree assault, where the Commonwealth failed to prove that the victim received serious physical injury, but the defendant was found guilty of second degree assault; conviction of a lesser-included offense renders the instruction of the greater offense harmless error. Russell v. Commonwealth, 720 S.W.2d 347, 1986 Ky. App. LEXIS 1456 (Ky. Ct. App. 1986).

The trial court properly gave an instruction under KRS 508.040 without defendant’s consent which mitigated a conviction for assault under this section, KRS 508.020 , and 508.030 ; there was enough proof in the record to justify the giving of the instruction in question and it was not sufficiently prejudicial to compel a reversal of the trial court. Commonwealth v. Elmore, 831 S.W.2d 183, 1992 Ky. LEXIS 93 ( Ky. 1992 ).

41.—Dangerous Weapon.

In appeal from prosecution for throwing deadly missile into storehouse, Court of Appeals must assume that trial court properly instructed the jury where appellant contended the trial court’s failure to instruct on what constituted a dangerous or felonious missile or to instruct or define what constituted a stone or dangerous or deadly missile was erroneous, but appellant failed to meet the burden of proof by setting forth statements of fact necessary to determine the question in compliance with RCA1.210(a)(3). (Decided under prior law) Snell v. Commonwealth, 420 S.W.2d 127, 1967 Ky. LEXIS 100 ( Ky. 1967 ).

Omission of the requirement that the jury find that the car with which defendant hit the victim was a dangerous instrument in the assault instruction was harmless error where there was no reasonable doubt that the jury would have found the car to be a dangerous instrument when he used it to run down the victim in the course of stealing another's purse. McNeil v. Commonwealth, 468 S.W.3d 858, 2015 Ky. LEXIS 1764 ( Ky. 2015 ).

42.—Deadly Weapon.

In a prosecution for assault with a deadly weapon, court ought to have left it to the jury to decide, considering the character and size of the rock or stone with which the striking was done and the manner of its use, whether or not it was a deadly weapon, and an instruction, that if defendant struck and wounded “with rock or other hard substance, deadly weapon or weapons” the jury should find defendant guilty, was erroneous. (Decided under prior law) McWilliams v. Commonwealth, 35 S.W. 538, 18 Ky. L. Rptr. 92 (1896).

Where weapon used was a stick, an instruction which only required the jury to believe death could have been produced by the stick used, without regard to the manner of use, was erroneous. (Decided under prior law) Honaker v. Commonwealth, 76 S.W. 154, 25 Ky. L. Rptr. 675 (1903).

An instruction that if the defendant “struck and wounded S with a rock, a deadly weapon,” he should be found guilty, was erroneous in assuming that the rock was a deadly weapon. (Decided under prior law) Owens v. Commonwealth, 187 Ky. 207 , 218 S.W. 719, 1920 Ky. LEXIS 103 ( Ky. 1920 ).

In a prosecution for murder, where blow on head with a bottle was sufficient to cause death, instruction under law that provided a penalty for malicious and willful assault on another, defining “deadly weapon” was not required, notwithstanding another hit deceased with a rock, since accused could be found guilty of murder though he only contributed to or hastened death in some minor way. (Decided under prior law) Landrum v. Commonwealth, 266 Ky. 655 , 99 S.W.2d 787, 1936 Ky. LEXIS 731 ( Ky. 1936 ).

The most correct instruction defining a deadly weapon is a submission to the jury as to whether the instrument with which the striking was done was reasonably calculated to produce death when used by a person of defendant’s physical strength, and in the manner in which it was used by him on the occasion mentioned in the indictment. (Decided under prior law) Perry v. Commonwealth, 286 Ky. 587 , 151 S.W.2d 377, 1941 Ky. LEXIS 299 ( Ky. 1941 ).

When weapon employed is not definitely identified, or when it is not per se a deadly weapon, the question of whether it is a deadly weapon is for the jury, and an instruction defining “deadly weapon” should be given. (Decided under prior law) Perry v. Commonwealth, 286 Ky. 587 , 151 S.W.2d 377, 1941 Ky. LEXIS 299 ( Ky. 1941 ).

When weapon employed is per se deadly, an instruction defining “deadly weapon” is not necessary. (Decided under prior law) Perry v. Commonwealth, 286 Ky. 587 , 151 S.W.2d 377, 1941 Ky. LEXIS 299 ( Ky. 1941 ).

Failure of court, in instruction under law that provided a penalty for willfully and maliciously shooting, to include the words, “with a gun or other instrument loaded with a leaden bullet or other hard substance,” which were contained in such law was not prejudicial error. (Decided under prior law) Kelley v. Commonwealth, 300 Ky. 136 , 187 S.W.2d 796, 1945 Ky. LEXIS 804 ( Ky. 1945 ).

Hands and feet are not deadly weapons and instruction that it was the duty of the jury to convict defendant if he did willfully and maliciously and not in self-defense or self-defense of any of his codefendants assault, strike, beat and kick named person with poker or other deadly weapon upon or over her head, or both, with intent to then and there kill her, was reversible error. (Decided under prior law) Reed v. Commonwealth, 248 S.W.2d 911, 1952 Ky. LEXIS 768 ( Ky. 1952 ).

In prosecution for striking and wounding wife with a deadly weapon with intent to kill her, the evidence was sufficient to warrant instruction on use of a deadly weapon, a telephone which defendant jerked from the wall when his wife attempted to call the police, although defendant testified he struck her with his hands. (Decided under prior law) Crumbaugh v. Commonwealth, 259 S.W.2d 67, 1953 Ky. LEXIS 934 ( Ky. 1953 ).

In prosecution for maliciously striking and wounding with a knife, a deadly weapon, with intent to kill, failure to define the phrases “deadly weapon” and “sudden affray” was not erroneous. (Decided under prior law) Damron v. Commonwealth, 313 S.W.2d 854, 1958 Ky. LEXIS 274 ( Ky. 1958 ).

Giving of instruction following the form of the usual instruction for malicious striking and wounding, which embodied the language of the indictment concerning the use of the fist as a deadly weapon, and instruction defining the fist as a deadly weapon, constituted reversible error since the fist is not a deadly weapon and the indictment was insufficient to charge a felony. (Decided under prior law) Charles v. Commonwealth, 321 S.W.2d 253, 1959 Ky. LEXIS 274 ( Ky. 1959 ).

43.—Intent.

In prosecution for cutting and wounding with a knife, under law that provided a penalty for maliciously and willfully cutting or striking another with intent to kill, an instruction omitting “with intention to kill” was reversible error although that idea was contained in another instruction. (Decided under prior law) Bailey v. Commonwealth, 70 S.W. 838, 24 Ky. L. Rptr. 1114 (1902).

The words “feloniously” and “with malice aforethought” were improperly used in instruction that jury was to find defendant guilty of malicious cutting and wounding if the same was done feloniously and with malice aforethought and with intent to kill. (Decided under prior law) Brown v. Commonwealth, 79 S.W. 1193, 25 Ky. L. Rptr. 2076 (1904).

Instruction under law that provided a penalty for malicious and willful shooting that if defendant shot at one person with intention of killing him or shot at second person with the intention of killing him but wounding first person, was not erroneous as submitting two offenses for jury’s consideration, where evidence was doubtful whether accused intentionally shot at first person but it was admitted he shot at second person, since the instruction referred to the same act of shooting. (Decided under prior law) Tall v. Commonwealth, 110 S.W. 425, 33 Ky. L. Rptr. 541 (1908).

One of the essential elements of malicious assault is malice and an instruction which authorizes conviction without requiring the jury to believe the shooting at with intent to kill was done maliciously, clearly is erroneous and prejudicial. (Decided under prior law) Hall v. Commonwealth, 219 Ky. 446 , 293 S.W. 961, 1927 Ky. LEXIS 360 ( Ky. 1927 ); Crabtree v. Commonwealth, 227 Ky. 65 , 11 S.W.2d 1000, 1928 Ky. LEXIS 464 ( Ky. 1928 ).

In a prosecution for malicious shooting and wounding with intent to kill, it was not erroneous for the court to fail to define in its instruction the words “willfully” and “maliciously.” (Decided under prior law) Falls v. Commonwealth, 268 Ky. 696 , 105 S.W.2d 828, 1937 Ky. LEXIS 517 ( Ky. 1937 ).

Failure to define the terms “willfully,” “feloniously,” and “maliciously” in instructions is not prejudicially erroneous. (Decided under prior law) Eve v. Commonwealth, 278 Ky. 123 , 128 S.W.2d 616, 1939 Ky. LEXIS 414 ( Ky. 1939 ).

Instructions, which when read together told jury they could not convict accused of felony charge unless they believed cutting was done maliciously, thus making malice distinguishing element between felony and misdemeanor, were not prejudicial to accused’s substantive rights, notwithstanding one instruction told jury to convict if they believed beyond reasonable doubt that accused “unlawfully, willfully, and feloniously” cut victim, but omitted word “maliciously.” (Decided under prior law) Smith v. Commonwealth, 284 Ky. 468 , 145 S.W.2d 51, 1940 Ky. LEXIS 517 ( Ky. 1940 ).

Instruction which defined “willfully,” and also defined “maliciously” as “a determination to do the act of cutting, stabbing or wounding without legal excuse,” was proper, being more favorable to accused than instructions which have been approved. (Decided under prior law) Ewers v. Commonwealth, 284 Ky. 780 , 146 S.W.2d 1, 1940 Ky. LEXIS 578 ( Ky. 1940 ).

Where accusatory part of indictment omitted word “maliciously,” the court should have instructed only on common-law misdemeanor of assault and battery, and it was error to instruct on felony of malicious assault. (Decided under prior law) Armstrong v. Commonwealth, 289 Ky. 758 , 160 S.W.2d 159, 1942 Ky. LEXIS 640 ( Ky. 1942 ).

In prosecution for willfully and maliciously shooting into dwelling house, instruction that omitted the words “willfully and maliciously” was prejudicially erroneous. (Decided under prior law) Denham v. Commonwealth, 300 Ky. 531 , 189 S.W.2d 738, 1945 Ky. LEXIS 592 ( Ky. 1945 ).

The omission of the words “with intent to kill” after the words “a deadly weapon,” in instruction, or at some appropriate place before advice to the jury to find defendants guilty of striking with a deadly weapon with intent to kill, was erroneous. (Decided under prior law) Delph v. Commonwealth, 300 Ky. 722 , 190 S.W.2d 340, 1945 Ky. LEXIS 642 ( Ky. 1945 ).

In prosecution for shooting into house, instruction authorizing conviction if jury believed defendant “shot at or into the dwelling house,” without any language describing the purpose and intent with which the shooting was done, was erroneous. (Decided under prior law) Deaton v. Commonwealth, 303 Ky. 5 , 196 S.W.2d 742, 1946 Ky. LEXIS 775 ( Ky. 1946 ).

Common-law misdemeanor of assault and battery is made a felony where it is accompanied by an intent to kill and instruction must condition the verdict of guilt upon the finding of criminal intent as that is the gravamen of the crime. (Decided under prior law) Helton v. Commonwealth, 244 S.W.2d 762, 1951 Ky. LEXIS 1248 ( Ky. 1951 ).

In prosecution for maliciously striking and wounding another with a deadly weapon with the intent to kill him, instruction which authorized jury to find defendant guilty as a principal, or as an aider and abettor, was fatally defective where it omitted necessary element of intent to kill, and this omitted element was not sufficiently covered by clause which predicated guilt upon assault with a pistol, a deadly weapon, or other instrument reasonably calculated to cause death in manner in which the same was used. (Decided under prior law) Helton v. Commonwealth, 244 S.W.2d 762, 1951 Ky. LEXIS 1248 ( Ky. 1951 ).

Instruction was prejudicially erroneous which omitted the words “willfully” and “maliciously” in prosecution for willful and malicious throwing of dangerous or deadly missile at occupied automobile. (Decided under prior law) Harrison v. Commonwealth, 373 S.W.2d 156, 1963 Ky. LEXIS 153 ( Ky. 1963 ).

Instruction in appellant’s first-degree assault trial permitted the jury to find that appellant acted intentionally, wantonly, or recklessly, for purposes of KRS 501.020 , and counsel was adamant that he did not believe the jury had to distinguish the specific state of mind under which the jury found appellant acted; thus, even if the instruction was erroneous and prevented appellant from receiving a unanimous verdict, case law precluded further analysis due to counsel’s waiver of the argument. Moran v. Commonwealth, 399 S.W.3d 35, 2013 Ky. App. LEXIS 71 (Ky. Ct. App. 2013).

Trial court did not abuse its discretion in instructing the jury on first-degree assault nor did it err in denying defendant's motion for a directed verdict on that charge because he acted wantonly when, by attempting to parallel park a vehicle while intoxicated, he hit the gas pedal rather than the brake, which caused the vehicle accelerated in reverse and crush an individual against a building, crushing his pelvis, breaking his femurs, and damaging his internal organs. McCargo v. Commonwealth, 551 S.W.3d 439, 2017 Ky. App. LEXIS 498 (Ky. Ct. App. 2017).

44.—Lesser Degree.

In prosecution for malicious shooting, jury should have been instructed not only under law that provided a penalty for malicious shooting, but also for shooting in sudden affray or in sudden heat and passion without malice, where defendant shot at the person with whom he was having a quarrel but did not hit him. (Decided under prior law) Wilhelm v. Commonwealth, 28 S.W. 783, 16 Ky. L. Rptr. 428 (1894).

Where prosecutrix testified that at conclusion of the difficulty defendant cut her with edge of mason’s hatchet, it being a deadly weapon, defendant was entitled to an instruction on cutting in sudden affray, or in sudden heat and passion, it being a degree of the offense under law that provided a penalty for malicious cutting and wounding. (Decided under prior law) Barnes v. Commonwealth, 107 S.W. 806, 32 Ky. L. Rptr. 1152 (1908).

Where authorized by evidence, failure to instruct on assault and battery is error. (Decided under prior law) Cruise v. Commonwealth, 226 Ky. 831 , 11 S.W.2d 925, 1928 Ky. LEXIS 168 ( Ky. 1928 ).

Where defendant, charged with murder, was convicted of manslaughter, instruction under laws that provided penalties for willful and malicious assault and assault without previous malice and not in self-defense was not prejudicial, even if it was erroneous, as it was more favorable to defendant than he was entitled to. (Decided under prior law) Martin v. Commonwealth, 223 Ky. 762 , 4 S.W.2d 419, 1928 Ky. LEXIS 404 ( Ky. 1928 ).

The weapon charged hereunder was a baseball bat, and since jury might have concluded he did not intend to kill, when defendant struck his wife with the bat, and found him guilty of only assault and battery, failure to instruct on assault and battery was prejudicial error. (Decided under prior law) Marks v. Commonwealth, 223 Ky. 692 , 4 S.W.2d 711, 1928 Ky. LEXIS 429 ( Ky. 1928 ).

The giving of the general “reasonable doubt” instruction does not relieve the court of the duty to give the “lesser degree” instruction. (Decided under prior law) Turner v. Commonwealth, 267 Ky. 74 , 101 S.W.2d 214, 1937 Ky. LEXIS 284 ( Ky. 1937 ).

In prosecution for willful murder defendant was not entitled to instruction under willful and malicious assault and sudden affray laws, although there was some evidence that codefendant had struck deceased on the head with a pistol and that this might have been the cause of his death. (Decided under prior law) Morris v. Commonwealth, 268 Ky. 768 , 105 S.W.2d 1036, 1937 Ky. LEXIS 528 ( Ky. 1937 ).

Where defendant testified that gun fired accidentally and at no place did he claim that he was shooting at something else other than house of prosecuting witness, defendant was not entitled to an instruction on a law that made it a misdemeanor for flourishing or use in a boisterous manner of a deadly weapon. (Decided under prior law) Grigsby v. Commonwealth, 299 Ky. 32 , 184 S.W.2d 77, 1944 Ky. LEXIS 991 ( Ky. 1944 ).

Although, in prosecution for willful and malicious shooting with intent to kill, evidence clearly showed a deliberate and unprovoked attack by the accused, and there was no evidence to indicate that the shooting occurred in sudden affray or heat, accused was not prejudiced by giving of sudden affray instructions. (Decided under prior law) Kelley v. Commonwealth, 300 Ky. 136 , 187 S.W.2d 796, 1945 Ky. LEXIS 804 ( Ky. 1945 ).

Where, in prosecution for willful and malicious cutting or striking, the court gave a felony instruction, a misdemeanor instruction for cutting in sudden affray, without previous malice not in self-defense and a general self-defense instruction, and the self-defense instruction correctly stated the elements of that defense, the misdemeanor instruction, in requiring the jury to find that the cutting was “not in self-defense,” was not prejudicially erroneous in omitting the words “necessary or apparently necessary self-defense.” (Decided under prior law) Williams v. Commonwealth, 304 Ky. 359 , 200 S.W.2d 926, 1947 Ky. LEXIS 653 ( Ky. 1947 ).

In prosecution for willfully and maliciously shooting into a dwelling house, the mere act of defendant in shooting through window of house from distance of 50 feet indicated deliberateness and showed such indifference to the consequences as to impute willfulness and maliciousness or the evil intent to do the wrongful act without just cause or excuse, and, in view of such facts, failure to instruct on the misdemeanor of discharging a deadly weapon on a public highway was not error. (Decided under prior law) Smiddy v. Commonwealth, 311 Ky. 850 , 226 S.W.2d 22, 1950 Ky. LEXIS 564 ( Ky. 1950 ).

Instruction was properly given on malicious shooting and wounding with intent to kill, a lower degree of crime, where defendant was indicted and tried for murder but Commonwealth failed to prove the death of the person who was shot by defendant. (Decided under prior law) Clark v. Commonwealth, 243 S.W.2d 52, 1951 Ky. LEXIS 1119 ( Ky. 1951 ).

In prosecution for malicious striking and wounding, where evidence authorized it, an instruction on the common-law misdemeanor of assault and battery should have been given, as striking with a deadly weapon without malice or intent to kill was not embraced in law that provided a penalty for shooting, wounding or cutting without malice and not in self-defense. (Decided under prior law) Helton v. Commonwealth, 244 S.W.2d 762, 1951 Ky. LEXIS 1248 ( Ky. 1951 ).

In prosecution for maliciously cutting another with a deadly weapon with intent to kill, defendant was not entitled to an instruction on cutting in sudden heat of passion where pistol had been taken from him by the victim some four or more years previously and defendant testified before judge in chambers that he had worried over this imaginative wrong until he “flew mad” and cut victim, and there was no provocation on the occasion of the cutting to cause accused to “fly mad.” (Decided under prior law) Philpot v. Commonwealth, 247 S.W.2d 499, 1952 Ky. LEXIS 704 ( Ky. 1952 ).

In prosecution for willful murder of decedent, it was unnecessary to give an instruction on malicious shooting and wounding, because the wounded person died. (Decided under prior law) Jones v. Commonwealth, 281 S.W.2d 920, 1955 Ky. LEXIS 215 ( Ky. 1955 ).

In a prosecution for malicious cutting and wounding, where the defendant and his witnesses had testified that a knife was not used, an instruction on the offense of common-law assault and battery should have been given. (Decided under prior law) Hall v. Commonwealth, 276 S.W.2d 441, 1955 Ky. LEXIS 418 ( Ky. 1955 ).

The use of the words “in sudden heat and passion” in an instruction on sudden affray was not a sufficient definition of the term sudden affray, since affray means a mutual combat voluntarily engaged in between two (2) or more persons. (Decided under prior law) Hall v. Commonwealth, 276 S.W.2d 441, 1955 Ky. LEXIS 418 ( Ky. 1955 ).

In prosecution for maliciously shooting into occupied motor vehicle, where trial court instructed only on the charge of maliciously shooting into an occupied motor vehicle, which was justified by the evidence of the prosecution, there was reversible error since defendant was entitled to have his theory of the case presented by instruction, where testimony of witness that car was unoccupied was corroborated by several witnesses and the court should have instructed on recklessly shooting into an unoccupied motor vehicle, a lesser offense. (Decided under prior law) Smallwood v. Commonwealth, 303 S.W.2d 293, 1957 Ky. LEXIS 249 ( Ky. 1957 ).

In prosecution for malicious shooting into occupied motor vehicle where instruction was given only on such offense, trial court, under evidence, should have instructed on recklessly shooting into unoccupied motor vehicle and on lesser offense of reckless use of deadly weapon. (Decided under prior law) Smallwood v. Commonwealth, 303 S.W.2d 293, 1957 Ky. LEXIS 249 ( Ky. 1957 ).

In prosecution for willfully and maliciously shooting at and into a motor vehicle occupied by a person, where defendant fired at and struck a passing automobile, it was not error to fail to instruct on misdemeanors of recklessly shooting at or into a motor vehicle and on discharging a deadly weapon on a public highway, although defendant did not know who was in the automobile and had no malice toward him. (Decided under prior law) Neely v. Commonwealth, 325 S.W.2d 79, 1959 Ky. LEXIS 36 ( Ky. 1959 ).

In prosecution for willfully and maliciously shooting at and into a motor vehicle occupied by a person, it was not error to omit instructions on misdemeanors of recklessly shooting at or into a motor vehicle and discharging a deadly weapon on a public highway, since the very evidence of shooting the pistol at passing automobile was evidence of maliciousness as defendant knew the automobile had to be occupied by some person and it was not necessary that defendant know the person or have malice toward the person. (Decided under prior law) Neely v. Commonwealth, 325 S.W.2d 79, 1959 Ky. LEXIS 36 ( Ky. 1959 ).

In prosecution for allegedly maliciously striking and wounding another with a deadly weapon with intent to kill, it was error for the court to fail to instruct on assault and battery where from the character of the wounds the jury might well have concluded that defendant did not have the intent to kill. (Decided under prior law) Broaddus v. Commonwealth, 339 S.W.2d 154, 1960 Ky. LEXIS 426 ( Ky. 1960 ).

In prosecution for willfully and maliciously shooting at or into a dwelling house evidence that accused and a companion were walking by prosecuting witness’ house, that her dog attacked them, that he struck dog with a stick and prosecuting witness fired several pistol shots at him and that he did not have a gun and did not shoot at the house did not furnish any basis for instruction on simple assault. (Decided under prior law) Lewis v. Commonwealth, 357 S.W.2d 31, 1962 Ky. LEXIS 106 ( Ky. 1962 ).

In prosecution for malicious and willful throwing of a missile at occupied motor vehicle, where there was no factual basis upon which to predicate instruction for recklessly throwing missile at motor vehicle, the trial court did not err in failing to give one. (Decided under prior law) Harrison v. Commonwealth, 373 S.W.2d 156, 1963 Ky. LEXIS 153 ( Ky. 1963 ).

In prosecution under law that provided a penalty for throwing a missile or shooting into train, station or motor vehicle “calculated to produce death or great bodily harm,” it was proper to give no instruction under law that provided a penalty for throwing a stone or missile into a “motor vehicle occupied by a person,” for the more specific offense was under the first mentioned law for such a throwing when the vehicle was “stationary or traveling upon a public highway.” (Decided under prior law) Cook v. Commonwealth, 401 S.W.2d 51, 1966 Ky. LEXIS 395 ( Ky. 1966 ).

When a person shoots at or into a structure or vehicle with the intention of striking or frightening some specific person or persons there present or thought to be present, his action is as close to shooting at the other person or persons themselves as if it was done in a sudden affray or in sudden heat of passion without previous malice. (Decided under prior law) Williams v. Commonwealth, 464 S.W.2d 806, 1971 Ky. LEXIS 500 ( Ky. 1971 ).

In a prosecution for malicious and willful shooting where there was testimony that the defendant had no malice toward the officers and that he was attempting to protect himself from them as they accosted him in his residence, he was entitled to an instruction on the lesser crime of wounding in sudden affray without previous malice. (Decided under prior law) Clemons v. Commonwealth, 462 S.W.2d 919, 1971 Ky. LEXIS 562 ( Ky. 1971 ).

In a trial for defendant’s assault on his wife, defendant was not entitled to an instruction on assault under extreme emotional disturbance because there was no evidence that he first learned of his wife’s affair immediately preceding the altercation, or even on the same day; the wife’s testimony was only that they were fighting about her affair, not that she first told him about the affair that night. Driver v. Commonwealth, 361 S.W.3d 877, 2012 Ky. LEXIS 22 ( Ky. 2012 ).

In defendant’s first-degree assault case, the court erred by failing to give a lesser included offense instruction on second-degree assault because the evidence established injuries that fell somewhere in the gray area between mere physical injury and serious physical injury. The decision as to which type of injury actually occurred required close observation of the victims’ behavior, attention to their testimony, and overall interpretation of the evidence; that function could only be carried out by the jury, not the judge. Swan v. Commonwealth, 2012 Ky. LEXIS 498 (Ky. Aug. 23, 2012).

45.—Proper.

Where defendant’s testimony was to the effect the pistol was accidentally discharged in surrendering it to the officer, who knocked it up when extended, defendant was entitled to an instruction on this theory and not on self-defense. (Decided under prior law) Mann v. Commonwealth, 110 S.W. 243, 33 Ky. L. Rptr. 269 (1908); Caperton v. Commonwealth, 189 Ky. 652 , 225 S.W. 481, 1920 Ky. LEXIS 492 ( Ky. 1920 ).

Where wounded man was before the jury and testified, an instruction omitting the words “did not thereby die” or words of similar import was not erroneous. (Decided under prior law) Hall v. Commonwealth, 229 Ky. 646 , 17 S.W.2d 751, 1929 Ky. LEXIS 821 ( Ky. 1929 ).

In prosecution for malicious shooting without wounding, it was not prejudicial error to fail to instruct on accidental shooting, since, if defendant did not fire the pistol, she was entitled to an acquittal, not on the ground of accidental shooting, but on the ground that she did not shoot at another either with or without malice, and her rights were fully protected by the instruction on reasonable doubt. (Decided under prior law) Stephenson v. Commonwealth, 264 Ky. 390 , 94 S.W.2d 1002, 1936 Ky. LEXIS 336 ( Ky. 1936 ).

In prosecution for malicious shooting without wounding, it was not prejudicial error for the court to fail to instruct on misdemeanor of drawing, flourishing or using a deadly weapon, where the court did instruct on misdemeanor of shooting, wounding or cutting in sudden affray, heat or passion without previous malice. (Decided under prior law) Stephenson v. Commonwealth, 264 Ky. 390 , 94 S.W.2d 1002, 1936 Ky. LEXIS 336 ( Ky. 1936 ).

Under indictment for malicious shooting and wounding with intent to kill, failure to instruct on assault and battery was not error, since lesser offense of this crime was shooting and wounding without malice or in sudden affray. (Decided under prior law) Caldwell v. Commonwealth, 265 Ky. 402 , 96 S.W.2d 1041, 1936 Ky. LEXIS 496 ( Ky. 1936 ).

Where jury administered a penalty of only two years, court’s failure to give instruction, carrying the penalty of from two to 21 years was not prejudicial error. (Decided under prior law) Krone v. Commonwealth, 265 Ky. 389 , 96 S.W.2d 1052, 1936 Ky. LEXIS 500 ( Ky. 1936 ).

Omission of word “previous” before word “malice” in an instruction for malicious assault was not error. (Decided under prior law) Allison v. Commonwealth, 273 Ky. 538 , 117 S.W.2d 184, 1938 Ky. LEXIS 666 ( Ky. 1938 ).

Failure to instruct whether victim lived or died did not prejudice accused’s substantial rights where victim testified at trial. (Decided under prior law) Smith v. Commonwealth, 284 Ky. 468 , 145 S.W.2d 51, 1940 Ky. LEXIS 517 ( Ky. 1940 ).

In malicious wounding prosecution, it was not error not to instruct on lower degrees of crime, where evidence showed cold-blooded attempt at assassination, without any evidence to justify inference of shooting in sudden affray or as result of sudden heat and passion or in reckless use of firearms. (Decided under prior law) Hurst v. Commonwealth, 284 Ky. 599 , 145 S.W.2d 520, 1940 Ky. LEXIS 543 ( Ky. 1940 ).

Since the jury might have found defendant guilty of the lesser offense of shooting in sudden heat and passion, rather than of malicious shooting and wounding with intent to kill, it was not prejudicial to fail to instruct on reckless handling of firearms where defendant’s testimony made it appear he fired to defend himself and that defense was appropriately presented to jury. (Decided under prior law) Jones v. Commonwealth, 289 Ky. 59 , 156 S.W.2d 865, 1941 Ky. LEXIS 8 ( Ky. 1941 ).

Where court instructed jury on malicious and willful shooting and also on shooting and wounding in sudden affray or sudden heat and passion, a misdemeanor, defendant’s rights were not prejudiced by failure to instruct on shooting at without wounding in sudden affray or sudden heat and passion, since there was not evidence from which it could reasonably be inferred that any person other than defendant shot and wounded the prosecuting witness. (Decided under prior law) Mullins v. Commonwealth, 285 Ky. 804 , 149 S.W.2d 725, 1941 Ky. LEXIS 478 ( Ky. 1941 ).

In prosecution for malicious shooting and wounding, the addition of words “feloniously” and “with the felonious intent to kill” to instruction was advantageous and not prejudicial to defendant’s substantial rights. (Decided under prior law) Pack v. Commonwealth, 287 Ky. 192 , 152 S.W.2d 600, 1941 Ky. LEXIS 520 ( Ky. 1941 ).

It was not error for the court to fail to define “maliciously,” “self-defense,” and “reasonable doubt.” (Decided under prior law) Pack v. Commonwealth, 287 Ky. 192 , 152 S.W.2d 600, 1941 Ky. LEXIS 520 ( Ky. 1941 ).

Failure to give an assault and battery instruction, in prosecution for maliciously shooting and wounding, was not erroneous. (Decided under prior law) Pack v. Commonwealth, 287 Ky. 192 , 152 S.W.2d 600, 1941 Ky. LEXIS 520 ( Ky. 1941 ).

In prosecution for malicious shooting, instruction for the jury to find defendant guilty as charged in indictment, of shooting at another without wounding upon his personal plea of guilty in open court, and to fix his punishment at confinement in state penitentiary for period of not less than two nor more than twenty-one years, the maximum and minimum limits under law that provided a penalty for malicious shooting, was not erroneous. (Decided under prior law) Hobbs v. Commonweatlh, 308 Ky. 268 , 214 S.W.2d 274, 1948 Ky. LEXIS 914 ( Ky. 1948 ).

Instruction following language of indictment in describing offense charged as maliciously and feloniously shooting at another with intent to kill but without wounding, to which the court added “but from which shooting at, death did not ensue,” was not prejudicial in view of the fact that the offenses of shooting at another without wounding with intent to kill, and shooting and wounding another with intent to kill, but from which he does not die, were both contained in the same subsection of the former law and the same punishment was prescribed therefor. (Decided under prior law) Helton v. Commonwealth, 312 Ky. 268 , 226 S.W.2d 939, 1949 Ky. LEXIS 1260 ( Ky. 1949 ).

An instruction which lumped the degrees of the offense, and made it more difficult for the jury to understand, but which was not likely to mislead the jury, was not prejudicial. (Decided under prior law) Turner v. Commonwealth, 260 S.W.2d 646, 1953 Ky. LEXIS 978 ( Ky. 1953 ).

In a prosecution for malicious shooting and wounding, the court did not err in giving instructions on shooting and wounding and shooting in sudden affray. (Decided under prior law) Cravens v. Commonwealth, 262 S.W.2d 466, 1953 Ky. LEXIS 1100 ( Ky. 1953 ).

Where, in a prosecution for malicious shooting and wounding, the court gave an instruction covering the common-law offense of assault and battery with a firearm, but set as the penalty for that offense the penalty provided for flourishing a deadly weapon, the defendant was not prejudiced as the jury not only found the defendant guilty of malicious shooting and wounding, but fixed his sentence at more than the minimum for that offense, so that a correct instruction on the lesser offense would have been of no benefit to him. (Decided under prior law) Cravens v. Commonwealth, 262 S.W.2d 466, 1953 Ky. LEXIS 1100 ( Ky. 1953 ).

In a prosecution for maliciously cutting and wounding with intent to kill, defense that certain testimony revealed circumstances amounting to an avoidance of the charge was adequately covered by an instruction that the jurors were authorized to find the defendant not guilty if they did not believe beyond a reasonable doubt that the defendant had cut and wounded the alleged victim. (Decided under prior law) Chaplin v. Commonwealth, 274 S.W.2d 55, 1954 Ky. LEXIS 1222 ( Ky. 1954 ).

In prosecution for malicious cutting and wounding, an instruction on malicious cutting and wounding was proper where there was evidence to show defendant was the aggressor in the affray and that defendant struck the first blow and later cut victim with a knife. (Decided under prior law) Hall v. Commonwealth, 276 S.W.2d 441, 1955 Ky. LEXIS 418 ( Ky. 1955 ).

In a prosecution for maliciously shooting at and wounding another with intent to kill, failure to instruct on defendant’s theory of accidental killing was not reversible error where there was no evidence of accidental shooting but the shooting was plainly intentional since defendant said he shot victim to “scare him.” (Decided under prior law) Bowling v. Commonwealth, 279 S.W.2d 238, 1955 Ky. LEXIS 515 ( Ky. 1955 ).

In joint prosecution of two defendants for the malicious cutting and wounding of another, instructions expressly authorizing either conviction or acquittal of both defendants or conviction of either defendant and acquittal of the other, supplied omission of any such provision from other instructions given, and omission from such instructions did not result in such prejudice as would constitute reversible error. (Decided under prior law) Gibson v. Commonwealth, 287 S.W.2d 163, 1956 Ky. LEXIS 448 ( Ky. 1956 ).

In prosecution for maliciously shooting and wounding with intent to kill, and charging defendant with having been convicted of two prior felonies, instruction of court referring to second one as having been of “the offense of malicious striking and wounding of another, a felony,” but omitting the words “with intent to kill,” was not erroneous, since the particular nature of the previous offenses were not important; it was enough that the convictions were identified as felony convictions and they were not required to even state what the particular previous offenses were, much less to state their elements with exactitude. (Decided under prior law) Lee v. Commonwealth, 306 S.W.2d 258, 1957 Ky. LEXIS 23 ( Ky. 1957 ).

In prosecution for shooting and wounding another with intent to kill, defendant was not entitled to an instruction on accidental shooting where he testified that he intended to scare the prosecuting witness by shooting at his feet but he raised his pistol a little too high when he fired, since a defendant may be entitled to an accidental shooting instruction if his shot strikes a person whose presence is not known or anticipated or if his gun may have fired accidentally but not if he intentionally fires a weapon in the direction of a person known to be within range of his shot. (Decided under prior law) Blackburn v. Commonwalth, 306 S.W.2d 268, 1957 Ky. LEXIS 29 ( Ky. 1957 ).

Failure to instruct on lesser offense of reckless shooting into a motor vehicle was not prejudicial error in prosecution for malicious shooting at without wounding another with intent to kill, although defendant denied he shot at the driver and said he merely shot at the automobile, since the shooting was not reckless but intentional, and since the penalties are the same, it made no practical difference whether defendant shot at the car or at the driver so far as prejudicial error in the instruction was concerned. (Decided under prior law) Thacker v. Commonwealth, 306 S.W.2d 292, 1957 Ky. LEXIS 41 ( Ky. 1957 ).

In prosecution for willfully and maliciously shooting and wounding another with intent to kill him, defendant was not entitled to claim that the shooting was accidental and to have an instruction on that theory, where he testified that he and the prosecuting witness voluntarily engaged in a mutual fight and denied he had a weapon or had fired the pistol, undertaking to have the jury believe that prosecuting witness had shot himself. (Decided under prior law) Bell v. Commonwealth, 309 S.W.2d 163, 1958 Ky. LEXIS 336 ( Ky. 1958 ).

In prosecution for malicious cutting and wounding, the giving of a definition of “sudden affray” in the instructions was permissible but not necessary. (Decided under prior law) Medley v. Commonwealth, 450 S.W.2d 811, 1970 Ky. LEXIS 460 ( Ky. 1970 ).

Where fellow inmate was cut and stabbed with a knife by defendant, the court properly refused to instruct that assault and battery was a lesser degree of the offense charged as long as there was an actual cutting and not just a striking. (Decided under prior law) Smith v. Commonwealth, 507 S.W.2d 165, 1974 Ky. LEXIS 670 ( Ky. 1974 ).

First-degree assault combination instruction was proper because the officer testified that, as he chased defendant, defendant pulled something from his waistband, and he turned and shot toward the officer. A reasonable juror might have inferred that defendant fired the gun not for the purpose of causing serious physical injury, but only to stop the pursuit, or that by shooting toward the officer, defendant manifested an extreme indifference toward the value of human life. Buchanan v. Commonwealth, 399 S.W.3d 436, 2012 Ky. App. LEXIS 181 (Ky. Ct. App. 2012).

Where defendant, acting alone or in complicity with others, stabbed the victim with a knife following a heated telephone argument and washed the blood evidence from the knife to prevent the police from using it as evidence, he was convicted of second-degree assault and tampering with physical evidence. Defendant was precluded from seeking reversal of his conviction on the basis of an alleged improper jury instruction regarding self defense, as he tendered proposed instructions that included the identical language used by the trial court. Spencer v. Commonwealth, 2013 Ky. App. LEXIS 123 (Ky. Ct. App. Aug. 9, 2013), review denied, ordered not published, 2014 Ky. LEXIS 268 (Ky. June 19, 2014).

46.—Improper.

Evidence that accused, when prosecuting witness was about to pass him in an automobile as he was walking along the highway, fired two shots from shotgun at the prosecuting witness, which shots missed the witness but struck the automobile, supported verdict finding accused guilty of willful and malicious shooting with intent to kill, and fixing punishment at imprisonment for 15 years, as against contention that verdict was result of passion and prejudice. (Decided under prior law) Kelley v. Commonwealth, 300 Ky. 136 , 187 S.W.2d 796, 1945 Ky. LEXIS 804 ( Ky. 1945 ).

In prosecution for willful and malicious shooting, admission of testimony of sheriff, that at time he arrested accused for the offense he also arrested him on a warrant charging desertion from the Army, was prejudicial error, but accused could not avail himself of the error on appeal where he failed to mention it in his motion and grounds for new trial. (Decided under prior law) Kelley v. Commonwealth, 300 Ky. 136 , 187 S.W.2d 796, 1945 Ky. LEXIS 804 ( Ky. 1945 ).

A person indicted under law that provided a penalty for willful and malicious shooting, cutting or poisoning must be tried for the statutory offense and not as a common-law offense, and instruction hereunder is erroneous when there is added thereto the words “and under circumstances reasonably calculated to excite his passion beyond his power of self-control.” (Decided under prior law) Hardin v. Commonwealth, 114 Ky. 722 , 71 S.W. 862, 24 Ky. L. Rptr. 1540 , 1903 Ky. LEXIS 26 ( Ky. 1903 ).

In prosecution for maliciously and feloniously shooting at and wounding with intent to kill where no witness testified as to who fired the shot which struck prosecuting witness, and two or three persons were present in addition to prosecuting witness and the two codefendants, there was nothing to submit to the jury and an instruction on the lesser offense of shooting in sudden affray without malice was reversible error. (Decided under prior law) Reynolds v. Commonwealth, 271 Ky. 674 , 113 S.W.2d 54, 1938 Ky. LEXIS 48 ( Ky. 1938 ).

Where the evidence indicated that the defendant shot at the victim’s house while passing and there had been no prior confrontation, an instruction under law that provided a penalty for shooting in sudden affray or heat of passion without malice was not warranted. (Decided under prior law) Mullins v. Commonwealth, 276 Ky. 555 , 124 S.W.2d 788, 1939 Ky. LEXIS 556 ( Ky. 1939 ).

Instruction, in prosecution for malicious shooting and wounding, that defendant was to be acquitted if shooting was not willful and malicious, or not reckless and careless, was erroneous, since jury was, by implication, authorized to convict the defendant of a common-law misdemeanor (wounding by reckless and careless use of a pistol), but in fixing the penalty was required to look to the instruction as to a felony (malicious shooting and wounding). (Decided under prior law) Gambrell v. Commonwealth, 282 Ky. 620 , 139 S.W.2d 454, 1940 Ky. LEXIS 225 ( Ky. 1940 ).

In a prosecution where the evidence showed the defendant shot at no one and, at most, may have been guilty of reckless use of firearms, produced by his intoxicated condition, the court erred in not instructing the jury to acquit. (Decided under prior law) Campbell v. Commonwealth, 295 Ky. 511 , 174 S.W.2d 778, 1943 Ky. LEXIS 280 ( Ky. 1943 ).

Omission of words “with intent to kill” from instruction defining offense of willfully and maliciously cutting and wounding another, was reversible error. (Decided under prior law) Anglin v. Commonwealth, 310 Ky. 15 , 219 S.W.2d 972, 1949 Ky. LEXIS 844 ( Ky. 1949 ).

Where, under the evidence presented in prosecution for willfully and maliciously shooting at another without wounding, the jury could have found the defendant guilty of the crime of reckless use of firearms, failure of court to give instruction on the latter offense required a reversal. (Decided under prior law) Johnson v. Commonwealth, 313 Ky. 17 , 230 S.W.2d 69, 1950 Ky. LEXIS 793 ( Ky. 1950 ).

In prosecution for willfully and maliciously shooting at another without wounding, court’s instruction which omitted the word “maliciously,” was a reversible error. (Decided under prior law) Johnson v. Commonwealth, 313 Ky. 17 , 230 S.W.2d 69, 1950 Ky. LEXIS 793 ( Ky. 1950 ).

In prosecution for malicious striking and wounding, it was reversible error for the court to fail to give instruction on reasonable doubt of guilt of defendant where it gave a proper instruction on reasonable doubt as to proof of guilt of the degrees of the charge, felony or assault and battery. (Decided under prior law) Moore v. Commonwealth, 313 Ky. 505 , 232 S.W.2d 1021, 1950 Ky. LEXIS 923 ( Ky. 1950 ).

In prosecution for maliciously striking and wounding another with a deadly weapon with intent to kill him and for entering into conspiracy for purpose of maliciously striking and wounding, instruction which predicated guilt of defendant upon a conspiracy with some one who did actual striking and wounding and which omitted essential elements of malice and willfulness and element of intent to kill and did not state necessity that deadly weapon must have been used in commission of assault, was prejudicially erroneous. (Decided under prior law) Helton v. Commonwealth, 244 S.W.2d 762, 1951 Ky. LEXIS 1248 ( Ky. 1951 ).

In prosecution for malicious assault with deadly weapon with intent to kill three year old stepdaughter, instruction authorizing a conviction if the jury believed beyond a reasonable doubt that defendant “unlawfully, willfully and feloniously” struck the child “with a club or stick or other instrument, which used by a person of defendant’s build and age, and upon a child of the age of two years would be reasonably calculated to cause death” was erroneous in omitting the words “maliciously” and “with intent to kill” and also in omitting the manner of its use as it concerned the question of whether the stick or switch was a deadly weapon, where the presence of the elements of malice and intent to kill was a close question in the case. (Decided under prior law) Taylor v. Commonwealth, 302 S.W.2d 378, 1957 Ky. LEXIS 191 ( Ky. 1957 ).

Failure to instruct, in prosecution for malicious shooting and wounding, that jury should find defendant guilty of lesser offense of shooting and wounding in a sudden affray, if it had reasonable doubt about degree of offense committed, was prejudicial error, where evidence was sufficient to justify an instruction on sudden affray, and court had so instructed jury. (Decided under prior law) Partin v. Commonwealth, 351 S.W.2d 162, 1961 Ky. LEXIS 143 ( Ky. 1961 ).

In prosecution for malicious shooting and wounding, failure to instruct on misdemeanor of shooting and wounding unintentionally but as a result of defendant’s wanton, reckless or grossly careless handling of shotgun was error, but it was not prejudicial in view of the form of the instruction given on the defense of accidental shooting which required acquittal if act was not willful or intentional. (Decided under prior law) Bentley v. Commonwealth, 354 S.W.2d 495, 1962 Ky. LEXIS 40 ( Ky. 1962 ).

47.—Duty.

Defendant was not entitled to a jury instruction asking the jury to decide if she owed her son a duty of care because the existence of such a duty was a question of law for the court and not one of fact for the jury. Bartley v. Commonwealth, 400 S.W.3d 714, 2013 Ky. LEXIS 291 ( Ky. 2013 ).

48.Lesser Included Offenses.

Where defendant willfully fired at a passenger train, made up of passenger coaches, in which passengers and employees of the railroad company were at the time riding and the evidence showed it was not accidental or unintentional and the purpose of firing the shot was without excuse or provocation, the jury may well have found the firing was malicious and defendant was guilty of malicious shooting offense under which he was indicted, and not the offense of shooting at vehicles. (Decided under prior law) Burkhart v. Commonwealth, 119 Ky. 317 , 83 S.W. 633, 26 Ky. L. Rptr. 1245 , 1904 Ky. LEXIS 170 ( Ky. 1904 ).

There can be no conviction of a felony for throwing a missile into a railroad car unless it is shown that the thing thrown is calculated to produce death or great bodily harm, and a person or passenger in the car is injured or wounded. (Decided under prior law) Robinson v. Commonwealth, 144 Ky. 111 , 137 S.W. 833, 1911 Ky. LEXIS 550 ( Ky. 1911 ).

Offenses of malicious assault and assault in sudden affray are included in charge of murder, and should be instructed upon when evidence authorizes it. (Decided under prior law) Lyons v. Commonwealth, 216 Ky. 202 , 287 S.W. 534, 1926 Ky. LEXIS 856 ( Ky. 1926 ); Gill v. Commonwealth, 235 Ky. 351 , 31 S.W.2d 608, 1930 Ky. LEXIS 370 ( Ky. 1930 ).

The throwing of an object in front of a pursuing police car driven at high speed did not constitute an offense under law that provided a penalty for reckless throwing of a missile at a motor vehicle in order to cause death or bodily harm. (Decided under prior law) Cook v. Commonwealth, 401 S.W.2d 51, 1966 Ky. LEXIS 395 ( Ky. 1966 ).

In a prosecution for maliciously shooting into an occupied motor vehicle where record indicated that objections to the instructions were first presented by the motion for new trial, which did not mention statutory offense of recklessly shooting, failure to instruct on lesser charge would not be reviewed. (Decided under prior law) Williams v. Commonwealth, 464 S.W.2d 806, 1971 Ky. LEXIS 500 ( Ky. 1971 ).

Reversal was not required where court gave instruction on malicious striking and wounding with intent to kill which was unauthorized by the evidence, but jury convicted of lesser included offense of assault and battery, which was authorized by the evidence. (Decided under prior law) Wills v. Commonwealth, 502 S.W.2d 60, 1973 Ky. LEXIS 63 ( Ky. 1973 ).

As a general rule, assault in the first degree is a lesser included offense of robbery in the first degree. Commonwealth v. Varney, 690 S.W.2d 758, 1985 Ky. LEXIS 211 ( Ky. 1985 ), overruled, Goodman v. Commonwealth, 2015 Ky. Unpub. LEXIS 19 (Ky. Feb. 19, 2015).

Theft and assault are lesser included offenses within the charge of robbery, and a person cannot be convicted of both robbery and assault. Commonwealth v. Varney, 690 S.W.2d 758, 1985 Ky. LEXIS 211 ( Ky. 1985 ), overruled, Goodman v. Commonwealth, 2015 Ky. Unpub. LEXIS 19 (Ky. Feb. 19, 2015).

An assault committed by the defendants, upon a robbery victim, merged into the offense of first-degree robbery. O'Hara v. Commonwealth, 781 S.W.2d 514, 1989 Ky. LEXIS 110 ( Ky. 1989 ), overruled in part, McNeil v. Commonwealth, 468 S.W.3d 858, 2015 Ky. LEXIS 1764 ( Ky. 2015 ).

Trial court did not err in denying a jury instruction on facilitation as a lesser-included offense to the complicity charges for robbery, burglary, and assault because, although the jury might choose to disbelieve part of the testimony of the two accomplices, that did not constitute evidence of the lesser mental state required for a facilitation instruction; and because defendant presented no evidence demonstrating that he was wholly indifferent to the completion of the crime. Forte v. Commonwealth, 2016 Ky. App. LEXIS 182 (Ky. Ct. App. Nov. 4, 2016).

Defendant's first degree assault charge merged into defendant's reckless homicide charge because the evidence did not establish that the victim's head wound was a serious physical injury that could have formed the basis of defendant's first degree assault conviction, when defendant hit the victim in the head with a police baton, while one or both of defendant's co-perpetrators held the victim in a choke-hold, and the medical examiner testified that the cause of the victim's death was asphyxiation, most likely a result of the choke-hold. Hammond v. Commonwealth, 504 S.W.3d 44, 2016 Ky. LEXIS 626 ( Ky. 2016 ).

49.Verdict.

A verdict is not palpably against the evidence when it is reasonable for the jury to find from the facts and circumstances that the defendant is guilty, although such facts and circumstances are entirely opposite to the testimony of the witnesses for the defendant. The function of determining the ultimate fact from conflicting testimony is imposed by law upon the jury, and if there is any substantial testimony which, if believed, would determine the guilt of the defendant, it is the duty of the court to render a decision sustaining the verdict. (Decided under prior law) Shepherd v. Commonwealth, 236 Ky. 290 , 33 S.W.2d 4, 1930 Ky. LEXIS 739 ( Ky. 1930 ); Newsom v. Commonwealth, 289 Ky. 677 , 160 S.W.2d 4, 1942 Ky. LEXIS 623 ( Ky. 1942 ).

Where evidence is conflicting, Court of Appeals will not disturb jury’s verdict unless it is flagrantly against evidence, in which event verdict should be directed for defendant. (Decided under prior law) Shepherd v. Commonwealth, 277 S.W.2d 42, 1955 Ky. LEXIS 461 ( Ky. 1955 ).

50.—Directed.

In prosecution for maliciously shooting at and wounding an individual, where there was direct and positive proof of defendant’s guilt, the rule that where evidence is as consistent with innocence as with guilt a directed verdict should be granted in defendant’s favor did not apply, and trial court correctly refused to grant a directed verdict. (Decided under prior law) Whitaker v. Commonwealth, 302 S.W.2d 601, 1957 Ky. LEXIS 203 ( Ky. 1957 ).

Where there were two contradictory accounts of how the shooting occurred and the defendant admitted he had previously been convicted of a felony which could have had a bearing on his credibility, the defendant was not entitled to a directed verdict. (Decided under prior law) Taylor v. Commonwealth, 444 S.W.2d 725, 1969 Ky. LEXIS 219 ( Ky. 1969 ).

51.—Shooting at Without Wounding.

Where, pursuant to agreement with defendant before entry of plea of guilty to charge of shooting at another without wounding, Commonwealth’s attorney recommended punishment of two years to jury but verdict of jury fixed punishment at ten years, the Court of Appeals could not reverse the judgment on that ground although the trial court would have been justified in granting a new trial on the ground of personal bias and prejudice against defendant. (Decided under prior law) Hobbs v. Commonweatlh, 308 Ky. 268 , 214 S.W.2d 274, 1948 Ky. LEXIS 914 ( Ky. 1948 ).

52.—Shooting and Wounding With Intent to Kill.

Punishment of ten years’ imprisonment for maliciously wounding a police officer was not excessive where evidence overwhelmingly established the deliberate and willful shooting of an officer of the law engaged in the performance of his duties and if the jury had inflicted the limit of punishment of 21 years the punishment would not have been excessive under the circumstances shown. (Decided under prior law) Crawford v. Commonwealth, 279 Ky. 224 , 130 S.W.2d 17, 1939 Ky. LEXIS 244 ( Ky. 1939 ).

Verdict of two years’ imprisonment for malicious shooting was not so extreme as to shock the conscience of the court, where there was no other evidence of passion or prejudice on the part of the jury. (Decided under prior law) Childers v. Commonwealth, 279 Ky. 737 , 132 S.W.2d 81, 1939 Ky. LEXIS 353 ( Ky. 1939 ).

Sentence of 21 years for maliciously shooting and wounding policeman with intent to kill is not excessive. (Decided under prior law) Mullins v. Commonwealth, 285 Ky. 804 , 149 S.W.2d 725, 1941 Ky. LEXIS 478 ( Ky. 1941 ).

In prosecution for malicious shooting and wounding, where, according to evidence for Commonwealth, shooting resulted from slight provocation, defendant’s intention to kill was obvious, victim, an able bodied man of 29 years of age, had a miraculous escape from death and at the time of trial, nearly six months later, was an invalid as a result of the shooting, although defendant was only 17 years of age, a sentence of eight (8) years was not excessive where there was nothing in the record to show he was not responsible for his acts. (Decided under prior law) Spurlock v. Commonwealth, 311 Ky. 238 , 223 S.W.2d 910, 1949 Ky. LEXIS 1114 ( Ky. 1949 ).

In prosecution for shooting and wounding with intent to kill where there was testimony that defendant was behind car at time he shot victim and that defendant was not firing in self-defense as he claimed, where court permitted affidavit as to what defendant’s companion would have testified to had he been present and where defendant offered no satisfactory explanation for being on the highway with a gun the verdict was not against the law and the evidence. (Decided under prior law) Stringer v. Commonwealth, 240 S.W.2d 638, 1951 Ky. LEXIS 1015 ( Ky. 1951 ).

Where the evidence was sufficient to sustain the verdict of the jury in finding the defendant guilty of maliciously shooting and wounding another with intent to kill, and there were no mitigating circumstances in favor of the defendant, if the testimony of the Commonwealth’s witnesses was accepted as true, the maximum sentence of 21 years did not indicate passion and prejudice on the part of the jury. (Decided under prior law) Adams v. Commonwealth, 263 S.W.2d 103, 1953 Ky. LEXIS 1232 (Ky. Ct. App. 1953).

Judgment, after defendant pleaded guilty to willful and malicious shooting with intent to kill, of 21 years imprisonment, denoting on its face that it was imposed by the court under an agreement with petitioner and with the advice of counsel, could not be reached by review under RCr 11.42. (Decided under prior law) Perry v. Commonwealth, 407 S.W.2d 714, 1966 Ky. LEXIS 183 ( Ky. 1966 ), cert. denied, Perry v. Kentucky, 386 U.S. 968, 87 S. Ct. 1052, 18 L. Ed. 2d 121, 1967 U.S. LEXIS 2134 (1967). (See RCr 9.84.).

53.—Cutting and Wounding.

In prosecution for malicious cutting and wounding where the evidence was conflicting as to how the difficulty arose and what took place and testimony of the prosecution was sufficient to establish the elements of the offense charged, verdict of guilty of malicious cutting and wounding was justified. (Decided under prior law) Gibbs v. Commonwealth, 293 S.W.2d 714, 1956 Ky. LEXIS 84 ( Ky. 1956 ).

54.—Striking and Wounding.

Where defendant, in attempting to arrest another for being drunk, struck him with a blackjack when he resisted, and evidence was conflicting as to whether defendant had made known his intention to make the arrest and the offense charged, verdict finding defendant guilty of malicious striking and wounding was sustained. (Decided under prior law) Harrison v. Commonwealth, 279 Ky. 510 , 131 S.W.2d 454, 1939 Ky. LEXIS 306 ( Ky. 1939 ).

In prosecution for striking another with a poker, a deadly weapon, verdict was not flagrantly against the evidence although defendant pleaded self-defense. (Decided under prior law) Caswell v. Commonwealth, 285 Ky. 394 , 147 S.W.2d 1045, 1941 Ky. LEXIS 391 ( Ky. 1941 ); Gillenwater v. Commonwealth, 291 Ky. 493 , 165 S.W.2d 35, 1942 Ky. LEXIS 271 ( Ky. 1942 ).

Sentence of three (3) years’ imprisonment upon conviction of assault with intent to kill was not so severe as to indicate that it resulted from passion and prejudice. (Decided under prior law) Jones v. Commonwealth, 256 S.W.2d 520, 1953 Ky. LEXIS 751 ( Ky. 1953 ).

Cited in:

Houston v. Commonwealth, 554 S.W.2d 89, 1977 Ky. App. LEXIS 754 (Ky. Ct. App. 1977); Timmons v. Commonwealth, 555 S.W.2d 234, 1977 Ky. LEXIS 496 ( Ky. 1977 ); Sherley v. Commonwealth, 558 S.W.2d 615, 1977 Ky. LEXIS 545 ( Ky. 1977 ); Prince v. Commonwealth, 576 S.W.2d 244, 1978 Ky. App. LEXIS 656 (Ky. Ct. App. 1978); Engler v. Commonwealth, 627 S.W.2d 582, 1982 Ky. LEXIS 229 ( Ky. 1982 ); Pace v. Commonwealth, 636 S.W.2d 887, 1982 Ky. LEXIS 280 ( Ky. 1982 ); Perry v. Commonwealth, 839 S.W.2d 268, 1992 Ky. LEXIS 138 ( Ky. 1992 ); Commonwealth v. Rank, 494 S.W.3d 476, 2016 Ky. LEXIS 325 ( Ky. 2016 ).

Research References and Practice Aids

Cross-References.

Certain weapons, injury, action by injured person, KRS 411.020 .

Deadly weapon, widow or minor child of person killed by use, action, KRS 411.150 .

Physical force in self-protection, use, KRS 503.050 .

Kentucky Bench & Bar.

Wright, Prosecuting Domestic Violence, Vol 76, No. 2, March 2012, Ky. Bench & Bar 30.

Kentucky Law Journal.

Kentucky Law Survey, Ashdown, Criminal Law, 64 Ky. L.J. 337 (1975-76).

Kentucky Law Survey, Brice and Taylor, Criminal Law, 67 Ky. L.J. 569 (1978-1979).

Kentucky Law Survey, Malone and Malone, Criminal Law, 69 Ky. L.J. 545 (1980-81).

Kentucky Law Survey, Patterson, Juvenile Code, 70 Ky. L.J. 343 (1981-82).

Northern Kentucky Law Review.

Vaughn and Moore, Battered Spouse Defense In Kentucky, 10 N. Ky. L. Rev. 399 (1983).

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Assaults and Restraints of Persons, Part 3 Assault, §§ 3.32 — 3.37, 3.42, 3.47, 3.58.

Kentucky Instructions to Juries (Criminal), 5th Ed., General Principles, Part 1 Matters of Substance, § 1.05.

508.020. Assault in the second degree.

  1. A person is guilty of assault in the second degree when:
    1. He intentionally causes serious physical injury to another person; or
    2. He intentionally causes physical injury to another person by means of a deadly weapon or a dangerous instrument; or
    3. He wantonly causes serious physical injury to another person by means of a deadly weapon or a dangerous instrument.
  2. Assault in the second degree is a Class C felony.

History. Enact. Acts 1974, ch. 406, § 66, effective January 1, 1975.

NOTES TO DECISIONS

1.Construction.

The provisions of maiming statute were an enlargement and broadening of the common-law crime of mayhem. (Decided under prior law) Coleman v. Commonwealth, 280 Ky. 410 , 133 S.W.2d 555, 1939 Ky. LEXIS 144 ( Ky. 1939 ).

Defendant's conviction for second degree assault under this section qualified as a “crime of violence” for purposes of determining his federal career offender status; the U.S. Supreme Court's opinion in Johnson v. United States, 135 S. Ct. 2551 (2015), did not invalidate defendant's sentence. United States v. Collins, 799 F.3d 554, 2015 FED App. 0206P, 2015 U.S. App. LEXIS 14825 (6th Cir. Ky.), cert. denied, 577 U.S. 1037, 136 S. Ct. 601, 193 L. Ed. 2d 480, 2015 U.S. LEXIS 7796 (U.S. 2015).

District court did not plainly err in treating defendant's Kentucky second-degree assault conviction as a crime of violence for the purposes of enhancing his sentence for illegal reentry; no binding precedent of the court of appeals contradicted the conclusion that the Kentucky second-degree assault statute matched the generic aggravated assault offense. United States v. Alvarado-Martinez, 713 Fed. Appx. 259, 2017 U.S. App. LEXIS 22469 (5th Cir. Tex. 2017).

2.Double Jeopardy.

The conviction of the defendant for first-degree riot and second-degree assault did not constitute double jeopardy because the same use of force was not used to establish assault and then elevate riot to a higher offense. Commonwealth v. Cook, 739 S.W.2d 541, 1987 Ky. LEXIS 255 ( Ky. 1987 ).

Since to be convicted of second-degree assault, one must cause physical injury, and no such requirement exists for first-degree rape, and similarly, for a first-degree rape conviction, sexual intercourse must be proven, and, there is no such requirement for second-degree assault, neither offense is included in the other, and it was not double jeopardy to convict the defendant of both second-degree assault and first-degree rape. Wager v. Commonwealth, 751 S.W.2d 28, 1988 Ky. LEXIS 29 ( Ky. 1988 ).

Defendant can only be convicted of promoting contraband in the first degree for possessing dangerous contraband in a detention facility or penitentiary; that element is not required to support a conviction for second-degree assault and there was no double jeopardy violation where defendant was convicted of both. Tyler v. Commonwealth, 805 S.W.2d 126, 1991 Ky. LEXIS 16 ( Ky. 1991 ).

Criminal contempt conviction for violating domestic violent order prohibiting defendant from committing further acts of violence upon his wife did not bar action against him for second degree assault; double jeopardy did not attach because the contempt conviction required proof of an element unnecessary to convict him of burglary. Commonwealth v. Burge, 1996 Ky. LEXIS 82 (Ky. Aug. 29, 1996).

Actual infliction of physical injury to the victim by a dangerous instrument was not required to convict defendant of complicity to robbery in the first degree under KRS 515.020 , nor was the theft required for conviction of complicity to second degree assault under KRS 508.020 ; both of the statutes had different elements that had to be proved in finding guilt under the respective instructions. Thus, the double jeopardy rule was not violated. Fields v. Commonwealth, 219 S.W.3d 742, 2007 Ky. LEXIS 92 ( Ky. 2007 ).

Because there was insufficient evidence to support a finding that defendant’s fists caused serious physical injury to the victim, reversal of defendant’s conviction for second-degree assault under KRS 508.020 was the equivalent of an acquittal; accordingly, the double jeopardy clauses in U.S. Const. amend. V, and Ky. Const. § 13 barred a retrial. Commonwealth v. Davidson, 277 S.W.3d 232, 2009 Ky. LEXIS 24 ( Ky. 2009 ).

3.Elements.

Word “bite” as used in maiming statute meant severance produced by means of teeth. (Decided under prior law) Hemphill v. Commonwealth, 265 Ky. 194 , 96 S.W.2d 586, 1936 Ky. LEXIS 461 ( Ky. 1936 ).

Under maiming statute, offense could be committed during a fight or when perpetrator was not engaged in a fight. (Decided under prior law) Hemphill v. Commonwealth, 265 Ky. 194 , 96 S.W.2d 586, 1936 Ky. LEXIS 461 ( Ky. 1936 ).

There are three elements which comprise the crime of assault: the assailant’s mental state, the means of attack, and the resultant injury. Commonwealth v. Hammond, 633 S.W.2d 73, 1982 Ky. App. LEXIS 214 (Ky. Ct. App. 1982).

Defendant was not entitled to a directed verdict of acquittal on a charge of second-degree assault because there was sufficient evidence to find him guilty of the lesser included offense of fourth-degree assault, under KRS 508.030(1), because he intentionally inflicted physical injury on the victim. Davidson v. Commonwealth, 2006 Ky. App. LEXIS 32 (Ky. Ct. App. Feb. 3, 2006).

Defendant’s attorney was not ineffective in failing to object to the career-offender designation under U.S. Sentencing Guidelines Manual § 4B1.1 because any such objection would have been unsuccessful as his conviction for assault in the second degree under KRS 508.020 satisfied the definition of a crime of violence under U.S. Sentencing Guidelines Manual § 4B1.2(a). United States v. Rhodes, 2011 U.S. Dist. LEXIS 87088 (E.D. Ky. Aug. 5, 2011).

Trial court did not err by failing to grant defendant’s motion for directed verdict on the charge of second-degree assault against the second child because the second child’s injury was a physical injury as the second child told the first child that she had been stabbed; and a photograph introduced into evidence showed that the second child had a cut about an inch long and a half centimeter wide on her mid-back. Exantus v. Commonwealth, 612 S.W.3d 871, 2020 Ky. LEXIS 458 ( Ky. 2020 ).

4.—Dangerous Instrument.

Steel-toed work shoes and scissors were “dangerous instruments” where defendant kicked victim in side while he was wearing steel-toed work shoes and stabbed victim in the thigh and pelvic/vaginal area with the scissors. Commonwealth v. Potts, 884 S.W.2d 654, 1994 Ky. LEXIS 106 ( Ky. 1994 ), overruled in part, Doneghy v. Commonwealth, 410 S.W.3d 95, 2013 Ky. LEXIS 290 ( Ky. 2013 ).

Trial court did not abuse its discretion by failing to grant defendant’s motion for directed verdict for the second-degree assault of the first child because a butter knife was used to cut the first child’s nose, resulting in physical injury; and the butter knife was a dangerous instrument as it was used, attempted to be used, or threatened to be used in a way that was readily capable of causing death or serious physical injury. Exantus v. Commonwealth, 612 S.W.3d 871, 2020 Ky. LEXIS 458 ( Ky. 2020 ).

5.— Deadly Weapon.

When a deadly weapon or dangerous instrument is used intentionally, the requirements of subsection (1)(b) of this section are met when any injury results; the words “impairment of physical condition” in KRS 500.080(13) simply means “injury.” Meredith v. Commonwealth, 628 S.W.2d 887, 1982 Ky. App. LEXIS 201 (Ky. Ct. App. 1982).

Where defendant, who was under a domestic violence emergency protective order regarding his wife which order did not contain a no contact provision, sought admission to wife’s apartment and was admitted after wife had her male visitor wait in locked bedroom and defendant hearing a noise in the bedroom, went to investigate, forced the door and observed the friend diving out the window, whereupon the defendant proceeded to break several items and grab his wife by the neck, the facts do not support a finding that an assault occurred since no weapon or dangerous instrument was used and since there was no serious injury, and as the facts did not support a finding of assault and therefore the “intent to commit a crime” element of KRS 511.030(1) cannot be satisfied court’s overruling of defendant’s motion for directed verdict on burglary charge was error. Hedges v. Commonwealth, 937 S.W.2d 703, 1996 Ky. LEXIS 122 ( Ky. 1996 ).

6.—Serious Physical Injury.

Where defendant’s wife testified to assaults on her vagina and rectum by her husband with carrot, friend’s daughter testified that wife of defendant had screamed for defendant to stop and medical examination nine (9) days later showed swelling, vaginal abrasions, dried blood and slight bleeding, evidence of physical injury was sufficient to convict defendant under this section for second-degree assault with deadly weapon or dangerous instrument. Smith v. Commonwealth, 610 S.W.2d 602, 1980 Ky. LEXIS 284 ( Ky. 1980 ).

A photograph of the victim shown to the jury was not prejudicially gruesome, where all the damage done to the victim was by the defendant. Wager v. Commonwealth, 751 S.W.2d 28, 1988 Ky. LEXIS 29 ( Ky. 1988 ).

Victim was struck in back with a ball bat which knocked the wind out of him and bruised his ribs. The requirements of subdivision (1)(b) are met when any injury results. A victim is competent to testify about his own injuries and medical proof is not an absolute requisite to prove physical injury. Key v. Commonwealth, 840 S.W.2d 827, 1992 Ky. App. LEXIS 126 (Ky. Ct. App. 1992).

Second-degree assault does not require infliction of a serious physical injury when one intentionally injures another by means of a deadly weapon, or by means of a dangerous instrument. Commonwealth v. Potts, 884 S.W.2d 654, 1994 Ky. LEXIS 106 ( Ky. 1994 ), overruled in part, Doneghy v. Commonwealth, 410 S.W.3d 95, 2013 Ky. LEXIS 290 ( Ky. 2013 ).

Pain is an “impairment of health;” if the pain is substantial, but not prolonged, it constitutes a “physical injury” under KRS 500.080(13), but if it is prolonged, then it is a “serious physical injury” under KRS 500.080(15). Thus, a trial judge did not err when it instructed the jury on both the Class C felony of assault 2nd (wanton), KRS 508.020(1)(c), and the Class A misdemeanor of assault in the fourth degree (wanton), KRS 508.030(1)(a), where the evidence established that the victim’s injuries resulted not only in headaches and neck pain, but also muscle spasms and numbness of her right arm and where the jury could have found that the duration of those effects constituted a “prolonged impairment of health.” Parson v. Commonwealth, 144 S.W.3d 775, 2004 Ky. LEXIS 158 ( Ky. 2004 ).

Where a reasonable jury could have concluded that two months of healing time was “prolonged” with respect to the life of a six-month old infant, the evidence was sufficient for the jury to conclude that the leg fractures caused a “prolonged impairment of health” supporting defendant’s convictions for second-degree assault. Schrimsher v. Commonwealth, 190 S.W.3d 318, 2006 Ky. LEXIS 104 ( Ky. 2006 ).

Where the Commonwealth proved multiple acts of assault and multiple injures, some occurring in different time frames, the evidence was sufficient to prove that defendant’s conduct caused the victim’s injuries. Schrimsher v. Commonwealth, 190 S.W.3d 318, 2006 Ky. LEXIS 104 ( Ky. 2006 ).

Trial court did not err by denying defendant’s directed verdict for second-degree assault because the Commonwealth presented more than a mere scintilla of evidence that a physical injury resulted from defendant’s intentional use of a deadly weapon or dangerous instrument where the sergeant testified that he felt a sharp trust under his arm and realized immediately that he had been cut and his medical records showed that he sustained a small wound. Doneghy v. Commonwealth, 410 S.W.3d 95, 2013 Ky. LEXIS 290 ( Ky. 2013 ).

Circuit court erred in sentencing defendant to 10 years’ imprisonment after a jury convicted him of second-degree assault because there was not sufficient evidence to support a conviction where the Commonwealth fail to introduce evidence that the victim had sustained a serious physical injury, and the prosecutor admitted that the victim had only sustained a physical injury, not a serious physical injury, when he argued before the court. Farmer v. Commonwealth, 606 S.W.3d 641, 2020 Ky. App. LEXIS 60 (Ky. Ct. App. 2020).

7.Indictment.

An indictment, for maiming, alleging that defendant did “bite of” instead of “bite off” the ear of a person named sufficiently clear to indicate the offense charged and language used was not fatal to the indictment. (Decided under prior law) Commonwealth v. Shelby, 38 S.W. 490, 18 Ky. L. Rptr. 781 (1897).

Where indictment charged violation of maiming statute both by biting and striking, but Commonwealth elected to prosecute for biting and prosecution proceeded on that theory only, error, if any, in charging two offenses in same indictment was immaterial. (Decided under prior law) Coleman v. Commonwealth, 280 Ky. 410 , 133 S.W.2d 555, 1939 Ky. LEXIS 144 ( Ky. 1939 ).

8.Instructions.

In the prosecution of a police officer for assault and battery where the officer made no claim that he had to use force in making an arrest but denied having used any at all, the trial court’s omission of an instruction on the right of the police officer to use force in effecting an arrest was not error. (Decided under prior law) Phillips v. Commonwealth, 528 S.W.2d 940, 1974 Ky. LEXIS 1 ( Ky. 1974 ).

Where proof of the facts charged in the indictment would establish the commission of both attempted murder and assault in the second degree, assault in the second degree is a lesser included offense and, where the evidence raised the question of whether defendant intended to kill or to injure police officer, failure to give requested instruction on lesser included offense was reversible error. Luttrell v. Commonwealth, 554 S.W.2d 75, 1977 Ky. LEXIS 482 ( Ky. 1977 ).

In a prosecution for assault, the trial court erred when it refused to give an instruction on the mitigating defense of extreme emotional disturbance, where in view of the evidence presented it would not have been unreasonable for a juror to believe beyond a reasonable doubt that the defendant was not acting in self-defense or in defense of his brother, yet still believe that he was acting in a state of extreme emotional disturbance for which there was a reasonable justification or excuse under the circumstances as he believed them to be. Engler v. Commonwealth, 627 S.W.2d 582, 1982 Ky. LEXIS 229 ( Ky. 1982 ).

Defendant was not entitled to an instruction on third degree assault where the evidence as to the seriousness of the injury was that buckshot from the shotgun blast had gone through the victim’s elbow and forearm, requiring 29 days of hospitalization and five operations and the replacement of three inches of his bone by a steel plate, and where as a result of the shot, he also sustained muscle and nerve damage and could not move his fingers. Trent v. Commonwealth, 606 S.W.2d 386, 1980 Ky. App. LEXIS 369 (Ky. Ct. App. 1980).

Where the evidence showed that injury to victim for which defendant was on trial was caused by a gunshot wound, the Circuit Court in order to differentiate instructions on first and second-degree assault, should have adopted Commonwealth’s tendered Instruction No. II, which permitted a guilty verdict on second-degree assault upon a finding that defendant intentionally shot the victim with a pistol, resulting in nonserious physical injury, or that defendant wantonly shot the victim with a pistol, resulting in serious physical injury. Commonwealth v. Hammond, 633 S.W.2d 73, 1982 Ky. App. LEXIS 214 (Ky. Ct. App. 1982).

The trial court did not commit error by instructing the jury on first degree assault, where the Commonwealth failed to prove that the victim received serious physical injury, but the defendant was found guilty of second degree assault; conviction of a lesser-included offense renders the instruction of the greater offense harmless error. Russell v. Commonwealth, 720 S.W.2d 347, 1986 Ky. App. LEXIS 1456 (Ky. Ct. App. 1986).

Trial court did not err by refusing to give instruction on fourth-degree assault in a prosecution for second-degree assault where the defendant pointed a gun at the victim and shot her three times; the defendant’s behavior was more compatible with the definition of “intentional” than with “reckless.” Adkins v. Commonwealth, 787 S.W.2d 272, 1990 Ky. App. LEXIS 46 (Ky. Ct. App. 1990).

The trial court properly gave an instruction under KRS 508.040 without defendant’s consent which mitigated a conviction for assault under KRS 508.010 , this section, and KRS 508.030 ; there was enough proof in the record to justify the giving of the instruction in question and it was not sufficiently prejudicial to compel a reversal of the trial court. Commonwealth v. Elmore, 831 S.W.2d 183, 1992 Ky. LEXIS 93 ( Ky. 1992 ).

In a capital murder case, defendant was not entitled to an instructions on second degree assault, under KRS 508.020 , as a lesser included offense of attempted murder, based on voluntary intoxication, because the evidence did not show not only that defendant was under the influence, but that he was so under the influence that he did not know what he was doing, as he walked three miles to the victims’ residence, hid in a tool shed to escape immediate detection, concealed the victims’ bodies and the weapon used to kill them, lay in wait for his next victim, had the presence of mind to flee the scene after shooting her and to conceal the weapon in a creek, and was able to find another person’s residence which he had not visited in almost three (3) years. Soto v. Commonwealth, 139 S.W.3d 827, 2004 Ky. LEXIS 93 ( Ky. 2004 ), cert. denied, 544 U.S. 931, 125 S. Ct. 1670, 161 L. Ed. 2d 495, 2005 U.S. LEXIS 2608 (U.S. 2005).

Where the defendant first started beating the victim and eventually the co-defendant started beating the victim with a lug wrench while defendant threatened to kill the victim and encouraged the co-defendant to get the victim’s wallet, the later assault is the action for which defendant was charged with complicity; a jury could not reasonably have found that defendant was not guilty of complicity to the second degree assault, but guilty of only the preceding fourth degree assault, and, thus, the jury instruction on lesser-included offenses was properly denied. Fields v. Commonwealth, 219 S.W.3d 742, 2007 Ky. LEXIS 92 ( Ky. 2007 ).

Because the complicity charge required proof that co-defendant caused the victim’s physical injury, and the fourth degree assault instruction required an inconsistent finding that defendant caused the physical injury, defendant’s fourth degree assault could not be a lesser-included charge of complicity to assault in the second degree. Thus, a lesser-included offense jury instruction was properly denied. Fields v. Commonwealth, 219 S.W.3d 742, 2007 Ky. LEXIS 92 ( Ky. 2007 ).

In defendant’s first-degree assault case, the court erred by failing to give a lesser included offense instruction on second-degree assault because the evidence established injuries that fell somewhere in the gray area between mere physical injury and serious physical injury. The decision as to which type of injury actually occurred required close observation of the victims’ behavior, attention to their testimony, and overall interpretation of the evidence; that function could only be carried out by the jury, not the judge. Swan v. Commonwealth, 2012 Ky. LEXIS 498 (Ky. Aug. 23, 2012).

For purposes of the second-degree assault convictions, the trial court’s failure to instruct on the definition of dangerous instrument was harmless error because the evidence was uncontroverted that defendant cut the first child’s nose with a butter knife and that he stabbed the second child with either a butcher knife or a butter knife, resulting in a laceration on her mid-back; and there was simply no basis upon which to conclude that being provided with the definition of dangerous instrument would have somehow changed the jury’s verdict. Exantus v. Commonwealth, 612 S.W.3d 871, 2020 Ky. LEXIS 458 ( Ky. 2020 ).

9.Separate Offenses.

Convictions for both conspiracy to commit first degree robbery and accomplice to second degree assault did not violate defendant’s constitutional and statutory right against double jeopardy. Wilson v. Commonwealth, 695 S.W.2d 854 ( Ky. 1985 ).

Convictions for both conspiracy to commit first degree robbery and accomplice to second degree assault did not violate the prohibition in KRS 506.110(1) against conviction for both conspiracy to commit a crime and the actual commission of that crime. Wilson v. Commonwealth, 695 S.W.2d 854 ( Ky. 1985 ).

Where defendant approached a co-worker whom he believed had stolen drugs and money from him, where the co-worker gave defendant money and a cellular phone, where defendant kept the money, which he claimed to rightfully be his, and because he believed that the co-worker still had the drugs, kicked the co-worker between the legs and in the face while wearing steel toe shoes, and where defendant was charged with first-degree robbery, the trial court erred in instructing the jury that second-degree assault under KRS 508.020(1)(b) was a lesser-included offense of first-degree robbery under KRS 515.020(1)(a) because (1) the existence of the use of a deadly weapon had to be established by proof of more of the facts required to establish the commission of robbery; (2) the offense of assault was not the offense of attempted robbery; and (3) assault, under the circumstances of the case, required the completely separate element of the use of a deadly weapon; thus, it did not differ from robbery only in the respect that a lesser kind of culpability suffices to establish its commission, or in the respect that a less serious injury or risk of injury to the same person, property, or public interest suffices to establish its commission. Howell v. Commonwealth, 296 S.W.3d 430, 2009 Ky. App. LEXIS 149 (Ky. Ct. App. 2009).

10.Evidence.

In prosecution under maiming statute, where defendant pleaded self-defense, jury’s verdict of guilty of common-law misdemeanor of assault and battery was not palpably against evidence. (Decided under prior law) Ewing v. Commonwealth, 390 S.W.2d 651, 1965 Ky. LEXIS 361 ( Ky. 1965 ).

On prosecution under maiming statute, prosecuting witness was competent to testify that he had always had normal vision in his eye until struck there by defendant, and that thereafter his vision was gone. (Decided under prior law) Ewing v. Commonwealth, 390 S.W.2d 651, 1965 Ky. LEXIS 361 ( Ky. 1965 ).

Where defendant was indicted and tried under maiming statute for putting out eye of prosecuting witness, but was convicted by jury of assault and battery, admission of evidence of such loss of sight did not taint jury’s verdict with reversible error. (Decided under prior law) Ewing v. Commonwealth, 390 S.W.2d 651, 1965 Ky. LEXIS 361 ( Ky. 1965 ).

Evidence was sufficient to support a conviction where (1) the victim suffered at least two (2) cuts on her arms from scissors, as well as several other scrapes and contusions; (2) one defendant admitted in his statement that another defendant had cut locks of the victim’s hair while she was bound with duct tape; and (3) there was testimony that at the time the defendants left the victim’s house, they believed she might die as a result of severe bleeding from a cut on her arm. Murphy v. Commonwealth, 50 S.W.3d 173, 2001 Ky. LEXIS 81 ( Ky. 2001 ).

Evidence was suffiicient to support second degree assault conviction where an argument started in a bar between defendant, a victim, and defendant’s girlfried, where defendant flashed a gun at the victim, pointed it at the crowd and shot the victim in the abdomen, where the victim stated that after the shots he ran outside and saw defendant getting into a vehicle that was waiting outside, where another victim testified that after the initial argument defendant and his girlfriend entered from the rear of the bar and made their way to the front of the bar, where, as they walked through the bar they looked around at the faces of each patron, looking for a particular person, where the other victim observed defendant pointing a gun at the crowd, heard shots and felt a pain in his leg, and where defendant was positively identified by one of the victims from a police photo lineup. Woodard v. Commonwealth, 147 S.W.3d 63, 2004 Ky. LEXIS 244 ( Ky. 2004 ).

Because an appellate court had to consider the same evidence as the trial court in its best light in favor of the Commonwealth, there was sufficient evidence of wantonness to support defendant’s convictions for second-degree manslaughter and assault after defendant caused a fatal head-on collision; there was evidence that defendant crossed the center line and evidence of defendant’s impairment from a drug recognition expert who did not personally observe defendant. Burton v. Commonwealth, 300 S.W.3d 126, 2009 Ky. LEXIS 253 ( Ky. 2009 ).

11.— Admissibility.

Where the victim was 87 years old and had been severely traumatized, and her identification of the defendant was somewhat confused, the testimony of a detective regarding the victim’s identification of her assailant one and one-half days after the crime should not have been admitted, even though the victim had since died, and there were no eyewitnesses. Wager v. Commonwealth, 751 S.W.2d 28, 1988 Ky. LEXIS 29 ( Ky. 1988 ).

12.— Prior Convictions.

In a prosecution for assault and battery evidence of defendant’s prior felony convictions for detaining a woman against her will and for driving a motor vehicle without the owner’s consent were inadmissible to impeach his testimony, since the prior offenses had no bearing on the question of defendant’s veracity. (Decided under prior law) Phillips v. Commonwealth, 528 S.W.2d 940, 1974 Ky. LEXIS 1 ( Ky. 1974 ).

Cited:

Moore v. Commonwealth, 597 S.W.2d 155, 1979 Ky. App. LEXIS 527 (Ky. Ct. App. 1979); Jones v. Commonwealth, 623 S.W.2d 226, 1981 Ky. LEXIS 283 ( Ky. 1981 ); Souder v. Commonwealth, 719 S.W.2d 730, 1986 Ky. LEXIS 303 ( Ky. 1986 ); Jones v. Commonwealth, 737 S.W.2d 466, 1987 Ky. App. LEXIS 574 (Ky. Ct. App. 1987); Dick v. Scroggy, 882 F.2d 192, 1989 U.S. App. LEXIS 12120 (6th Cir. 1989); Commonwealth v. Harrell, 3 S.W.3d 349, 1999 Ky. LEXIS 117 ( Ky. 1999 ); Grundy v. Commonwealth, 25 S.W.3d 76, 2000 Ky. LEXIS 107 ( Ky. 2000 ).

Research References and Practice Aids

Cross-References.

Certain weapons, injury, action by injured person, KRS 411.020 .

Kentucky Law Journal.

Kentucky Law Survey, Brice and Taylor, Criminal Law, 67 Ky. L.J. 569 (1978-1979).

Kentucky Law Survey, Patterson, Juvenile Code, 70 Ky. L.J. 343 (1981-82).

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Assaults and Restraints of Persons, Part 3 Assault, §§ 3.35, 3.38, 3.39, 3.40 — 3.46.

508.025. Assault in the third degree.

  1. A person is guilty of assault in the third degree when the actor:
    1. Recklessly, with a deadly weapon or dangerous instrument, or intentionally causes or attempts to cause physical injury to:
      1. A state, county, city, or federal peace officer;
      2. An employee of a detention facility, or state residential treatment facility or state staff secure facility for residential treatment which provides for the care, treatment, or detention of a juvenile charged with or adjudicated delinquent because of a public offense or as a youthful offender;
      3. An employee of the Department for Community Based Services employed as a social worker to provide direct client services, if the event occurs while the worker is performing job-related duties;
      4. Paid or volunteer emergency medical services personnel certified or licensed pursuant to KRS Chapter 311A, if the event occurs while personnel are performing job-related duties;
      5. A paid or volunteer member of an organized fire department, if the event occurs while the member is performing job-related duties;
      6. Paid or volunteer rescue squad personnel affiliated with the Division of Emergency Management of the Department of Military Affairs or a local disaster and emergency services organization pursuant to KRS Chapter 39F, if the event occurs while personnel are performing job-related duties;
      7. A probation and parole officer;
      8. A transportation officer appointed by a county fiscal court or legislative body of a consolidated local government, urban-county government, or charter government to transport inmates when the county jail or county correctional facility is closed while the transportation officer is performing job-related duties;
      9. A public or private elementary or secondary school or school district classified or certified employee, school bus driver, or other school employee acting in the course and scope of the employee’s employment; or
      10. A public or private elementary or secondary school or school district volunteer acting in the course and scope of that person’s volunteer service for the school or school district;
    2. Being a person confined in a detention facility, or a juvenile in a state residential treatment facility or state staff secure facility for residential treatment which provides for the care, treatment, or detention of a juvenile charged with or adjudicated delinquent because of a public offense or as a youthful offender, inflicts physical injury upon or throws or causes feces, or urine, or other bodily fluid to be thrown upon an employee of the facility; or
    3. Intentionally causes a person, whom the actor knows or reasonably should know to be a peace officer discharging official duties, to come into contact with saliva, vomit, mucus, blood, seminal fluid, urine, or feces without the consent of the peace officer.
    1. For violations of subsection (1)(a) and (b) of this section, assault in the third degree is a Class D felony. (2) (a) For violations of subsection (1)(a) and (b) of this section, assault in the third degree is a Class D felony.
    2. For violations of subsection (1)(c) of this section, assault in the third degree is a Class B misdemeanor, unless the assault is with saliva, vomit, mucus, blood, seminal fluid, urine, or feces from an adult who knows that he or she has a serious communicable disease and competent medical or epidemiological evidence demonstrates that the specific type of contact caused by the actor is likely to cause transmission of the disease or condition, in which case it is a Class A misdemeanor.
    3. As used in paragraph (b) of this subsection, “serious communicable disease” means a non-airborne disease that is transmitted from person to person and determined to have significant, long-term consequences on the physical health or life activities of the person infected.

HISTORY: Enact. Acts 1982, ch. 429, § 1, effective July 15, 1982; 1990, ch. 380, § 1, effective July 13, 1990; 1994, ch. 397, § 1, effective July 15, 1994; 1996, ch. 345, § 1, effective July 15, 1996; 2000, ch. 14, § 56, effective July 14, 2000; 2000, ch. 193, § 17, effective July 14, 2000; 2000, ch. 345, § 7, effective July 14, 2000; 2002, ch. 208, § 1, effective July 15, 2002; 2002, ch. 360, § 1, effective July 15, 2002; 2005, ch. 128, § 1, effective June 20, 2005; 2018 ch. 189, § 1, effective July 14, 2018.

Legislative Research Commission Note.

(6/20/2005.) 2005 Ky. Acts ch. 128, sec. 1, which is included in an amendment to this statute, provides that the Act shall be known as the “Brenda D. Cowan Act.”

NOTES TO DECISIONS

1.Constitutionality.

This section is not unconstitutional because it removes any degree of culpable mental state, and when coupled with KRS 508.040 , it fails to allow the defendant any mitigation for the offense due to an extreme emotional disturbance. In enacting these sections, the General Assembly was seeking to protect those individuals who serve this Commonwealth in law enforcement capacities. Wyatt v. Commonwealth, 738 S.W.2d 832, 1987 Ky. App. LEXIS 548 (Ky. Ct. App. 1987).

Subdivision (1)(b) of this section is not void-for-vagueness because it is sufficiently definite that it can be understood by ordinary people, while providing the minimal guidelines necessary to govern law enforcement. Covington v. Commonwealth, 849 S.W.2d 560, 1992 Ky. App. LEXIS 218 (Ky. Ct. App. 1992).

2.Construction.

Subdivision (1)(b) of this section is not overbroad because no constitutionally permissible conduct is prohibited. Covington v. Commonwealth, 849 S.W.2d 560, 1992 Ky. App. LEXIS 218 (Ky. Ct. App. 1992).

3.Culpable Mental State.

The culpable mental state required for assault in the third degree is written into subdivision (1)(b) of this section by KRS 501.040 : a prison inmate confined in a detention facility must inflict physical injury upon an employee of the detention center which necessarily requires an inmate to intentionally or wantonly inflict physical injury upon a prison employee. Covington v. Commonwealth, 849 S.W.2d 560, 1992 Ky. App. LEXIS 218 (Ky. Ct. App. 1992).

Subdivision (1)(b) of this section does require a culpable mental state, although not expressly stated, and therefore is not invalid. Covington v. Commonwealth, 849 S.W.2d 560, 1992 Ky. App. LEXIS 218 (Ky. Ct. App. 1992).

Subdivision (1)(a)1. cannot be interpreted as imposing absolute liability with respect to any element of the defined offense. Love v. Commonwealth, 55 S.W.3d 816, 2001 Ky. LEXIS 28 ( Ky. 2001 ).

A defendant can be convicted of third degree assault of a police officer under subdivision (1)(a)1. only if he knew at the time of the assault that the victim was a peace officer. Love v. Commonwealth, 55 S.W.3d 816, 2001 Ky. LEXIS 28 ( Ky. 2001 ).

Two (2) of three (3) convictions against defendant for third-degree assault arising out of shooting involving three (3) police officers had to be reversed as the evidence only showed that defendant intended to injure one (1) of the officers by firing his gun at him, and, thus, the lack of evidence showing intent as to the other two (2) officers meant those convictions were not supported by the evidence. Clay v. Commonwealth, 2002 Ky. App. LEXIS 1920 (Ky. Ct. App. Sept. 6, 2002).

4.Dangerous Instrument.

A vehicle may be used in such a manner as to constitute a dangerous instrument. Wyatt v. Commonwealth, 738 S.W.2d 832, 1987 Ky. App. LEXIS 548 (Ky. Ct. App. 1987).

5.Defenses.

Trial court erred in dismissing defendant’s indictment for the third-degree assault of a police officer because the unlawfulness of the officer’s entry into the residence where defendant was sleeping was not a defense to the assault on the officer; moreover, the evidence regarding the alleged assault by was not tainted by the officer’s unlawful entry and was admissible at trial. Commonwealth v. Johnson, 245 S.W.3d 821, 2008 Ky. App. LEXIS 26 (Ky. Ct. App. 2008).

Like KRS 520.090 , which precludes the unlawfulness of an arrest as a defense to a prosecution for resisting arrest, the unlawfulness of an entry or search is not a defense to an assault on a police officer under KRS 508.025 . Commonwealth v. Johnson, 245 S.W.3d 821, 2008 Ky. App. LEXIS 26 (Ky. Ct. App. 2008).

6.Evidence.

Where prison guard testified that he suffered a bruised face and a scratch below his eye and where he also testified that his injuries inflicted by an inmate caused him pain and required medical attention at the local hospital, there was sufficient proof to establish a “physical injury.” Covington v. Commonwealth, 849 S.W.2d 560, 1992 Ky. App. LEXIS 218 (Ky. Ct. App. 1992).

Trial court erred in denying defendant’s directed verdict motion as to two (2) of the three (3) third-degree charges filed against defendant as the evidence only showed that defendant intended to injure one (1) police officer, and not all three (3) officers who tracked defendant to defendant’s apartment. Clay v. Commonwealth, 2002 Ky. App. LEXIS 1920 (Ky. Ct. App. Sept. 6, 2002).

Circuit court did not err in denying defendant's motions for directed verdict on a third-degree assault charge given a trooper's testimony that defendant was charging toward him with a raised baseball bat. Montgomery v. Commonwealth, 505 S.W.3d 274, 2016 Ky. App. LEXIS 198 (Ky. Ct. App. 2016).

Commonwealth produced sufficient evidence to survive defendant's directed verdict motion for three counts of assault in the third degree, given that defendant, while an inmate, threw a smock covered in toilet water towards three officers, they testified that the substance smelled strongly of urine, and the jury could have found the substance was urine despite the officers not seeing defendant urinate. Evans v. Commonwealth, 544 S.W.3d 166, 2018 Ky. App. LEXIS 89 (Ky. Ct. App. 2018).

Defendant was not entitled to a directed verdict of acquittal on the charge of third degree assault because the Commonwealth of Kentucky presented satisfactory evidence that defendant intentionally or wantonly spit on a corrections officer as the officer testified that defendant was “raising hell” and “cussing” while in the restraint chair at a detention center and spit on the officer, while other officers substantiated the testimony. Madden v. Commonwealth, 582 S.W.3d 54, 2019 Ky. App. LEXIS 4 (Ky. Ct. App. 2019).

7.Instructions.

The court erred in failing to instruct the jury on the defendant’s culpable mental state where the defendant presented evidence that he was basically unconscious during the episode; although extreme emotional disturbance may not mitigate a reckless assault on a policeman, even recklessness requires some intent, and if there were insufficient mental capacity or no intent, there could be no violation of this section. Wyatt v. Commonwealth, 738 S.W.2d 832, 1987 Ky. App. LEXIS 548 (Ky. Ct. App. 1987).

8.Probable Cause for Arrest.

Arrestee’s malicious prosecution claim against police officers, a city, and the police department failed because the officers had probable cause to arrest the arrestee for assault on a police officer in violation of KRS 508.025 ; the arrestee passively resisted the officers’ attempts to subdue him and place him in a police car, a scuffle between one officer and the arrestee ensued during the process of placing the arrestee in the car, and the officer suffered trauma to his face during that scuffle. Hubbard v. Gross, 199 Fed. Appx. 433, 2006 U.S. App. LEXIS 24558 (6th Cir. Ky. 2006 ).

9.Sentence.

Sentence of ten (10) years received by an inmate for assaulting a prison guard and being a persistent felony offender in the second degree (PFO II) was not so grossly disproportionate to the seriousness of the underlying crime and prior felonies as to constitute cruel and unusual punishment. Covington v. Commonwealth, 849 S.W.2d 560, 1992 Ky. App. LEXIS 218 (Ky. Ct. App. 1992).

Defendant’s twenty-year sentence for the Class D felony of assaulting a police officer invoked no sense of fundamental unfairness and did not constitute an exercise of absolute and arbitrary power as proscribed by the Kentucky Constitution because he offered nothing that indicated that he had been arbitrarily singled out for severe punishment, and because nothing in the record suggested that he had been subjected to unequal, disparate, or arbitrary treatment; defendant himself conceded that the sentencing evidence showed that he was almost always in trouble with the law. Thornton v. Commonwealth, 421 S.W.3d 372, 2013 Ky. LEXIS 401 ( Ky. 2013 ).

Prosecutor stated in his sentencing phase closing argument that defendant was only going to serve three years even if the jury gave him the maximum sentence for three counts of third degree assault, but this was an improper statement and a misstatement of the law that affected the jury, as the jury asked how much time defendant would actually serve; palpable error resulted and remand was required. Evans v. Commonwealth, 544 S.W.3d 166, 2018 Ky. App. LEXIS 89 (Ky. Ct. App. 2018).

Cited:

Washington v. Commonwealth, 6 S.W.3d 384, 1999 Ky. App. LEXIS 71 (Ky. Ct. App. 1999).

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Sellars, Criminal Law, 71 Ky. L.J. 355 (1982-83).

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Assaults and Restraints of Persons, Part 1 Definitions, § 3.12.

Kentucky Instructions to Juries (Criminal), 5th Ed., Assaults and Restraints of Persons, Part 3 Assault, §§ 3.47 — 3.49A.

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public and Judicial Administration, Part 3 Escape and Offenses Related to Custody, § 7.35.

508.030. Assault in the fourth degree.

  1. A person is guilty of assault in the fourth degree when:
    1. He intentionally or wantonly causes physical injury to another person; or
    2. With recklessness he causes physical injury to another person by means of a deadly weapon or a dangerous instrument.
  2. Assault in the fourth degree is a Class A misdemeanor.

History. Enact. Acts 1974, ch. 406, § 67, effective January 1, 1975; 1982, ch. 429, § 2, effective July 15, 1982.

NOTES TO DECISIONS

Analysis

1.Applicability.

This chapter was intended to include vehicular accidents within the meaning of “assaults.” Martin v. Commonwealth, 873 S.W.2d 832, 1993 Ky. App. LEXIS 181 (Ky. Ct. App. 1993).

2.Double Jeopardy.

The double jeopardy clause required vacating an appellant’s conviction for fourth degree assault because the physical injury proven as one of the elements of that charge was the same alleged and proven as an element of a first degree burglary charge against him. Butts v. Commonwealth, 953 S.W.2d 943, 1997 Ky. LEXIS 93 ( Ky. 1997 ), overruled in part, Commonwealth v. McCombs, 304 S.W.3d 676, 2009 Ky. LEXIS 61 ( Ky. 2009 ), abrogated in part, Elery v. Commonwealth, 368 S.W.3d 78, 2012 Ky. LEXIS 87 ( Ky. 2012 ).

Defendant’s convictions for first-degree burglary under KRS 511.020 and fourth-degree assault under KRS 508.030 did not violate double jeopardy principles under U.S. Const. amend. V. and Ky. Const. § 13 as assault required a specific finding of an intentional, wanton, or reckless mental state, and the physical injury element of burglary did not require such a finding; to the extent of a conflict, Butts v. Commonwealth, 953 S.W.2d 943, 1997 Ky. LEXIS 93 ( Ky. 1997 ), was overruled. Commonwealth v. McCombs, 304 S.W.3d 676, 2009 Ky. LEXIS 61 ( Ky. 2009 ), modified, 2010 Ky. LEXIS 139 (Ky. Mar. 18, 2010).

Given that a jury convicted defendant of both fourth-degree assault under KRS 508.030 and first-degree burglary under KRS 511.020 , and because the appellate court was unable to tell if the jury predicated both convictions on the same physical injury to the victim, a remand was necessary. If the same physical injury was the basis of both convictions, the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution and Ky. Const. § 13 were both violated. McCombs v. Commonwealth, 2006 Ky. App. LEXIS 180 (Ky. Ct. App. June 23, 2006), modified, 2007 Ky. App. LEXIS 3 (Ky. Ct. App. Jan. 12, 2007).

Conviction upon first-degree burglary and fourth-degree assault violated the prohibition against double jeopardy when the same physical injury was used to satisfy the physical injury elements of both KRS 511.020(1)(b) and 508.030(1)(a); fourth-degree assault did not contain an element different from first-degree burglary because if the jury believed defendant acted intentionally to cause the physical injury as to fourth-degree assault, it had to, likewise, have believed defendant acted intentionally to cause the physical injury as to first-degree burglary. McCombs v. Commonwealth, 2006 Ky. App. LEXIS 397 (Ky. Ct. App. June 23, 2006).

A defendant who was convicted in a Kentucky state court for assault in the fourth degree in violation of KRS 508.030 could be subsequently prosecuted for a violation of 18 USCS § 922(g)(9) for possessing a weapon after being convicted of a misdemeanor involving domestic violence. Fact that a domestic relationship was not an element of the state court conviction was not grounds for dismissal of the prosecution under § 922(g)(9), and the Government would be given the opportunity to prove the existence of the domestic relationship. United States v. Watkins, 407 F. Supp. 2d 825, 2006 U.S. Dist. LEXIS 1634 (E.D. Ky. 2006 ).

3.Evidence.

Where defendant, who was under a domestic violence emergency protective order regarding his wife which order did not contain a no contact provision, sought admission to wife’s apartment and was admitted after wife had her male visitor wait in locked bedroom and defendant hearing a noise in the bedroom, went to investigate, forced the door and observed the friend diving out the window, whereupon the defendant proceeded to break several items and grab his wife by the neck, the facts do not support a finding that an assault occurred since no weapon or dangerous instrument was used and since there was no serious injury, and as the facts did not support a finding of assault and therefore the “intent to commit a crime” element of KRS 511.030(1) cannot be satisfied court’s overruling of defendant’s motion for directed verdict on burglary charge was error. Hedges v. Commonwealth, 937 S.W.2d 703, 1996 Ky. LEXIS 122 ( Ky. 1996 ).

Evidence was sufficient to support a conviction for fourth degree assault. Washington v. Commonwealth, 6 S.W.3d 384, 1999 Ky. App. LEXIS 71 (Ky. Ct. App. 1999).

Defendant was not entitled to a directed verdict of acquittal on a charge of second-degree assault because there was sufficient evidence to find him guilty of the lesser included offense of fourth-degree assault, under KRS 508.030(1), because he intentionally inflicted physical injury on the victim. Davidson v. Commonwealth, 2006 Ky. App. LEXIS 32 (Ky. Ct. App. Feb. 3, 2006).

4.— Physical Injury.

Pain is an “impairment of health;” if the pain is substantial, but not prolonged, it constitutes a “physical injury” under KRS 500.080(13), but if it is prolonged, then it is a “serious physical injury” under KRS 500.080(15). Thus, a trial judge did not err when it instructed the jury on both the Class C felony of assault 2nd (wanton), KRS 508.020(1)(c), and the Class A misdemeanor of assault in the fourth degree (wanton), KRS 508.030(1)(a), where the evidence established that the victim’s injuries resulted not only in headaches and neck pain, but also muscle spasms and numbness of her right arm and where the jury could have found that the duration of those effects constituted a “prolonged impairment of health.” Parson v. Commonwealth, 144 S.W.3d 775, 2004 Ky. LEXIS 158 ( Ky. 2004 ).

One of the elements necessary to prove an assault in the first degree is that the behavior caused serious physical injury, and the indictment in this case for this offense erroneously cited a broken leg for this element, but it was changed to soft tissue damage, and the court was not persuaded that there had been harmful error as a result of the amendment, as the leg was only mentioned in the indictment form and was a clerical error, and there was enough evidence for the jury to have found that the victim suffered a serious physical injury, but the jury found that an assault in the fourth degree had occurred; an element of assault in the fourth degree is that physical injury occurred, not the serious physical injury required for a conviction of assault in the first degree, for purposes of KRS 508.030 , and the jury was not presented with evidence about a broken leg, such that the court could not find appellant suffered any prejudice from the indictment. Moran v. Commonwealth, 399 S.W.3d 35, 2013 Ky. App. LEXIS 71 (Ky. Ct. App. 2013).

5.Witnesses.

Where defendant was accused of assault and rape, denial of his right to cross-examine the prosecutrix about her psychiatric history constitutes reversible error since proffered testimony tended to impeach her credibility. Wagner v. Commonwealth, 581 S.W.2d 352, 1979 Ky. LEXIS 262 ( Ky. 1979 ), overruled, Estep v. Commonwealth, 663 S.W.2d 213, 1983 Ky. LEXIS 316 ( Ky. 1983 ), overruled in part, Estep v. Commonwealth, 663 S.W.2d 213, 1983 Ky. LEXIS 316 ( Ky. 1983 ), overruled on other grounds, sub nom. Estep v. Commonwealth, 663 S.W.2d 213, 1983 Ky. LEXIS 316 (Ky. 1983).

8.Instructions.

Defendant was not entitled to an instruction on third degree assault where the evidence as to the seriousness of the injury was that buckshot from the shotgun blast had gone through the victim’s elbow and forearm, requiring 29 days of hospitalization and five operations and the replacement of three (3) inches of his bone by a steel plate, and where as a result of the shot, he also sustained muscle and nerve damage and could not move his fingers. Trent v. Commonwealth, 606 S.W.2d 386, 1980 Ky. App. LEXIS 369 (Ky. Ct. App. 1980).

Since there was no evidence adduced that the injury caused by the defendant could be classified as anything less than serious, or that his mental state at the time of the assault was anything other than intentional or wanton, there was no basis for the court to give an instruction on assault in the fourth degree. Jones v. Commonwealth, 737 S.W.2d 466, 1987 Ky. App. LEXIS 574 (Ky. Ct. App. 1987).

Trial court did not err by refusing to give instruction on fourth-degree assault in a prosecution for second-degree assault where the defendant pointed a gun at the victim and shot her three times; the defendant’s behavior was more compatible with the definition of “intentional” than with “reckless.” Adkins v. Commonwealth, 787 S.W.2d 272, 1990 Ky. App. LEXIS 46 (Ky. Ct. App. 1990).

The trial court properly gave an instruction under KRS 508.040 without defendant’s consent which mitigated a conviction for assault under KRS 508.010 , 508.020 , and this section; there was enough proof in the record to justify the giving of the instruction in question and it was not sufficiently prejudicial to compel a reversal of the trial court. Commonwealth v. Elmore, 831 S.W.2d 183, 1992 Ky. LEXIS 93 ( Ky. 1992 ).

In instructing a jury on fourth degree assault under KRS 508.030 and first degree burglary under KRS 511.020 , the trial court erroneously inserted the term “crowbar” for the terms “dangerous instrument” and/or “deadly weapon,” thereby committing reversible error. A crowbar, as a matter of law, was not a deadly weapon, it was a tool, and whether the crowbar constituted a dangerous instrument was, in view of the disputed testimony, a fact question for the jury to decide. McCombs v. Commonwealth, 2006 Ky. App. LEXIS 180 (Ky. Ct. App. June 23, 2006), modified, 2007 Ky. App. LEXIS 3 (Ky. Ct. App. Jan. 12, 2007).

Insertion of the term “crowbar” in the jury instructions where the terms “deadly weapon” and “dangerous instrument” were used by the burglary and assault statutes (KRS 511.020 and 508.030 ) was harmless error as a deadly weapon included a billy, nightstick, or club under KRS 500.080(4)(d), and a crowbar was very similar to a nightstick or billyclub when wielded as a weapon; there was substantial evidence that defendant used the crowbar as a metal club in defendant’s attack on the victim. Commonwealth v. McCombs, 304 S.W.3d 676, 2009 Ky. LEXIS 61 ( Ky. 2009 ), modified, 2010 Ky. LEXIS 139 (Ky. Mar. 18, 2010).

Any lack of clarity in a jury instruction as to the mental state required for fourth-degree assault was not palpable error because defendant's substantial rights were not affected, as the jury did not consider the instruction once the jury found defendant guilty of second-degree assault. Burke v. Commonwealth, 506 S.W.3d 307, 2016 Ky. LEXIS 631 ( Ky. 2016 ).

9.Lesser Included Offenses.

Wanton endangerment is not a lesser-included offense of misdemeanor assault as assault in the fourth degree requires a finding of physical injury, whereas wanton endangerment does not, and wanton endangerment requires conduct which creates a substantial danger of death or serious physical injury to another, whereas fourth-degree assault does not. Matthews v. Commonwealth, 44 S.W.3d 361, 2001 Ky. LEXIS 24 ( Ky. 2001 ).

Because the complicity charge required proof that the co-defendant caused the victim’s physical injury, and the fourth degree assault instruction required an inconsistent finding that defendant caused the physical injury, defendant’s fourth degree assault could not be a lesser-included charge of complicity to assault in the second degree. Thus, a lesser-included offense jury instruction was properly denied. Fields v. Commonwealth, 219 S.W.3d 742, 2007 Ky. LEXIS 92 ( Ky. 2007 ).

Where the defendant first started beating the victim and eventually the co-defendant started beating the victim with a lug wrench while defendant threatened to kill the victim and encouraged the co-defendant to get the victim’s wallet, the later assault is the action for which defendant was charged with complicity; a jury could not reasonably have found that defendant was not guilty of complicity to the second degree assault, but guilty of only the preceding fourth degree assault, and, thus, the jury instruction on lesser-included offenses was properly denied. Fields v. Commonwealth, 219 S.W.3d 742, 2007 Ky. LEXIS 92 ( Ky. 2007 ).

Defendant’s assertion that the jury could have believed he was not legally impaired when he hit three victims, and thus his conduct was merely reckless, was refuted by the evidence. Defendant’s conduct was beyond reckless, and thus an instruction on the lesser-included offense of fourth-degree assault was unwarranted. Iraola-Lovaco v. Commonwealth, 586 S.W.3d 241, 2019 Ky. LEXIS 428 ( Ky. 2019 ).

Trial court did not err by failing to instruct the jury on the lesser included offense of fourth-degree assault for defendant’s attacks on the two children because conspicuously absent from defendant’s tendered instruction was a required finding that defendant caused physical injury to them with a dangerous instrument as the first child testified that defendant cut her nose with a butter knife, and the second child told the first child that defendant had stabbed her; and no evidentiary basis existed upon which the jury could have had reasonable doubt that defendant did not use a dangerous instrument to inflict the girls’ physical injuries. Exantus v. Commonwealth, 612 S.W.3d 871, 2020 Ky. LEXIS 458 ( Ky. 2020 ).

Cited:

Alcorn v. Commonwealth, 557 S.W.2d 624, 1977 Ky. LEXIS 534 ( Ky. 1977 ).

NOTES TO UNPUBLISHED DECISIONS

Analysis

1.Lesser Included Offenses.

Unpublished decision: First-degree robbery conviction was affirmed because the trial court did not err in refusing to instruct the jury on theft by unlawful taking over $ 300.00 and fourth-degree assault as lesser-included offenses of robbery, as the jury could not have reasonably doubted defendant’s guilt of robbery, and yet believed beyond a reasonable doubt that the defendant was guilty of the two lesser crimes. Mack v. Commonwealth, 136 S.W.3d 434, 2004 Ky. LEXIS 150 ( Ky. 2004 ).

3.Evidence.

Unpublished decision: In a 42 U.S.C.S. § 1983 case in which a plaintiff appealed district court's grant of summary judgment in favor of a police officer, the officer was entitled to qualified immunity because he had probable cause to arrest plaintiff for fourth-degree assault; plaintiff, his son, and a pool employee all confirmed that plaintiff slapped his son, and the officer knew that the slap hurt plaintiff's son. Harvey v. Carr, 616 Fed. Appx. 826, 2015 FED App. 0472N, 2015 U.S. App. LEXIS 11019 (6th Cir. Ky. 2015 ).

Unpublished decision: In a 42 U.S.C.S. § 1983 case in which a plaintiff appealed district court's grant of summary judgment in favor of a police officer based on qualified immunity, the record presented no material dispute of fact whether the officer knew conclusively that the parental-discipline statute protected plaintiff's use of force; the undisputed facts tracked the elements of fourth-degree assault, and nothing required the officer to inquire further to discover plaintiff's affirmative defense. Harvey v. Carr, 616 Fed. Appx. 826, 2015 FED App. 0472N, 2015 U.S. App. LEXIS 11019 (6th Cir. Ky. 2015 ).

Research References and Practice Aids

Cross-References.

Harassment, KRS 525.070 .

Kentucky Bench & Bar.

Wright, Prosecuting Domestic Violence, Vol 76, No. 2, March 2012, Ky. Bench & Bar 30.

Kentucky Law Journal.

Kentucky Law Survey, Brice and Taylor, Criminal Law, 67 Ky. L.J. 569 (1978-1979).

Cooper and Lawson, Self-Defense in Kentucky: A Need For Clarification or Revision, 76 Ky. L.J. 167 (1987-88).

Kentucky Law Survey, Sellars, Criminal Law, 71 Ky. L.J. 355 (1982-83).

Northern Kentucky Law Review.

Notes, Search and Seizures — Kentucky’s Constitutional Requirement of a Search Warrant to Inventory an Automobile — The Exceptions, 7 N. Ky. L. Rev. 125 (1980).

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Assaults and Restraints of Persons, Part 3 Assault, §§ 3.35, 3.50 — 3.55.

Kentucky Instructions to Juries (Criminal), 5th Ed., Offenses Against Public and Judicial Administration, Escape and Offenses Related to Custody, § 7.35.

508.032. Assault of family member or member of an unmarried couple — Enhancement of penalty.

  1. If a person commits a third or subsequent offense of assault in the fourth degree under KRS 508.030 within five (5) years, and the relationship between the perpetrator and the victim in each of the offenses meets the definition of family member or member of an unmarried couple, as defined in KRS 403.720 , then the person may be convicted of a Class D felony. If the Commonwealth desires to utilize the provisions of this section, the Commonwealth shall indict the defendant and the case shall be tried in the Circuit Court as a felony case. The jury, or judge if the trial is without a jury, may decline to assess a felony penalty in a case under this section and may convict the defendant of a misdemeanor. The victim in the second or subsequent offense is not required to be the same person who was assaulted in the prior offenses in order for the provisions of this section to apply.
  2. In determining the five (5) year period under this section, the period shall be measured from the dates on which the offenses occurred for which the judgments of conviction were entered by a court of competent jurisdiction.

History. Enact. Acts 1996, ch. 345, § 2, effective July 15, 1996; 2000, ch. 401, § 39, effective July 14, 2000.

NOTES TO DECISIONS

1.Sufficiency of the Evidence.

Because the Commonwealth failed to prove that there was a prior conviction for the assault of a family member or member of an unmarried couple, as required by KRS 508.032 , the trial court erred in denying defendant’s motion for a directed verdict. Lisle v. Commonwealth, 290 S.W.3d 675, 2009 Ky. App. LEXIS 113 (Ky. Ct. App. 2009).

Since there was no proof of the identity of the victims and the nature of the relationship between defendant and the victims, the trial court erred in failing to grant defendant’s motion for a directed verdict on the fourth-degree assault, third offense, charge. Galloway v. Commonwealth, 424 S.W.3d 921, 2014 Ky. LEXIS 97 ( Ky. 2014 ).

2.Conduct of Trial.

Ky. Rev. Stat. Ann. § 508.032 , as well as misdemeanor-sentencing and non-delegation case law, required trifurcation for a conviction under § 508.032 . Brewer v. Commonwealth, 478 S.W.3d 363, 2015 Ky. LEXIS 1856 ( Ky. 2015 ).

Under Ky. Rev. Stat. Ann. § 508.032 , the first phase of the trifurcated process was the guilt phase where no prior-conviction evidence was admissible, and if the jury found guilt, it fixed punishment. Brewer v. Commonwealth, 478 S.W.3d 363, 2015 Ky. LEXIS 1856 ( Ky. 2015 ).

Under Ky. Rev. Stat. Ann. § 508.032 , the second phase was the § 508.032 guilt phase where prior-conviction evidence was admissible, but only prior convictions of fourth-degree assault involving a family member or member of an unmarried couple and if the jury found defendant not guilty in the second phase, judgment was entered imposing the misdemeanor sentence fixed by the jury on the first phase. Brewer v. Commonwealth, 478 S.W.3d 363, 2015 Ky. LEXIS 1856 ( Ky. 2015 ).

Under Ky. Rev. Stat. Ann. § 508.032 , the third phase, enhanced sentencing for fourth-degree assault, third or subsequent offense within five years, was conducted in accordance with Ky. Rev. Stat. Ann. § 532.055 . Brewer v. Commonwealth, 478 S.W.3d 363, 2015 Ky. LEXIS 1856 ( Ky. 2015 ).

Research References and Practice Aids

Kentucky Bench & Bar.

Gagne with Grandon, Across the Great Divide: A Sociological Analysis of Domestic Violence from Two Perspectives, Vol. 67, No. 5, Sept. 2003, Ky. Bench & Bar 7.

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Assaults and Restraints of Persons, Part 3 Assault, § 3.50.

508.040. Assault under extreme emotional disturbance.

  1. In any prosecution under KRS 508.010 , 508.020 or 508.030 in which intentionally causing physical injury or serious physical injury is an element of the offense, the defendant may establish in mitigation that he acted under the influence of extreme emotional disturbance, as defined in subsection (1)(a) of KRS 507.020 .
  2. An assault committed under the influence of extreme emotional disturbance is:
    1. A Class D felony when it would constitute an assault in the first degree or an assault in the second degree if not committed under the influence of an extreme emotional disturbance; or
    2. A Class B misdemeanor when it would constitute an assault in the fourth degree if not committed under the influence of an extreme emotional disturbance.

History. Enact. Acts 1974, ch. 406, § 68, effective January 1, 1975; 1984, ch. 111, § 198, effective July 13, 1984.

NOTES TO DECISIONS

Analysis

1.In General.

Since word “strike” did not appear in law that provided penalty for shooting, wounding, or cutting in sudden affray or heat and passion without previous malice and not in self-defense, such law did not cover lower degree of offense of striking with deadly weapon with intent to kill, under law that provided penalty for malicious and willful shooting, cutting or poisoning. (Decided under prior law) McIntosh v. Commonwealth, 275 Ky. 126 , 120 S.W.2d 1031, 1938 Ky. LEXIS 383 ( Ky. 1938 ).

Malice is the distinguishing element between the offense defined by law that provided penalty for malicious and willful shooting, cutting or poisoning and the misdemeanor defined by law that provided penalty for shooting, wounding or cutting in sudden affray or heat and passion without previous malice and not in self-defense. (Decided under prior law) Combs v. Commonwealth, 298 Ky. 481 , 183 S.W.2d 486, 1944 Ky. LEXIS 932 ( Ky. 1944 ); Kelley v. Commonwealth, 300 Ky. 136 , 187 S.W.2d 796, 1945 Ky. LEXIS 804 ( Ky. 1945 ).

Law that provided penalty for shooting, wounding or cutting in sudden affray or heat and passion without previous malice and not in self-defense did not include the offense of “striking” with a deadly weapon with an intent to kill. (Decided under prior law) Reed v. Commonwealth, 248 S.W.2d 911, 1952 Ky. LEXIS 768 ( Ky. 1952 ).

At common law, intentional wounding, by shooting or otherwise, was assault and battery. (Decided under prior law) Bentley v. Commonwealth, 354 S.W.2d 495, 1962 Ky. LEXIS 40 ( Ky. 1962 ).

Where defendants all participated in a brawl and acted in concert, the failure to identify the one who did the actual stabbing was immaterial as to their joint guilt for assault. Houston v. Commonwealth, 554 S.W.2d 89, 1977 Ky. App. LEXIS 754 (Ky. Ct. App. 1977).

2.Construction.

Distinction between offense under law that provided penalty for shooting, wounding or cutting in sudden affray or heat of passion without previous malice and not in self-defense and one under law that provided penalty for malicious and willful shooting, cutting or poisoning is in principle the difference between murder and voluntary manslaughter. (Decided under prior law) Perkins v. Commonwealth, 218 Ky. 802 , 292 S.W. 498, 1927 Ky. LEXIS 261 ( Ky. 1927 ).

Offense denounced by law that provided penalty for shooting, wounding or cutting in sudden affray or heat and passion without previous malice and not in self-defense was degree of crime defined in law that provided penalty for malicious and willful shooting, cutting or poisoning. (Decided under prior law) Hensley v. Commonwealth, 264 Ky. 718 , 95 S.W.2d 564, 1936 Ky. LEXIS 387 ( Ky. 1936 ); Mullins v. Commonwealth, 276 Ky. 555 , 124 S.W.2d 788, 1939 Ky. LEXIS 556 ( Ky. 1939 ); Rice v. Commonwealth, 288 Ky. 152 , 155 S.W.2d 757, 1941 Ky. LEXIS 68 ( Ky. 1941 ).

To be an offense under law that provided penalty for malicious and willful shooting, cutting or poisoning the act must have been with malice so that if death had ensued it would have been murder, while under law that provided penalty for shooting, wounding or cutting in sudden affray or heat and passion without previous malice and not in self-defense, the same act without malice and not in self-defense is a misdemeanor and would have been manslaughter if death had ensued. (Decided under prior law) Pack v. Commonwealth, 282 Ky. 835 , 140 S.W.2d 626, 1940 Ky. LEXIS 267 ( Ky. 1940 ).

In prosecution under law that provided penalty for malicious and willful cutting, striking or stabbing another with a knife or other deadly weapon where evidence authorized it, an instruction on the common-law misdemeanor of assault and battery should have been given, as striking with a deadly weapon without malice or intent to kill was not embraced in law that provided penalty for shooting, wounding or cutting in sudden affray or heat and passion without previous malice and not in self-defense. (Decided under prior law) Helton v. Commonwealth, 244 S.W.2d 762, 1951 Ky. LEXIS 1248 ( Ky. 1951 ).

The offense denounced by law that provided penalty for shooting, wounding or cutting in sudden affray or heat and passion without previous malice and not in self-defense was not a degree of the one denounced by law that provided penalty for malicious and willful cutting, striking or stabbing another with a knife or other deadly weapon. (Decided under prior law) Reed v. Commonwealth, 248 S.W.2d 911, 1952 Ky. LEXIS 768 ( Ky. 1952 ).

3.Purpose.

KRS 508.025 is not unconstitutional because it removes any degree of culpable mental state, and when coupled with this section, it fails to allow the defendant any mitigation for the offense due to an extreme emotional disturbance. In enacting these sections, the General Assembly was seeking to protect those individuals who serve this Commonwealth in law enforcement capacities. Wyatt v. Commonwealth, 738 S.W.2d 832, 1987 Ky. App. LEXIS 548 (Ky. Ct. App. 1987).

4.Elements.

In prosecution under law that provided penalty for shooting, wounding or cutting in sudden affray or heat and passion without previous malice and not in self-defense for shooting an officer, where shooting is done in sudden heat and passion or sudden affray and without previous malice, the court should define the word “affray,” which is the mutual combat of two or more persons in a public place of the terror of the people. (Decided under prior law) Wallace v. Commonwealth, 207 Ky. 122 , 268 S.W. 809, 1925 Ky. LEXIS 30 ( Ky. 1925 ).

Drunkenness of defendant was a factor to be considered by jury in determining whether defendant acted with malice, so as to be guilty of felony under law that provided penalty for malicious and willful shooting, cutting or poisoning rather than misdemeanor under law that provided penalty for shooting, wounding or cutting in sudden affray or heat and passion without previous malice and not in self-defense. (Decided under prior law) Abbott v. Commonwealth, 305 Ky. 620 , 205 S.W.2d 348, 1947 Ky. LEXIS 901 ( Ky. 1947 ).

Assault under extreme emotional disturbance in Kentucky remained crime of violence under United States Sentencing Guidelines’ elements clause because it required proving that someone used physical force against another. United States v. Maynard, 894 F.3d 773, 2018 FED App. 0130P, 2018 U.S. App. LEXIS 18104 (6th Cir. Ky. 2018 ).

5.—Extreme Emotional Disturbance.

Because defendant was prosecuted for attempted murder, and not for assault, KRS 508.040 was inapplicable. Keeling v. Commonwealth, 381 S.W.3d 248, 2012 Ky. LEXIS 160 ( Ky. 2012 ).

Whereas self-protection requires justification for the injurious act itself, the element of extreme emotional disturbance requires reasonable justification only for the emotional disturbance, this distinction being the ground for the fact that one calls for an acquittal and the other merely reduces the degree of the offense. Engler v. Commonwealth, 627 S.W.2d 582, 1982 Ky. LEXIS 229 ( Ky. 1982 ).

Although defendant was not entitled to use deadly force against two (2) unarmed men, a jury could believe that defendant acted in retaliation for the beating the victims inflicted; consequently, the trial court erred in refusing to instruct the jury on the lesser-included offense of assault under extreme emotional disturbance under KRS 508.040 and 507.020(1)(a), and RCr 9.54(1). Thomas v. Commonwealth, 170 S.W.3d 343, 2005 Ky. LEXIS 310 ( Ky. 2005 ).

6.Evidence.

When, under an indictment for murder, the proof shows death was not due to the wound inflicted, a conviction may be had under law that provided penalty for malicious and willful shooting, cutting or poisoning for malicious cutting and wounding, or under law that provided penalty for shooting, wounding or cutting in sudden affray or heat and passion without previous malice and not in self-defense. (Decided under prior law) Housman v. Commonwealth, 128 Ky. 818 , 110 S.W. 236, 33 Ky. L. Rptr. 311 , 1908 Ky. LEXIS 100 ( Ky. 1908 ).

Where there was evidence that defendant provoked the conflict during which he stabbed the person with whom he was fighting, this was sufficient to sustain a conviction. (Decided under prior law) Watkins v. Commonwealth, 378 S.W.2d 614, 1964 Ky. LEXIS 190 ( Ky. 1964 ).

In the absence of other evidence, the mere fact that a woman is driving down a public road in broad daylight with a man other than her husband could hardly constitute justification or excuse for a knife attack upon the man. Thomas v. Commonwealth, 587 S.W.2d 264, 1979 Ky. App. LEXIS 465 (Ky. Ct. App. 1979).

Trial court properly refused to instruct the jury on assault under extreme emotional disturbance because no reasonable person would consider the ordinary stresses of childrearing a reasonable explanation for a temporary state of mind so enraged, inflamed, or disturbed as to overcome one’s judgment, and to cause one to act uncontrollably from the impelling force of the extreme emotional disturbance rather than from evil or malicious purposes. Schrimsher v. Commonwealth, 190 S.W.3d 318, 2006 Ky. LEXIS 104 ( Ky. 2006 ).

7.Indictment.

Where on trial of one indicted under law that provided penalty for malicious and willful shooting, cutting or poisoning there was evidence that there was no malice, but shooting in sudden heat and passion, it was error not to charge under law that provided penalty for shooting, wounding or cutting in sudden affray or heat and passion without previous malice and not in self-defense where the crime was a misdemeanor and not a felony. (Decided under prior law) Sapp v. Commonwealth, 28 S.W. 158, 16 Ky. L. Rptr. 336 (1894).

Indictment charging offense of malicious and willful cutting, and of cutting in sudden affray, which is degree of former offense, is not duplicitous. (Decided under prior law) Ewers v. Commonwealth, 284 Ky. 780 , 146 S.W.2d 1, 1940 Ky. LEXIS 578 ( Ky. 1940 ).

Under law that provided penalty for shooting, wounding or cutting in sudden affray or heat and passion without previous malice and not in self-defense, the shooting at another must not be in self-defense and instruction should follow the law; moreover instruction that did not refer to shooting in sudden affray as well as in sudden heat and passion was prejudicial. (Decided under prior law) Violett v. Commonwealth, 72 S.W. 1, 24 Ky. L. Rptr. 1720 , 1903 Ky. LEXIS 479 (Ky. Ct. App. 1903); Greer v. Commonwealth, 85 S.W. 166, 27 Ky. L. Rptr. 333 (1905).

Where conviction was not under law that provided penalty for shooting, wounding or cutting in sudden affray or heat and passion without previous malice and not in self-defense but for malicious striking and wounding, an instruction under such law, though error, was not prejudicial. (Decided under prior law) Cruise v. Commonwealth, 226 Ky. 831 , 11 S.W.2d 925, 1928 Ky. LEXIS 168 ( Ky. 1928 ).

8.Instructions.

The omission of word “previous” in an instruction under law that provided penalty for shooting, wounding or cutting in sudden affray or heat and passion without previous malice and not in self-defense before “malice” is not prejudicial and it is better to omit the words “without malice.” (Decided under prior law) Howard v. Commonwealth, 71 S.W. 446, 24 Ky. L. Rptr. 1301 (1903).

Where defendant shot at boys to keep them from stealing his beans, and with no intent to kill, he is not entitled to an instruction on shooting in sudden affray, but is entitled to instruction on shooting in sudden heat and passion, without previous malice, “sudden affray” being a difficulty or fight suddenly resulting from mutual agreement of parties. (Decided under prior law) Gibbons v. Commonwealth, 253 Ky. 72 , 68 S.W.2d 753, 1934 Ky. LEXIS 597 ( Ky. 1934 ).

Defendant was entitled to instruction under law that provided penalty for shooting, wounding or cutting in sudden affray or heat and passion without previous malice and not in self-defense where he was indicted and tried under law that provided penalty for malicious and willful shooting, cutting or poisoning. (Decided under prior law) Hensley v. Commonwealth, 264 Ky. 718 , 95 S.W.2d 564, 1936 Ky. LEXIS 387 ( Ky. 1936 ).

Evidence of cutting in scuffle between boys at dance justified submission of case either as malicious and willful cutting or as cutting in sudden affray. (Decided under prior law) Ewers v. Commonwealth, 284 Ky. 780 , 146 S.W.2d 1, 1940 Ky. LEXIS 578 ( Ky. 1940 ).

The term “sudden affray” should be defined in instruction to jury, but failure to do so is not prejudicial error. (Decided under prior law) Edwards v. Commonwealth, 289 Ky. 318 , 158 S.W.2d 377, 1941 Ky. LEXIS 29 ( Ky. 1941 ).

Direction by Court of Appeals that upon retrial court should define term “sudden affray” was inappropriate, inopportune, and not in accord with decisions that failure of court to define that term in instruction was not prejudicial error. (Decided under prior law) Pack v. Commonwealth, 287 Ky. 192 , 152 S.W.2d 600, 1941 Ky. LEXIS 520 ( Ky. 1941 ).

Where defendant stated he was not at the scene of shooting and that he did not fire the shots, there was no basis for instruction under law that provided penalty for shooting, wounding or cutting in sudden affray or heat and passion without previous malice and not in self-defense. (Decided under prior law) Tipton v. Commonwealth, 250 S.W.2d 1015, 1952 Ky. LEXIS 896 ( Ky. 1952 ).

When instructions embrace all three degrees of shooting and wounding, and defense of accidental shooting as well, accidental shooting instruction must contain proviso that act was neither willful nor result of wanton, reckless, or grossly careless handling of weapon. (Decided under prior law) Bentley v. Commonwealth, 354 S.W.2d 495, 1962 Ky. LEXIS 40 ( Ky. 1962 ).

Two separate factors are necessary for entitlement to an instruction under this section; first, there must be evidence of extreme emotional disturbance, and, second, there must be a reasonable justification or excuse under the circumstances as the accused believes them to be. Creamer v. Commonwealth, 629 S.W.2d 324, 1981 Ky. App. LEXIS 319 (Ky. Ct. App. 1981).

9.—Extreme Emotional Disturbance.

It is of no consequence which witnesses place into evidence the circumstances justifying an instruction on extreme emotional disturbance; thus even though the defendant denies such mitigation or defense as drunkenness, insanity, extreme emotional disturbance, etc., if the evidence as a whole, from any source, warrants an instruction embodying such a defense or mitigation, that instruction must be given. Thomas v. Commonwealth, 587 S.W.2d 264, 1979 Ky. App. LEXIS 465 (Ky. Ct. App. 1979).

Although an instruction of the defense of insanity should not have included a statement that the law presumes every man sane until the contrary is shown by the evidence, it was not error to convict a defendant of assault under extreme emotional disturbance where the instruction was tendered to the trial court by the defendant herself. Commonwealth v. Southwood, 623 S.W.2d 897, 1981 Ky. LEXIS 291 ( Ky. 1981 ).

Where in an assault prosecution there was expert testimony that on the date of the offense the defendant was, in fact, seriously emotionally disturbed or out of contact with reality, the defendant was entitled to an instruction on assault under extreme emotional disturbance and the jury should have been permitted to examine the reasonableness of the defendant’s excuse or justification through the eyes of the accused. Creamer v. Commonwealth, 629 S.W.2d 324, 1981 Ky. App. LEXIS 319 (Ky. Ct. App. 1981).

In a prosecution for assault, the trial court erred when it refused to give an instruction on the mitigating defense of extreme emotional disturbance, where in view of the evidence presented it would not have been unreasonable for a juror to believe beyond a reasonable doubt that the defendant was not acting in self-defense or in defense of his brother, yet still believe that he was acting in a state of extreme emotional disturbance for which there was a reasonable justification or excuse under the circumstances as he believed them to be. Engler v. Commonwealth, 627 S.W.2d 582, 1982 Ky. LEXIS 229 ( Ky. 1982 ).

In a trial for defendant’s assault on his wife, defendant was not entitled to an instruction on assault under extreme emotional disturbance because there was no evidence that he first learned of his wife’s affair immediately preceding the altercation, or even on the same day; the wife’s testimony was only that they were fighting about her affair, not that she first told him about the affair that night. Driver v. Commonwealth, 361 S.W.3d 877, 2012 Ky. LEXIS 22 ( Ky. 2012 ).

Kentucky felony assault under extreme emotional disturbance, a violation of Ky. Rev. Stat. Ann. § 508.040 , was a crime of violence as it required the specific intent to cause physical injury. United States v. Knox, 593 Fed. Appx. 536, 2015 FED App. 0128N, 2015 U.S. App. LEXIS 2343 (6th Cir. Ky. 2015 ).

10.—Intent.

Although law that provided penalty for shooting, wounding or cutting in sudden affray or heat and passion without previous malice and not in self-defense did not condemn “willfully” shooting another in sudden affray, instruction under such law using word “willfully” was not prejudicial, since such word meant intentionally as opposed to accidentally or involuntarily, and such instruction was favorable to defendant. (Decided under prior law) Muncy v. Commonwealth, 265 Ky. 730 , 97 S.W.2d 606, 1936 Ky. LEXIS 566 ( Ky. 1936 ).

Where evidence indicated there was no intention to shoot wounded person, but shooting was result of wanton, reckless or careless handling of pistol or shooting it at random, instructions should have been given embracing offense of recklessly or carelessly shooting without intention to wound. (Decided under prior law) Sumpter v. Commonwealth, 251 S.W.2d 852, 1952 Ky. LEXIS 936 ( Ky. 1952 ).

11.—Lesser Offenses.

Where defendant shot at, without hitting, a person with whom he was having a quarrel, the jury should be instructed under law that provided penalty for shooting, wounding and cutting in sudden affray or heat and passion without previous malice and not in self-defense as well as for malicious shooting. (Decided under prior law) Wilhelm v. Commonwealth, 28 S.W. 783, 16 Ky. L. Rptr. 428 (1894).

The offense defined in law that provided penalty for shooting, wounding or cutting in sudden affray or heat and passion without previous malice and not in self-defense is a degree of the offense of malicious shooting and wounding with intent to kill described in law that provided penalty for malicious and willful shooting, cutting or poisoning and instruction thereunder is authorized. (Decided under prior law) Barnes v. Commonwealth, 107 S.W. 806, 32 Ky. L. Rptr. 1152 (1908); Williams v. Commonwealth, 102 Ky. 381 , 43 S.W. 455, 19 Ky. L. Rptr. 1427 , 1897 Ky. LEXIS 115 ( Ky. 1897 ); Gillum v. Commonwealth, 121 S.W. 445 ( Ky. 1909 ); Austin v. Commonwealth, 201 Ky. 615 , 258 S.W. 86, 1924 Ky. LEXIS 609 ( Ky. 1924 ).

Where in a prosecution for maliciously shooting a policeman, the defense was that upon demand he turned to surrender the pistol to the officer, who knocked it up and it was discharged, defendant was entitled to an instruction under law that provided penalty for shooting, wounding or cutting in sudden affray or heat and passion without previous malice and not in self-defense and also for accidental shooting, and also on lesser offense if a reasonable doubt as to degree of offense. (Decided under prior law) Mann v. Commonwealth, 110 S.W. 243, 33 Ky. L. Rptr. 269 (1908).

Where evidence justified an instruction both under law that provided penalty for malicious and willful shooting, cutting or poisoning and law that provided penalty for shooting, wounding or cutting in sudden affray or heat and passion without previous malice and not in self-defense, it was reversible error for court to fail to instruct that if jury had a reasonable doubt as to the degree of the offense, he should have only been convicted of lower degree. (Decided under prior law) Breeden v. Commonwealth, 151 Ky. 217 , 151 S.W. 407, 1912 Ky. LEXIS 786 ( Ky. 1912 ).

Where there was evidence warranting the conclusion that defendant wounded another in a reckless shooting, and not in sudden affray, an instruction submitting the common-law offense should have been given. (Decided under prior law) Balle v. Commonwealth, 153 Ky. 558 , 156 S.W. 147, 1913 Ky. LEXIS 896 ( Ky. 1913 ).

The offense of shooting, wounding or cutting in sudden affray or heat and passion without previous malice and not in self-defense and one under law that provided penalty for malicious and willful shooting, cutting or poisoning were included in charge of murder, and should have been instructed upon when evidence authorized it. (Decided under prior law) Lyons v. Commonwealth, 216 Ky. 202 , 287 S.W. 534, 1926 Ky. LEXIS 856 ( Ky. 1926 ); Harris v. Commonwealth, 218 Ky. 798 , 292 S.W. 467, 1927 Ky. LEXIS 257 ( Ky. 1927 ); Gill v. Commonwealth, 235 Ky. 351 , 31 S.W.2d 608, 1930 Ky. LEXIS 370 ( Ky. 1930 ).

Court erred in not giving instructions under law that provided penalty for shooting, wounding or cutting in sudden affray or heat and passion without previous malice and not in self-defense and law that provided penalty for malicious and willful shooting, cutting or poisoning where, in murder case, there was evidence that deceased was shot prior to infliction of wounds on him by defendant. (Decided under prior law) Noble v. Commonwealth, 217 Ky. 556 , 290 S.W. 330, 1927 Ky. LEXIS 19 ( Ky. 1927 ).

Failure to instruct under law that provided penalty for malicious and willful shooting, cutting or poisoning and law that provided penalty for shooting, wounding or cutting in sudden affray or heat and passion without previous malice and not in self-defense was not prejudicial where the conviction was for manslaughter. (Decided under prior law) Martin v. Commonwealth, 223 Ky. 762 , 4 S.W.2d 419, 1928 Ky. LEXIS 404 ( Ky. 1928 ).

Defendant in murder prosecution is not entitled to an instruction under law that provided penalty for shooting, wounding or cutting in sudden affray or heat and passion without previous malice and not in self-defense where deceased died from wounds inflicted by defendant. (Decided under prior law) Luttrell v. Commonwealth, 250 Ky. 334 , 63 S.W.2d 292, 1933 Ky. LEXIS 698 ( Ky. 1933 ); Pelfry v. Commonwealth, 255 Ky. 442 , 74 S.W.2d 913, 1934 Ky. LEXIS 256 ( Ky. 1934 ); Morris v. Commonwealth, 268 Ky. 768 , 105 S.W.2d 1036, 1937 Ky. LEXIS 528 ( Ky. 1937 ).

Shooting and wounding with malice was the felony governed by law that provided penalty for malicious and willful shooting, cutting or poisoning, and malice was one of the essential elements of the offense but where there was no malice, the offense was a misdemeanor, and was governed by law that provided penalty for shooting, wounding or cutting in sudden affray or heat and passion without previous malice and not in self-defense. (Decided under prior law) Childers v. Commonwealth, 279 Ky. 737 , 132 S.W.2d 81, 1939 Ky. LEXIS 353 ( Ky. 1939 ).

In prosecution for willful and malicious shooting, an instruction on shooting and wounding in sudden affray or in sudden heat and passion should be given, where the evidence justifies it. (Decided under prior law) Eve v. Commonwealth, 278 Ky. 123 , 128 S.W.2d 616, 1939 Ky. LEXIS 414 ( Ky. 1939 ).

In prosecution under law that provided penalty for malicious and willful shooting, cutting or poisoning for willful and malicious shooting, an instruction on assault and battery under law that provided penalty for drawing, flourishing or recklessly using a deadly weapon was not authorized, since shooting and wounding in sudden affray or in sudden heat and passion was the only lower degree of the offense charged. (Decided under prior law) Eve v. Commonwealth, 278 Ky. 123 , 128 S.W.2d 616, 1939 Ky. LEXIS 414 ( Ky. 1939 ).

Where defendant, in prosecution for willful and malicious shooting, relied upon an alibi, a lower degree instruction was not authorized. (Decided under prior law) Eve v. Commonwealth, 278 Ky. 123 , 128 S.W.2d 616, 1939 Ky. LEXIS 414 ( Ky. 1939 ).

Where court instructed jury under law that provided penalty for malicious and willful shooting, cutting or poisoning and also on shooting and wounding in sudden affray or sudden heat and passion, a misdemeanor defined by law that provided penalty for shooting, wounding or cutting in sudden affray or heat and passion without previous malice and not in self-defense, defendant’s rights were not prejudiced by failure to instruct on shooting at without wounding in sudden affray or sudden heat and passion, the other misdemeanor defined by that law since there was no evidence from which it could reasonably be inferred that any person other than defendant shot and wounded the prosecuting witness. (Decided under prior law) Mullins v. Commonwealth, 285 Ky. 804 , 149 S.W.2d 725, 1941 Ky. LEXIS 478 ( Ky. 1941 ).

Although, in prosecution for malicious shooting evidence clearly showed a deliberate and unprovoked attack by the accused, and there was no evidence to indicate that the shooting occurred in sudden heat or affray, accused was not prejudiced by giving of sudden affray instruction, under law that provided penalty for shooting, wounding or cutting in sudden affray or heat and passion without previous malice and not in self-defense. (Decided under prior law) Kelley v. Commonwealth, 300 Ky. 136 , 187 S.W.2d 796, 1945 Ky. LEXIS 804 ( Ky. 1945 ).

In a prosecution for malicious shooting and wounding, the court did not err in giving instructions on shooting and wounding and shooting in sudden affray. (Decided under prior law) Cravens v. Commonwealth, 262 S.W.2d 466, 1953 Ky. LEXIS 1100 ( Ky. 1953 ).

Defendants prosecuted for willfully and maliciously shooting another with intent to kill were entitled, under the evidence of intoxication, to an instruction on the lesser offense of shooting and wounding in sudden affray or heat and passion without previous malice. (Decided under prior law) Cummins v. Commonwealth, 344 S.W.2d 611, 1961 Ky. LEXIS 238 ( Ky. 1961 ).

Where the record of the trial for malicious shooting did not contain any objection to the failure of the court to instruct upon the lesser offenses of shooting in sudden affray or recklessly using a deadly weapon and the point was not raised in the motion for a new trial, the issue was not preserved for review. (Decided under prior law) Stevens v. Commonwealth, 462 S.W.2d 182, 1970 Ky. LEXIS 649 ( Ky. 1970 ).

In a prosecution under law that provided penalty for malicious and willful shooting, cutting or poisoning, where there was testimony that the defendant had no malice toward the officers and that he was attempting to protect himself from them as they accosted him in his residence, he was entitled to an instruction on the lesser crime under law that provided penalty for shooting, wounding or cutting in sudden affray or heat and passion without previous malice and not in self-defense. (Decided under prior law) Clemons v. Commonwealth, 462 S.W.2d 919, 1971 Ky. LEXIS 562 ( Ky. 1971 ).

12.—Proper.

An instruction under law that provided penalty for shooting, wounding or cutting in sudden affray or heat and passion without previous malice and not in self-defense including words “willfully and feloniously” was not erroneous, in that it was more favorable to defendant than he was entitled to. (Decided under prior law) Hall v. Commonwealth, 229 Ky. 646 , 17 S.W.2d 751, 1929 Ky. LEXIS 821 ( Ky. 1929 ).

The omission of word “previous” before “malice” in instruction under law that provided penalty for shooting, wounding or cutting in sudden affray or heat and passion without previous malice and not in self-defense was not error. (Decided under prior law) Allison v. Commonwealth, 273 Ky. 538 , 117 S.W.2d 184, 1938 Ky. LEXIS 666 ( Ky. 1938 ).

Although better practice would have required instruction to define “sudden affray,” failure to define it was not prejudicial error in view of simple state of facts, involving cutting in scuffle between boys at dance. (Decided under prior law) Ewers v. Commonwealth, 284 Ky. 780 , 146 S.W.2d 1, 1940 Ky. LEXIS 578 ( Ky. 1940 ).

Since law that provided penalty for shooting, wounding or cutting in sudden affray or heat and passion without previous malice and not in self-defense did not contain condition that “sudden heat and passion” must be upon provocation reasonably calculated to excite passions of defendant beyond his control, instruction merely following language of statute without such condition was proper. (Decided under prior law) Ewers v. Commonwealth, 284 Ky. 780 , 146 S.W.2d 1, 1940 Ky. LEXIS 578 ( Ky. 1940 ).

Court did not err in giving instructions and in failing to properly define technical terms used therein, “maliciously,” “sudden affray,” “self-defense,” and “reasonable doubt,” where it denied term “sudden affray,” as used in one of its instructions as “a fight or difficulty in excessive rage or anger arising from a temporary provocation,” and where court also gave instructions on “self-defense” and upon “reasonable doubt.” (Decided under prior law) Pack v. Commonwealth, 287 Ky. 192 , 152 S.W.2d 600, 1941 Ky. LEXIS 520 ( Ky. 1941 ).

The trial court properly gave an instruction under this section without defendant’s consent which mitigated a conviction for assault under KRS 508.010 , 508.020 , and 508.030 ; there was enough proof in the record to justify the giving of the instruction in question and it was not sufficiently prejudicial to compel a reversal of the trial court. Commonwealth v. Elmore, 831 S.W.2d 183, 1992 Ky. LEXIS 93 ( Ky. 1992 ).

13.—Improper.

An instruction under law that provided penalty for shooting, wounding or cutting in sudden affray or heat and passion without previous malice and not in self-defense, which required the shooting in sudden heat and passion to be “upon a provocation reasonably calculated to excite the passion of defendant beyond his power of control,” was erroneous and prejudicial; it was properly applicable to a case of voluntary manslaughter, but improper under the offense covered by the first mentioned law. (Decided under prior law) Tall v. Commonwealth, 110 S.W. 425, 33 Ky. L. Rptr. 541 (1908); Hardin v. Commonwealth, 114 Ky. 722 , 71 S.W. 862, 24 Ky. L. Rptr. 1540 , 1903 Ky. LEXIS 26 ( Ky. 1903 ).

In absence of evidence of a substantial nature to support a felony indictment under law that provided penalty for malicious and willful shooting, cutting or poisoning, giving a felony instruction was error, but inasmuch as conviction was for a misdemeanor under law that provided penalty for shooting, wounding or cutting in sudden affray or heat and passion without previous malice and not in self-defense, error did not authorize a reversal. (Decided under prior law) Edwards v. Commonwealth, 233 Ky. 356 , 25 S.W.2d 746, 1930 Ky. LEXIS 557 ( Ky. 1930 ).

Accused cannot complain that instruction defining offense added words “feloniously,” and also “with felonious intent to kill,” since such added words were advantageous rather than prejudicial to him, and “feloniously” was at most only superfluous. (Decided under prior law) Pack v. Commonwealth, 287 Ky. 192 , 152 S.W.2d 600, 1941 Ky. LEXIS 520 ( Ky. 1941 ).

14.—Properly Denied.

Although cutting with a knife is an assault and battery, defendant is not entitled to an instruction on assault and battery, as this offense is fully covered by law that provided penalty for malicious and willful shooting, cutting or poisoning and law that provided penalty for shooting, wounding or cutting in sudden affray or heat and passion without previous malice and not in self-defense. (Decided under prior law) Lewis v. Commonwealth, 156 Ky. 336 , 160 S.W. 1061, 1913 Ky. LEXIS 428 ( Ky. 1913 ); Caldwell v. Commonwealth, 265 Ky. 402 , 96 S.W.2d 1041, 1936 Ky. LEXIS 496 ( Ky. 1936 ); Muncy v. Commonwealth, 265 Ky. 730 , 97 S.W.2d 606, 1936 Ky. LEXIS 566 ( Ky. 1936 ).

Under an indictment for malicious striking under law that provided penalty for malicious and willful shooting, cutting or poisoning where malice was in issue defendant was not entitled to an instruction under law that provided penalty for shooting, wounding or cutting in sudden affray or heat and passion without previous malice and not in self-defense which does not embrace striking, but was entitled to an instruction for assault and battery. (Decided under prior law) Caperton v. Commonwealth, 189 Ky. 652 , 225 S.W. 481, 1920 Ky. LEXIS 492 ( Ky. 1920 ).

Where the offense of malicious shooting and wounding was committed by defendants in attempt to commit a felony by breaking in a store, and complaining witness interrupted defendants by shooting at them, which fire they returned, defendants were not entitled to an instruction for shooting in sudden heat and passion without malice. (Decided under prior law) Brewington v. Commonwealth, 200 Ky. 276 , 254 S.W. 917, 1923 Ky. LEXIS 84 ( Ky. 1923 ).

Person who shot at someone with deadly weapon was not entitled to instruction on breach of peace. (Decided under prior law) Noral v. Commonwealth, 202 Ky. 318 , 259 S.W. 706, 1924 Ky. LEXIS 713 ( Ky. 1924 ).

Where circumstances in case and actions of defendant in fight were such as to warrant jury’s conclusion that defendant acted with malice, defendant’s argument that he was guilty, if at all, only under law that provided penalty for shooting, wounding or cutting in sudden affray or heat and passion without previous malice and not in self-defense was without merit. (Decided under prior law) Stevens v. Commonwealth, 286 Ky. 511 , 151 S.W.2d 404, 1941 Ky. LEXIS 305 ( Ky. 1941 ).

Defendant, in prosecution under law that provided penalty for shooting, wounding or cutting in sudden affray or heat and passion without previous malice and not in self-defense, was not entitled to instruction on his right to evict wounded person from his premises, since defendant had fired gun, not to evict such person, but to defend himself from number of disorderly persons. (Decided under prior law) Small v. Commonwealth, 257 S.W.2d 906, 1953 Ky. LEXIS 814 ( Ky. 1953 ).

15.Lesser Included Offenses.

A conviction before a justice of the peace for breach of the peace is a bar to a prosecution under law that provided penalty for shooting, wounding or cutting in sudden affray or heat and passion without previous malice and not in self-defense when the indictment is based on same facts as in the breach of peace charge. (Decided under prior law) Commonwealth v. Gill, 90 S.W. 605, 28 Ky. L. Rptr. 879 (1906).

Shooting in sudden affray under law that provided penalty for shooting, wounding or cutting in sudden affray or heat and passion without previous malice and battery are degrees of the offense denounced by law that provided penalty for malicious and willful shooting, cutting or poisoning. (Decided under prior law) Pack v. Commonwealth, 282 Ky. 835 , 140 S.W.2d 626, 1940 Ky. LEXIS 267 ( Ky. 1940 ).

Offense of shooting in sudden affray or heat and passion and offense of drawing, flourishing, and recklessly using deadly weapon are lower degrees of crime of malicious and willful wounding under law that provided penalty for malicious and willful shooting, cutting or poisoning. (Decided under prior law) Hurst v. Commonwealth, 284 Ky. 599 , 145 S.W.2d 520, 1940 Ky. LEXIS 543 ( Ky. 1940 ).

In a prosecution under law that provided penalty for malicious and willful cutting, striking or stabbing another with a knife or other deadly weapon where the evidence clearly disclosed the violation of that law the court properly refused to reduce the charge to that contained in law that provided penalty for shooting, wounding or cutting in sudden affray or heat and passion without previous malice and not in self-defense. (Decided under prior law) Mayberry v. Commonwealth, 296 Ky. 471 , 177 S.W.2d 594, 1944 Ky. LEXIS 568 ( Ky. 1944 ).

The offense covered by law that provided penalty for shooting, wounding or cutting in sudden affray or heat and passion without previous malice and not in self-defense was not a degree of the one denounced by law that provided penalty for malicious and willful cutting, striking or stabbing another with a knife or other deadly weapon. (Decided under prior law) Delph v. Commonwealth, 300 Ky. 722 , 190 S.W.2d 340, 1945 Ky. LEXIS 642 ( Ky. 1945 ).

Cited in:

Gossage v. Roberts, 904 S.W.2d 246, 1995 Ky. App. LEXIS 149 (Ky. Ct. App. 1995); Commonwealth v. Rank, 494 S.W.3d 476, 2016 Ky. LEXIS 325 ( Ky. 2016 ).

Notes to Unpublished Decisions

1.Construction.

Unpublished decision: In a case in which defendant appealed his 235-month sentence for violating 18 U.S.C.S. §§ 922(g)(1) and 924(e)(1), he unsuccessfully argued that the district court erred when it sentenced him as an armed career criminal because his Kentucky conviction for assault under extreme emotional disturbance under KRS 508.040 did not qualify as a violent felony under the Armed Career Criminal Act. Section 508.040 incorporated the elements of KRS Ann, §§ 508.010 , 508.020 , or 508.030 , and it operated only to reduce the applicable sentence. United States v. Colbert, 525 Fed. Appx. 364, 2013 FED App. 0462N, 2013 U.S. App. LEXIS 9555 (6th Cir. Ky. 2013 ).

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Sellars, Criminal Law, 71 Ky. L.J. 355 (1982-83).

Northern Kentucky Law Review.

Drogin, To the Brink of Insanity: ‘Extreme Emotional Disturbance’ in Kentucky Law, 26 N. Ky. L. Rev. 99 (1999).

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Assaults and Restraints of Persons, Part 3 Assault, §§ 3.56, 3.57.

508.050. Menacing.

  1. A person is guilty of menacing when he intentionally places another person in reasonable apprehension of imminent physical injury.
  2. Menacing is a Class B misdemeanor.

History. Enact. Acts 1974, ch. 406, § 69, effective January 1, 1975.

NOTES TO DECISIONS

1.Purpose.

This section was designed to replace common law simple assault, but was also intended to reach certain conduct which could not be reached under common law assault in some jurisdictions, such as threatening with an unloaded weapon. Dobrowolskyj v. Jefferson County, 823 F.2d 955, 1987 U.S. App. LEXIS 9181 (6th Cir. Ky. 1987 ), cert. denied, 484 U.S. 1059, 108 S. Ct. 1012, 98 L. Ed. 2d 978, 1988 U.S. LEXIS 681 (U.S. 1988).

2.Elements.

An allegation that a gun had been waved at someone would form the basis of a criminal violation of this section. Graham v. Commonwealth, 667 S.W.2d 697, 1983 Ky. App. LEXIS 396 (Ky. Ct. App. 1983).

Cited:

United States v. Sturgill, 563 F.2d 307, 1977 U.S. App. LEXIS 11273 (6th Cir. 1977).

Research References and Practice Aids

Cross-References.

Harrassment, KRS 525.070 .

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Assaults and Restraints of Persons, Part 3 Assault, §§ 3.60, 3.61.

508.060. Wanton endangerment in the first degree.

  1. A person is guilty of wanton endangerment in the first degree when, under circumstances manifesting extreme indifference to the value of human life, he wantonly engages in conduct which creates a substantial danger of death or serious physical injury to another person.
  2. Wanton endangerment in the first degree is a Class D felony.

History. Enact. Acts 1974, ch. 406, § 70, effective January 1, 1975.

NOTES TO DECISIONS

Analysis

1.Constitutionality.

This section is constitutional; its terms are not vague or incapable of being comprehended. Hardin v. Commonwealth, 573 S.W.2d 657, 1978 Ky. LEXIS 415 ( Ky. 1978 ).

The application of the statute to the conduct of the defendant in engaging in sexual intercourse with the victim with knowledge that he was HIV positive did not constitute an unconstitutional application of the statute. Hancock v. Commonwealth, 998 S.W.2d 496, 1998 Ky. App. LEXIS 130 (Ky. Ct. App. 1998).

Because Commonwealth v. Morris, 142 S.W.3d 654, 2004 Ky. LEXIS 153 ( Ky. 2004 ), which held that all viable fetuses were “persons” protected under the penal statutes, was decided a year and half before defendant ingested the cocaine that served as the basis for a wanton endangerment charge under KRS 508.060(1), she had fair notice that her conduct could result in criminal charges. Therefore, the rights afforded her by Ky. Const. §§ 2 and 11 were not violated. Commonwealth v. Cochran, 2008 Ky. App. LEXIS 8 (Ky. Ct. App. Jan. 11, 2008), sub. op., 2008 Ky. App. Unpub. LEXIS 733 (Ky. Ct. App. Jan. 11, 2008), rev'd, 315 S.W.3d 325, 2010 Ky. LEXIS 157 ( Ky. 2010 ).

Where defendant’s newborn child testified positive for cocaine, trying her for first degree wanton endangerment of her unborn child under KRS 508.060(1) did violate her due process and equal protection rights under Ky. Const. §§ 2, 3, and 11; abortion laws did not grant a woman the unfettered guarantee to an abortion at any time and certainly not to one on the day a woman gave birth. Commonwealth v. Cochran, 2008 Ky. App. LEXIS 8 (Ky. Ct. App. Jan. 11, 2008), sub. op., 2008 Ky. App. Unpub. LEXIS 733 (Ky. Ct. App. Jan. 11, 2008), rev'd, 315 S.W.3d 325, 2010 Ky. LEXIS 157 ( Ky. 2010 ).

2.Applicability.

Although the wanton conduct in this case led to a death, there is no restriction disallowing a charge of wanton endangerment when a death occurs, and under the circumstances of the case at bar, the Commonwealth attorney did not abuse his discretion in determining to bring a charge of wanton endangerment rather than one of criminal homicide. Commonwealth v. Self, 802 S.W.2d 940, 1990 Ky. App. LEXIS 95 (Ky. Ct. App. 1990).

KRS 508.060 is designed to protect each and every person from each act coming within the definition of the statute and is not a statute designed to punish a continuous course of conduct; thus, where seven lives were endangered in three shooting incidents, defendant was properly convicted on seven, rather than three charges of wanton endangerment. West v. Commonwealth, 161 S.W.3d 331, 2004 Ky. App. LEXIS 121 (Ky. Ct. App. 2004).

Woman could not have been charged with wanton endangerment of the woman’s child under KRS 508.060 for ingesting illegal drugs while pregnant, as Kentucky’s General Assembly expressly precluded such a prosecution by the Maternal Health Act of 1992. Cochran v. Commonwealth, 315 S.W.3d 325, 2010 Ky. LEXIS 157 ( Ky. 2010 ).

3.Purpose.

This section was designed to protect each and every person from each act coming within the definition of the statute, not to punish a continuous course of conduct. Hennemeyer v. Commonwealth, 580 S.W.2d 211, 1979 Ky. LEXIS 243 ( Ky. 1979 ).

4.Double Jeopardy.

Where the evidence which supported defendant’s wanton endangerment conviction arose out of his unsuccessful attempt to start a fire, while his arson conviction arose out of the successful effort about three hours later to burn the building, defendant’s convictions for second degree arson and first degree wanton endangerment did not violate defendant’s right against double jeopardy. Crayton v. Commonwealth, 846 S.W.2d 684, 1992 Ky. LEXIS 198 ( Ky. 1992 ), cert. denied, 510 U.S. 856, 114 S. Ct. 165, 126 L. Ed. 2d 125, 1993 U.S. LEXIS 5563 (U.S. 1993).

Defendant’s prosecution in Kentucky for wanton endangerment was not for the same conduct for which he was convicted in Tennessee, despite notification by Kentucky troopers that they were in pursuit of defendant, where the two crimes of wanton endangerment in Kentucky were completed in Kentucky against two Kentucky victims before defendant ever entered Tennessee and where there was no evidence that defendant was prosecuted in the state of Tennessee for his conduct in Kentucky. Hash v. Commonwealth, 883 S.W.2d 892, 1994 Ky. App. LEXIS 56 (Ky. Ct. App. 1994).

Because the offenses of driving under the influence and wanton endangerment, found in KRS 189A.010 (c)(1) and 508.060(1) respectively, were included in the offense of fleeing or evading police, found in KRS 520.095(1)(a), defendant’s conviction for all three (3) offenses constituted double jeopardy in violation of Ky. Const. § 12 and KRS 505.020 . Pinkston v. Commonwealth, 2003 Ky. App. LEXIS 92 (Ky. Ct. App. May 2, 2003).

Defendant’s convictions for first-degree fleeing or evading under KRS 520.095(1)(a)(4) and first-degree wanton endangerment under KRS 508.060 were not prohibited by double jeopardy as each offense contained at least one element not present in the other. Eberenz v. Commonwealth, 2008 Ky. App. LEXIS 184 (Ky. Ct. App. June 13, 2008).

Convictions on both first-degree fleeing or evading under KRS 520.095(1)(a)(4) and first-degree wanton endangerment under KRS 508.060 will not trigger double jeopardy, as fleeing and eluding requires operation of a motor vehicle and disobeying a direction to stop given by one recognized to be a police officer, while wanton endangerment does not; to prove wanton endangerment, the Commonwealth has to prove that a defendant manifested an extreme indifference to the value of human life, while fleeing or evading does not contain this element. Eberenz v. Commonwealth, 2008 Ky. App. LEXIS 184 (Ky. Ct. App. June 13, 2008).

Defendant’s convictions for first-degree fleeing or evading police, KRS 520.095(1), and first-degree wanton endangerment, KRS 508.060(1), did not constitute double jeopardy because as with first-degree wanton endangerment, the three elements of operating a motor vehicle, having intent to elude or flee, and disobeying a police officer’s direction to stop were required of the fleeing or evading charge but not of the wanton endangerment charge; consequently, each provision required proof of a fact that the other did not. Brown v. Commonwealth, 297 S.W.3d 557, 2009 Ky. LEXIS 256 ( Ky. 2009 ).

Under a proper Blockburger analysis, double jeopardy does not occur when a person is charged with two crimes arising from the same course of conduct, as long as each statute requires proof of an additional fact which the other does not. Properly applying the Blockburger analysis, the Supreme Court of Kentucky overrules its precedent holding that convictions on both wanton endangerment under KRS 508.060 and terroristic threatening under KRS 508.080 involving the same victim are barred under the double jeopardy clause. Mullikan v. Commonwealth, 341 S.W.3d 99, 2011 Ky. LEXIS 89 ( Ky. 2011 ).

Terroristic threatening requires a threat to commit a crime, but wanton endangerment does not require such a threat, and wanton endangerment requires actual conduct placing others at serious risk, but terroristic threatening does not require such actual conduct or such actual serious risk. Consequently, convictions on both offenses do not violate KRS 505.020 because terroristic threatening is not included within wanton endangerment since terroristic threatening is not established by proof of the same or less than all the facts required to establish the commission of wanton endangerment. Mullikan v. Commonwealth, 341 S.W.3d 99, 2011 Ky. LEXIS 89 ( Ky. 2011 ).

5.Defenses.

Defendant was not guilty of first-degree wanton endangerment where defendant sitting in driver’s seat of one truck fired past driver of second truck, killing passenger who had previously threatened defendant and who made sudden downward move to floor of truck before being shot, since presence of second driver between defendant and victim did not diminish defendant’s apprehension of serious injury or impending death and did not modify his right to protect himself, where jury accepted his defense of self-protection. Justice v. Commonwealth, 608 S.W.2d 74, 1980 Ky. App. LEXIS 387 (Ky. Ct. App. 1980).

6.Elements.

The offense of wanton endangerment is not dependent upon intent. Hennemeyer v. Commonwealth, 580 S.W.2d 211, 1979 Ky. LEXIS 243 ( Ky. 1979 ).

Where a gun used by defendant was never pointed directly at robbery victim, the essential elements of wanton endangerment were not present. Gilbert v. Commonwealth, 637 S.W.2d 632, 1982 Ky. LEXIS 282 ( Ky. 1982 ), cert. denied, 459 U.S. 1149, 103 S. Ct. 794, 74 L. Ed. 2d 998, 1983 U.S. LEXIS 3135 (U.S. 1983).

The pointing of a gun, whether loaded or unloaded (provided there is reason to believe the gun may be loaded) at any person constitutes conduct that “creates a substantial danger of death or serious physical injury to another person” in violation of this section. In the instant case, the wanton conduct also included the shooting of the gun near the victims. Either conduct, independent of the other, was sufficient to meet the requirements of this section. Key v. Commonwealth, 840 S.W.2d 827, 1992 Ky. App. LEXIS 126 (Ky. Ct. App. 1992).

Wanton endangerment is not susceptible to the single impulse or act analysis. Hash v. Commonwealth, 883 S.W.2d 892, 1994 Ky. App. LEXIS 56 (Ky. Ct. App. 1994).

Because there were three independently targeted victims and three independent acts of shooting and killing one patron, shooting and wounding another, and struggling with other patrons, that occurred in the diner that gave rise to the three charges against defendant for which he was convicted of intentional murder but mentally ill, attempted murder but mentally ill, and first-degree wanton endangerment but mentally ill, the verdict did not involve inconsistent mental states nor violate double jeopardy principles. Port v. Commonwealth, 906 S.W.2d 327, 1995 Ky. LEXIS 79 ( Ky. 1995 ).

One is guilty of wanton endangerment in the first degree when, under circumstances manifesting extreme indifference to the value of human life, he wantonly engages in conduct which creates a substantial danger of death or serious physical injury to another person. Ramsey v. Commonwealth, 157 S.W.3d 194, 2005 Ky. LEXIS 2 ( Ky. 2005 ).

Where defendant and her newborn child tested positive for cocaine, since under KRS 500.080(12), all viable fetuses were “persons” protected under Kentucky’s penal statutes, the trial court erred in dismissing an indictment charging defendant with first degree wanton endangerment of her unborn child pursuant to KRS 508.060(1). Commonwealth v. Cochran, 2008 Ky. App. LEXIS 8 (Ky. Ct. App. Jan. 11, 2008), sub. op., 2008 Ky. App. Unpub. LEXIS 733 (Ky. Ct. App. Jan. 11, 2008), rev'd, 315 S.W.3d 325, 2010 Ky. LEXIS 157 ( Ky. 2010 ).

Defendant who caused an auto accident that killed three people and injured a third, and who tested positive for prescription drugs and marijuana in his urine, was improperly convicted of two counts of first-degree wanton endangerment under KRS 508.060 . As he did not drive erratically and there was no evidence he was under the influence of drugs, he lacked the necessary mental state; his actions did not occur under circumstances manifesting extreme indifference to human life. Ison v. Commonwealth, 271 S.W.3d 533, 2008 Ky. App. LEXIS 301 (Ky. Ct. App. 2008).

Because defendant juvenile’s conduct did not amount to wantonness, he was not criminally liable for assault or wanton endangerment; none of the passengers testified that defendant acted wantonly, and there was no evidence that violating a license restriction was wanton conduct. B. B. v. Commonwealth, 2014 Ky. App. LEXIS 77 (Ky. Ct. App. May 16, 2014).

Trial court properly denied defendant’s motion for a directed verdict on the wanton murder and wanton endangerment charges because a reasonable jury could have concluded that defendant had reason to know that a shoot-out was rendered substantially more probable by his firing the initial, and multiple, shots into the air amid a late-night crowd gathered in a parking lot to socialize. Taylor v. Commonwealth, 617 S.W.3d 321, 2020 Ky. LEXIS 392 ( Ky. 2020 ).

7.Evidence.

Where the evidence tended to show that defendant had set two fires in a house, but that the house was empty at the time and neither fire got beyond the room in which they were set, there was insufficient evidence to warrant a first-degree wanton endangerment charge. Sweatt v. Commonwealth, 586 S.W.2d 289, 1979 Ky. App. LEXIS 454 (Ky. Ct. App. 1979).

Drunk driving may be a circumstance manifesting indifference to human life. The extreme nature of a defendant’s intoxication is sufficient evidence from which a jury could infer wantonness so extreme as to manifest extreme indifference to human life. Ramsey v. Commonwealth, 157 S.W.3d 194, 2005 Ky. LEXIS 2 ( Ky. 2005 ).

Drunk driving with his 10-year-old child as a passenger in a car created a substantial and unjustifiable risk to that child which supported defendant’s conviction for first-degree wanton endangerment. Ramsey v. Commonwealth, 157 S.W.3d 194, 2005 Ky. LEXIS 2 ( Ky. 2005 ).

Whether a defendant’s wanton conduct manifests extreme indifference to human life is a question to be decided by the trier of fact. Ramsey v. Commonwealth, 157 S.W.3d 194, 2005 Ky. LEXIS 2 ( Ky. 2005 ).

Where three defendants were jointly indicted and convicted for the wanton endangerment of the same two victims but the evidence showed that only one defendant engaged in conduct constituting the crime, the conviction of the others who were merely present at the scene would have to be reversed. McIntosh v. Commonwealth, 582 S.W.2d 54, 1979 Ky. App. LEXIS 412 (Ky. Ct. App. 1979).

Defendant was not entitled to a directed verdict of acquittal on the first-degree wanton endangerment charge because the jury was not unreasonable to conclude that defendant’s conduct, which included driving late at night, sometimes down the middle of the road, at perhaps triple the speed limit, created a substantial danger of death or serious physical injury to his passenger; defendant nearly caused two high-speed, head-on collisions and barely avoided crashing into a tree and telephone pole, and although he avoided getting into a catastrophic accident, the evidence supported that he repeatedly foisted the risk of catastrophic injury onto his passenger. Brown v. Commonwealth, 297 S.W.3d 557, 2009 Ky. LEXIS 256 ( Ky. 2009 ).

In defendant’s trial on charges of capital murder, burglary, and wanton endangerment, the trial court did not err in denying defendant’s motion for a judgment of a directed verdict on the endangerment charge because the evidence established that defendant shot his estranged wife while her grandchild, an infant, was in a bassinet in the room where the murder occurred and was in close proximity to the wife when she was shot. Two bullets were found in the vicinity of the bassinet, indicating that they flew within a matter of feet of her; because it was well-known that bullets could ricochet and because evidence established that defendant was intoxicated when he fired the gun, the evidence supported the denial of his motion for a directed verdict. Hunt v. Commonwealth, 2009 Ky. LEXIS 292 (Ky. Nov. 25, 2009), sub. op., 304 S.W.3d 15, 2009 Ky. LEXIS 346 ( Ky. 2009 ), modified, 2010 Ky. LEXIS 138 (Ky. Mar. 18, 2010).

Defendant’s convictions for murder, DUI, first-degree wanton endangerment, and first-degree criminal mischief were supported by the evidence; before the collision, which killed a child, defendant admitted that defendant had consumed around six beers and was under the influence of alcohol. Baumia v. Commonwealth, 2012 Ky. LEXIS 191 (Ky. Nov. 21, 2012), sub. op., 402 S.W.3d 530, 2012 Ky. LEXIS 503 ( Ky. 2012 ), sub. op., 402 S.W.3d 530, 2013 Ky. LEXIS 247 ( Ky. 2013 ).

Evidence was sufficient to sustain defendant’s conviction for first-degree wanton endangerment because defendant sat on a horse, deliberately fired a shot to the side of the porch where people were seated, and even though his horse began to buck defendant continued firing. Smith v. Commonwealth, 410 S.W.3d 160, 2013 Ky. LEXIS 404 ( Ky. 2013 ).

8.Indictment.

An indictment, which alleged that the defendant engaged in sexual intercourse with the victim with knowledge that he was HIV positive, was sufficient to state an offense under the statute, notwithstanding his contention that the victim knew of his HIV positive status and nevertheless consented to sexual intercourse with him, as such assertion more properly related to a defense, rather than to the sufficiency of the indictment. Hancock v. Commonwealth, 998 S.W.2d 496, 1998 Ky. App. LEXIS 130 (Ky. Ct. App. 1998).

9.Instructions.

Where the conduct of defendant clearly could have caused others who perceived his conduct to engage in action which would create a substantial danger of death, serious physical injury or physical injury, defendant’s assertion that because the pistol was inoperable he was not guilty of wanton endangerment was rejected; the trial court, however, should have instructed the jury on second-degree, as well as first-degree, wanton endangerment. Thomas v. Commonwealth, 567 S.W.2d 299, 1978 Ky. LEXIS 367 ( Ky. 1978 ), overruled in part, Ray v. Commonwealth, 611 S.W.3d 250, 2020 Ky. LEXIS 403 ( Ky. 2020 ).

Where the evidence showed that the defendant had fired two shots, one of which missed the head of the complainant by less than two feet from a distance of 30 to 35 feet there was no error in instructing the jury only on first-degree wanton endangerment and denying a request for an instruction for second-degree wanton endangerment. McIntosh v. Commonwealth, 582 S.W.2d 54, 1979 Ky. App. LEXIS 412 (Ky. Ct. App. 1979).

There was no need for new trial upon reversal for failure to instruct jury on self-protection defense to first-degree wanton endangerment charge under this section, since the jury had found on the murder charge against the defendant that defendant acted in his own self-protection, thus precluding a conviction for wanton endangerment. Justice v. Commonwealth, 608 S.W.2d 74, 1980 Ky. App. LEXIS 387 (Ky. Ct. App. 1980).

An instruction on a lesser included offense is not required unless the evidence is such that a reasonable juror could doubt that the defendant is guilty of the crime charged but yet conclude that he is guilty of a lesser included offense; accordingly, the trial court in a prosecution for wanton endangerment in the first degree did not err when it refused to give an instruction on wanton endangerment in the second degree, where a reasonable juror could not doubt that the defendant acted wantonly under circumstances which manifested an extreme indifference to the value of human life, and, likewise, a reasonable juror could not doubt that his conduct created a substantial danger of death or serious physical injury to another person. Combs v. Commonwealth, 652 S.W.2d 859, 1983 Ky. LEXIS 258 ( Ky. 1983 ).

Where the defendant pointed a loaded firearm at two Commonwealth police officers who were in the performance of their official duties, the trial court properly instructed the jury under both wanton endangerment statutes. Commonwealth v. Clemons, 734 S.W.2d 459, 1987 Ky. LEXIS 216 ( Ky. 1987 ).

Where the instruction submitted to the jury on a first-degree wanton endangerment charge stated that in order to find defendant guilty it must find beyond a reasonable doubt that he conspired to apply an accelerant to a certain building or to disable the fire alarm systems at the building, and that he thereby wantonly created a substantial danger of death or serious physical injury to various occupants, and that under these circumstances his conduct manifested an extreme indifference to the value of human life, from the evidence, it was clearly sufficient to support a conviction on this charge. Hicks v. Commonwealth, 805 S.W.2d 144, 1990 Ky. App. LEXIS 170 (Ky. Ct. App. 1990).

Simply that defendant started driving recklessly in Kentucky and continued on, putting several other drivers at risk in two states, did not require the conclusion that defendant committed but one crime. Hash v. Commonwealth, 883 S.W.2d 892, 1994 Ky. App. LEXIS 56 (Ky. Ct. App. 1994).

10.Lesser Included Offense.

Defendant who held policemen and other hostages at gunpoint and fired at them as they fled could not be convicted of both terroristic threatening and wanton endangerment since the former is included in the latter. Watson v. Commonwealth, 579 S.W.2d 103, 1979 Ky. LEXIS 233 ( Ky. 1979 ).

Where a defendant pointed a pistol at a person during the course of a robbery, the act of wanton endangerment merged with the act of robbery of which it is an included offense under KRS 505.020 ; accordingly, convictions for both first-degree robbery and first-degree wanton endangerment arising out of the same robbery violated the constitutional and statutory prohibitions against double jeopardy and the wanton endangerment charge must be dismissed. Marshall v. Commonwealth, 625 S.W.2d 581, 1981 Ky. LEXIS 306 ( Ky. 1981 ).

The possession and use of the pistol did not constitute an offense separate from the first-degree robbery charge for which the defendant was being tried and was convicted. One of the elements elevating robbery to the highest degree, being armed with a deadly weapon, cannot be separate and also used to convict on a separate offense such as wanton endangerment. Gilbert v. Commonwealth, 637 S.W.2d 632, 1982 Ky. LEXIS 282 ( Ky. 1982 ), cert. denied, 459 U.S. 1149, 103 S. Ct. 794, 74 L. Ed. 2d 998, 1983 U.S. LEXIS 3135 (U.S. 1983).

Terroristic threatening is a lesser included offense of wanton endangerment and a defendant cannot be convicted of both charges when they concern the same victim. Commonwealth v. Black, 907 S.W.2d 762, 1995 Ky. LEXIS 121 ( Ky. 1995 ).

Wanton endangerment is not a lesser-included offense of misdemeanor assault as assault in the fourth degree requires a finding of physical injury, whereas wanton endangerment does not, and wanton endangerment requires conduct which creates a substantial danger of death or serious physical injury to another, whereas fourth-degree assault does not. Matthews v. Commonwealth, 44 S.W.3d 361, 2001 Ky. LEXIS 24 ( Ky. 2001 ).

11.Sufficiency of the Evidence.

Evidence was insufficient to sustain defendant conviction for wanton-endangerment because there was no proof or reasonable inference that showed that defendant pointed a gun at the complainant or fired a shot near her when defendant went into her room. Merely being in the presence of guns, even when wielded by persons who were intent on harming and terrorizing, was not sufficient by itself to create a wanton-endangerment crime. Swan v. Commonwealth, 384 S.W.3d 77, 2012 Ky. LEXIS 111 ( Ky. 2012 ), modified, 2012 Ky. LEXIS 492 (Ky. Dec. 20, 2012).

Court should have directed a verdict on defendant’s first-degree wanton-endangerment conviction because there was no proof or reasonable inference that showed that defendant pointed a gun at the complainant or fired a shot near her when he went into her room. Merely being in the presence of guns, even when wielded by persons who wee intent on harming and terrorizing, was not sufficient by itself to create a wanton-endangerment crime. Swan v. Commonwealth, 2012 Ky. LEXIS 498 (Ky. Aug. 23, 2012).

Defendant was not entitled to a directed verdict as to wanton endangerment in the first degree, under KRS 508.060(1), because (1) a jury reasonably concluded defendant showed extreme indifference to human life and possessed the required wanton mental state, when defendant continued to operate defendant’s vehicle despite knowing a victim was pinned under defendant’s tires, and (2) it was not unreasonable to conclude defendant also created a substantial danger of death or serious injury to others. Hurt v. Commonwealth, 409 S.W.3d 327, 2013 Ky. LEXIS 397 ( Ky. 2013 ).

Trial court did not err in denying defendant's motion for directed verdict because it would be reasonable for a jury to find him guilty of first-degree wanton endangerment; the Commonwealth provided more than a mere scintilla of evidence and could allow a fact-finder to infer that defendant was the driver of the car that led police on a high-speed chase because his friend testified that defendant was known to drive a car of the same make and model. Culver v. Commonwealth, 2017 Ky. App. LEXIS 534 (Ky. Ct. App. Sept. 22, 2017, sub. op., 2017 Ky. App. Unpub. LEXIS 952 (Ky. Ct. App. Sept. 22, 2017).

Trial court did not err in denying defendant's motion for directed verdict because it would be reasonable for a jury to find him guilty of first-degree wanton endangerment; Police officers' testimony that they broke off their pursuit during a high-speed chase because they felt unsafe driving at that speed on those roads was enlightening as to how dangerous defendant was driving, given that the trained officers considered it too dangerous to pursue him any further. Culver v. Commonwealth, 2017 Ky. App. LEXIS 534 (Ky. Ct. App. Sept. 22, 2017, sub. op., 2017 Ky. App. Unpub. LEXIS 952 (Ky. Ct. App. Sept. 22, 2017).

Trial court did not err when it failed to grant directed verdict motions for first-degree wanton endangerment and first-degree fleeing or evading because a sergeant testified that he was 100% certain defendant was the driver of the pickup truck, and defense counsel thoroughly cross-examined the sergeant; the deputy’s police cruiser blocking a single-lane road with its emergency lights on was a visible, non-verbal direction to approaching drivers, including defendant, to stop their vehicles, but defendant accelerated, and the deputy was forced to drive his cruiser out of the way and into a ditch to avoid a head-on collision; and defendant’s actions created a substantial risk of serious physical injury or death. Eversole v. Commonwealth, 600 S.W.3d 209, 2020 Ky. LEXIS 121 ( Ky. 2020 ).

Trial court did not err in denying defendant’s motion for directed verdict on the wanton endangerment charge, as the evidence was sufficient to conclude that raising a hammer at the victim created a substantial danger of physical injury or death, as that excitement could have easily caused the victim, who had a pacemaker and had had five surgeries in three months, to have a heart attack or defendant could have accidentally dropped the hammer on the victim’s head which also could have caused serious physical injury or death. Ray v. Commonwealth, 611 S.W.3d 250, 2020 Ky. LEXIS 403 ( Ky. 2020 ).

12.Relationship With Other Laws.

Because defendant’s prior Kentucky convictions for first degree wanton endangerment was categorically a “crime of violence” for purposes of U.S. Sentencing Guidelines Manual § 4B1.1, the district court properly sentenced defendant as a career offender. United States v. Meeks, 664 F.3d 1067, 2012 FED App. 0003P, 2012 U.S. App. LEXIS 159 (6th Cir. Ky. 2012 ).

Because wanton endangerment involves conduct that creates a substantial danger of death or serious physical injury, it necessarily involves a serious potential risk of violence akin to the level of risk associated with the listed crimes, and is categorically a “crime of violence” for purposes of U.S. Sentencing Guidelines Manual § 4B1.1. United States v. Meeks, 664 F.3d 1067, 2012 FED App. 0003P, 2012 U.S. App. LEXIS 159 (6th Cir. Ky. 2012 ).

District court did not err in finding that KRS 508.060 , Kentucky’s wanton endangerment offense, constituted a violent felony under the Armed Career Criminal Act, 18 U.S.C.S. § 924(e), because the offense included a substantial danger of death or serious physical injury to another and a conscious disregard of the risk. United States v. Clark, 458 Fed. Appx. 512, 2012 FED App. 0130N, 2012 U.S. App. LEXIS 2215 (6th Cir. Ky.), cert. denied, 567 U.S. 911, 132 S. Ct. 2755, 183 L. Ed. 2d 625, 2012 U.S. LEXIS 4437 (U.S. 2012).

Defendant's federal sentence for being a felon in possession of a firearm was properly enhanced based on use of a firearm in connection with another felony offense, as evidence that defendant fired a gun multiple times in a densely populated area while intoxicated and engaged in an argument was sufficient to find that his conduct satisfied the elements of first-degree wanton endangerment under Kentucky law. United States v. Kelley, 585 Fed. Appx. 310, 2014 FED App. 0751N, 2014 U.S. App. LEXIS 18975 (6th Cir. Ky. 2014 ).

Cited:

Zachery v. Commonwealth, 580 S.W.2d 220, 1979 Ky. LEXIS 245 ( Ky. 1979 ), overruled, Commonwealth v. Hinton, 678 S.W.2d 388, 1984 Ky. LEXIS 288 ( Ky. 1984 ), overruled in part, Commonwealth v. Hinton, 678 S.W.2d 388, 1984 Ky. LEXIS 288 ( Ky. 1984 ); Cain v. Smith, 686 F.2d 374, 1982 U.S. App. LEXIS 17651 (6th Cir. 1982); United States v. Christopher, 956 F.2d 536, 1991 U.S. App. LEXIS 29783 (6th Cir. 1991); Bell v. Commonwealth, 122 S.W.3d 490, 2003 Ky. LEXIS 236 ( Ky. 2003 ).

Notes to Unpublished Decisions

Analysis

1.Double Jeopardy.

Unpublished decision: There was no double jeopardy violation of the Fifth Amendment in habeas petitioner’s convictions, because each of the two statutes under which he was convicted, KRS 515.020 (first-degree robbery) and KRS 508.060 (first-degree wanton endangerment) required proof of an element that the other did not. Groves v. Meko, 2013 FED App. 0213N, 2013 U.S. App. LEXIS 4327 (6th Cir. Ky. Feb. 28, 2013), amended, 516 Fed. Appx. 507, 2013 FED App. 0298N, 2013 U.S. App. LEXIS 6324 (6th Cir. Ky. 2013 ).

Unpublished decision: In a case in which a state inmate appealed a district court’s denial of his petition for a writ of habeas corpus, his convictions for first-degree robbery, in violation of KRS 515.020 , and first-degree wanton endangerment, in violation of KRS 508.060 , did not, as he argued, violate his constitutional right not to be subjected to double jeopardy. He had unsuccessfully argued that the first-degree wanton endangerment charges were based on the same conduct that gave rise to the first-degree robbery charge--pointing a gun at restaurant employees--and thus, the wanton endangerment charges should have merged into the robbery charge. Groves v. Meko, 516 Fed. Appx. 507, 2013 FED App. 0298N, 2013 U.S. App. LEXIS 6324 (6th Cir. Ky. 2013 ).

2.Sufficiency of the Evidence.

Unpublished decision: Defendant contended that the evidence was insufficient to support his conviction; however, the Commonwealth met its burden in proving each of the necessary elements of first degree wanton endangerment. Fister v. Commonwealth, 133 S.W.3d 480, 2003 Ky. App. LEXIS 170 (Ky. Ct. App. 2003).

3.Relationship With Other Laws.

Unpublished decision: Sentencing enhancement was proper because the court properly enhanced the sentence when the self-defense justification under Kentucky law was not available, and evidence tampering provided an alternative basis. United States v. Sweat, 688 Fed. Appx. 352, 2017 FED App. 0257N, 2017 U.S. App. LEXIS 8092 (6th Cir. Ky. 2017 ).

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Patterson, Juvenile Code, 70 Ky. L.J. 343 (1981-82).

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Assaults and Restraints of Persons, Part 2 Homicide, § 3.23.

Kentucky Instructions to Juries (Criminal), 5th Ed., Assaults and Restraints of Persons, Part 3 Assault, §§ 3.58, 3.60.

Kentucky Instructions to Juries (Criminal), 5th Ed., Assaults and Restraints of Persons, Part 5 Kidnapping and Related Offenses, § 3.79E.

508.070. Wanton endangerment in the second degree.

  1. A person is guilty of wanton endangerment in the second degree when he wantonly engages in conduct which creates a substantial danger of physical injury to another person.
  2. Wanton endangerment in the second degree is a Class A misdemeanor.

History. Enact. Acts 1974, ch. 406, § 71, effective January 1, 1975.

NOTES TO DECISIONS

1.Evidence.

Where the evidence tended to show defendant had set two fires in a wood house, with other houses within 20 feet, at a time when people were normally home from work or school and eating dinner, and that at the very least the firemen answering the alarm were in danger, there was ample evidence to justify a second-degree wanton endangerment instruction. Sweatt v. Commonwealth, 586 S.W.2d 289, 1979 Ky. App. LEXIS 454 (Ky. Ct. App. 1979).

The court did not err in failing to grant the defendant’s motion for a directed verdict, where the defendant failed to stop his car when so instructed and failed to pull his car over while being chased by a police officer, and there was also testimony that the defendant swerved from side-to-side on the road, forcing pedestrians and other vehicles off the road and endangering their lives. Wyatt v. Commonwealth, 738 S.W.2d 832, 1987 Ky. App. LEXIS 548 (Ky. Ct. App. 1987).

While an arrestee’s statements criticizing conservation officers were protected by the First Amendment, because probable cause supported the arrestee’s indictment, arrest, and prosecution for interfering with a conservation officer in violation of KRS 150.090(6), the arrestee’s 42 U.S.C.S. § 1983 claims for retaliatory arrest and prosecution failed as a matter of law; pointing a gun at an officer in a manner that created a substantial danger of injury clearly established probable cause for a charge under KRS 150.090(6). Barnes v. Wright, 449 F.3d 709, 2006 FED App. 0187P, 2006 U.S. App. LEXIS 13610 (6th Cir. Ky. 2006 ).

Circuit court erred in denying defendant's motion for a directed verdict of acquittal on a wanton endangerment in the second degree charge where the sole instance of the child running ahead of defendant's mother was not similar to him escaping from the house while his mother and brother slept, thus not probative of the instant incident, and it was not a gross deviation from the standard of conduct for defendant to be sleeping while her child slept. Deville v. Commonwealth, 534 S.W.3d 802, 2017 Ky. App. LEXIS 383 (Ky. Ct. App. 2017).

2.Instructions.

Where the conduct of defendant clearly could have caused others who perceived his conduct to engage in actions which would create a substantial danger of death, serious physical injury or physical injury, defendant’s assertion that because the pistol was inoperable he was not guilty of wanton endangerment was rejected, the trial court, however, should have instructed the jury on second-degree, as well as first-degree, wanton endangerment. Thomas v. Commonwealth, 567 S.W.2d 299, 1978 Ky. LEXIS 367 ( Ky. 1978 ), overruled in part, Ray v. Commonwealth, 611 S.W.3d 250, 2020 Ky. LEXIS 403 ( Ky. 2020 ).

An instruction on a lesser included offense is not required unless the evidence is such that a reasonable juror could doubt that the defendant is guilty of the crime charged but yet concluded that he is guilty of a lesser included offense; accordingly, the trial court in a prosecution for wanton endangerment in the first degree did not err when it refused to give an instruction on wanton endangerment in the second degree, where a reasonable juror could not doubt that the defendant acted wantonly under circumstances which manifested an extreme indifference to the value of human life, and, likewise, a reasonable juror could not doubt that his conduct created a substantial danger of death or serious physical injury to another person. Combs v. Commonwealth, 652 S.W.2d 859, 1983 Ky. LEXIS 258 ( Ky. 1983 ).

Where the defendant pointed a loaded firearm at two (2) Commonwealth police officers who were in the performance of their official duties, the trial court properly instructed the jury under both wanton endangerment statutes. Commonwealth v. Clemons, 734 S.W.2d 459, 1987 Ky. LEXIS 216 ( Ky. 1987 ).

Trial court did not commit reversible error in specifying in its second-degree wanton endangerment instruction that the victim was a high school student because the error, if any, was not palpable as no manifest injustice resulted; the jury already knew that defendant’s passenger was a high school student, and defendant was convicted of wantonly endangering the victim under an instruction that did not refer to her age. Brown v. Commonwealth, 297 S.W.3d 557, 2009 Ky. LEXIS 256 ( Ky. 2009 ).

3.Intoxication.

On a charge of wanton endangerment, the condition of the accused as to intoxication is relevant as a part of the surrounding circumstances. Wilcher v. Commonwealth, 566 S.W.2d 812, 1978 Ky. App. LEXIS 537 (Ky. Ct. App. 1978).

4.Prosecutor’s Comments.

Where, after court excluded evidence of blood test, the prosecutor remarked “Okay, if they don’t want it to come out,” such remark was nonprejudicial given the weight of the evidence supporting a conviction for wanton endangerment in the second degree. Wilcher v. Commonwealth, 566 S.W.2d 812, 1978 Ky. App. LEXIS 537 (Ky. Ct. App. 1978).

5.Double Jeopardy.

Defendant’s convictions for first-degree fleeing or evading police, KRS 520.095(1), and second-degree wanton endangerment, KRS 508.070(1), constituted double jeopardy because once the Commonwealth proved the specific conduct required to convict defendant of first-degree fleeing or evading police, it necessarily proved the general conduct necessary to convict him of second-degree wanton endangerment; both statutes were satisfied by proof of wantonly engaging in certain conduct that creates a substantial danger of serious physical injury to another person, and for second-degree wanton endangerment, the conduct is general and open-ended, and for first-degree fleeing or evading police, the conduct is specified as intentionally fleeing from police while operating a motor vehicle. Brown v. Commonwealth, 297 S.W.3d 557, 2009 Ky. LEXIS 256 ( Ky. 2009 ).

Cited:

Commonwealth v. Hillhaven Corp., 687 S.W.2d 545, 1984 Ky. App. LEXIS 638 (Ky. Ct. App. 1984); Bell v. Commonwealth, 122 S.W.3d 490, 2003 Ky. LEXIS 236 ( Ky. 2003 ), rehearing denied, 2004 Ky. LEXIS 21 ( Ky. 2004 ); Jones v. Commonwealth, 279 S.W.3d 522, 2009 Ky. LEXIS 65 ( Ky. 2009 ).

Research References and Practice Aids

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Assaults and Restraints of Persons, Part 3 Assault, § 3.59.

508.075. Terroristic threatening in the first degree.

  1. A person is guilty of terroristic threatening in the first degree when he or she:
    1. Intentionally makes false statements that he or she or another person has placed a weapon of mass destruction on:
      1. The real property or any building of any public or private elementary or secondary school, vocational school, or institution of postsecondary education;
      2. A school bus or other vehicle owned, operated, or leased by a school;
      3. The real property or any building public or private that is the site of an official school-sanctioned function; or
      4. The real property or any building owned or leased by a government agency; or
    2. Intentionally and without lawful authority, places a counterfeit weapon of mass destruction at any location or on any object specified in paragraph (a) of this subsection.
  2. A counterfeit weapon of mass destruction is placed with lawful authority if it is placed, with the written permission of the chief officer of the school or other institution, as a part of an official training exercise and is placed by a public servant, as defined in KRS 522.010 .
  3. A person is not guilty of commission of an offense under this section if he or she, innocently and believing the information to be true, communicates a threat made by another person to school personnel, a peace officer, a law enforcement agency, a public agency involved in emergency response, or a public safety answering point and identifies the person from whom the threat was communicated, if known.
  4. Terroristic threatening in the first degree is a Class C felony.

History. Enact. Acts 2001, ch. 113, § 1, effective June 21, 2001.

NOTES TO DECISIONS

1.In General.

Defendant was a driver employee of a trucking company and complained about the weather and driving conditions and refused to drive; the employer then ordered him to drive; defendant refused, said he was going to hire an attorney, and the attorney was going to come to the employer’s business and fire all the employees; Kentucky Supreme Court indicated that terroristic threatening, KRS 508.075 , 508.078 , or 508.080 , was sufficiently pled. Commonwealth v. Isham, 98 S.W.3d 59, 2003 Ky. LEXIS 19 ( Ky. 2003 ).

Research References and Practice Aids

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Assaults and Restraints of Persons, Part 3 Assault, § 3.61A.

508.078. Terroristic threatening in the second degree.

  1. A person is guilty of terroristic threatening in the second degree when, other than as provided in KRS 508.075 , he or she intentionally:
    1. With respect to any scheduled, publicly advertised event open to the public, any place of worship, or any school function, threatens to commit any act likely to result in death or serious physical injury to any person at a scheduled, publicly advertised event open to the public, any person at a place of worship, or any student group, teacher, volunteer worker, or employee of a public or private elementary or secondary school, vocational school, or institution of postsecondary education, or to any other person reasonably expected to lawfully be on school property or at a school-sanctioned activity, if the threat is related to their employment by a school, or work or attendance at school, or a school function. A threat directed at a person or persons at a scheduled, publicly advertised event open to the public, place of worship, or school does not need to identify a specific person or persons or school in order for a violation of this section to occur;
    2. Makes false statements by any means, including by electronic communication, indicating that an act likely to result in death or serious physical injury is occurring or will occur for the purpose of:
      1. Causing evacuation of a school building, school property, or school- sanctioned activity;
      2. Causing cancellation of school classes or school-sanctioned activity; or
      3. Creating fear of death or serious physical injury among students, parents, or school personnel;
    3. Makes false statements that he or she has placed a weapon of mass destruction at any location other than one specified in KRS 508.075 ; or
    4. Without lawful authority places a counterfeit weapon of mass destruction at any location other than one specified in KRS 508.075.
  2. A counterfeit weapon of mass destruction is placed with lawful authority if it is placed as part of an official training exercise by a public servant, as defined in KRS 522.010 .
  3. A person is not guilty of commission of an offense under this section if he or she, innocently and believing the information to be true, communicates a threat made by another person to school personnel, a peace officer, a law enforcement agency, a public agency involved in emergency response, or a public safety answering point and identifies the person from whom the threat was communicated, if known.
  4. Except as provided in subsection (5) of this section, terroristic threatening in the second degree is a Class D felony.
  5. Terroristic threatening in the second degree is a Class C felony when, in addition to violating subsection (1) of this section, the person intentionally engages in substantial conduct required to prepare for or carry out the threatened act, including but not limited to gathering weapons, ammunition, body armor, vehicles, or materials required to manufacture a weapon of mass destruction.

History. Enact. Acts 2001, ch. 113, § 2, effective June 21, 2001; 2019 ch. 5, § 20, effective March 11, 2019; 2019 ch. 96, § 1, effective June 27, 2019; 2020 ch. 5, § 12, effective February 21, 2020.

NOTES TO DECISIONS

1.In General.

Where defendant was a driver of a trucking company and complained about the weather and driving conditions and refused to drive, and the employer then ordered him to drive, defendant refused, said he was going to hire an attorney, and the attorney was going to come to the employer’s business and fire all the employees, terroristic threatening, KRS 508.075 , 508.078 , or 508.080 , was sufficiently pled. Commonwealth v. Isham, 98 S.W.3d 59, 2003 Ky. LEXIS 19 ( Ky. 2003 ).

2.Evidence.

Judgment finding juvenile defendant guilty of terroristic threatening in the second degree was supported by sufficient evidence, including defendant’s admission to several witnesses that he had written a note which contained the names of persons on a “hit list,” and which was properly admitted into evidence; although defendant’s father testified some of the names on the “hit list” did not appear to be in his son’s writing, other names appeared to have been written by defendant, and thus, defendant’s argument that no actual threat existed was without merit. The fact that the note included a “hit list,” in and of itself, constituted a threat of death or serious physical injury as the term indicated. S.D.O. v. Commonwealth, 255 S.W.3d 517, 2008 Ky. App. LEXIS 139 (Ky. Ct. App. 2008).

Research References and Practice Aids

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Assaults and Restraints of Persons, Part 3 Assault, § 3.61B.

508.080. Terroristic threatening in the third degree.

  1. Except as provided in KRS 508.075 or 508.078 , a person is guilty of terroristic threatening in the third degree when:
    1. He threatens to commit any crime likely to result in death or serious physical injury to another person or likely to result in substantial property damage to another person; or
    2. He intentionally makes false statements for the purpose of causing evacuation of a building, place of assembly, or facility of public transportation.
  2. Terroristic threatening in the third degree is a Class A misdemeanor.

History. Enact. Acts 1974, ch. 406, § 72, effective January 1, 1975; 2001, ch. 113, § 3, effective June 21, 2001.

NOTES TO DECISIONS

1.Constitutionality.

This section is not unconstitutionally vague and overbroad since the conduct proscribed, “threaten[ing] to commit a crime likely to result in death or serious physical injury” is not protected under either the Kentucky or United States Constitutions, and the language of the statute is sufficiently explicit to put the average citizen on notice as to the nature of the conduct so proscribed. Thomas v. Commonwealth, 574 S.W.2d 903, 1978 Ky. App. LEXIS 633 (Ky. Ct. App. 1978).

2.Construction.

This section does not require that the victim be placed in reasonable apprehension of immediate injury. Thomas v. Commonwealth, 574 S.W.2d 903, 1978 Ky. App. LEXIS 633 (Ky. Ct. App. 1978).

While this section does not apply in the case of idle talk or jesting, the defendant’s intent to commit the crime of “terroristic threatening” can be plainly inferred from the defendant’s own words (a threat to behead his wife and daughter) and the circumstances surrounding them, since all this section requires is that the defendant threaten “to commit any crime likely to result in death or serious physical injury to another person or likely to result in substantial property damage to another person.” Thomas v. Commonwealth, 574 S.W.2d 903, 1978 Ky. App. LEXIS 633 (Ky. Ct. App. 1978).

Language of 101 Ky. Admin. Regs. 2:095, § 9(1)(b) differs substantially from that of the terroristic threatening statute, KRS 508.080 , by specifically adding the requirement that threatening statement or behavior “give a state employee or member of the general public reasonable cause to believe that his health or safety is at risk;” therefore, a hearing officer for the Kentucky Racing Commission’s (KRC’s) Personnel Board did not misconstrue the actual language of subparagraph (1)(b) when he concluded that a KRC employee had not violated the regulation because the threat he made did not actually make a fellow employee apprehensive for his own safety at any time. Hughes v. Ky. Horse Racing Auth., 179 S.W.3d 865, 2004 Ky. App. LEXIS 106 (Ky. Ct. App. 2004).

3.Complaint.

Where defendant was a driver of a trucking company and complained about the weather and driving conditions and refused to drive, and the employer then ordered him to drive, defendant refused, said he was going to hire an attorney, and the attorney was going to come to the employer’s business and fire all the employees, terroristic threatening, KRS 508.075 , 508.078 , or 508.080 , was sufficiently pled. Commonwealth v. Isham, 98 S.W.3d 59, 2003 Ky. LEXIS 19 ( Ky. 2003 ).

District court properly granted summary judgment to the police officer on the arrestee’s claim for false arrest because officer acted pursuant to legal process, and although it was later determined that arrest warrant lacked probable cause, district court had authority to issue the warrant based on a charge of terroristic threatening. Juillerat v. Mudd, 735 Fed. Appx. 887, 2018 U.S. App. LEXIS 14238 (6th Cir. Ky. 2018 ).

4.Double Jeopardy.

Under a proper Blockburger analysis, double jeopardy does not occur when a person is charged with two crimes arising from the same course of conduct, as long as each statute requires proof of an additional fact which the other does not. Properly applying the Blockburger analysis, the Supreme Court of Kentucky overrules its precedent holding that convictions on both wanton endangerment under KRS 508.060 and terroristic threatening under KRS 508.080 involving the same victim are barred under the double jeopardy clause. Mullikan v. Commonwealth, 341 S.W.3d 99, 2011 Ky. LEXIS 89 ( Ky. 2011 ).

Terroristic threatening requires a threat to commit a crime, but wanton endangerment does not require such a threat, and wanton endangerment requires actual conduct placing others at serious risk, but terroristic threatening does not require such actual conduct or such actual serious risk. Consequently, convictions on both offenses do not violate KRS 505.020 because terroristic threatening is not included within wanton endangerment since terroristic threatening is not established by proof of the same or less than all the facts required to establish the commission of wanton endangerment. Mullikan v. Commonwealth, 341 S.W.3d 99, 2011 Ky. LEXIS 89 ( Ky. 2011 ).

5.Elements.

The criminal offense of terroristic threatening can be committed even if the victim has no knowledge of the threat, thus victim statements to his mother that he was going to kill defendant was terroristic threatening. Brock v. Commonwealth, 947 S.W.2d 24, 1997 Ky. LEXIS 18 ( Ky. 1997 ).

6.Instructions.

In prosecution for first-degree robbery, the defendant’s evidence did not justify giving an instruction on terroristic threatening as a lesser included offense of robbery, where the defendant claimed that he told the victim that “me and you are going to fight, if you don’t give me my money,” and then left the scene, returning with a gun which he concealed beneath his clothes; however, he claimed that before he could remove the gun from his clothing or make any threats, the victim suddenly appeared and shot him. Blankenship v. Commonwealth, 740 S.W.2d 164, 1987 Ky. App. LEXIS 587 (Ky. Ct. App. 1987).

Where it would be “reasonable” for a juror to have a “reasonable doubt” as to whether the defendant committed first degree wanton endangerment and still find him guilty of the lesser charge of terroristic threatening, the jury should be instructed on first degree wanton endangerment, and in the alternative, terroristic threatening as a lesser included offense. Commonwealth v. Black, 907 S.W.2d 762, 1995 Ky. LEXIS 121 ( Ky. 1995 ).

7.Lesser Included Offenses.

Defendant who held policemen and other hostages at gunpoint and fired at them as they fled could not be convicted of both terroristic threatening and wanton endangerment since the former is included in the latter. Watson v. Commonwealth, 579 S.W.2d 103, 1979 Ky. LEXIS 233 ( Ky. 1979 ).

Terroristic threatening is a lesser included offense of wanton endangerment and a defendant cannot be convicted of both charges when they concern the same victim. Commonwealth v. Black, 907 S.W.2d 762, 1995 Ky. LEXIS 121 ( Ky. 1995 ).

Because terroristic threatening in the third degree requires proof of a threat to commit a crime likely to result in death or serious physical injury while intimidation of a participant in the legal process does not require proof of such a threat but requires proof simply that physical force or a threat of any nature be used, terroristic threatening in the third degree is, therefore, not a lesser included offense of intimidating a participant in the legal process. Cecil v. Commonwealth, 297 S.W.3d 12, 2009 Ky. LEXIS 245 ( Ky. 2009 ).

Cited:

Commonwealth v. Ashcraft, 691 S.W.2d 229, 1985 Ky. App. LEXIS 554 (Ky. Ct. App. 1985); Commonwealth v. Arnette, 701 S.W.2d 407, 1985 Ky. LEXIS 296 ( Ky. 1985 ).

Research References and Practice Aids

Cross-References.

Criminal coercion, KRS 509.080 .

False reporting of fire or other emergency, KRS 519.040 .

Northern Kentucky Law Review.

Vaughn and Moore, Battered Spouse Defense In Kentucky, 10 N. Ky. L. Rev. 399 (1983).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Police Officer’s Answer to Claim of Unlawful Arrest, Form 121.02.

Kentucky Instructions to Juries (Criminal), 5th Ed., Assaults and Restraints of Persons, Part 3 Assault, §§ 3.61, 3.62.

Kentucky Instructions to Juries (Criminal), 5th Ed., Assaults and Restraints of Persons, Part 5 Kidnapping and Related Offenses, § 3.83.

508.090. Definitions for KRS 508.100 to 508.120.

The following definitions apply in KRS 508.100 to 508.120 unless the context otherwise requires:

  1. “Abuse” means the infliction of physical pain, injury, or mental injury, or the deprivation of services by a person which are necessary to maintain the health and welfare of a person, or a situation in which an adult, living alone, is unable to provide or obtain for himself the services which are necessary to maintain his health or welfare.
  2. “Physically helpless” and “mentally helpless” means a person who lacks substantial capacity to defend himself or solicit protection from law enforcement agencies.

History. Enact. Acts 1982, ch. 168, § 4, effective July 15, 1982.

NOTES TO DECISIONS

1.Evidence.

Evidence was sufficient to sustain a conviction for first-degree criminal abuse because the victim was uninjured when defendant entered the victim’s room alone, he was the victim’s primary caregiver, and a doctor testified that defendant’s story did not match the type of fracture the victim suffered, and it was not common in a two-year old. Mason v. Commonwealth, 331 S.W.3d 610, 2011 Ky. LEXIS 3 ( Ky. 2011 ).

Persons walking into defendant’s trailer and surveying the scene could have reasonably concluded that his children were being abused, as defined in KRS 508.090(1), because they were locked in their rooms on one of the hottest days of the summer, clad in urine-soaked clothing, and speckled with feces; one child was hungry to the point of eating his own feces. Commonwealth v. O'Conner, 372 S.W.3d 855, 2012 Ky. LEXIS 42 ( Ky. 2012 ), modified, 2012 Ky. LEXIS 661 (Ky. Aug. 23, 2012).

Mother’s conviction for first-degree criminal abuse was erroneous because the trial court erred in instructing the jury as to direct abuse by her, as defined in KRS 508.090(1); she could retried under the alternative theory of permitting the abuse of her child because the jury never reached that question, and she was not entitled to a directed verdict of acquittal. Acosta v. Commonwealth, 391 S.W.3d 809, 2013 Ky. LEXIS 5 ( Ky. 2013 ), overruled in part, Ray v. Commonwealth, 611 S.W.3d 250, 2020 Ky. LEXIS 403 ( Ky. 2020 ).

Cited:

Commonwealth v. Chandler, 722 S.W.2d 899, 1987 Ky. LEXIS 186 ( Ky. 1987 ).

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Sellars, Criminal Law, 71 Ky. L.J. 355 (1982-83).

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Assaults and Restraints of Persons, Definitions, §§ 3.14, 3.15.

508.100. Criminal abuse in the first degree.

  1. A person is guilty of criminal abuse in the first degree when he intentionally abuses another person or permits another person of whom he has actual custody to be abused and thereby:
    1. Causes serious physical injury; or
    2. Places him in a situation that may cause him serious physical injury; or
    3. Causes torture, cruel confinement or cruel punishment;

      to a person twelve (12) years of age or less, or who is physically helpless or mentally helpless.

  2. Criminal abuse in the first degree is a Class C felony.

History. Enact. Acts 1982, ch. 168, § 1, effective July 15, 1982.

NOTES TO DECISIONS

1.Constitutionality.

This section is not unconstitutionally void for vagueness. Carpenter v. Commonwealth, 771 S.W.2d 822, 1989 Ky. LEXIS 56 ( Ky. 1989 ).

Subdivision (1)(c) of this section was not unconstitutionally vague; a severe spanking that does not result in serious physical injury, or permanent scarring, may constitute “torture, cruel confinement or cruel punishment” as statutorily prohibited. Canler v. Commonwealth, 870 S.W.2d 219, 1994 Ky. LEXIS 3 ( Ky. 1994 ).

2.Applicability.

Where the injury is the result of the use of a deadly weapon or a dangerous instrument, the proper charge is first or second-degree assault, not criminal abuse, regardless of whether the victim is related to the assailant. Commonwealth v. Chandler, 722 S.W.2d 899, 1987 Ky. LEXIS 186 ( Ky. 1987 ).

This section does not apply to every situation where a child is injured but only to those instances where abuse is involved. Carpenter v. Commonwealth, 771 S.W.2d 822, 1989 Ky. LEXIS 56 ( Ky. 1989 ).

3.Purpose.

The purpose of the statutes on criminal abuse, this section, and KRS 508.110 and 508.120 , is to criminalize serious physical abuse of children twelve (12) or less by a custodial person, although their scope includes others who are “physically helpless or mentally helpless”. Commonwealth v. Welch, 864 S.W.2d 280, 1993 Ky. LEXIS 128 ( Ky. 1993 ).

4.Legislative Intent.

This section is constitutionally proper if the word “intentionally” is construed to modify both abuse and permits. This is a logical construction because the legislature intended to impose criminal liability only if the accused were mentally culpable and because the internal structure of the three degrees of the offense of criminal abuse is the same. Carpenter v. Commonwealth, 771 S.W.2d 822, 1989 Ky. LEXIS 56 ( Ky. 1989 ).

5.Elements.

Criminal abuse involves a situation where a person inflicts serious physical injury on another person of whom he or she has actual custody. Commonwealth v. Chandler, 722 S.W.2d 899, 1987 Ky. LEXIS 186 ( Ky. 1987 ).

While first-degree criminal abuse is committed where having custody of a person allows another to abuse that person, the offense established by KRS 209.990(2) appears to contemplate either the infliction of physical pain or injury on the adult victim by the caretaker himself, or by someone acting at his instigation, or the deliberate deprivation by the caretaker of services necessary to maintain the health and welfare of the victim. Morris v. Commonwealth, 783 S.W.2d 889, 1990 Ky. App. LEXIS 24 (Ky. Ct. App. 1990).

Jury instruction incorporating “actual custody” element was not error; such custody, as used in this section, was not intended to apply only to those with legal custody or guardianship rights, but also to persons such as defendant, who reside in the same household and stand in loco parentis to the child. Davis v. Commonwealth, 967 S.W.2d 574, 1998 Ky. LEXIS 44 ( Ky. 1998 ), modified, 1998 Ky. LEXIS 101 (Ky. June 18, 1998).

6.Evidence.

It may well be there are situations where using a wire coat hanger to correct a child’s behavior, if not appropriate, is at least within the legal limits of parental discretion in raising their children; nevertheless, beatings administered by defendant were sufficient to sustain the charges of torture or cruel punishment to a person under 12 years of age because the children testified to circumstances proving the nature of the beatings to have been cruel and indiscriminate, and far different in character from normal parental discipline. Stoker v. Commonwealth, 828 S.W.2d 619, 1992 Ky. LEXIS 45 ( Ky. 1992 ).

Supreme Court had no difficulty in holding the bizarre misconduct involved in charges of criminal abuse generated by tying up children, putting tape over their mouths, and forcing them to watch pornographic movies, could reasonably and appropriately be deemed by a jury to constitute “torture, cruel confinement or cruel punishment to a person 12 years of age or less.” Stoker v. Commonwealth, 828 S.W.2d 619, 1992 Ky. LEXIS 45 ( Ky. 1992 ).

Circumstantial evidence presented, including testimony evidence that the child died of forcible asphyxiation that was an inflicted death and that defendant had the opportunity commit the acts of abuse, was adequate to survive defendant’s motion for directed verdicts of acquittal. Ratliff v. Commonwealth, 194 S.W.3d 258, 2006 Ky. LEXIS 170 ( Ky. 2006 ).

Evidence was sufficient to sustain a conviction for first-degree criminal abuse because the victim was uninjured when defendant entered the victim’s room alone, he was the victim’s primary caregiver, and a doctor testified that defendant’s story did not match the type of fracture the victim suffered, and it was not common in a two-year old. Mason v. Commonwealth, 331 S.W.3d 610, 2011 Ky. LEXIS 3 ( Ky. 2011 ).

Court erred in overturning defendant’s convictions for criminal abuse of his children, in violation of KRS 508.100(1) because the court did not properly defer to the jury its proper fact-finding role; it was not unreasonable for the jury to conclude that the abuse was intentional as the children were locked in their rooms on one of the hottest days of the summer, clad in urine-soaked clothes, and speckled with feces. Commonwealth v. O'Conner, 372 S.W.3d 855, 2012 Ky. LEXIS 42 ( Ky. 2012 ), modified, 2012 Ky. LEXIS 661 (Ky. Aug. 23, 2012).

Evidence was sufficient to sustain defendant’s murder, first-degree assault, and first-degree criminal abuse convictions because the medical evidence concerning the force required to inflict the injuries, the obviously battered state of the victim’s body, and defendant’s police statement admitting instances of “discipline” were sufficient to permit a reasonable juror to conclude that she intentionally abused the child, and that she murdered and assaulted him, either directly or by lending aid to the co-defendant. Peacher v. Commonwealth, 391 S.W.3d 821, 2013 Ky. LEXIS 11 ( Ky. 2013 ).

Evidence was sufficient to sustain defendant’s criminal abuse charge because the acts occurred during the time that defendant was the child’s primary caregiver, and the evidence could be perceived to show that defendant, rather than someone else, committed the abusive acts that resulted in the leg fractures. Johnson v. Commonwealth, 405 S.W.3d 439, 2013 Ky. LEXIS 92 ( Ky. 2013 ).

7.Instructions.

This case did not present a situation where a parent has placed a child in harm’s way with no particular desire that harm ensue; rather the evidence strongly indicates that father struck and injured child, and permitted step-mother to do so, with the conscious and express goal of inflicting severe pain. Accordingly, because the jury could not rationally find father guilty of second-degree criminal abuse yet not guilty of first-degree criminal abuse, the District Court did not err in denying father’s request for an instruction on second-degree criminal abuse. United States v. Phillip, 948 F.2d 241, 1991 U.S. App. LEXIS 25714 (6th Cir. Ky. 1991 ), cert. denied, 504 U.S. 930, 112 S. Ct. 1994, 118 L. Ed. 2d 590, 1992 U.S. LEXIS 3012 (U.S. 1992).

In defendant’s criminal abuse case, there was no “real possibility” that a juror voted to convict defendant under the cruel confinement theory when there was no evidence to support that theory, but there was ample evidence to support the other theories of guilt. So there was no probability that the result of the action was altered by the addition of the superfluous theories of guilt in the criminal abuse instruction, and therefore, the erroneous criminal abuse instruction failed to constitute palpable error. Mason v. Commonwealth, 331 S.W.3d 610, 2011 Ky. LEXIS 3 ( Ky. 2011 ).

Mother’s conviction for first-degree criminal abuse, in violation of KRS 508.100(1), was erroneous because the trial court erred in instructing the jury as to direct abuse by her; she could retried under the alternative theory of permitting the abuse of her child because the jury never reached that question, and she was not entitled to a directed verdict of acquittal. Acosta v. Commonwealth, 391 S.W.3d 809, 2013 Ky. LEXIS 5 ( Ky. 2013 ), overruled in part, Ray v. Commonwealth, 611 S.W.3d 250, 2020 Ky. LEXIS 403 ( Ky. 2020 ).

8.Joinder of Defendants.

Trial court did not err in joining trials of codefendants in child’s death; severance was not required merely because defendants were likely to cast blame on each other. Davis v. Commonwealth, 967 S.W.2d 574, 1998 Ky. LEXIS 44 ( Ky. 1998 ), modified, 1998 Ky. LEXIS 101 (Ky. June 18, 1998).

9.Lesser-Included Offense.

Criminal abuse is not a lesser-included offense of first or second degree assault. Commonwealth v. Chandler, 722 S.W.2d 899, 1987 Ky. LEXIS 186 ( Ky. 1987 ).

Cited:

Knox v. Commonwealth, 735 S.W.2d 711, 1987 Ky. LEXIS 229 ( Ky. 1987 ), overruled, Lane v. Commonwealth, 956 S.W.2d 874, 1997 Ky. LEXIS 68 ( Ky. 1997 ), overruled, Lane v. Commonwealth, 949 S.W.2d 604 ( Ky. 1997 ), overruled in part, Tharp v. Commonwealth, 40 S.W.3d 356, 2000 Ky. LEXIS 200 ( Ky. 2000 ); United States v. Phillip, 948 F.2d 241, 1991 U.S. App. LEXIS 25714 (6th Cir. 1991); Lane v. Commonwealth, 956 S.W.2d 874, 1997 Ky. LEXIS 68 (Ky. 1997); Bartley v. Commonwealth, 400 S.W.3d 714, 2013 Ky. LEXIS 291 ( Ky. 2013 ).

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Sellars, Criminal Law, 71 Ky. L.J. 355 (1982-83).

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Assaults and Restraints of Persons, Part 4 Abuse, §§ 3.65A — 3.67B.

Kentucky Instructions to Juries (Criminal), 5th Ed., Complicity and Inchoate Offenses, Part 2 Complicity, § 10.16.

508.110. Criminal abuse in the second degree.

  1. A person is guilty of criminal abuse in the second degree when he wantonly abuses another person or permits another person of whom he has actual custody to be abused and thereby:
    1. Causes serious physical injury; or
    2. Places him in a situation that may cause him serious physical injury; or
    3. Causes torture, cruel confinement or cruel punishment;

      to a person twelve (12) years of age or less, or who is physically helpless or mentally helpless.

  2. Criminal abuse in the second degree is a Class D felony.

History. Enact. Acts 1982, ch. 168, § 2, effective July 15, 1982.

NOTES TO DECISIONS

1.In General.

Criminal abuse involves a situation where a person inflicts serious physical injury on another person of whom he or she has actual custody. Commonwealth v. Chandler, 722 S.W.2d 899, 1987 Ky. LEXIS 186 ( Ky. 1987 ).

Defendant failed to preserve his claim that the Commonwealth improperly obtained a conviction based on a theory of wanton criminal abuse that was not specifically set forth in the indictment as it was not raised at trial, and there was no manifest injustice or prejudice to defendant as his counsel addressed the theory in closing; the evidence that defendant fed a child a mixture of milk and castor oil from a bottle that contained cocaine supported the conviction, even though no witness testified that defendant knew that the bottle contained cocaine. Thomas v. Commonwealth, 153 S.W.3d 772, 2004 Ky. LEXIS 275 ( Ky. 2004 ).

2.Applicability.

Where the injury is the result of the use of a deadly weapon or a dangerous instrument, the proper charge is first or second-degree assault, not criminal abuse, regardless of whether the victim is related to the assailant. Commonwealth v. Chandler, 722 S.W.2d 899, 1987 Ky. LEXIS 186 ( Ky. 1987 ).

This section did not apply to the abuse of a fetus by a woman who was drug dependent and who took drugs during her pregnancy where child was born with neonatal abstinence syndrome. Commonwealth v. Welch, 864 S.W.2d 280, 1993 Ky. LEXIS 128 ( Ky. 1993 ).

3.Purpose.

The purpose of the statutes on criminal abuse, KRS 508.100 , this section and KRS 508.120 , is to criminalize serious physical abuse of children twelve (12) or less by a custodial person, although their scope includes others who are “physically helpless or mentally helpless”. Commonwealth v. Welch, 864 S.W.2d 280, 1993 Ky. LEXIS 128 ( Ky. 1993 ).

4.Cruel Punishment.

Consistent with KRS 446.080 ’s directive that ordinary words in statutes shall be given their ordinary meaning, cruel punishment outside the criminal arena is defined as “heartless and unfeeling.” Cutrer v. Commonwealth, 697 S.W.2d 156, 1985 Ky. App. LEXIS 621 (Ky. Ct. App. 1985).

Although reasonable minds might differ as to the precise degree of misconduct that constitutes cruel punishment, the due process clause does not require this section to meet impossible standards of specificity; the plain language of this section is sufficiently clear to apprise ordinary sensible persons of the type of acts it sanctions. Cutrer v. Commonwealth, 697 S.W.2d 156, 1985 Ky. App. LEXIS 621 (Ky. Ct. App. 1985).

5.Instructions.

This case did not present a situation where a parent has placed a child in harm’s way with no particular desire that harm ensue; rather the evidence strongly indicates that father struck and injured child, and permitted step-mother to do so, with the conscious and express goal of inflicting severe pain. Accordingly, because the jury could not rationally find father guilty of second-degree criminal abuse yet not guilty of first-degree criminal abuse, the District Court did not err in denying father’s request for an instruction on second-degree criminal abuse. United States v. Phillip, 948 F.2d 241, 1991 U.S. App. LEXIS 25714 (6th Cir. Ky. 1991 ), cert. denied, 504 U.S. 930, 112 S. Ct. 1994, 118 L. Ed. 2d 590, 1992 U.S. LEXIS 3012 (U.S. 1992).

6.Lesser-Included Offense.

Criminal abuse is not a lesser-included offense of first or second degree assault. Commonwealth v. Chandler, 722 S.W.2d 899, 1987 Ky. LEXIS 186 ( Ky. 1987 ).

Cited:

Lane v. Commonwealth, 956 S.W.2d 874, 1997 Ky. LEXIS 68 ( Ky. 1997 ), cert. denied, Lane v. Kentucky, 522 U.S. 1123, 118 S. Ct. 1067, 140 L. Ed. 2d 127, 1998 U.S. LEXIS 1074 (1998), review or rehearing denied, — S.W.2d —, 1997 Ky. LEXIS 97 ( Ky. 1997 ).

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Sellars, Criminal Law, 71 Ky. L.J. 355 (1982-83).

Gormley and Hartman, The Kentucky Bill of Rights: A Bicentennial Celebration, 80 Ky. L.J. 1 (1990-91).

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Assaults and Restraints of Persons, Part 4 Abuse, §§ 3.68A — 3.70B.

Kentucky Instructions to Juries (Criminal), 5th Ed., Offenses Against Public Order, Safety and Morals, Part 2 Riot, Disorderly Conduct, and Related Offenses, §§ 8.51, 8.52A.

508.120. Criminal abuse in the third degree.

  1. A person is guilty of criminal abuse in the third degree when he recklessly abuses another person or permits another person of whom he has actual custody to be abused and thereby:
    1. Causes serious physical injury; or
    2. Places him in a situation that may cause him serious physical injury; or
    3. Causes torture, cruel confinement or cruel punishment;

      to a person twelve (12) years of age or less, or who is physically helpless or mentally helpless.

  2. Criminal abuse in the third degree is a Class A misdemeanor.

History. Enact. Acts 1982, ch. 168, § 3, effective July 15, 1982.

NOTES TO DECISIONS

1.Applicability.

Where the injury is the result of the use of a deadly weapon or a dangerous instrument, the proper charge is first or second-degree assault, not criminal abuse, regardless of whether the victim is related to the assailant. Commonwealth v. Chandler, 722 S.W.2d 899, 1987 Ky. LEXIS 186 ( Ky. 1987 ).

2.Purpose.

The purpose of the statutes on criminal abuse, KRS 508.100 , 508.110 and this section, is to criminalize serious physical abuse of children twelve (12) or less by a custodial person, although their scope includes others who are “physically helpless or mentally helpless”. Commonwealth v. Welch, 864 S.W.2d 280, 1993 Ky. LEXIS 128 ( Ky. 1993 ).

3.Cruel Punishment.

Although reasonable minds might differ as to the precise degree of misconduct that constitutes cruel punishment, the due process clause does not require this section to meet impossible standards of specificity; the plain language of this section is sufficiently clear to apprise ordinary sensible persons of the type of acts it sanctions. Cutrer v. Commonwealth, 697 S.W.2d 156, 1985 Ky. App. LEXIS 621 (Ky. Ct. App. 1985).

Consistent with KRS 446.080 ’s directive that ordinary words in statutes shall be given their ordinary meaning, cruel punishment outside the criminal arena is defined as “heartless and unfeeling.” Cutrer v. Commonwealth, 697 S.W.2d 156, 1985 Ky. App. LEXIS 621 (Ky. Ct. App. 1985).

4.Elements.

Criminal abuse involves a situation where a person inflicts serious physical injury on another person of whom he or she has actual custody. Commonwealth v. Chandler, 722 S.W.2d 899, 1987 Ky. LEXIS 186 ( Ky. 1987 ).

Reasonable juror could find that the significant impairment of the use of an 11-month-old victim’s arm for a four-week period, because it was broken, constituted either “prolonged impairment of health” or “prolonged loss or impairment of the function of a bodily organ,” for purposes of a conviction of third degree criminal abuse, under the definition of “serious physical injury” in KRS 500.080(15). Clift v. Commonwealth, 105 S.W.3d 467, 2003 Ky. App. LEXIS 89 (Ky. Ct. App. 2003).

5.Instructions.

Where there was no evidence that the defendant’s stabbing his son in the right eye with a karate sword was anything other than intentional or wanton, and the defendant presented no evidence of a reckless mental state required for third-degree criminal abuse, he was not entitled to an instruction on criminal abuse. Commonwealth v. Chandler, 722 S.W.2d 899, 1987 Ky. LEXIS 186 ( Ky. 1987 ).

6.Lesser-Included Offense.

Criminal abuse is not a lesser-included offense of first or second degree assault. Commonwealth v. Chandler, 722 S.W.2d 899, 1987 Ky. LEXIS 186 ( Ky. 1987 ).

Cited:

Lane v. Commonwealth, 956 S.W.2d 874, 1997 Ky. LEXIS 68 ( Ky. 1997 ), cert. denied, Lane v. Kentucky, 522 U.S. 1123, 118 S. Ct. 1067, 140 L. Ed. 2d 127, 1998 U.S. LEXIS 1074 (1998), review or rehearing denied, — S.W.2d —, 1997 Ky. LEXIS 97 ( Ky. 1997 ).

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Sellars, Criminal Law, 71 Ky. L.J. 355 (1982-83).

Gormley and Hartman, The Kentucky Bill of Rights: A Bicentennial Celebration, 80 Ky. L.J. 1 (1990-91).

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Assaults and Restraints of Persons, Part 4 Abuse, §§ 3.71A — 3.73B.

508.125. Female genital mutilation.

  1. As used in this section, “female genital mutilation” means a procedure that involves the partial or total removal of the external female genitalia or any procedure harmful to the female genitalia, including but not limited to:
    1. A clitoridectomy;
    2. The partial or total removal of the clitoris or the prepuce;
    3. The excision or the partial or total removal of the clitoris and the labia minora, with or without excision of the labia majora;
    4. The infibulation or the narrowing of the vaginal orifice with the creation of a covering seal by cutting and appositioning of the labia minora or the labia majora, with or without the excision of the clitoris;
    5. Pricking, piercing, incising, scraping, or cauterizing the genital area; or
    6. Any other action to purposely alter the structure or function of the female genitalia for a nonmedical reason.
  2. A person is guilty of female genital mutilation when:
    1. The person knowingly performs female genital mutilation on another person under eighteen (18) years of age;
    2. The person is a parent, guardian, or has immediate custody or control of a person under eighteen (18) years of age and knowingly consents to or permits female genital mutilation of such person; or
    3. The person knowingly removes or causes or permits the removal of a person under eighteen (18) years of age from Kentucky for the purposes of performance of female genital mutilation of the person.
  3. It is not a defense to female genital mutilation that the conduct under subsection(2) of this section is:
    1. Required as a matter of religion, custom, ritual, or standard practice; or
    2. Consented to by the individual on whom it is performed or the individual’s parent or guardian.
  4. A surgical procedure is not a violation of subsection (1) of this section if the procedure is:
    1. Necessary to the health of the person on whom it is performed and is performed by a person licensed in the place of its performance as a health care provider; or
    2. Performed on a person in labor or who has just given birth and is performed for medical purposes connected with that labor or birth by a person licensed in the place of its performance as a health care provider.
  5. Female genital mutilation is a Class B felony.

HISTORY: 2020 ch. 74, § 1, effective April 2, 2020.

508.130. Definitions for KRS 508.130 to 508.150.

As used in KRS 508.130 to 508.150 , unless the context requires otherwise:

    1. To “stalk” means to engage in an intentional course of conduct: (1) (a) To “stalk” means to engage in an intentional course of conduct:
      1. Directed at a specific person or persons;
      2. Which seriously alarms, annoys, intimidates, or harasses the person or persons; and
      3. Which serves no legitimate purpose.
    2. The course of conduct shall be that which would cause a reasonable person to suffer substantial mental distress.
  1. “Course of conduct” means a pattern of conduct composed of two (2) or more acts, evidencing a continuity of purpose. One (1) or more of these acts may include the use of any equipment, instrument, machine, or other device by which communication or information is transmitted, including computers, the Internet or other electronic network, cameras or other recording devices, telephones or other personal communications devices, scanners or other copying devices, and any device that enables the use of a transmitting device. Constitutionally protected activity is not included within the meaning of “course of conduct.” If the defendant claims that he was engaged in constitutionally protected activity, the court shall determine the validity of that claim as a matter of law and, if found valid, shall exclude that activity from evidence.
  2. “Protective order” means:
    1. An emergency protective order or domestic violence order issued under KRS 403.715 to 403.785 ;
    2. A foreign protective order, as defined in KRS 403.720 and 456.010 ;
    3. An order issued under KRS 431.064 ;
    4. A restraining order issued in accordance with KRS 508.155 ;
    5. An order of protection as defined in KRS 403.720 and 456.010 ; and
    6. Any condition of a bond, conditional release, probation, parole, or pretrial diversion order designed to protect the victim from the offender.

HISTORY: Enact. Acts 1992, ch. 443, § 1, effective July 14, 1992; 2000, ch. 401, § 13, effective July 14, 2000; 2002, ch. 119, § 1, effective July 15, 2002; 2009, ch. 100, § 2, effective June 25, 2009; 2015 ch. 102, § 45, effective January 1, 2016.

NOTES TO DECISIONS

1.Constitutionality.

Since when read in conjunction with this section, KRS 508.140 defines the offense of stalking with sufficient definiteness that ordinary people can determine what conduct is prohibited, such statute is not unconstitutionally vague. Monhollen v. Commonwealth, 947 S.W.2d 61, 1997 Ky. App. LEXIS 33 (Ky. Ct. App. 1997).

2.Constitutionally Protected Activity.

The trial court did not err when it did not hold a hearing to determine whether the defendant was engaged in constitutionally protected activity. A defendant can knowingly and voluntarily waive even the most fundamental constitutional rights. In this case, no fundamental right was waived; rather, it was the waiver of a hearing to determine whether that right existed, i.e., freedom of speech. Since defendant twice rejected the hearing, it was waived. The use of “shall” in KRS 508.130(2) cannot mandate a hearing when the defendant waives it. Johnson v. Commonwealth, 2008 Ky. App. LEXIS 34 (Ky. Ct. App. Feb. 15, 2008).

3.Evidence.

Where the Commonwealth did not introduce sufficient evidence that defendant engaged in a pattern of conduct composed of two (2) or more acts that evidenced a continuity of purpose, the evidence was not sufficient for purposes of convicting him of stalking, in violation of KRS 508.150 , and the trial court erred in not directing the verdict on that charge in his favor; the definition of “stalk” under KRS 508.130 required two (2) or more acts. Morgan v. Commonwealth, 189 S.W.3d 99, 2006 Ky. LEXIS 12 ( Ky. 2006 ), overruled, Shane v. Commonwealth, 243 S.W.3d 336, 2007 Ky. LEXIS 262 ( Ky. 2007 ), overruled in part, Roe v. Commonwealth, 2015 Ky. LEXIS 2080 (Ky. Sept. 24, 2015).

Because defendant carried signs and a gun outside of the victim’s office for two (2) months, defendant was engaged in first-degree stalking under KRS 508.130 and not a constitutionally-protected activity; because defendant carried a gun, there was no evidentiary foundation for giving a lesser-included instruction on second-degree stalking. Johnson v. Commonwealth, 2008 Ky. App. LEXIS 34 (Ky. Ct. App. Feb. 15, 2008).

Circuit court clearly erred in entering an interpersonal protective order against appellant where appellee's alleged fear that appellant would intentionally go to places where he was in order to have him arrested for violating a domestic violence order and his jealousy of appellant's new relationship did not meet the elements of stalking. Halloway v. Simmons, 532 S.W.3d 158, 2017 Ky. App. LEXIS 564 (Ky. Ct. App. 2017).

4.Instructions.

Trial court failure to instruct the jury on all of the elements of stalking was reversible error, as the definition of “course of conduct” was required in the definition of “stalk” in order for the jury to have been aware that the pattern of conduct necessary to have proved the offense required inclusion of at least two intentional acts. Morgan v. Commonwealth, 189 S.W.3d 99, 2006 Ky. LEXIS 12 ( Ky. 2006 ), overruled, Shane v. Commonwealth, 243 S.W.3d 336, 2007 Ky. LEXIS 262 ( Ky. 2007 ), overruled in part, Roe v. Commonwealth, 2015 Ky. LEXIS 2080 (Ky. Sept. 24, 2015).

5.Generally.

For an individual to be granted an interpersonal protective order for stalking, he or she must at a minimum prove by a preponderance of the evidence that, an individual intentionally engaged in two or more acts directed at the victim that seriously alarmed, annoyed, intimidated, or harassed the victim, that served no legitimate purpose, and would have caused a reasonable person to suffer substantial mental distress, and that these acts may occur again. Ky. Rev. Stat. Ann. §§ 508.130 and 456.060 . Additionally, the individual must prove that there was an implicit or explicit threat by the perpetrator that put the victim in reasonable fear of sexual contact, physical injury, or death. Ky. Rev. Stat. Ann. § 508.150 . Halloway v. Simmons, 532 S.W.3d 158, 2017 Ky. App. LEXIS 564 (Ky. Ct. App. 2017).

Cited:

Holloman v. Commonwealth, 37 S.W.3d 764, 2001 Ky. LEXIS 29 ( Ky. 2001 ).

Research References and Practice Aids

Northern Kentucky Law Review.

Lotz, A Survey of Criminal Law Statutes Enacted in 1992, 20 N. Ky. L. Rev. 745 (1993).

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Assaults and Restraints of Persons, Part 1 Definitions, §§ 3.10 — 3.11.

Kentucky Instructions to Juries (Criminal), 5th Ed., Assaults and Restraints of Persons, Part 3 Assault, § 3.64.

508.140. Stalking in the first degree.

  1. A person is guilty of stalking in the first degree,
    1. When he intentionally:
      1. Stalks another person; and
      2. Makes an explicit or implicit threat with the intent to place that person in reasonable fear of:
        1. Sexual contact as defined in KRS 510.010 ;
        2. Serious physical injury; or
        3. Death; and
      1. A protective order has been issued by the court to protect the same victim or victims and the defendant has been served with the summons or order or has been given actual notice; or (b) 1. A protective order has been issued by the court to protect the same victim or victims and the defendant has been served with the summons or order or has been given actual notice; or
      2. A criminal complaint is currently pending with a court, law enforcement agency, or prosecutor by the same victim or victims and the defendant has been served with a summons or warrant or has been given actual notice; or
      3. The defendant has been convicted of or pled guilty within the previous five (5) years to a felony or to a Class A misdemeanor against the same victim or victims; or
      4. The act or acts were committed while the defendant had a deadly weapon on or about his person.
  2. Stalking in the first degree is a Class D felony.

History. Enact. Acts 1992, ch. 443, § 2, effective July 14, 1992; 2000, ch. 401, § 14, effective July 14, 2000.

NOTES TO DECISIONS

1.Constitutionality.

Since when read in conjunction with KRS 508.130 , this section defines the offense of stalking with sufficient definiteness that ordinary people can determine what conduct is prohibited, such statute is not unconstitutionally vague. Monhollen v. Commonwealth, 947 S.W.2d 61, 1997 Ky. App. LEXIS 33 (Ky. Ct. App. 1997).

2.Relationship to federal law.

Because a conviction under the sexual-contact provision of KRS 508.140 does not necessarily require the threatened use of violent force, a violation of Kentucky’s statute is not categorically a violent felony under the force prong of the Armed Career Criminal Act. United States v. Johnson, 707 F.3d 655, 2013 FED App. 0044P, 2013 U.S. App. LEXIS 3520 (6th Cir. Tenn.), cert. denied, 571 U.S. 886, 134 S. Ct. 296, 187 L. Ed. 2d 153, 2013 U.S. LEXIS 7226 (U.S. 2013).

First-degree stalking under Kentucky law was the type of offense that by its nature posed a serious risk of physical injury to another; even if one could imagine a hypothetical scenario of first-degree stalking where the risk of injury were not present, the combination of acts necessary for a conviction under Kentucky’s first-degree stalking statute was not only purposeful and violent conduct, but also conduct of escalating aggression that made it more likely that the individual, if in possession of a gun, would use that gun deliberately to harm a victim. Therefore, defendant’s violation of Kentucky’s first-degree stalking statute was categorically a violent felony under the Armed Career Criminal Act’s residual clause. United States v. Johnson, 707 F.3d 655, 2013 FED App. 0044P, 2013 U.S. App. LEXIS 3520 (6th Cir. Tenn.), cert. denied, 571 U.S. 886, 134 S. Ct. 296, 187 L. Ed. 2d 153, 2013 U.S. LEXIS 7226 (U.S. 2013).

3.Elements.

Because appellant's actions toward appellee met the definition of “stalk” under Ky. Rev. Stat. Ann. § 508.130 and he made an implicit threat with the intent to place appellee in reasonable fear of physical injury or death by intentionally damaging her car so that it would not function properly, appellant satisfied the elements of second-hand stalking under Ky. Rev. Stat. Ann. § 508.150(1). Because there was sufficient evidence for the circuit court to find that appellant stalked appellee, the circuit court properly entered an interpersonal protective order against appellant. Calhoun v. Wood, 516 S.W.3d 357, 2017 Ky. App. LEXIS 55 (Ky. Ct. App. 2017).

Appellant's conduct toward appellee did not appear to satisfy the elements of first-degree stalking because there were no allegations that the elements of Ky. Rev. Stat. Ann. § 508.140(1)(b) were met. Calhoun v. Wood, 516 S.W.3d 357, 2017 Ky. App. LEXIS 55 (Ky. Ct. App. 2017).

Cited:

Commonwealth v. Wortman, 929 S.W.2d 199, 1996 Ky. App. LEXIS 92 (Ky. Ct. App. 1996).

Research References and Practice Aids

Northern Kentucky Law Review.

Lotz, A Survey of Criminal Law Statutes Enacted in 1992, 20 N. Ky. L. Rev. 745 (1993).

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Assaults and Restraints of Persons, Part 3 Assault, § 3.63.

508.150. Stalking in the second degree.

  1. A person is guilty of stalking in the second degree when he intentionally:
    1. Stalks another person; and
    2. Makes an explicit or implicit threat with the intent to place that person in reasonable fear of:
      1. Sexual contact as defined in KRS 510.010 ;
      2. Physical injury; or
      3. Death.
  2. Stalking in the second degree is a Class A misdemeanor.

History. Enact. Acts 1992, ch. 443, § 3, effective July 14, 1992.

NOTES TO DECISIONS

1.Evidence.

Where the Commonwealth did not introduce sufficient evidence that defendant engaged in a pattern of conduct composed of two (2) or more acts that evidenced a continuity of purpose, the evidence was not sufficient for purposes of convicting him of stalking, in violation of KRS 508.150 , and the trial court erred in not directing the verdict on that charge in his favor; the definition of “stalk” under KRS 508.130 required two (2) or more acts. Morgan v. Commonwealth, 189 S.W.3d 99, 2006 Ky. LEXIS 12 ( Ky. 2006 ), overruled, Shane v. Commonwealth, 243 S.W.3d 336, 2007 Ky. LEXIS 262 ( Ky. 2007 ), overruled in part, Roe v. Commonwealth, 2015 Ky. LEXIS 2080 (Ky. Sept. 24, 2015).

Because appellant's actions toward appellee met the definition of “stalk” under Ky. Rev. Stat. Ann. § 508.130 and he made an implicit threat with the intent to place appellee in reasonable fear of physical injury or death by intentionally damaging her car so that it would not function properly, appellant satisfied the elements of second-hand stalking under Ky. Rev. Stat. Ann. § 508.150(1). Because there was sufficient evidence for the circuit court to find that appellant stalked appellee, the circuit court properly entered an interpersonal protective order against appellant. Calhoun v. Wood, 516 S.W.3d 357, 2017 Ky. App. LEXIS 55 (Ky. Ct. App. 2017).

Circuit court clearly erred in entering an interpersonal protective order against appellant where appellee's alleged fear that appellant would intentionally go to places where he was in order to have him arrested for violating a domestic violence order and his jealousy of appellant's new relationship did not meet the elements of stalking. Halloway v. Simmons, 532 S.W.3d 158, 2017 Ky. App. LEXIS 564 (Ky. Ct. App. 2017).

Circuit court properly entered an interpersonal protective order in favor of the victim based on her brother-in laws’ attempted sexual assault, stalking, and third degree sexual abuse after her husband’s death because the brother-in-law’s manner of touching, his prior words and actions, as well as the timeframe in which the incident occurred supported the family court’s findings, there was no legitimate purpose for the brother-in-law’s conduct, and the entire incident, including the brother-in-law’s earlier text messages, occurred over a period of less than 24 hours. Jones v. Jones, 617 S.W.3d 418, 2021 Ky. App. LEXIS 5 (Ky. Ct. App. 2021).

2.Generally.

For an individual to be granted an interpersonal protective order for stalking, he or she must at a minimum prove by a preponderance of the evidence that, an individual intentionally engaged in two or more acts directed at the victim that seriously alarmed, annoyed, intimidated, or harassed the victim, that served no legitimate purpose, and would have caused a reasonable person to suffer substantial mental distress, and that these acts may occur again. Ky. Rev. Stat. Ann. §§ 508.130 and 456.060 . Additionally, the individual must prove that there was an implicit or explicit threat by the perpetrator that put the victim in reasonable fear of sexual contact, physical injury, or death. Ky. Rev. Stat. Ann. § 508.150 . Halloway v. Simmons, 532 S.W.3d 158, 2017 Ky. App. LEXIS 564 (Ky. Ct. App. 2017).

Research References and Practice Aids

Northern Kentucky Law Review.

Lotz, A Survey of Criminal Law Statutes Enacted in 1992, 20 N. Ky. L. Rev. 745 (1993).

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Assaults and Restraints of Persons, Part 3 Assault, § 3.64.

508.155. Restraining order or interpersonal protective order to be issued upon violation of KRS 508.140 to 508.150.

    1. Before January 1, 2016, a verdict of guilty or a plea of guilty to KRS 508.140 or 508.150 shall operate as an application for a restraining order utilizing the provisions of this section and limiting the contact of the defendant and the victim who was stalked, unless the victim requests otherwise. (1) (a) Before January 1, 2016, a verdict of guilty or a plea of guilty to KRS 508.140 or 508.150 shall operate as an application for a restraining order utilizing the provisions of this section and limiting the contact of the defendant and the victim who was stalked, unless the victim requests otherwise.
    2. Beginning January 1, 2016, a verdict of guilty or a plea of guilty to KRS 508.140 or 508.150 shall operate as an application for an interpersonal protective order issued under KRS Chapter 456, unless the victim requests otherwise. Notwithstanding the provisions of KRS Chapter 456:
      1. An interpersonal protective order requested under this subsection may be issued by the court that entered the judgment of conviction;
      2. The judgment of conviction shall constitute sufficient cause for the entry of the order without the necessity of further proof being taken; and
      3. The order may be effective for up to ten (10) years, with further renewals in increments of up to ten (10) years.
  1. The court shall give the defendant notice of his or her right to request a hearing on the application for a restraining order. If the defendant waives his or her right to a hearing on this matter, then the court may issue the restraining order without a hearing.
  2. If the defendant requests a hearing, it shall be held at the time of the verdict or plea of guilty, unless the victim or defendant requests otherwise. The hearing shall be held in the court where the verdict or plea of guilty was entered.
  3. A restraining order may grant the following specific relief:
    1. An order restraining the defendant from entering the residence, property, school, or place of employment of the victim; or
    2. An order restraining the defendant from making contact with the victim, including an order forbidding the defendant from personally, or through an agent, initiating any communication likely to cause serious alarm, annoyance, intimidation, or harassment, including but not limited to personal, written, telephonic, or any other form of written or electronic communication or contact with the victim. An order issued pursuant to this subsection relating to a school, place of business, or similar nonresidential location shall be sufficiently limited to protect the stalking victim but shall also protect the defendant’s right to employment, education, or the right to do legitimate business with the employer of a stalking victim as long as the defendant does not have contact with the stalking victim. The provisions of this subsection shall not apply to a contact by an attorney regarding a legal matter.
  4. A restraining order issued pursuant to this section shall be valid for a period of not more than ten (10) years, the specific duration of which shall be determined by the court. Any restraining order shall be based upon the seriousness of the facts before the court, the probability of future violations, and the safety of the victim, his or her immediate family, or both.
  5. Unless the defendant has been convicted of a felony, or is otherwise ineligible to purchase or possess a firearm under federal law, a restraining order issued pursuant to this section shall not operate as a ban on the purchase or possession of firearms or ammunition by the defendant.
  6. The restraining order shall be issued on a form prescribed by the Administrative Office of the Courts and may be lifted upon application of the stalking victim to the court which granted the order.
  7. Within twenty-four (24) hours of entry of a restraining order or entry of an order rescinding a restraining order, the circuit clerk shall forward a copy of the order to the Law Information Network of Kentucky (LINK).
  8. A restraining order issued under this section shall be enforced in any county of the Commonwealth. Law enforcement officers acting in good faith in enforcing a restraining order shall be immune from criminal and civil liability.
  9. A violation by the defendant of an order issued pursuant to this section shall be a Class A misdemeanor. Nothing in this section shall preclude the filing of a criminal complaint for stalking based on the same act which is the basis for the violation of the restraining order.

HISTORY: Enact. Acts 2002, ch. 119, § 2, effective July 15, 2002; 2015 ch. 102, § 46, effective January 1, 2016.

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Police Officer’s Answer to Claim of Unlawful Arrest, Form 121.02.

508.160. Disarming a peace officer — Penalty — Applicability.

  1. A person is guilty of disarming a peace officer when he intentionally:
    1. Removes a firearm or other deadly weapon from the person of a peace officer when the peace officer is acting within the scope of his official duties; or
    2. Deprives a peace officer of the officer’s use of a firearm or deadly weapon when the peace officer is acting within the scope of his official duties.
  2. Disarming a peace officer is a Class D felony.
  3. The provisions of this section shall not apply when:
    1. The defendant does not know or could not reasonably have known that the person disarmed was a peace officer; or
    2. The peace officer was, at the time of the disarming or incident thereto, engaged in felonious conduct.

History. Enact. Acts 1998, ch. 606, § 123, effective July 15, 1998.

Research References and Practice Aids

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Assaults and Restraints of Persons, Part 3 Assault, § 3.49B.

508.170. Strangulation in the first degree.

  1. A person is guilty of strangulation in the first degree when the person, without consent, intentionally impedes the normal breathing or circulation of the blood of another person by:
    1. Applying pressure on the throat or neck of the other person; or
    2. Blocking the nose or mouth of the other person.
  2. Strangulation in the first degree is a Class C felony.

HISTORY: 2019 ch. 183, § 1, effective June 27, 2019.

508.175. Strangulation in the second degree.

  1. A person is guilty of strangulation in the second degree when the person, without consent, wantonly impedes the normal breathing or circulation of the blood of another person by:
    1. Applying pressure on the throat or neck of the other person; or
    2. Blocking the nose or mouth of the other person.
  2. Strangulation in the second degree is a Class D felony.

HISTORY: 2019 ch. 183, § 2, effective June 27, 2019.

CHAPTER 509 Kidnapping and Related Offenses

509.010. Definitions.

The following definitions apply in this chapter unless the context otherwise requires:

  1. “Relative” means a parent, ancestor, brother, sister, uncle or aunt.
  2. “Restrain” means to restrict another person’s movements in such a manner as to cause a substantial interference with his liberty by moving him from one place to another or by confining him either in the place where the restriction commences or in a place to which he has been moved without consent. A person is moved or confined “without consent” when the movement or confinement is accomplished by physical force, intimidation, or deception, or by any means, including acquiescence of a victim, if he is under the age of sixteen (16) years, or is substantially incapable of appraising or controlling his own behavior.

History. Enact. Acts 1974, ch. 406, § 73, effective January 1, 1975.

NOTES TO DECISIONS

1.Harassment.

Harassment is not a lesser offense necessarily included in the offense of unlawful imprisonment in the first or second degree. Although evidence of actual or threatened physical force or contact by the accused certainly can be relied on to prove an element of each offense, proof of these offenses does not always involve such evidence. More importantly, both offenses of unlawful imprisonment require proof of the additional fact of substantial interference with liberty of another whereas the offense of harassment requires proof of the additional fact of intent to harass, annoy or alarm another person. Hart v. Commonwealth, 768 S.W.2d 552, 1989 Ky. App. LEXIS 170 (Ky. Ct. App. 1989).

Actual or threatened physical contact made with the intent to harass so as to restrain another would constitute evidence that supports convictions for both harassment and unlawful imprisonment and, if the Commonwealth actually relies on and seeks to prove the defendant’s commission of the offense of harassment as the act, that accomplished the victim’s restraint, then it might be said that, under this unique set of facts, harassment is a lesser included offense of unlawful imprisonment. Hart v. Commonwealth, 768 S.W.2d 552, 1989 Ky. App. LEXIS 170 (Ky. Ct. App. 1989).

2.Physical Force.

Where the government did not specify the basis for defendant’s unlawful imprisonment conviction, the case was remanded for a factual finding on whether defendant’s unlawful imprisonment conviction involved “the use, attempted use, or threatened use of physical force,” thereby constituting a crime of violence. United States v. Roberts, 986 F.2d 1026, 1993 U.S. App. LEXIS 3123 (6th Cir. Ky.), cert. denied, 510 U.S. 900, 114 S. Ct. 271, 126 L. Ed. 2d 222, 1993 U.S. LEXIS 6192 (U.S. 1993).

3.Unlawful Restraint.

Although a murder victim was last seen voluntarily entering the truck of the defendant, evidence that her body, wrapped in a blanket and unclothed from the waist down, was found with a duct tape gag and a coaxial cable from the defendant’s truck wrapped around her neck and wrist was sufficient evidence for a jury reasonably to find that the defendant unlawfully restrained the victim; this evidence also supported the finding that the defendant intended to commit a felony, inflict bodily injury, or to terrorize the victim. Meredith v. Commonwealth, 959 S.W.2d 87, 1997 Ky. LEXIS 159 ( Ky. 1997 ).

Cited:

United States v. Epley, 52 F.3d 571, 1995 U.S. App. LEXIS 9137 (6th Cir. 1995).

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Sellars, Criminal Law, 71 Ky. L.J. 355 (1982-83).

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Assaults and Restraints of Persons, Part 1 Definitions, §§ 3.18, 3.19.

509.020. Unlawful imprisonment in the first degree.

  1. A person is guilty of unlawful imprisonment in the first degree when he knowingly and unlawfully restrains another person under circumstances which expose that person to a risk of serious physical injury.
  2. Unlawful imprisonment in the first degree is a Class D felony.

History. Enact. Acts 1974, ch. 406, § 74, effective January 1, 1975.

NOTES TO DECISIONS

1.In General.

Where two peace officers were indicted under law that provided penalty for imprisoning or transporting another against his will across state lines otherwise than according to law, it was error to sustain demurrer to indictment on ground that such law did not apply to peace officers while in the discharge or attempted discharge of their duties. (Decided under prior law) Commonwealth v. Caudill, 314 Ky. 129 , 234 S.W.2d 499, 1950 Ky. LEXIS 1040 ( Ky. 1950 ).

Where there was evidence that defendant and his friend went to apartment where in an attempt to find the friend’s watch they struck the witnesses, threatened them and took them to Indiana in fear of violence if they refused to go, such evidence shows that defendant’s conduct had no relation to interstate commerce so that law that provided penalty for imprisoning or transporting another against his will across state lines otherwise than according to law could not be invalid as an unlawful restraint on interstate commerce in violation of U.S. Const., Art. I, § 8, par. 3. (Decided under prior law) Riis v. Commonwealth, 418 S.W.2d 396, 1967 Ky. LEXIS 209 ( Ky. 1967 ).

Unlawful imprisonment is the basic and lesser offense and kidnapping is an aggravated form of unlawful imprisonment where detention of a victim is shown. Thomas v. Commonwealth, 567 S.W.2d 299, 1978 Ky. LEXIS 367 ( Ky. 1978 ), overruled in part, Ray v. Commonwealth, 611 S.W.3d 250, 2020 Ky. LEXIS 403 ( Ky. 2020 ).

2.Applicability.

Where two peace officers were indicted under law that provided penalty for imprisoning or transporting another against his will across state lines otherwise than according to law, it was error to sustain demurrer to indictment on ground that such law did not apply to peace officers while in the discharge or attempted discharge of their duties. (Decided under prior law) Commonwealth v. Caudill, 314 Ky. 129 , 234 S.W.2d 499, 1950 Ky. LEXIS 1040 ( Ky. 1950 ).

Law that provided penalty for imprisoning or transporting another against his will across state lines otherwise than according to law specifically provided the same penalty for one who aided and abetted another in the commission of a crime and it made no difference that one of the two participants took a more active part in its perpetration. (Decided under prior law) Crain v. Commonwealth, 484 S.W.2d 839, 1972 Ky. LEXIS 153 ( Ky. 1972 ).

3.Defenses.

No abuse of discretion occurred when a trial court permitted the Commonwealth to introduce the testimony of its own expert witness to rebut defendant’s defense of mental illness or defect, which was based on his claim that he was in an alcoholic blackout when he allegedly assaulted a woman with a hammer in a parking lot and tried to drag her away from her car. RCr 7.24(3)(B)(ii) allowed a rebuttal of the evidence that defendant had introduced, which could have reduced his criminal culpability, so that the expert’s testimony was not outside the scope of rebuttal testimony allowed. Arnold v. Commonwealth, 192 S.W.3d 420, 2006 Ky. LEXIS 141 ( Ky. 2006 ).

Because voluntary intoxication was a mental condition within the confines of Ky. R. Crim. P. 7.24(3)(B)(ii), as it bore on the issue of his guilt or punishment, the Commonwealth of Kentucky had a right to introduce the testimony of its own expert witness to rebut defendant’s defense of mental illness or defect, which was based on his claim that he was in an alcoholic blackout when he allegedly assaulted a woman with a hammer in a parking lot and tried to drag her away from her car. Once defendant introduced evidence as to his defense, which could have reduced his criminal culpability, the Commonwealth had a right and a duty to rebut that defense, which rebuttal necessarily included obtaining its own expert to examine defendant. Arnold v. Commonwealth, 192 S.W.3d 420, 2006 Ky. LEXIS 141 ( Ky. 2006 ).

4.Double Jeopardy.

Even though the evidence at the two trials may be the same, a first trial and acquittal on the charge of detaining a woman against her will does not bar a subsequent trial on the charge of having carnal knowledge of her. (Decided under prior law) Davis v. Commonwealth, 545 S.W.2d 644, 1976 Ky. LEXIS 145 ( Ky. 1976 ), vacated, 433 U.S. 905, 97 S. Ct. 2968, 53 L. Ed. 2d 1089, 1977 U.S. LEXIS 2563 (U.S. 1977).

Considering that a trial for the offense of carnal knowledge does not involve a relitigation of any issue necessarily presented by the charge of detaining a woman against her will, there is no sound reason for holding that one bars the other under the principle of double jeopardy and the separate offenses could be legally joined in one trial and result in consecutive sentences. (Decided under prior law) Davis v. Commonwealth, 561 S.W.2d 91, 1978 Ky. LEXIS 317 ( Ky. 1978 ).

Defendant’s trial on the charge of detaining a woman against her will precluded a subsequent conviction for the greater offense of rape because it makes no difference whether it is the greater or the lesser charge that is the first tried. (Decided under prior law) Davis v. Commonwealth, 561 S.W.2d 91, 1978 Ky. LEXIS 317 ( Ky. 1978 ).

5.Due Process.

There was no error in a trial court’s refusal to exclude a potential juror for cause. While the juror indicated that he might have had trouble acquitting defendant, if the jury found that he had committed the assault and unlawful imprisonment crimes with which he was charged but was so voluntarily intoxicated that he did not know what he was doing, the decision to exclude a juror was within the court’s sound discretion, the court was eventually satisfied that the juror had adequately indicated his ability to follow the jury instructions, and if there was any error, it did not rise to the level of an abuse of discretion. Arnold v. Commonwealth, 192 S.W.3d 420, 2006 Ky. LEXIS 141 ( Ky. 2006 ).

6.— Jurisdiction.

For this Commonwealth to have jurisdiction, both the unlawful restraint and the circumstances which expose the victim to a risk of serious physical injury must occur in this Commonwealth. McClellan v. Commonwealth, 715 S.W.2d 464, 1986 Ky. LEXIS 274 ( Ky. 1986 ), cert. denied, 479 U.S. 1057, 107 S. Ct. 935, 93 L. Ed. 2d 986, 1987 U.S. LEXIS 379 (U.S. 1987).

7.— Prosecutor Comments.

A prosecutor calling the defendant’s conduct “bizarre” during argument was not cause for a mistrial in defendant’s trial for first degree assault under KRS 508.010 and first degree unlawful imprisonment under KRS 509.020 . The prosecutor’s comments did not imply that defendant should have been convicted because he was abnormal. Arnold v. Commonwealth, 192 S.W.3d 420, 2006 Ky. LEXIS 141 ( Ky. 2006 ).

8.Elements.

Conviction under law that provided penalty for imprisoning or transporting another against his will across state lines otherwise than according to law was proper on ground of “imprisoning” wrongfully arrested persons where accused, even if not actively participating in arrest, transported them from place of arrest to county jail. (Decided under prior law) Roberts v. Commonwealth, 284 Ky. 365 , 144 S.W.2d 811, 1940 Ky. LEXIS 498 ( Ky. 1940 ).

Abduction, in the broad sense of carrying a person away wrongfully, is the most aggravated species of “false imprisonment” included in law making it a felony for any person to arrest or imprison another, otherwise than according to law, but under circumstances not constituting kidnapping and holding for ransom, or in any manner counsel, aid or abet such arrest or imprisonment. (Decided under prior law) Tarrence v. Commonwealth, 265 S.W.2d 40, 1953 Ky. LEXIS 1267 (Ky. Ct. App. 1953), cert. denied, 348 U.S. 899, 75 S. Ct. 220, 99 L. Ed. 706, 1954 U.S. LEXIS 1429 (U.S. 1954).

The placing or sending a five year old to an unlockable bathroom with which she was familiar at the suggestion of her mother and in her mother’s presence and putting a cloth over her mouth was not an “imprisonment” within the meaning of the statute. (Decided under prior law) Whitt v. Commonwealth, 479 S.W.2d 646, 1972 Ky. LEXIS 319 ( Ky. 1972 ).

Where the evidence showed that the defendant enticed two children into a car where he made improper sexual advances to them, that he abducted one of them in the car and that the child’s body was found five days later in a wooded area and showed signs of physical abuse and possible sexual molestation, a conviction for first-degree unlawful imprisonment would be affirmed. Timmons v. Commonwealth, 555 S.W.2d 234, 1977 Ky. LEXIS 496 ( Ky. 1977 ).

It was not error to overrule defendant’s motion for a directed verdict on a charge of unlawful imprisonment under KRS 509.020 because the kidnapping exemption statute, KRS 509.050 , did not preclude his conviction on the charge. There was sufficient evidence on which the jury could have convicted him of the charge, which was based on his hammer attack on a woman in a parking lot and his attempt to drag her away from her car, because duct tape and bungee cords were found in his nearby vehicle, indicating his intention to hold her against her will, and he only dropped the woman and ran away when the woman managed to grab or knock the hammer away from him. Arnold v. Commonwealth, 192 S.W.3d 420, 2006 Ky. LEXIS 141 ( Ky. 2006 ).

Court properly classified defendant as a career offender under U.S. Sentencing Guidelines Manual § 4B1.1 because unlawful imprisonment in the first degree under KRS 509.020 was a crime of violence, defendant’s prior conviction for assault was not used by the court in determining defendant’s career offender status, the court relied on the clear language of the statute in determining whether defendant’s conviction for unlawful imprisonment in the first degree was a crime of violence, and the court properly used defendant’s prior convictions for trafficking in a controlled substance and for unlawful imprisonment in determining defendant’s career offender status pursuant to U.S. Sentencing Guidelines Manual § 4A1.2. Thus, defendant’s 28 U.S.C.S. § 2255 motion was denied. United States v. Kenney, 2012 U.S. Dist. LEXIS 87479 (E.D. Ky. June 25, 2012).

9.— Arrest.

A private person, indicted for unlawfully arresting another, cannot escape punishment on ground that he had reasonable grounds for believing the offense committed by the person arrested was a felony, and not merely a misdemeanor, as ignorance of law does not excuse, and in any event he cannot be acquitted if he made the arrest merely for purpose of extorting money, and not in good faith. (Decided under prior law) Begley v. Commonwealth, 60 S.W. 847, 22 Ky. L. Rptr. 1546 (1901).

Defendant violated law that provided penalty for imprisoning or transporting another against his will across state lines otherwise than according to law when he arrested a father for telling his son within defendant’s hearing that defendant was after him to arrest him for army desertion, when the son was not subject to arrest because limitation had run. (Decided under prior law) Commonwealth v. White, 101 S.W. 331, 30 Ky. L. Rptr. 1322 (1907).

One about to be illegally arrested may not resist to the extent of taking the officer’s life, unless he himself is in danger of death or great bodily harm at hands of assailant. (Decided under prior law) Campbell v. Commonwealth, 289 Ky. 34 , 157 S.W.2d 729, 1941 Ky. LEXIS 16 ( Ky. 1941 ).

10.— Risk of Serious Physical Injury.

The actual impairment of health does not have to be present to be convicted of false imprisonment, merely the risk thereof. Jordan v. Commonwealth, 703 S.W.2d 870, 1985 Ky. LEXIS 269 ( Ky. 1985 ).

Where the victims’ hands and feet were bound, they were abandoned in their dwelling, and one of the victims suffered from high blood pressure, the victims were exposed to a risk of serious physical injury. Jordan v. Commonwealth, 703 S.W.2d 870, 1985 Ky. LEXIS 269 ( Ky. 1985 ).

The gravamen of unlawful imprisonment in the first degree is not unlawful restraint with intent to expose the victim to the risk of serious physical injury; instead, the gravamen is an unlawful restraint under circumstances which actually expose the victim to a risk of serious physical injury. McClellan v. Commonwealth, 715 S.W.2d 464, 1986 Ky. LEXIS 274 ( Ky. 1986 ), cert. denied, 479 U.S. 1057, 107 S. Ct. 935, 93 L. Ed. 2d 986, 1987 U.S. LEXIS 379 (U.S. 1987).

Defendant was not entitled to a directed verdict of acquittal on a charge of first-degree unlawful imprisonment, under KRS 509.020(1), by asserting that there was insufficient evidence of a risk of serious physical injury to the victim because sufficient evidence showing he knowingly restrained the victim allowed a conviction for the lesser included crime of second-degree unlawful imprisonment, under KRS 509.030(1). Davidson v. Commonwealth, 2006 Ky. App. LEXIS 32 (Ky. Ct. App. Feb. 3, 2006).

11.Evidence.

Evidence sustained conviction of accused under law that provided penalty for imprisoning or transporting another against his will across state lines otherwise than according to law where it showed arrest of occupants of automobile while repairing tire at side of highway, by deputy sheriffs without warrant or justification, despite testimony of accused, who drove automobile containing prisoners to county jail, that he did not know reason for arrest and suggested release of prisoners and despite his contention that requested by other officers that he drive automobile constituted duress upon him. (Decided under prior law) Roberts v. Commonwealth, 284 Ky. 365 , 144 S.W.2d 811, 1940 Ky. LEXIS 498 ( Ky. 1940 ).

In prosecution for unlawful arrest and imprisonment, instruction submitting issue of accused’s aiding and abetting the persons who actually made the arrest was justified under evidence, which showed that accused was present at time of arrest and drove automobile in which prisoners were transported to county jail, even if it did not show that accused actually participated in making arrest. (Decided under prior law) Roberts v. Commonwealth, 284 Ky. 365 , 144 S.W.2d 811, 1940 Ky. LEXIS 498 ( Ky. 1940 ).

In prosecution for unlawful arrest and imprisonment of named individual, evidence of arrest of other occupants of automobile which named individual was using was not inadmissible as evidence of distinct offenses, where such arrests were made at same time, since other offenses were so intermingled with one on trial that separation was impossible. (Decided under prior law) Roberts v. Commonwealth, 284 Ky. 365 , 144 S.W.2d 811, 1940 Ky. LEXIS 498 ( Ky. 1940 ).

Where defendant and his companion came upon prosecutrix’ car, drew a revolver and falsely announced they were from the sheriff’s office, asked to see prosecutrix’ driver’s license, told prosecutrix that she and her brother were under arrest, and instructed her to follow them to the sheriff’s office, such evidence was sufficient to show a detention of prosecutrix and her brother. (Decided under prior law) Crain v. Commonwealth, 484 S.W.2d 839, 1972 Ky. LEXIS 153 ( Ky. 1972 ).

12.Indictment.

An indictment under law that provided penalty for imprisoning or transporting another against his will across state lines otherwise than according to law which charged that defendant did unlawfully, willfully and feloniously arrest and detain the person named against her will “otherwise than according to law” was bad on demurrer, and an instruction thereunder which gave to the jury no guide on the question of who is a peace officer with authority and right to make arrests was erroneous. (Decided under prior law) Carroll v. Commonwealth, 164 Ky. 599 , 175 S.W. 1043, 1915 Ky. LEXIS 418 ( Ky. 1915 ).

Where an indictment followed the language of the statute, which described the offense only in general terms, and charged that sheriff’s deputies unlawfully, willfully and feloniously arrested and imprisoned a named person by taking and detaining him against his will, without authority of law, but left the question of the legality of the arrest to be determined by reference to other law regulating the subject, it was demurrable. (Decided under prior law) Kimbler v. Commonwealth, 269 S.W.2d 273, 1954 Ky. LEXIS 994 ( Ky. 1954 ).

Indictment under law that provided a penalty for imprisoning or transporting another against his will across state lines otherwise than according to law was not sufficient if it merely alleged that arrest was made “without authority of law.” (Decided under prior law) Lewis v. Commonwealth, 299 S.W.2d 635, 1957 Ky. LEXIS 420 ( Ky. 1957 ); Commonwealth v. White, 101 S.W. 331, 30 Ky. L. Rptr. 1322 (1907); Kimbler v. Commonwealth, 269 S.W.2d 273, 1954 Ky. LEXIS 994 ( Ky. 1954 ).

Indictment charging defendants with transportation of named persons at gunpoint beyond bounds of state and containing statute citation was sufficient. (Decided under prior law) Riis v. Commonwealth, 418 S.W.2d 396, 1967 Ky. LEXIS 209 ( Ky. 1967 ).

Indictment alleging that arrest was “otherwise than according to law” without specifying the circumstances and facts of the arrest was not subject to dismissal on motion, but motion for bill of particulars should have been sustained. (Decided under prior law) Finch v. Commonwealth, 419 S.W.2d 146, 1967 Ky. LEXIS 139 ( Ky. 1967 ).

13.Instructions.

Where the defendant, who was convicted of kidnapping, maintained throughout the trial that his acts were motivated out of love and concern for his wife and her child and in an attempt to preserve the family relationship, and the evidence that the defendant unlawfully restrained his wife with the intent to terrorize her or to hold her as a hostage was not so overwhelming as to preclude a jury finding of guilt on the lesser included offense of unlawful imprisonment in the second degree, the jury was to be instructed on retrial on both kidnapping and unlawful imprisonment in the second degree. McClellan v. Commonwealth, 715 S.W.2d 464, 1986 Ky. LEXIS 274 ( Ky. 1986 ), cert. denied, 479 U.S. 1057, 107 S. Ct. 935, 93 L. Ed. 2d 986, 1987 U.S. LEXIS 379 (U.S. 1987).

14.Lesser Included Offenses.

Although carnal knowledge and detaining a woman against her will are lesser included offenses of forcible rape, each of these two lesser offenses is exclusive of the other and trial on one does not expose the accused to conviction of any component of the other. (Decided under prior law) Davis v. Commonwealth, 545 S.W.2d 644, 1976 Ky. LEXIS 145 ( Ky. 1976 ), vacated, 433 U.S. 905, 97 S. Ct. 2968, 53 L. Ed. 2d 1089, 1977 U.S. LEXIS 2563 (U.S. 1977).

Harassment is not a lesser offense necessarily included in the offense of unlawful imprisonment in the first or second degree. Although evidence of actual or threatened physical force or contact by the accused certainly can be relied on to prove an element of each offense, proof of these offenses does not always involve such evidence. More importantly, both offenses of unlawful imprisonment require proof of the additional fact of substantial interference with liberty of another whereas the offense of harassment requires proof of the additional fact of intent to harass, annoy or alarm another person. Hart v. Commonwealth, 768 S.W.2d 552, 1989 Ky. App. LEXIS 170 (Ky. Ct. App. 1989).

Actual or threatened physical contact made with the intent to harass so as to restrain another would constitute evidence that supports convictions for both harassment and unlawful imprisonment and, if the Commonwealth actually relies on and seeks to prove the defendant’s commission of the offense of harassment as the act, that accomplished the victim’s restraint, then it might be said that, under this unique set of facts, harassment is a lesser included offense of unlawful imprisonment. Hart v. Commonwealth, 768 S.W.2d 552, 1989 Ky. App. LEXIS 170 (Ky. Ct. App. 1989).

Cited:

Bills v. Commonwealth, 851 S.W.2d 466, 1993 Ky. LEXIS 60 ( Ky. 1993 ); United States v. Epley, 52 F.3d 571, 1995 U.S. App. LEXIS 9137 (6th Cir. 1995).

Research References and Practice Aids

Cross-References.

Venue of action, kidnapping and unlawful seizing or confinement, KRS 452.600 .

Kentucky Law Journal.

Kentucky Law Survey, Sellars, Criminal Law, 71 Ky. L.J. 355 (1982-83).

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Assaults and Restraints of Persons, Part 5 Kidnapping and Related Offenses, § 3.80.

509.030. Unlawful imprisonment in the second degree.

  1. A person is guilty of unlawful imprisonment in the second degree when he knowingly and unlawfully restrains another person.
  2. Unlawful imprisonment in the second degree is a Class A misdemeanor.

History. Enact. Acts 1974, ch. 406, § 75, effective January 1, 1975.

NOTES TO DECISIONS

1.In General.

Unlawful imprisonment is the basic and lesser offense and kidnapping is an aggravated form of unlawful imprisonment where detention of a victim is shown. Thomas v. Commonwealth, 567 S.W.2d 299, 1978 Ky. LEXIS 367 ( Ky. 1978 ), overruled in part, Ray v. Commonwealth, 611 S.W.3d 250, 2020 Ky. LEXIS 403 ( Ky. 2020 ).

1.5.Defenses.

Exclusion of evidence of abuse of the victims by a different family member was proper in defendant’s trial for second-degree unlawful imprisonment and first degree sexual abuse because defendant not only failed to comply with the notice requirements of KRE 412, but made no attempt to offer evidence to establish that the accusations against the other family member were untrue; further, the facts as alleged, even if true, did not present a viable defense. Abuse by the other family member would not have exonerated defendant from his crimes because, while the evidence may have tended to prove there was an additional perpetrator, it did not tend to establish there was an alternative perpetrator. Adkins v. Commonwealth, 2009 Ky. App. LEXIS 67 (Ky. Ct. App. May 22, 2009, sub. op., 2009 Ky. App. Unpub. LEXIS 1086 (Ky. Ct. App. May 22, 2009), review denied, ordered not published, 2010 Ky. LEXIS 29 (Ky. Jan. 13, 2010).

2.Harassment.

Harassment is not a lesser offense necessarily included in the offense of unlawful imprisonment in the first or second degree. Although evidence of actual or threatened physical force or contact by the accused certainly can be relied on to prove an element of each offense, proof of these offenses does not always involve such evidence. More importantly, both offenses of unlawful imprisonment require proof of the additional fact of substantial interference with liberty of another whereas the offense of harassment requires proof of the additional fact of intent to harass, annoy or alarm another person. Hart v. Commonwealth, 768 S.W.2d 552, 1989 Ky. App. LEXIS 170 (Ky. Ct. App. 1989).

Actual or threatened physical contact made with the intent to harass so as to restrain another would constitute evidence that supports convictions for both harassment and unlawful imprisonment and, if the Commonwealth actually relies on and seeks to prove the defendant’s commission of the offense of harassment as the act, that accomplished the victim’s restraint, then it might be said that, under this unique set of facts, harassment is a lesser included offense of unlawful imprisonment. Hart v. Commonwealth, 768 S.W.2d 552, 1989 Ky. App. LEXIS 170 (Ky. Ct. App. 1989).

3.Instructions.

Where the defendant, who was convicted of kidnapping, maintained throughout the trial that his acts were motivated out of love and concern for his wife and her child and in an attempt to preserve the family relationship, and the evidence that the defendant unlawfully restrained his wife with the intent to terrorize her or to hold her as a hostage was not so overwhelming as to preclude a jury finding of guilt on the lesser included offense of unlawful imprisonment in the second degree, the jury was to be instructed on retrial on both kidnapping and unlawful imprisonment in the second degree. McClellan v. Commonwealth, 715 S.W.2d 464, 1986 Ky. LEXIS 274 ( Ky. 1986 ), cert. denied, 479 U.S. 1057, 107 S. Ct. 935, 93 L. Ed. 2d 986, 1987 U.S. LEXIS 379 (U.S. 1987).

4.Lesser Included Offenses.

Unlawful imprisonment in the second degree is a lesser included offense in the crime of kidnapping. Cannon v. Commonwealth, 777 S.W.2d 591, 1989 Ky. LEXIS 68 ( Ky. 1989 ).

Defendant was not entitled to a directed verdict of acquittal on a charge of first-degree unlawful imprisonment, under KRS 509.020(1), by asserting that there was insufficient evidence of a risk of serious physical injury to the victim because sufficient evidence showing he knowingly restrained the victim allowed a conviction for the lesser included crime of second-degree unlawful imprisonment, under KRS 509.030(1). Davidson v. Commonwealth, 2006 Ky. App. LEXIS 32 (Ky. Ct. App. Feb. 3, 2006).

5.Sentencing.
6.— Federal.

Federal Sentencing Guidelines were not intended to sentence the misdemeanor offense of second degree unlawful imprisonment under subsection (1) of this section as a level 24 crime under U.S.S.G. § 2A4.1. United States v. Epley, 52 F.3d 571, 1995 FED App. 0122P, 1995 U.S. App. LEXIS 9137 (6th Cir. Ky. 1995 ) sub. nom.United States v. Goodman, 1995 U.S. App. LEXIS 14760 (6th Cir. June 9, 1995).

Cited:

Zachery v. Commonwealth, 580 S.W.2d 220, 1979 Ky. LEXIS 245 ( Ky. 1979 ), overruled, Commonwealth v. Hinton, 678 S.W.2d 388, 1984 Ky. LEXIS 288 ( Ky. 1984 ), overruled in part, Commonwealth v. Hinton, 678 S.W.2d 388, 1984 Ky. LEXIS 288 ( Ky. 1984 ); Bills v. Commonwealth, 851 S.W.2d 466, 1993 Ky. LEXIS 60 ( Ky. 1993 ).

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Sellars, Criminal Law, 71 Ky. L.J. 355 (1982-83).

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Assaults and Restraints of Persons, Part 5 Kidnapping and Related Offenses, § 3.81.

509.040. Kidnapping.

  1. A person is guilty of kidnapping when he unlawfully restrains another person and when his intent is:
    1. To hold him for ransom or reward; or
    2. To accomplish or to advance the commission of a felony; or
    3. To inflict bodily injury or to terrorize the victim or another; or
    4. To interfere with the performance of a governmental or political function; or
    5. To use him as a shield or hostage; or
    6. To deprive the parents or guardian of the custody of a minor, when the person taking the minor is not a person exercising custodial control or supervision of the minor as the term “person exercising custodial control or supervision” is defined in KRS 600.020 .
  2. Kidnapping is a Class B felony when the victim is released alive and in a safe place prior to trial, except as provided in this section. Kidnapping is a Class A felony when the victim is released alive but the victim has suffered serious physical injury during the kidnapping, or as a result of not being released in a safe place, or as a result of being released in any circumstances which are intended, known or should have been known to cause or lead to serious physical injury. Kidnapping is a capital offense when the victim is not released alive or when the victim is released alive but subsequently dies as a result of:
    1. Serious physical injuries suffered during the kidnapping; or
    2. Not being released in a safe place; or
    3. Being released in any circumstances which are intended, known or should have been known to cause or lead to the victim’s death.

History. Enact. Acts 1974, ch. 406, § 76, effective January 1, 1975; 1980, ch. 48, § 1, effective July 15, 1980; 2002, ch. 120, § 1, effective July 15, 2002.

NOTES TO DECISIONS

Analysis

1.In General.

The offense of kidnapping was intended to apply to those restraints of a person’s liberty which involved a great risk of death or serious bodily injury. Bishop v. Commonwealth, 549 S.W.2d 519, 1977 Ky. App. LEXIS 667 (Ky. Ct. App. 1977).

It was reversible error for the trial court to give the instructions for punishment for a sentence of 20 years to life, under KRS 532.060(2)(c), where the defendant was charged with kidnapping since kidnapping was a Class B felony (subsection (2) of this section), and an attempt to commit a Class B felony is itself a Class C felony pursuant to KRS 506.010(4)(b). Bruce v. Commonwealth, 581 S.W.2d 8, 1979 Ky. LEXIS 253 ( Ky. 1979 ).

Where the proof relied upon to elevate the offense of kidnapping to capital kidnapping is proof that the victim was murdered, the offenses merge. Cosby v. Commonwealth, 776 S.W.2d 367, 1989 Ky. LEXIS 92 ( Ky. 1989 ), cert. denied, 493 U.S. 1063, 110 S. Ct. 880, 107 L. Ed. 2d 963, 1990 U.S. LEXIS 508 (U.S. 1990), overruled in part, St. Clair v. Roark, 10 S.W.3d 482, 1999 Ky. LEXIS 148 ( Ky. 1999 ).

Due to the lack of evidence of sexual conduct between a victim and an appellant convicted of kidnapping under Ky. Rev. Stat. Ann. § 509.040 , which triggered automatic sexual predator status, the trial court erred in denying appellant’s petition to be reclassified as a sexually-oriented offender in Ohio because the states’ statutory provisions were not similar enough to warrant sexual predator status imposition on appellant in Ohio for his Kentucky conviction under the former R.C. 2950.09(F)(2). Moffitt v. Telb, 2018-Ohio-1327, 2018 Ohio App. LEXIS 1451 (Ohio Ct. App., Lucas County 2018).

2.Accomplices.

Defendant’s admission that he was at scene of the abduction, in addition to competent circumstantial evidence placing him with the two codefendants on the night of the crime, was sufficient evidence on which the jury could convict him as an accomplice to a kidnapping. Kimbrough v. Commonwealth, 550 S.W.2d 525, 1977 Ky. LEXIS 436 ( Ky. 1977 ), overruled in part, Ray v. Commonwealth, 611 S.W.3d 250, 2020 Ky. LEXIS 403 ( Ky. 2020 ).

Conviction for complicity to kidnapping was supported by evidence that defendant and a codefendant took the victim, who was bound and gagged, away and left her on a bridge after codefendant stabbed her, causing her serious injury in the form a punctured lung and hospitalization. McCoy v. Commonwealth, 553 S.W.3d 816, 2018 Ky. LEXIS 281 ( Ky. 2018 ).

3.Double Jeopardy.

There are two prongs to the double jeopardy principle; a person cannot be twice convicted or twice punished for the same murder, and where the additional element that aggravates kidnapping to a capital offense is the murder, the defendant can be convicted and punished for both offenses, but not sentenced to death for kidnapping if he is sentenced to death for murder. Cosby v. Commonwealth, 776 S.W.2d 367, 1989 Ky. LEXIS 92 ( Ky. 1989 ), cert. denied, 493 U.S. 1063, 110 S. Ct. 880, 107 L. Ed. 2d 963, 1990 U.S. LEXIS 508 (U.S. 1990), overruled in part, St. Clair v. Roark, 10 S.W.3d 482, 1999 Ky. LEXIS 148 ( Ky. 1999 ).

Murder does not require proof that the victim had been restrained, and kidnapping does not require proof of death of the victim; therefore, the offenses do not merge and there is no double jeopardy violation at the guilt/innocence phase of the trial; however, at the sentencing stage murder and kidnapping could merge since it is at this point that proof of the kidnapping victim’s death is necessary to enhance kidnapping to capital kidnapping. Harris v. Commonwealth, 793 S.W.2d 802, 1990 Ky. LEXIS 25 ( Ky. 1990 ), cert. denied, 499 U.S. 924, 111 S. Ct. 1319, 113 L. Ed. 2d 252, 1991 U.S. LEXIS 1524 (U.S. 1991), overruled in part, St. Clair v. Commonwealth, 451 S.W.3d 597, 2014 Ky. LEXIS 341 ( Ky. 2014 ).

Double jeopardy principles forbid the imposition of separate counts of the death penalty for murder and kidnapping, “when the same act of murder” provides the justification, because kidnapping is only a capital offense under Kentucky law “when the victim is not released alive,” which “refers to the victim’s death being caused by some aspect of the kidnapping, not to a fortuitous and unrelated circumstance”; therefore “murder and kidnapping merge at the enhancement stage.” Taylor v. Commonwealth, 817 S.W.2d 891, 1990 Ky. LEXIS 81 ( Ky. 1990 ).

Where victim was abducted, driven to an isolated area, forced by co-defendant to lie face down on the grass while other defendant went to obtain gas and upon defendant’s return, victim was forced back into the automobile and raped, robbed and murdered, the double jeopardy theory did not apply. When the restraint has progressed beyond that which occurred immediately with and incidental to the commission of an offense, such as robbery or rape, the offender is guilty of kidnapping and the exemption statute (KRS 509.050 ) does not apply. Humphrey v. Commonwealth, 836 S.W.2d 865, 1992 Ky. LEXIS 87 ( Ky. 1992 ).

Defendant’s convictions for rape and kidnapping were not multiple prosecutions in violation of the prohibition against double jeopardy; the offense of kidnapping was complete when defendant restrained the victim against her will with the intent to commit a felony. Bedell v. Commonwealth, 870 S.W.2d 779, 1993 Ky. LEXIS 179 ( Ky. 1993 ).

Where defendant’s double jeopardy claim rested upon analysis of jury instructions and on her contention that conviction for reckless homicide constitutionally precluded kidnapping conviction, as when elements of one offense are used to elevate another offense the former may not be separately prosecuted, although reckless homicide used term “kidnapping,” instruction also required finding that the victim died: under a kidnapping instruction, crime could be completed without the death of the victim; as such, the criminal events could be regarded as a continuing course of conduct for which defendant could properly be held accountable for each criminal act committed. Baker v. Commonwealth, 922 S.W.2d 371, 1996 Ky. LEXIS 24 ( Ky. 1996 ), overruled in part, Dixon v. Commonwealth, 263 S.W.3d 583, 2008 Ky. LEXIS 138 ( Ky. 2008 ).

There is no double jeopardy violation in convicting a defendant of both the murder and the capital kidnapping of the same victim and imposing separate death sentences for each conviction. (overruling Cosby v. Commonwealth , 776 S.W.2d 367, 1989 Ky. LEXIS 92 ( Ky. 1989 ), and Taylor v. Commonwealth , 817 S.W.2d 891, 1990 Ky. LEXIS 81 ( Ky. 1990 )).St. Clair v. Roark, 10 S.W.3d 482, 1999 Ky. LEXIS 148 ( Ky. 1999 ) sub. nom.St. Clair v. Commonwealth, 174 S.W.3d 474, 2005 Ky. LEXIS 334 ( Ky. 2005 ).

4.Elements.

The “felony” referred to in this section is one requiring “intentional” or “knowing” states of mental culpability as those terms are defined in KRS 501.020 . Thomas v. Commonwealth, 567 S.W.2d 299, 1978 Ky. LEXIS 367 ( Ky. 1978 ), overruled in part, Ray v. Commonwealth, 611 S.W.3d 250, 2020 Ky. LEXIS 403 ( Ky. 2020 ).

Unlawful imprisonment is the basic and lesser offense and kidnapping is an aggravated form of unlawful imprisonment where detention of a victim is shown. Thomas v. Commonwealth, 567 S.W.2d 299, 1978 Ky. LEXIS 367 ( Ky. 1978 ), overruled in part, Ray v. Commonwealth, 611 S.W.3d 250, 2020 Ky. LEXIS 403 ( Ky. 2020 ).

Whether victim was released alive was not element of substantive offense of kidnapping, such determination is only used for purposes of determining range of punishments which may be imposed; and where jury’s deliberation as to whether victim was released alive could not have begun until defendant was found guilty of kidnapping, defendant’s subsequent conviction for reckless homicide was not barred by double jeopardy, regardless of any overlap between jury instructions on kidnapping and reckless homicide. Baker v. Commonwealth, 922 S.W.2d 371, 1996 Ky. LEXIS 24 ( Ky. 1996 ), overruled in part, Dixon v. Commonwealth, 263 S.W.3d 583, 2008 Ky. LEXIS 138 ( Ky. 2008 ).

5.Evidence.

Evidence held sufficient to find defendant, who along with other inmates had fled jail and spent the night in a nearby church, guilty of the kidnapping of the church pianist in order to further the commission of the theft of her car and the escape. Damron v. Commonwealth, 687 S.W.2d 138, 1985 Ky. LEXIS 251 ( Ky. 1985 ).

Where the victim testified that the defendant dragged her down the stairs, that she did not want to go with him, that she did so only because she was frightened, and that subsequently he pointed a gun at her and held her as a hostage when he was besieged by the police, the evidence was sufficient to permit a jury to find beyond a reasonable doubt that the defendant intended at the time of the abduction both to terrorize the victim and to hold her as a hostage. McClellan v. Commonwealth, 715 S.W.2d 464, 1986 Ky. LEXIS 274 ( Ky. 1986 ), cert. denied, 479 U.S. 1057, 107 S. Ct. 935, 93 L. Ed. 2d 986, 1987 U.S. LEXIS 379 (U.S. 1987).

Where, in prosecution for kidnapping, rape and forcible sodomy, the defendant, a black man, claimed that he and the victim, a white woman, had engaged in consensual sexual relations and that the victim lied to protect her relationship with her live-in lover, another black man, the Court of Appeals, in excluding all evidence of their living arrangement, violated the defendant’s Sixth Amendment right to be confronted with witnesses against him, as a reasonable jury might have received a significantly different impression of the victim’s credibility if the cross-examination had been permitted, speculation as to the effect of jurors’ racial bias could not justify the exclusion of cross-examination with such strong potential to impeach the victim’s testimony that she lived with her mother, the victim’s testimony was crucial to the prosecution’s case, and the prosecution’s case was far from overwhelming. Olden v. Kentucky, 488 U.S. 227, 109 S. Ct. 480, 102 L. Ed. 2d 513, 1988 U.S. LEXIS 5621 (U.S. 1988).

Although a murder victim was last seen voluntarily entering the truck of the defendant, evidence that her body, wrapped in a blanket and unclothed from the waist down, was found with a duct tape gag and a coaxial cable from the defendant’s truck wrapped around her neck and wrist was sufficient evidence for a jury reasonably to find that the defendant unlawfully restrained the victim; this evidence also supported the finding that the defendant intended to commit a felony, inflict bodily injury, or to terrorize the victim. Meredith v. Commonwealth, 959 S.W.2d 87, 1997 Ky. LEXIS 159 ( Ky. 1997 ).

Although the child’s abductor was masked, the evidence was sufficient to prove defendant was the kidnapper, since the child identified the clothes and boots he was wearing, police dogs tracked his path at the crime scene from the scent on his clothes, 45 minutes after the abduction he tried to steal a woman’s car; and he had no alibi for the period of time when the kidnapping occurred. Debruler v. Commonwealth, 231 S.W.3d 752, 2007 Ky. LEXIS 175 ( Ky. 2007 ).

Defendant was not entitled to a directed verdict as to complicity to kidnapping because a reasonable jury could find defendant inflicted a stab wound causing the victim to suffer a potentially fatal punctured lung. Brown v. Commonwealth, 553 S.W.3d 826, 2018 Ky. LEXIS 283 ( Ky. 2018 ).

6.Exemption.

In order to determine whether the kidnapping exemption of KRS 509.050 is applicable, a three-pronged test must be applied; first, it must be determined whether the defendant’s criminal purpose was the commission of a criminal offense defined outside this chapter; second, it must be determined whether the interference with complainant’s liberty occurred immediately with and incidental to the commission of the offense of sodomy; and third, it is necessary to determine whether the interference with complainant’s liberty exceeded that which is ordinarily incident to the commission of the act of sodomy. Griffin v. Commonwealth, 576 S.W.2d 514, 1978 Ky. LEXIS 457 ( Ky. 1978 ).

Where defendant and two others seized the complainant at 2 a.m. and took him to a house half a block away, where defendant forced complainant to strip at gunpoint, and sodomized him for 90 minutes, there was a greater interference with complainant’s liberty than is ordinarily incident to sodomy and the kidnap exemption, provided for by KRS 509.050 , was inapplicable. Griffin v. Commonwealth, 576 S.W.2d 514, 1978 Ky. LEXIS 457 ( Ky. 1978 ).

The three elements of the exemption statute (KRS 509.050 ) are joined with the conjunctive “and,” therefore if any one of these three factors is not mandated by the evidence, then the defendant is not entitled to the benefit of the exemption statute. Griffin v. Commonwealth, 576 S.W.2d 514, 1978 Ky. LEXIS 457 ( Ky. 1978 ).

Because the restraint of the victim was committed incidental to and contemporaneously with the attempt to take her life, the victim was not restrained to achieve any separate objective, and the record indicated no evidence that the movement was for any purpose other than to continue the attempt to take the victim’s life, the kidnapping conviction was improper under KRS 509.050 . Hatfield v. Commonwealth, 250 S.W.3d 590, 2008 Ky. LEXIS 12 ( Ky. 2008 ).

Where defendant believed that his girlfriend was cheating on him and went to her home with an accomplice, where defendant attacked his girlfriend when she returned home over the course of several hours, eventually killing her, and where defendant was charged with and convicted of murder and kidnapping, the kidnapping exemption under KRS 509.050 did not apply because, while evidence of defendant’s violent attack upon the victim would support the conclusion that he acted with a criminal purpose of intentionally murdering her, other evidence indicated that defendant did not intend to kill the victim. Specifically, defendant told the victim as he tormented her that he was going to take her with him, and he had cleaned out the back seat of his car so that he could transport the victim from her home; from such evidence, one could reasonably conclude that defendant intended to detain the victim as he inflicted bodily injury and terrorized her, which constituted the crime of kidnapping under KRS 509.040(1)(c); thus, there was evidence that met the elements of body murder and kidnapping, and the kidnapping exemption thus did not apply. Stinnett v. Commonwealth, 364 S.W.3d 70, 2011 Ky. LEXIS 165 ( Ky. 2011 ).

When murder involves restraint, then the degree of restraint becomes critical because the question of whether the restraint merges with the murder or stands alone is the difference between murder and capital kidnapping. Murder has been read to be a statutory aggravating factor for giving the death penalty for kidnapping. Thus, when a kidnapping charge can stand with a murder charge, it can become capital kidnapping, and the stakes are obviously much higher than with a charge of murder alone. Stinnett v. Commonwealth, 364 S.W.3d 70, 2011 Ky. LEXIS 165 ( Ky. 2011 ).

Kidnapping exemption under KRS 509.050 did not apply where defendant attacked his girlfriend over the course of several hours and ultimately killed her girlfriend because the degree of restraint exhibited by defendant exceeded that which was necessary to commit the murder. Stinnett v. Commonwealth, 364 S.W.3d 70, 2011 Ky. LEXIS 165 ( Ky. 2011 ).

7.Indictment.

Where the indictment against the defendant for aiding and abetting was dismissed, under the doctrine of collateral estoppel the Commonwealth was precluded from prosecuting the defendant for common-law conspiracy or for statutory banding and confederating in connection with the abduction. (Decided under prior law) Arnett v. Meade, 462 S.W.2d 940, 1971 Ky. LEXIS 569 ( Ky. 1971 ).

A conviction for kidnapping was supported by indictment and statutes although prosecution supplied necessary language to charge a capital offense. Wood v. Commonwealth, 567 S.W.2d 121, 1978 Ky. LEXIS 366 ( Ky. 1978 ).

8.Instructions.

In prosecution for crime of holding a hostage, a prison guard, where defendant claimed that the warden was disturbed by newspaper stories relating to prison abuse and he promised to assist defendant in securing a parole if defendant would hold a guard as hostage and demand an audience with newspaper reporters where he would praise the prison administration and state that such hostage was taken, to dramatize the inmates’ protest against the unfair newspaper stories, trial court did not err in refusing to give instructions on entrapment and coercion since there was nothing in the evidence to show the object of the scheme was to bring about defendant’s prosecution and defendant’s own testimony showed he agreed to commit a crime for a promised reward and defendant did not argue that the warden devised the scheme for the purpose of instituting prosecution against him. (Decided under prior law) Delaney v. Commonwealth, 520 S.W.2d 747, 1975 Ky. LEXIS 172 ( Ky. 1975 ).

Where the instruction on kidnapping given by the trial court permitted a guilty verdict if the jury believed that the intentional objective of defendant was to accomplish or advance the commission of “a felony,” but the felony was unnamed or the conduct constituting it was undescribed and the term “felony” was undefined, the instruction was prejudicially erroneous. Thomas v. Commonwealth, 567 S.W.2d 299, 1978 Ky. LEXIS 367 ( Ky. 1978 ), overruled in part, Ray v. Commonwealth, 611 S.W.3d 250, 2020 Ky. LEXIS 403 ( Ky. 2020 ).

In action in which defendant was convicted of sodomy and kidnapping where complainant was sore in his anus, and his private parts, his hair had been pulled, he had been hit with fists, and his arms were scratched, and he had escaped rather than having been released, jury instructions authorizing the death penalty would have been justified; accordingly the defendant would not be heard to complain when he received more favorable instructions carrying only a penalty of 20 years. Griffin v. Commonwealth, 576 S.W.2d 514, 1978 Ky. LEXIS 457 ( Ky. 1978 ).

Where the defendant, who was convicted of kidnapping, maintained throughout the trial that his acts were motivated out of love and concern for his wife and her child and in an attempt to preserve the family relationship, and the evidence that the defendant unlawfully restrained his wife with the intent to terrorize her or to hold her as a hostage was not so overwhelming as to preclude a jury finding of guilt on the lesser included offense of unlawful imprisonment in the second degree, the jury was to be instructed on retrial on both kidnapping and unlawful imprisonment in the second degree. McClellan v. Commonwealth, 715 S.W.2d 464, 1986 Ky. LEXIS 274 ( Ky. 1986 ), cert. denied, 479 U.S. 1057, 107 S. Ct. 935, 93 L. Ed. 2d 986, 1987 U.S. LEXIS 379 (U.S. 1987).

Where, in prosecution for murder, first-degree rape, first-degree sodomy, and first-degree kidnapping, the defendant’s theory was that the kidnapping, and in particular the sex offenses, were committed after the victim was already dead, if upon remand there was any substantial evidence to support this theory, the defendant would be entitled, upon request, to instructions accordingly; rather than the jury being left with no alternative except to convict or acquit of the principal charges. Sanborn v. Commonwealth, 754 S.W.2d 534, 1988 Ky. LEXIS 35 ( Ky. 1988 ).

Jury was properly instructed on kidnapping with serious physical injury when the injury was inflicted before the kidnapping because it was not unreasonable for a jury to believe defendant, by inflicting injury before manifesting an intent to confine, wanted the victim to believe the victim could not escape, thus intimidating the victim into staying put, and the totality of the action restricted the victim’s movement in such a manner as to cause a substantial interference with the victim’s liberty by confining the victim in the place where the restriction commenced by physical force and intimidation such that the infliction of serious physical injury was a first step in the kidnapping. Malone v. Commonwealth, 556 S.W.3d 556, 2018 Ky. LEXIS 358 ( Ky. 2018 ).

9.Lesser Offenses.

In a prosecution for holding a hostage, defendant was not entitled to an instruction upon lesser-included offense of conspiracy because once a crime had been committed, any pre-existing conspiracy to commit the crime was merged into it and was not a lesser included degree of the crime itself. (Decided under prior law) Delaney v. Commonwealth, 520 S.W.2d 747, 1975 Ky. LEXIS 172 ( Ky. 1975 ).

Unlawful imprisonment in the second degree is a lesser included offense in the crime of kidnapping. Cannon v. Commonwealth, 777 S.W.2d 591, 1989 Ky. LEXIS 68 ( Ky. 1989 ).

10.Sentencing.

The defendant was death eligible for kidnapping under Kentucky law, only because he was found guilty of murdering the victims. Taylor v. Commonwealth, 821 S.W.2d 72, 1990 Ky. LEXIS 159 ( Ky. 1990 ), cert. denied, 502 U.S. 1121, 112 S. Ct. 1243, 117 L. Ed. 2d 475, 1992 U.S. LEXIS 1196 (U.S. 1992), cert. denied, 502 U.S. 1100, 112 S. Ct. 1185, 117 L. Ed. 2d 428, 1992 U.S. LEXIS 966 (U.S. 1992), overruled in part, St. Clair v. Roark, 10 S.W.3d 482, 1999 Ky. LEXIS 148 ( Ky. 1999 ).

The imposition of a death sentence for kidnapping and a death sentence for murder was improper pursuant to the existing law of Kentucky which states that murder and kidnapping merge at the enhancement stage. A defendant can be convicted and punished for both offenses, but not sentenced to death for kidnapping if he is also sentenced to death for murder. Wilson v. Commonwealth, 836 S.W.2d 872, 1992 Ky. LEXIS 84 ( Ky. 1992 ), cert. denied, 507 U.S. 1034, 113 S. Ct. 1857, 123 L. Ed. 2d 479, 1993 U.S. LEXIS 2856 (U.S. 1993), overruled in part, St. Clair v. Roark, 10 S.W.3d 482, 1999 Ky. LEXIS 148 ( Ky. 1999 ).

Status circumstances, such as the death of the victim, which in this case occurred in another state, do not create or define a criminal offense and defendant was properly charged with kidnapping under this section; that charge being raised to capital kidnapping due to the victim’s death. Brown v. Commonwealth, 890 S.W.2d 286, 1994 Ky. LEXIS 145 ( Ky. 1994 ).

Defendant’s conduct, in placing a .22 revolver against the base of the victim’s skull and killing that person, clearly precluded release of that kidnapping victim while still alive and the language of this section provided an adequate definition of the prohibited conduct to an ordinary person, such as the defendant, and was sufficient to discourage arbitrary and discriminatory enforcement. Brown v. Commonwealth, 890 S.W.2d 286, 1994 Ky. LEXIS 145 ( Ky. 1994 ).

Multiple death penalties have been handed down in a number of cases where a defendant was convicted of crimes against multiple victims, and there is no basis for a different result where multiple crimes, such as kidnapping and murder, are committed against the same victim. St. Clair v. Roark, 10 S.W.3d 482, 1999 Ky. LEXIS 148 ( Ky. 1999 ) sub. nom.St. Clair v. Commonwealth, 174 S.W.3d 474, 2005 Ky. LEXIS 334 ( Ky. 2005 ).

Because there was sufficient evidence for the jury to find the aggravating circumstance of murder committed during the course of a kidnapping, despite the fact that the penalty instruction did not require such finding, the Commonwealth was entitled to seek the full range of penalties under KRS 509.040(2), including death, on retrial without violating defendant’s double jeopardy rights; consequently, defendant was not entitled to a writ of prohibition. Salinas v. Payne, 169 S.W.3d 536, 2005 Ky. LEXIS 193 ( Ky. 2005 ), overruled in part, Brown v. Commonwealth, 313 S.W.3d 577, 2010 Ky. LEXIS 148 ( Ky. 2010 ).

Circuit court improperly imposed a five-year conditional discharge period and accompanying conditions following the expiration of defendant’s sentence as well as other restrictions relative to his duty to register in the sex offender registration database after he pled guilty to kidnapping because conditional discharge was not authorized by KRS 532.043 . Ladriere v. Commonwealth, 329 S.W.3d 278, 2010 Ky. LEXIS 259 ( Ky. 2010 ).

Circuit court did not err in imposing statutory residency restrictions on defendant upon his conviction for kidnapping as kidnapping was explicitly included in KRS 17.500(3)(a)(1) in the definition of a “criminal offense against a victim who is a minor,” if the victim was under the age of eighteen, and defendant was clearly a “registrant” subject to lifetime registration pursuant to KRS 17.520(2)(a)(1) and 17.545 . Ladriere v. Commonwealth, 329 S.W.3d 278, 2010 Ky. LEXIS 259 ( Ky. 2010 ).

Circuit court did not err in imposing statutory residency restrictions on defendant upon his conviction for kidnapping as kidnapping was explicitly included in KRS 17.500(3)(a)(1) in the definition of a “criminal offense against a victim who is a minor,” if the victim was under the age of eighteen, and defendant was clearly a “registrant” subject to lifetime registration pursuant to KRS 17.520(2)(a)(1) and 17.545 . Ladriere v. Commonwealth, 329 S.W.3d 278, 2010 Ky. LEXIS 259 ( Ky. 2010 ).

Kentucky Sex Offender Registration Act (KSORA), KRS 17.500 (2000), applies to any person who is required to register by its terms and requires registration by anyone being released by the court, the parole board, the cabinet, or any detention facility who was 18 years or older at the time of the offense if the offense was a sex crime or was an enumerated offense against a minor. A criminal offense against a minor is defined to include kidnapping in violation of KRS 509.040 ; the 2000 amendments require lifetime registration for any person convicted of kidnapping in violation of KRS 509.040 , if the victim was under the age of 18 at the time of the offense. Cox v. Kentucky, 2010 U.S. Dist. LEXIS 104516 (W.D. Ky. Sept. 29, 2010).

No violations of federal procedural or substantive due process rights occurred when a person convicted of kidnapping a minor under KRS 509.040 was placed on the sex offender registry pursuant to KRS 17.510(6), 17.520(2)(a), 17.500(3)(a). His registration rationally furthered the state’s interest in protecting children, the registry did not state that he had committed a sex crime, and his vagueness challenge lacked merit. Moffitt v. Commonwealth, 360 S.W.3d 247, 2012 Ky. App. LEXIS 25 (Ky. Ct. App. 2012).

Cited:

Calloway v. Commonwealth, 550 S.W.2d 501, 1977 Ky. LEXIS 427 ( Ky. 1977 ); Timmons v. Commonwealth, 555 S.W.2d 234, 1977 Ky. LEXIS 496 ( Ky. 1977 ); Zachery v. Commonwealth, 580 S.W.2d 220, 1979 Ky. LEXIS 245 ( Ky. 1979 ); Caise v. Commonwealth, 610 S.W.2d 605, 1980 Ky. LEXIS 285 ( Ky. 1980 ); Moore v. Commonwealth, 634 S.W.2d 426, 1982 Ky. LEXIS 264 ( Ky. 1982 ); Gilbert v. Commonwealth, 637 S.W.2d 632, 1982 Ky. LEXIS 282 ( Ky. 1982 ); Hopewell v. Commonwealth, 641 S.W.2d 744, 1982 Ky. LEXIS 312 (Ky. 1982); Bills v. Commonwealth, 851 S.W.2d 466, 1993 Ky. LEXIS 60 ( Ky. 1993 ); United States v. Epley, 52 F.3d 571, 1995 U.S. App. LEXIS 9137 (6th Cir. 1995).

Notes to Unpublished Decisions

1.Sufficiency of indictment.

Unpublished decision: Appellate court rejected defendant’s contention that the indictment against him was insufficient to charge him with capital kidnapping, because even if the language of the indictment that referred to the charge of kidnapping as “a capital offense punishable by imprisonment for not less than 20 years in the penitentiary up to and including death” was deemed insufficient to have informed him of the nature of the charged offense, defendant certainly received sufficient notice from the caption of the indictment, which read: “Count I: Kidnapping, KRS 509.040 , Capital Offense (Not less than 20 years) (Victim Not Released Alive).” The appellate court held that the language of the indictment, coupled with the applicable statute, unmistakably accomplished the necessity of apprising defendant with reasonable certainty of the offense charged. Ernst v. Commonwealth, 160 S.W.3d 744, 2005 Ky. LEXIS 137 ( Ky. 2005 ).

Research References and Practice Aids

Cross-References.

Venue of action, kidnapping and unlawful seizing or confinement, KRS 452.600 .

Kentucky Law Journal.

West, Criminal Law, 74 Ky. L.J. 403 (1985-86).

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Assaults and Restraints of Persons, Part 5 Kidnapping and Related Offenses, §§ 3.76 — 3.78A, 3.79E, 3.81.

Kentucky Instructions to Juries (Criminal), 5th Ed., Penalty Phase Instructions, Part 2 Capital Offenses, § 12.06.

509.050. Exemption.

A person may not be convicted of unlawful imprisonment in the first degree, unlawful imprisonment in the second degree, or kidnapping when his criminal purpose is the commission of an offense defined outside this chapter and his interference with the victim’s liberty occurs immediately with and incidental to the commission of that offense, unless the interference exceeds that which is ordinarily incident to commission of the offense which is the objective of his criminal purpose. The exemption provided by this section is not applicable to a charge of kidnapping that arises from an interference with another’s liberty that occurs incidental to the commission of a criminal escape.

History. Enact. Acts 1974, ch. 406, § 77, effective January 1, 1975.

NOTES TO DECISIONS

1.Purpose.

The purpose of this section is to prevent a prosecutor from misusing the kidnapping statute to secure greater punitive sanctions for rape, robbery and other offenses than are otherwise available. Calloway v. Commonwealth, 550 S.W.2d 501, 1977 Ky. LEXIS 427 ( Ky. 1977 ); Moore v. Commonwealth, 634 S.W.2d 426, 1982 Ky. LEXIS 264 ( Ky. 1982 ).

The purpose of this section is to prevent misuse of the kidnapping statute to secure greater punitive sanctions for rape, robbery and other offenses which have as an essential or incidental element a restriction of another’s liberty. Gilbert v. Commonwealth, 637 S.W.2d 632, 1982 Ky. LEXIS 282 ( Ky. 1982 ), cert. denied, 459 U.S. 1149, 103 S. Ct. 794, 74 L. Ed. 2d 998, 1983 U.S. LEXIS 3135 (U.S. 1983).

2.Construction.

This section will be construed strictly and restrictively unless and until amended to the contrary. Timmons v. Commonwealth, 555 S.W.2d 234, 1977 Ky. LEXIS 496 ( Ky. 1977 ).

The three elements of the exemption statute are joined with the conjunctive “and,” therefore if any one of these three factors is not mandated by the evidence, then the defendant is not entitled to the benefit of the exemption statute. Griffin v. Commonwealth, 576 S.W.2d 514, 1978 Ky. LEXIS 457 ( Ky. 1978 ).

All three requirements listed in this section must be met. Moore v. Commonwealth, 634 S.W.2d 426, 1982 Ky. LEXIS 264 ( Ky. 1982 ).

Once the restraint goes beyond the “immediate and incidental restraint,” it is kidnapping or unlawful imprisonment, and in this additional step that authorizes a kidnapping conviction there is no room to insert the offense of attempted kidnapping. There is no situation where there could be a charge of attempted kidnapping or unlawful imprisonment where this section is involved. Gilbert v. Commonwealth, 637 S.W.2d 632, 1982 Ky. LEXIS 282 ( Ky. 1982 ), cert. denied, 459 U.S. 1149, 103 S. Ct. 794, 74 L. Ed. 2d 998, 1983 U.S. LEXIS 3135 (U.S. 1983).

In prosecution for robbery, kidnapping and rape since Kentucky Supreme Court’s construction of this section — that it did not preclude a conviction for kidnapping — was purely a question of state law, the Supreme Court’s decision was binding on the federal court where defendant sought habeas corpus relief. Gilbert v. Parke, 763 F.2d 821, 1985 U.S. App. LEXIS 19772 (6th Cir. Ky. 1985 ).

3.Applicability.

The application of this exemption statute is to be determined by the trial court and not by a jury in the absence of standards by which a jury could make such a determination. Calloway v. Commonwealth, 550 S.W.2d 501, 1977 Ky. LEXIS 427 ( Ky. 1977 ).

Since this section is applicable only to the charge of kidnapping or degrees of unlawful imprisonment made in conjunction with other charged offenses committed in Kentucky, it is the duty of the trial court to determine whether such charge constitutes an abuse of the kidnapping and unlawful imprisonment statutes according to the circumstances presented in each case. Calloway v. Commonwealth, 550 S.W.2d 501, 1977 Ky. LEXIS 427 ( Ky. 1977 ).

Where a defendant abducted a child and drove to a wooded area where he sexually molested and killed the child, this section was not applicable and a conviction for first-degree unlawful imprisonment was not improper. Timmons v. Commonwealth, 555 S.W.2d 234, 1977 Ky. LEXIS 496 ( Ky. 1977 ).

In order to determine whether the kidnapping exemption is applicable, a three-pronged test must be applied: first, it must be determined whether the defendant’s criminal purpose was the commission of a criminal offense defined outside this chapter; second, it must be determined whether the interference with complainant’s liberty occurred immediately with and incidental to the commission of the offense of sodomy; and third, it is necessary to determine whether for interference with complainant’s liberty exceeded that which is ordinarily incident to the commission of the act of sodomy. Griffin v. Commonwealth, 576 S.W.2d 514, 1978 Ky. LEXIS 457 ( Ky. 1978 ).

This section sets up a “three hoop” test which must be met before exemption from conviction will apply; first, it must be determined whether the defendant’s criminal purpose was the commission of a criminal offense defined outside this chapter, second, it must be determined whether the interference with liberty occurred with and was incidental to the commission of that offense, and finally, it must be determined whether such interference was of the type normally incidental to the commission of that offense. Smith v. Commonwealth, 610 S.W.2d 602, 1980 Ky. LEXIS 284 ( Ky. 1980 ).

Where victim was abducted, driven to an isolated area, forced by co-defendant to lie face down on the grass while other defendant went to obtain gas and upon defendant’s return, victim was forced back into the automobile and raped, robbed and murdered, the double jeopardy theory did not apply. When the restraint has progressed beyond that which occurred immediately with and incidental to the commission of an offense, such as robbery or rape, the offender is guilty of kidnapping and this section does not apply. Humphrey v. Commonwealth, 836 S.W.2d 865, 1992 Ky. LEXIS 87 ( Ky. 1992 ); Wilson v. Commonwealth, 836 S.W.2d 872, 1992 Ky. LEXIS 84 ( Ky. 1992 ), cert. denied, 507 U.S. 1034, 113 S. Ct. 1857, 123 L. Ed. 2d 479, 1993 U.S. LEXIS 2856 (U.S. 1993), overruled in part, St. Clair v. Roark, 10 S.W.3d 482, 1999 Ky. LEXIS 148 ( Ky. 1999 ).

The defendants were not entitled to the benefit of the kidnapping exemption statute, notwithstanding the assertion that the restraint of the victim was incidental to the commission of burglary, since the duration of the victim’s restraint exceeded the scope of time necessary for the defendants to commit the burglary and where (1) the defendants entered the victim’s home between 11:00 p.m. and midnight on the night in question, and proceeded to bind her wrists and ankles as well as cover her eyes and mouth with tape, and (2) the victim was not released until approximately 10:30 a.m. the next morning when she was discovered by a neighbor. Murphy v. Commonwealth, 50 S.W.3d 173, 2001 Ky. LEXIS 81 ( Ky. 2001 ).

It was not error to overrule defendant’s motion for a directed verdict on a charge of unlawful imprisonment under KRS 509.020 because the kidnapping exemption statute, KRS 509.050 , did not preclude his conviction on the charge. There was sufficient evidence on which the jury could have convicted him of the charge, which was based on his hammer attack on a woman in a parking lot and his attempt to drag her away from her car, because duct tape and bungee cords were found in his nearby vehicle, indicating his intention to hold her against her will, and he only dropped the woman and ran away when the woman managed to grab or knock the hammer away from him. Arnold v. Commonwealth, 192 S.W.3d 420, 2006 Ky. LEXIS 141 ( Ky. 2006 ).

Where defendant believed that his girlfriend was cheating on him and went to her home with an accomplice, where defendant attacked his girlfriend when she returned home over the course of several hours, eventually killing her, and where defendant was charged with and convicted of murder and kidnapping, the kidnapping exemption under KRS 509.050 did not apply because, while evidence of defendant’s violent attack upon the victim would support the conclusion that he acted with a criminal purpose of intentionally murdering her, other evidence indicated that defendant did not intend to kill the victim. Specifically, defendant told the victim as he tormented her that he was going to take her with him, and he had cleaned out the back seat of his car so that he could transport the victim from her home; from such evidence, one could reasonably conclude that defendant intended to detain the victim as he inflicted bodily injury and terrorized her, which constituted the crime of kidnapping under KRS 509.040(1)(c); thus, there was evidence that met the elements of body murder and kidnapping, and the kidnapping exemption thus did not apply. Stinnett v. Commonwealth, 364 S.W.3d 70, 2011 Ky. LEXIS 165 ( Ky. 2011 ).

When murder involves restraint, then the degree of restraint becomes critical because the question of whether the restraint merges with the murder or stands alone is the difference between murder and capital kidnapping. Murder has been read to be a statutory aggravating factor for giving the death penalty for kidnapping. Thus, when a kidnapping charge can stand with a murder charge, it can become capital kidnapping, and the stakes are obviously much higher than with a charge of murder alone. Stinnett v. Commonwealth, 364 S.W.3d 70, 2011 Ky. LEXIS 165 ( Ky. 2011 ).

Kidnapping exemption under KRS 509.050 did not apply where defendant attacked his girlfriend over the course of several hours and ultimately killed her because the degree of restraint exhibited by defendant exceeded that which was necessary to commit the murder. Stinnett v. Commonwealth, 364 S.W.3d 70, 2011 Ky. LEXIS 165 ( Ky. 2011 ).

4.Time and Distance Limitations.

If the victim of a crime is restrained of his liberty in order to facilitate its commission, the restraint must be close in distance and brief in time for the exemption to apply and, accordingly, if the victim is restrained and transported any substantial distance to or from the site of the crime, the offender will be guilty of an unlawful imprisonment offense. Timmons v. Commonwealth, 555 S.W.2d 234, 1977 Ky. LEXIS 496 ( Ky. 1977 ).

5.Extraordinary Interference with Liberty.

Where, during commission of a robbery of a store, one store employee was taken at gunpoint an appreciable distance from his lighted place of employment to the darkness of a wooded field behind the store, he was exposed to a much greater risk of death or serious bodily injury, and the interference with his liberty, far in excess of that which ordinarily accompanies a robbery, justified a conviction for kidnapping. Bishop v. Commonwealth, 549 S.W.2d 519, 1977 Ky. App. LEXIS 667 (Ky. Ct. App. 1977).

Where defendant and two others seized the complainant at 2 a.m. and took him to a house half a block away, where defendant forced complainant to strip at gunpoint, and sodomized him for 90 minutes, there was a greater interference with complainant’s liberty than is ordinarily incident to sodomy and the kidnap exemption, provided for by this section, was inapplicable. Griffin v. Commonwealth, 576 S.W.2d 514, 1978 Ky. LEXIS 457 ( Ky. 1978 ).

Court did not err by failing to direct acquittal on kidnapping charge where defendant intended to rob victim, and only after victim pulled mask from defendant’s face was he kidnapped; such kidnapping and subsequent murder were intended to prevent an identification of defendant, since the kidnapping was not “incidental” to the robbery, and the murder of the victim clearly exceeded the deprivation of liberty ordinarily incident to robbery. Moore v. Commonwealth, 634 S.W.2d 426, 1982 Ky. LEXIS 264 ( Ky. 1982 ).

Where murder victim, per defendant’s offer of help, voluntarily placed himself inside defendant’s car en route to a service station, where, after purchasing gasoline, the victim voluntarily returned to the car, where in the course of the return trip, defendant diverted his course and pulled a gun on the victim, and where the victim was then robbed of his money, forced to remove his clothing and ordered into a ditch along the highway where he was murdered, the kidnap exemption provisions of this section did not apply since the interference with the victim’s liberty exceeded that which is ordinarily incident to the commission of the underlying robbery; to accomplish the crime of robbery it was not necessary for defendant to divert his course of travel and force the victim into a ditch and take his life. Stanford v. Commonwealth, 793 S.W.2d 112, 1990 Ky. LEXIS 55 ( Ky. 1990 ).

Where the defendant stopped the victim’s car, approached her with a loaded, cocked pistol, pointed the pistol at her head, and then pulled the trigger when the victim lunged out of the car, the murder of the victim clearly exceeded the deprivation of liberty ordinarily incident to the harassment defendant claimed to have intended. Harris v. Commonwealth, 793 S.W.2d 802, 1990 Ky. LEXIS 25 ( Ky. 1990 ), cert. denied, 499 U.S. 924, 111 S. Ct. 1319, 113 L. Ed. 2d 252, 1991 U.S. LEXIS 1524 (U.S. 1991), overruled in part, St. Clair v. Commonwealth, 451 S.W.3d 597, 2014 Ky. LEXIS 341 ( Ky. 2014 ).

Argument of defendant convicted of robbery and kidnapping that confinement of victims, who were driven at gunpoint and eventually placed in a locked trunk under threat of violence for over one-half hour, arose during the course of robbery and should invoke the exemption statute as being necessarily incident to the intended crime, was utterly without merit under facts presented. Brown v. Commonwealth, 892 S.W.2d 289, 1995 Ky. LEXIS 29 ( Ky. 1995 ).

Where defendant claimed that his kidnapping and transporting of the victim was necessary in order to commit rape and sodomy and that he was entitled to dismissal of the kidnapping charge under this section which exempts a person from being convicted of kidnapping when the criminal purpose of such a kidnapping is for the commission of an offense outside this chapter, his motion for directed verdict was denied as his interference with the victim’s liberty exceeded that which would ordinarily be incidental to the commission of rape and sodomy upon her. Simpson v. Commonwealth, 889 S.W.2d 781, 1994 Ky. LEXIS 139 ( Ky. 1994 ).

Where victim was grabbed while jogging, carried to a nearby yard, and was raped and sodomized by defendant before she was able to run to safety, the court determined that the interference with the victim’s liberty exceeded that which is ordinarily incident to the commission of the underlying criminal purpose of rape and sodomy; thus, this exemption statute does not apply. Mitchell v. Commonwealth, 908 S.W.2d 100, 1995 Ky. LEXIS 94 ( Ky. 1995 ), overruled, Fugate v. Commonwealth, 993 S.W.2d 931, 1999 Ky. LEXIS 72 ( Ky. 1999 ).

6.Exemption Warranted.

Conviction of defendant for kidnapping, in addition to his convictions for rape and sodomy, was in error where defendant’s underlying criminal purpose was the commission of rape and sodomy and his interference with the victim’s liberty occurred immediately with an incidental to the commission of those offenses. Spencer v. Commonwealth, 554 S.W.2d 355, 1977 Ky. LEXIS 487 ( Ky. 1977 ).

Defendant convicted of second-degree assault with dangerous instrument for penetrating wife’s vagina and rectum with carrot was entitled to exemption from conviction for false imprisonment under this section where his actions in tying her hands, forcing her into another room and otherwise restricting her movements during the assault were incidental to the assaults and did not exceed the force necessary to accomplish the acts. Smith v. Commonwealth, 610 S.W.2d 602, 1980 Ky. LEXIS 284 ( Ky. 1980 ).

Where child was tied up while his mother and brother were being robbed, the restraint on his liberty occurred with, and was incidental to, the robbery and defendant could not be convicted of kidnapping since the simultaneous and incidental restraint came within the exemption created by this section. Seay v. Commonwealth, 609 S.W.2d 128, 1980 Ky. LEXIS 271 ( Ky. 1980 ).

Because the restraint of the victim was committed incidental to and contemporaneously with the attempt to take her life, the victim, was not restrained to achieve any separate objective, and the record indicated no evidence that the movement was for any purpose other than to continue the attempt to take the victim’s life, the kidnapping conviction was improper under KRS 509.050 . Hatfield v. Commonwealth, 250 S.W.3d 590, 2008 Ky. LEXIS 12 ( Ky. 2008 ).

7.Exemption Not Warranted.

Trial court did not err by failing to dismiss both counts of unlawful imprisonment pursuant to the kidnapping exemption statute because the confinements were alleged to have lasted 45 minutes. Mitchell v. Commonwealth, 423 S.W.3d 152, 2014 Ky. LEXIS 16 ( Ky. 2014 ).

8.Criminal Escape.

“The commission of a criminal escape” includes attempted escape as well as a completed escape. Wood v. Commonwealth, 567 S.W.2d 121, 1978 Ky. LEXIS 366 ( Ky. 1978 ).

Cited:

Jordan v. Commonwealth, 703 S.W.2d 870, 1985 Ky. LEXIS 269 ( Ky. 1985 ).

Research References and Practice Aids

Kentucky Law Journal.

West, Criminal Law, 74 Ky. L.J. 403 (1985-86).

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Assaults and Restraints of Persons, Part 5 Kidnapping and Related Offenses, §§ 3.79E, 3.81.

509.060. Defense.

In any prosecution for unlawful imprisonment or kidnapping it is a defense that the defendant was a relative of the victim and his sole purpose was to assume custody of the victim.

History. Enact. Acts 1974, ch. 406, § 78, effective January 1, 1975.

NOTES TO DECISIONS

Cited:

United States v. Landham, 251 F.3d 1072, 2001 U.S. App. LEXIS 10795 (6th Cir. 2001), rehearing denied, ,— F.3d —, 2001 U.S. App. LEXIS 19719 (6th Cir. 2001).

Research References and Practice Aids

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Assaults and Restraints of Persons, Part 5 Kidnapping and Related Offenses, §§ 3.79E, 3.81.

509.070. Custodial interference.

  1. A person is guilty of custodial interference when, knowing that he has no legal right to do so, he takes, entices or keeps from lawful custody any mentally disabled or other person entrusted by authority of law to the custody of another person or to an institution.
  2. It is a defense to custodial interference that the person taken from lawful custody was returned by the defendant voluntarily and before arrest or the issuance of a warrant for arrest.
  3. Custodial interference is a Class D felony unless the person taken from lawful custody is returned voluntarily by the defendant.

History. Enact. Acts 1974, ch. 406, § 79, effective January 1, 1975; 1982, ch. 141, § 134, effective July 1, 1982; 1984, ch. 79, § 1, effective July 13, 1984.

Compiler’s Notes.

This section was amended by § 146 of Acts 1980, ch. 396, which would have taken effect July 1, 1982; however, Acts 1982, ch. 141, § 146, effective July 1, 1982, repealed Acts 1980, ch. 396.

NOTES TO DECISIONS

1.Construction.

Criminal liability under the statute does not depend merely on the existence of a custody order; it requires that one either took, enticed or kept the children from the custodian. Karsner v. Commonwealth, 582 S.W.3d 51, 2018 Ky. App. LEXIS 282 (Ky. Ct. App. 2018).

Statute requires that the defendant knowingly engage in overt conduct that prevents a lawful custodian from exercising his or her rights to custody; the statute criminalizes overt conduct that interferes with those rights and not mere verbal objections to custody. Karsner v. Commonwealth, 582 S.W.3d 51, 2018 Ky. App. LEXIS 282 (Ky. Ct. App. 2018).

2.Evidence insufficient.

Defendant was entitled to a directed verdict of acquittal for custodial interference; while she was distraught and defiant when she learned the father and officers were there to take her children, her verbal expression of discontent was not a crime under the statute, and there was no evidence that she engaged in any overt conduct to defeat the father’s right to custody. She did not restrain the children, conceal their whereabouts, abscond with them, or interfered with any attempt by officers to take them. Karsner v. Commonwealth, 582 S.W.3d 51, 2018 Ky. App. LEXIS 282 (Ky. Ct. App. 2018).

Cited:

United States v. Landham, 251 F.3d 1072, 2001 U.S. App. LEXIS 10795 (6th Cir. 2001), rehearing denied, ,— F.3d —, 2001 U.S. App. LEXIS 19719 (6th Cir. 2001).

Opinions of Attorney General.

The natural father of a child born out of wedlock cannot be prosecuted for custodial interference with the child since the custodial issue is never fully adjudicated during infancy. OAG 76-147 .

Any individual who knowingly violates a child custody and visitation order entered pursuant to Chapter 406 may be prosecuted for violation of that order under this section and OAG 76-147 is modified accordingly. OAG 90-18 .

An individual may be prosecuted under this section where a District Court has entered a child custody and visitation order under Chapter 406 and the father has notice of said order. OAG 90-18 .

One who knowingly violates a properly established custody and visitation order entered pursuant to Chapter 406 should be subject to prosecution under this section; to differentiate between those visitation orders entered under Chapter 406 from those entered under Chapter 403 or other chapters would establish an improper distinction between the children whom these orders cover. OAG 90-18 .

There are no restrictions or limitations found in this section as to its applicability to different classes of persons or orders of a court; instead, it is general in nature and provides a defense to custodial interference if the person is returned voluntarily and before an arrest or issuance of an arrest warrant. Therefore, if paternity has been established under Chapter 406 and a custody and visitation order had been entered pursuant to that finding, a copy of which is received by the putative father, then this section should be applicable to a father who violates that visitation order. OAG 90-18 .

Research References and Practice Aids

Cross-References.

Jefferson County Children’s Home, aiding child to escape from, KRS 201.150 .

Kentucky Bench & Bar.

Davis and Davis, Recovery for Wrongful Deprivation of Child Custody: A Civil Remedy for Kentucky, Volume 51, No. 2, Spring 1987 Ky. Bench & B. 20.

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Assaults and Restraints of Persons, Part 5 Kidnapping and Related Offenses, §§ 3.81, 3.82.

Petrilli, Kentucky Family Law, Forms, Family Offenses, Form 4.1.

509.080. Criminal coercion.

  1. A person is guilty of criminal coercion when with intent to compel another person to engage in or refrain from conduct, he unlawfully threatens to:
    1. Commit any crime; or
    2. Accuse anyone of a crime; or
    3. Expose any secret tending to subject any person to hatred, contempt or ridicule or to impair another’s credit or business repute; or
    4. Take or withhold action as an official or cause an official to take or withhold action.
  2. A defendant may prove in exculpation of criminal coercion committed under subsection (1)(b), (c) or (d) that he believed the accusation or secret to be true or the proposed official action justified and that his sole purpose was to compel or induce the victim to desist from misbehavior or to make good a wrong done by him.
  3. Criminal coercion is a Class A misdemeanor.

History. Enact. Acts 1974, ch. 406, § 80, effective January 1, 1975; 1976, ch. 183, § 2.

NOTES TO DECISIONS

1.Instructions.

If defendant thought himself prejudiced by action of court in instructing jury under both the armed robbery law and offense of demand of thing of value by menace or threat, covering a lesser degree of armed robbery, the remedy was by appeal in the original case and not by habeas corpus proceeding. (Decided under prior law) Jones v. Clerk of Oldham Circuit Court, 312 Ky. 818 , 229 S.W.2d 982, 1950 Ky. LEXIS 782 ( Ky. 1950 ).

Where defendant was indicted and instruction given for violation of the armed robbery law, it was not error for the court to give a further instruction under offense of demand of thing of value by menace or threat, a lesser degree or armed robbery. (Decided under prior law) Jones v. Clerk of Oldham Circuit Court, 312 Ky. 818 , 229 S.W.2d 982, 1950 Ky. LEXIS 782 ( Ky. 1950 ).

Research References and Practice Aids

Cross-References.

Terroristic threatening, KRS 508.080 .

Theft by extortion, KRS 514.080 .

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Assaults and Restraints of Persons, Part 5 Kidnapping and Related Offenses, §§ 3.83, 3.84.

Kentucky Instructions to Juries (Criminal), 5th Ed., Offenses Against Public and Judicial Administration, Part 4 Bribery and Related Offenses, § 7.40.

CHAPTER 510 Sexual Offenses

510.010. Definitions for chapter.

The following definitions apply in this chapter unless the context otherwise requires:

  1. “Deviate sexual intercourse” means any act of sexual gratification involving the sex organs of one person and the mouth or anus of another; or penetration of the anus of one person by any body part or a foreign object manipulated by another person. “Deviate sexual intercourse” does not include penetration of the anus by any body part or a foreign object in the course of the performance of generally recognized health-care practices;
  2. “Forcible compulsion” means physical force or threat of physical force, express or implied, which places a person in fear of immediate death, physical injury to self or another person, fear of the immediate kidnap of self or another person, or fear of any offense under this chapter. Physical resistance on the part of the victim shall not be necessary to meet this definition;
  3. “Mental illness” means a diagnostic term that covers many clinical categories, typically including behavioral or psychological symptoms, or both, along with impairment of personal and social function, and specifically defined and clinically interpreted through reference to criteria contained in the Diagnostic and Statistical Manual of Mental Disorders (Third Edition) and any subsequent revision thereto, of the American Psychiatric Association;
  4. “Individual with an intellectual disability” means a person with significantly subaverage general intellectual functioning existing concurrently with deficits in adaptive behavior and manifested during the developmental period, as defined in KRS Chapter 202B;
  5. “Mentally incapacitated” means that a person is rendered temporarily incapable of appraising or controlling his or her conduct as a result of the influence of an intoxicating substance administered to him or her without his or her consent or as a result of any other act committed upon him or her without his or her consent;
  6. “Physically helpless” means that a person is unconscious or for any other reason is physically unable to communicate unwillingness to an act. “Physically helpless” also includes a person who has been rendered unconscious or for any other reason is physically unable to communicate an unwillingness to an act as a result of the influence of a controlled substance or legend drug;
  7. “Sexual contact” means any touching of the sexual or other intimate parts of a person done for the purpose of gratifying the sexual desire of either party;
  8. “Sexual intercourse” means sexual intercourse in its ordinary sense and includes penetration of the sex organs of one person by any body part or a foreign object manipulated by another person. Sexual intercourse occurs upon any penetration, however slight; emission is not required. “Sexual intercourse” does not include penetration of the sex organ by any body part or a foreign object in the course of the performance of generally recognized health-care practices;
  9. “Foreign object” means anything used in commission of a sexual act other than the person of the actor;
  10. “Registrant” has the same meaning as in KRS 17.500 ; and
  11. “Adult intermediary” means a person who is age eighteen (18) years or older, who communicates with another for the purpose of procuring or promoting the use of a minor in violation of KRS 510.155 .

History. Enact. Acts 1974, ch. 406, § 81, effective January 1, 1975; 1986, ch. 486, § 1, effective July 15, 1986; 1988, ch. 78, § 1, effective July 15, 1988; 1988, ch. 283, § 9, effective July 15, 1988; 1990, ch. 448, § 1, effective July 13, 1990; 1992, ch. 355, § 1, effective July 14, 1992; 1996, ch. 300, § 2, effective July 15, 1996; 2000, ch. 401, § 4, effective July 14, 2000; 2002, ch. 259, § 6, effective July 15, 2002; 2012, ch. 146, § 123, effective July 12, 2012; 2018 ch. 34, § 1, effective July 14, 2018; 2021 ch. 88, § 1, effective June 29, 2021.

NOTES TO DECISIONS

Analysis

1.Deviate Sexual Intercourse.

The testimony of the six-year-old victim and her mother supported the jury’s finding that defendant performed an act of oral sex upon her. This met the statutory definition of sodomy. Hulan v. Commonwealth, 634 S.W.2d 410, 1982 Ky. LEXIS 258 ( Ky. 1982 ).

Penetration is not necessary to the crime of sodomy as defined in the Kentucky Penal Code. Hulan v. Commonwealth, 634 S.W.2d 410, 1982 Ky. LEXIS 258 ( Ky. 1982 ).

“Deviate sexual intercourse” does not require penetration as a necessary element to the crime of sodomy. Bills v. Commonwealth, 851 S.W.2d 466, 1993 Ky. LEXIS 60 ( Ky. 1993 ).

Petitioner was not entitled to a writ of habeas corpus based on his claim of insufficiency of evidence in convictions for sodomy, KRS 510.070(1), and rape, KRS 510.040(1)(a), because a rational trier of fact, after viewing the evidence in the light most favorable to the prosecution, could have found the essential elements of those crimes, including the element of deviate sexual intercourse under KRS 510.010(1), beyond a reasonable doubt. Because the convictions were properly supported by evidence, they were properly used as aggravating circumstances during the penalty phase under KRS 532.025 . Sanborn v. Parker, 2005 U.S. Dist. LEXIS 44697 (W.D. Ky. Jan. 12, 2005).

During defendant’s trial for first-degree anal sodomy pursuant to KRS 510.010(1), the court did not err in denying defendant’s request for an instruction on the lesser included offense of sexual abuse; testing of an anal swab taken by a sexual-assault nurse showed the presence of sperm cells that matched defendant’s DNA. Mash v. Commonwealth, 376 S.W.3d 548, 2012 Ky. LEXIS 21 ( Ky. 2012 ).

Evidence was sufficient to support defendant’s conviction for attempted sodomy in the first degree, in violation of KRS 506.010 and 510.070(1)(a), where there was testimony from the victim that defendant used force to place his penis directly in front of her mouth in an attempt to penetrate her mouth; such conduct constituted an attempt at deviate sexual intercourse, as that term was defined in KRS 510.010(1). Chames v. Commonwealth, 405 S.W.3d 519, 2012 Ky. App. LEXIS 231 (Ky. Ct. App. 2012).

Trial court did not err in denying defendant’s motion for a directed verdict on a sodomy charge where the victim’s testimony established that there was an act of sexual gratifications involving defendant’s sex organs and the victim’s mouth. Galloway v. Commonwealth, 424 S.W.3d 921, 2014 Ky. LEXIS 97 ( Ky. 2014 ).

2.Forcible Compulsion.

“Forcible compulsion” may consist of physical force or threats that do not cause substantial physical pain or an impairment of physical condition. Van Dyke v. Commonwealth, 581 S.W.2d 563, 1979 Ky. LEXIS 257 ( Ky. 1979 ).

The evidence indicated that the two (2) sexually abused children were subject to constant emotional, verbal and physical duress. They lived in continued fear of what defendant might do to them or their mother. They testified that they went along with the deviate sexual behavior only because of this fear. Under the evidence as a whole, it was not clearly unreasonable for the jury to find that defendant engaged in sexual intercourse with the children by means of forcible compulsion. Accordingly, defendant was not entitled to a directed verdict of acquittal. Yarnell v. Commonwealth, 833 S.W.2d 834, 1992 Ky. LEXIS 155 ( Ky. 1992 ).

Evidence was sufficient to establish forcible compulsion and to withstand a directed verdict in defendant’s first-degree rape trial under circumstances in which the victim testified that defendant would threaten her and members of her family and if she told him “No” to his sexual advances he would push her down until she gave in to him; in addition, the victim testified that in her application for a domestic violence order she stated that defendant forced himself on her when she was 12 years old and proceeded to have sexual intercourse with her, unwillingly, and had done so for the past six (6) years, and that she was scared that he would have harmed her children, her siblings, and her, because he said if she ever told anyone that she would regret it. Robinson v. Commonwealth, 212 S.W.3d 100, 2006 Ky. LEXIS 298 ( Ky. 2006 ).

Evidence was sufficient for a jury to conclude that defendant had acted with forcible error when he committed sexual misconduct with the victim over a period of one (1) year, because the victim, who was 14 years old at the time of the crimes, testified numerous times that she was scared of defendant and identified specific instances when defendant had forced himself upon her. Bratcher v. Commonwealth, 2006 Ky. App. LEXIS 363 (Ky. Ct. App. Dec. 8, 2006, sub. op., 2006 Ky. App. Unpub. LEXIS 912 (Ky. Ct. App. Dec. 8, 2006).

Where the victim testified that defendant spread her legs with his knees, held her legs, pulled down her shorts, and inserted his tongue and fingers into her vagina, the testimony was sufficient to establish the forcible compulsion element of first-degree sodomy; pursuant to KRS 510.010(2), it was not necessary for the victim to testify that she attempted to get away from defendant. Gordon v. Commonwealth, 214 S.W.3d 921, 2006 Ky. App. LEXIS 399 (Ky. Ct. App. 2006).

Where defendant was charged with numerous offenses stemming from a violent encounter with his girlfriend in which he beat her, raped her, and prevented her from leaving, the evidence was sufficient to support a finding of forcible compulsion as an element of rape because a reasonable jury could find forcible compulsion where the victim testified that defendant beat her for several hours before she engaged in sexual activities with him and that she believed she had to engage in sexual acts to prevent further beatings, where the victim repeatedly asked if she could leave or if defendant would leave but he would not allow either, and where the victim further testified that she did not want to have sexual intercourse with defendant but believed it would be better than more beatings; at the very least, this established the victim’s subjective view that she had been threatened to engage in sex, which was sufficient to prove forcible compulsion. Moreover, the evidence also showed state of mind; a jury could reasonably conclude that defendant’s behavior presented a choice between engaging in sexual conduct or suffering further violence. James v. Commonwealth, 360 S.W.3d 189, 2012 Ky. LEXIS 5 ( Ky. 2012 ).

Evidence was sufficient to support defendant’s conviction for sexual abuse in the first degree, in violation of KRS 510.110(1)(a), where defendant forced the victim to engage in various sexual acts and she testified that she was scared of him; his actions constituted forcible compulsion under KRS 510.010(2). Chames v. Commonwealth, 405 S.W.3d 519, 2012 Ky. App. LEXIS 231 (Ky. Ct. App. 2012).

There was no abuse of discretion under KRE. 404(b) by the trial court’s evidentiary ruling that allowed the Commonwealth to introduce evidence that defendant had been violent towards his victim, as it was admissible to prove that the victim feared that defendant would use physical force if she did not comply with his sexual advances; defendant had been accused of crimes that involved the element of forcible compulsion pursuant to KRS 510.010(2). Chames v. Commonwealth, 405 S.W.3d 519, 2012 Ky. App. LEXIS 231 (Ky. Ct. App. 2012).

Evidence was sufficient to sustain a first-degree rape conviction because defendant forced the victim to him, ignored her objections, kept kissing her neck, and unfastened her belt; when the victim re-fastened her belt, he unbuckled it again, pulled her pants down, and forced himself upon her. Newcomb v. Commonwealth, 410 S.W.3d 63, 2013 Ky. LEXIS 83 ( Ky. 2013 ).

Defendant’s threat to reveal the victim’s relationship with her older boyfriend to her mother was not an immediate threat of death or physical harm, as required by KRS 510.010(2), as the sequence of events that would have had to take place was too tenuous and extended over time. Yates v. Commonwealth, 430 S.W.3d 883, 2014 Ky. LEXIS 9 ( Ky. 2014 ).

Defendant was not entitled to a directed verdict or to the dismissal of the rape and sodomy charges where there was sufficient evidence of forcible compulsion to raise a jury question, as the victim testified that defendant forcibly rolled her over, removed her pajama pants, and then physically pushed aside her several attempts to block him from sodomizing her, and defendant's acts were not actions merely incidental to sex. Jenkins v. Commonwealth, 496 S.W.3d 435, 2016 Ky. LEXIS 327 ( Ky. 2016 ), cert. denied, 137 S. Ct. 1205, 197 L. Ed. 2d 250, 2017 U.S. LEXIS 1566 (U.S. 2017).

3.Instructions.

In prosecution for first degree rape, sodomy and sexual abuse where jury might have believed beyond a reasonable doubt that defendant had engaged in sexual acts with victim but entertained reasonable doubt as to whether victim had been physically helpless at the time, trial court erred in failing to instruct the jury on sexual abuse in the third degree in connection with each of the sexual charges and, in addition, on sexual misconduct in relation to the charges of rape and sodomy, respectively. Skinner v. Commonwealth, 864 S.W.2d 290, 1993 Ky. LEXIS 149 ( Ky. 1993 ).

In a first degree rape prosecution, defendant had not been entitled to a special instruction that the jury had to find that the victim did not consent to sexual intercourse, as this was implicit in the instructions given by the trial court which tracked the definitions of first degree rape and forcible compulsion set out, respectively, in KRS 510.040(1) and 510.010(2). Day v. Commonwealth, 174 S.W.3d 496, 2004 Ky. App. LEXIS 361 (Ky. Ct. App. 2004).

4.Mentally Incapacitated.

Under the definition of “mental defectiveness,” it is immaterial whether the person does not possess the power to resist because of a mental disease or defect and, in determining whether a woman is incapable of granting consent because she is mentally defective, the sole question is whether she is capable of appraising the nature of the sexual act being performed. Salsman v. Commonwealth, 565 S.W.2d 638, 1978 Ky. App. LEXIS 512 (Ky. Ct. App. 1978).

Where defense counsel had sought a psychiatric examination of the defendant, which the trial court ordered, the trial court was not required to conduct a further hearing on its own initiative, without request by defense counsel, to determine the defendant’s competency. Owens v. Commonwealth, 572 S.W.2d 415, 1977 Ky. LEXIS 581 ( Ky. 1977 ).

Forcible compulsion places the victim in fear of death or physical injury but with mental incapacity to consent, fear may be completely absent. Salsman v. Commonwealth, 565 S.W.2d 638, 1978 Ky. App. LEXIS 512 (Ky. Ct. App. 1978).

Mental incapacity to consent is no longer the equivalent of force but, rather, lack of consent is a separate element of every offense denied by this chapter; whether this element of the offense is supplied by forcible compulsion rather than incapacity to consent can affect the degree of the offense. Salsman v. Commonwealth, 565 S.W.2d 638, 1978 Ky. App. LEXIS 512 (Ky. Ct. App. 1978).

Where the record established that the prosecutrix did understand that the defendant was seeking to perform sexual acts upon her, the defendant could not be guilty of either rape in the third degree or sexual abuse in the second degree on the theory that the prosecutrix was incapable of giving consent. Salsman v. Commonwealth, 565 S.W.2d 638, 1978 Ky. App. LEXIS 512 (Ky. Ct. App. 1978).

5.Physically Helpless.

Definition of “physically helpless” in KRS 510.010(6) is primarily concerned with a victim’s physical inability to flee or to consent to sexual contact; although sleep may not always be a fully unconscious condition, whether induced by drug, or achieved by normal processes, being in the state of sleep renders one unable of making a conscious choice for purposes of KRS 510.010(6). Boone v. Commonwealth, 155 S.W.3d 727, 2004 Ky. App. LEXIS 252 (Ky. Ct. App. 2004).

Denial of defendant’s motion for a directed verdict on a first-degree sexual abuse charge was proper as there was evidence that the victim was asleep when the contact began and was unable to consent to the contact. Boone v. Commonwealth, 155 S.W.3d 727, 2004 Ky. App. LEXIS 252 (Ky. Ct. App. 2004).

6.Sexual Contact.

Sexual contact is not limited to the sex organ; the abuse of the victim’s body and privacy with the intent to obtain sexual gratification is sufficient to constitute sexual abuse; a proper test to determine if the part of the body is “intimate” should revolve around an examination of three factors: 1) What area of the body is touched, 2) What is the manner of the touching, and 3) Under what circumstances did the touching occur. Bills v. Commonwealth, 851 S.W.2d 466, 1993 Ky. LEXIS 60 ( Ky. 1993 ).

In prosecution for first degree sexual abuse of little girls under 12 years of age evidence that the alleged sexual abuse occurred in day care center and involved the little girls sitting in the defendant’s lap while he was sitting in a large chair, and consisted of his putting his hand under the clothing of the children and touching their vaginal areas and that all three of the little girls whom the defendant was convicted of sexually abusing testified that the physical contact or touching felt “bad” taken as a whole, accepted as true and viewed in a light most favorable to the Commonwealth, was certainly not clearly unreasonable for the jury to find beyond a reasonable doubt that the Commonwealth met its burden of proving each element of each offense, including that the touching was done for the purpose of sexual gratification. Tungate v. Commonwealth, 901 S.W.2d 41, 1995 Ky. LEXIS 88 ( Ky. 1995 ).

Defendant was properly committed to the Kentucky Department of Juvenile Justice as a juvenile sexual offender under KRS 635.510 for violating KRS 510.110 and KRS 510.010(7) as the Commonwealth’s proof corroborated defendant’s confession as to the time of the crime, the persons present, and the place, as required by RCr 9.60. W.D.B. v. Commonwealth, 246 S.W.3d 448, 2007 Ky. LEXIS 241 ( Ky. 2007 ).

In a trial for violations of KRS 531.310 , the requirements of KRS 531.300(4)(a) and (b) were satisfied when the two (2) child victims testified that defendant would put a dog toy down the children’s underwear, hold the children down and watch a dog get the toy out and the dog toy and the dog’s mouth came in contact with the skin in their private areas. Jenkins v. Commonwealth, 275 S.W.3d 226, 2008 Ky. App. LEXIS 377 (Ky. Ct. App. 2008).

Evidence showed that (1) a fictitious person, who had been created by volunteers of a not-for-profit organization which collaborated with law enforcement to catch internet child-predators, that defendant believed was 13 years old willingly participated in the sexually explicit chats, as well as in scheduling to meet defendant, and conversed with defendant over the telephone, and (2) defendant wanted to induce the 13-year-old to willingly engage in sexual activity, but no evidence was presented to show that defendant subjected the 13-year-old to sexual touching without her consent under KRS 510.010 ; thus, the evidence did not support an instruction on attempted sexual abuse in the second degree under KRS 510.120 as a lesser-included offense to attempted unlawful transaction with a minor in the first degree under KRS 506.010 and 530.064 . Therefore, the trial court did not err by declining to give a lesser-included offense instruction to the jury. Quist v. Commonwealth, 338 S.W.3d 778, 2010 Ky. App. LEXIS 93 (Ky. Ct. App. 2010).

Circuit court properly entered an interpersonal protective order in favor of the victim based on her brother-in laws’ attempted sexual assault, stalking, and third degree sexual abuse after her husband’s death because the brother-in-law’s manner of touching, his prior words and actions, as well as the timeframe in which the incident occurred supported the family court’s findings, there was no legitimate purpose for the brother-in-law’s conduct, and the entire incident, including the brother-in-law’s earlier text messages, occurred over a period of less than 24 hours. Jones v. Jones, 617 S.W.3d 418, 2021 Ky. App. LEXIS 5 (Ky. Ct. App. 2021).

7.Sexual Intercourse.

Counsel was not ineffective for failing to advise against entering pleas to the charges in the indictment on the ground that the Commonwealth did not have the evidence necessary to obtain a first-degree rape conviction and a capital murder conviction because under the 1995 version of KRS 510.010(8), the Commonwealth had the evidence to show that the inmate committed murder in the course of committing rape, as in 1995 “sexual intercourse” included penetration of the anus “by a foreign object manipulated by another person.” Kahn v. Chandler, 2005 U.S. Dist. LEXIS 21406 (W.D. Ky. Sept. 25, 2005).

8.— Penetration.

Penetration under subsection (8) of this section can be proven by circumstantial evidence in order to convict defendant of first-degree sodomy under KRS 510.070 . Gregory v. Commonwealth, 610 S.W.2d 598, 1980 Ky. LEXIS 282 ( Ky. 1980 ).

Where the small rectal tears found on the victim may have been sufficient to indicate that there had been some effort to penetrate the victim’s anus, but the medical evidence of record tended to prove that the rectal tears were not made by a male’s sex organ, but on the contrary by some hard object other than a male sex organ, the defendant’s motion for directed verdict on the charge of first-degree sodomy should have been sustained. Souder v. Commonwealth, 719 S.W.2d 730, 1986 Ky. LEXIS 303 ( Ky. 1986 ), overruled in part, B.B. v. Commonwealth, 226 S.W.3d 47, 2007 Ky. LEXIS 131 ( Ky. 2007 ).

Where, in a prosecution for rape, the victim’s testimony concerning the act of penetration was equivocal, none of the experts were able to opine that penetration had occurred, one expert’s testimony on the effects of alcohol on a man’s ability to perform sexually, and the negative results of the lab analyses raised further doubt on the question of penetration, the defendant’s right to due process was violated when an instruction on first-degree sexual abuse was refused. Bagby v. Sowders, 853 F.2d 1340, 1988 U.S. App. LEXIS 10845 (6th Cir. Ky. 1988 ).

The fact of penetration may be proven by the circumstances. Evidence pertinent to this issue, presented at trial, included the following: (1) both doctors involved in the case found the victim’s labia severely reddened and her vaginal opening dilated, (2) the victim’s aunt stated that she discovered discoloration of the victim’s vaginal area when bathing the child, shortly after the victim had been left in defendant’s exclusive company in his truck for between thirty minutes to an hour, and (3) one doctor testified that the victim indicated that defendant had played with her groin area, that defendant asked her to take off her clothes, and that defendant made her play with his “frog.” Drawing all fair and reasonable inferences in favor of the Commonwealth, evidence presented at trial was sufficient for a reasonable juror to believe beyond a reasonable doubt that defendant was guilty. Jones v. Commonwealth, 833 S.W.2d 839, 1992 Ky. LEXIS 106 ( Ky. 1992 ).

Evidence, which included the testimony of child victim wherein she said and demonstrated that defendant touched her “middle part” with his “middle part” or “private thing” and that the act “hurt” and records of a physician’s examination of the child conducted several years after the alleged offense “indicated a penetrating injury of the hymenal membrane occurring in the distant past,” was sufficient to permit a belief beyond a reasonable doubt that penetration occurred. Sharp v. Commonwealth, 849 S.W.2d 542, 1993 Ky. LEXIS 59 ( Ky. 1993 ).

9.Double Jeopardy.

Jury instructions sufficiently differentiated the culpable conduct required for a conviction of first-degree sexual abuse and first-degree sodomy, and therefore defendant’s convictions for both did not result in a double-jeopardy violation because the sexual-abuse instruction did not state with which body part the jury must find that the victim touched defendant for defendant to be guilty of sexual abuse, but the sodomy instruction explicitly required the jury to find the victim placed his penis in her mouth. Towe v. Commonwealth, 617 S.W.3d 355, 2021 Ky. LEXIS 16 ( Ky. 2021 ).

Cited:

Timmons v. Commonwealth, 555 S.W.2d 234, 1977 Ky. LEXIS 496 ( Ky. 1977 ); Boyle v. Commonwealth, 694 S.W.2d 711, 1985 Ky. App. LEXIS 546 (Ky. Ct. App. 1985); United States v. Short, 790 F.2d 464, 1986 U.S. App. LEXIS 24813 (6th Cir. 1986); Kentucky v. Stincer, 482 U.S. 730, 107 S. Ct. 2658, 96 L. Ed. 2d 631, 1987 U.S. LEXIS 2727 (1987); Mounce v. Commonwealth, 795 S.W.2d 375, 1990 Ky. LEXIS 71 ( Ky. 1990 ); Martin v. Kassulke, 970 F.2d 1539, 1992 U.S. App. LEXIS 17332 (6th Cir. 1992); Hayes v. Commonwealth, 58 S.W.3d 879, 2001 Ky. LEXIS 178 ( Ky. 2001 ); Combs v. Commonwealth, 193 S.W.3d 267, 2006 Ky. LEXIS 105 ( Ky. 2006 ); Gibbs v. Commonwealth, 208 S.W.3d 848, 2006 Ky. LEXIS 239 ( Ky. 2006 ); Sanborn v. Parker, — F. Supp. 2d —, 2007 U.S. Dist. LEXIS 10747 (W.D. Ky. 2007 ); Ward v. Commonwealth, 568 S.W.3d 824, 2019 Ky. LEXIS 80 ( Ky. 2019 ).

Notes to Unpublished Decisions

1.Sexual Contact.

Unpublished decision: Defendant’s payment of money to a victim in exchange for the victim’s agreement to insert his fist into defendant’s anus did not constitute “deviate sexual intercourse” under KRS 510.010(1) because deviate sexual intercourse is any act of sexual gratification involving the sex organs of one person and the mouth or anus of another. While § 510.010(1) includes penetration of the anus of one person by a foreign object manipulated by another person, a “foreign object,” under § 510.010(9), a “foreign object” does not include the person of the actor. Hillard v. Commonwealth, 158 S.W.3d 758, 2005 Ky. LEXIS 38 ( Ky. 2005 ).

Unpublished decision: “Fisting” constitutes “illegal sexual activity,” as prohibited by KRS 530.064 , and is embraced by the provision of KRS 510.130(1)(a), which provides that a person commits the offense of sexual abuse in the third degree when he subjects another person to “sexual contact” without the latter’s consent. “Sexual contact,” as defined in KRS 510.010(7), includes any touching of the sexual “or other intimate parts” of a person done for the purpose of gratifying either party’s sexual desire. Hillard v. Commonwealth, 158 S.W.3d 758, 2005 Ky. LEXIS 38 ( Ky. 2005 ).

Research References and Practice Aids

Cross-References.

Endangering welfare of incompetent person, KRS 530.080 .

Incest, KRS 530.020 .

Kentucky Law Journal.

Kentucky Law Survey, Brice and Taylor, Criminal Law, 67 Ky. L.J. 569 (1978-1979).

Kentucky Law Survey, Sellars, Criminal Law, 71 Ky. L.J. 355 (1982-83).

Lewis, Commonwealth v. Wasson: Invalidating Kentucky’s Sodomy Statute, 81 Ky. L.J. 423 (1992-93).

Weigand and Farr, Part of the Moving Stream: State Constitutional Law, Sodomy, and Beyond, 81 Ky. L.J. 449 (1992-93).

Roach, Rule of Men, 81 Ky. L.J. 483 (1992-93).

Northern Kentucky Law Review.

Comments, For Better or for Worse: Marital Rape, 15 N. Ky. L. Rev. 611 (1988).

Lotz, A Survey of Criminal Law Statutes Enacted in 1992, 20 N. Ky. L. Rev. 745 (1993).

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Defenses, Part 1 Definitions, § 11.05.

Kentucky Instructions to Juries (Criminal), 5th Ed., Defenses, Part 3 Absence of Criminal Responsibility, § 11.32.

Kentucky Instructions to Juries (Criminal), 5th Ed., Offenses Related to Sex and Pornography, Part 1 Definitions, §§ 4.01 — 4.07.

Kentucky Instructions to Juries (Criminal), 5th Ed., Offenses Related to Sex and Pornography, Part 2 Rape, § 4.28A.

Kentucky Instructions to Juries (Criminal), 5th Ed., Offenses Related to Sex and Pornography, Part 3 Sodomy, § 4.40A.

Kentucky Instructions to Juries (Criminal), 5th Ed., Offenses Related to Sex and Pornography, Part 4 Sexual Abuse, § 4.52B.

Palmore, Kentucky Instructions to Juries (Criminal), 5th Ed., Offenses Against Public Order, Health and Morals, Part 2 Riot, Disorderly Conduct and Related Offenses, § 8.47A.

Palmore, Kentucky Instructions to Juries (Criminal), 5th Ed., Offenses Against Public Order, Health and Morals, Part 8 Family Offenses, §§ 8.99, 8.99A, 8.107.

Petrilli, Kentucky Family Law, 1991 Supp., Actions, § 17.15.

510.015. Treatment of third or subsequent misdemeanor under KRS Chapter 510 as Class D felony.

Unless a higher penalty is otherwise prescribed and notwithstanding any provision of this chapter to the contrary, a person who commits a third or subsequent misdemeanor offense under this chapter, except for violations of KRS 510.150 , may be convicted of a Class D felony. If the Commonwealth desires to utilize the provisions of this section, the Commonwealth shall indict the defendant and the case shall be tried in the Circuit Court as a felony case. The jury, or judge if the trial is without a jury, may decline to assess a felony penalty in a case under this section and may convict the defendant of a misdemeanor.

History. Enact. Acts 2000, ch. 401, § 6, effective July 14, 2000.

510.020. Lack of consent.

  1. Whether or not specifically stated, it is an element of every offense defined in this chapter that the sexual act was committed without consent of the victim.
  2. Lack of consent results from:
    1. Forcible compulsion;
    2. Incapacity to consent; or
    3. If the offense charged is sexual abuse, any circumstances in addition to forcible compulsion or incapacity to consent in which the victim does not expressly or impliedly acquiesce in the actor’s conduct.
  3. A person is deemed incapable of consent when he or she is:
    1. Less than sixteen (16) years old;
    2. Sixteen (16) or seventeen (17) years old and the actor is at least ten (10) years older than the victim at the time of the sexual act;
    3. An individual unable to communicate consent or lack of consent, or unable to understand the nature of the act or its consequences, due to an intellectual disability or a mental illness;
    4. Mentally incapacitated;
    5. Physically helpless; or
    6. Under the care or custody of a state or local agency pursuant to court order and the actor is employed by or working on behalf of the state or local agency.
  4. The provisions of subsection (3)(f) of this section shall not apply to persons who are lawfully married to each other and no court order is in effect prohibiting contact between the parties.

HISTORY: Enact. Acts 1974, ch. 406, § 82, effective January 1, 1975; 1988, ch. 283, § 10, effective July 15, 1988; 2006, ch. 182, § 30, effective July 12, 2006; 2012, ch. 146, § 124, effective July 12, 2012; 2018 ch. 43, § 1, effective July 14, 2018; 2018 ch. 109, § 7, effective July 14, 2018.

Legislative Research Commission Notes.

(7/14/2018). This statute was amended by 2018 Ky. Acts chs. 43 and 109, which do not appear to be in conflict and have been codified together.

(7/14/2018). 2018 Ky. Acts ch. 43, sec. 5, provides that 2018 Ky. Acts ch. 43 may be cited as “Jenna’s Law.” This statute was amended in Section 1 of that Act.

NOTES TO DECISIONS

1.Constitutionality.

The irrebuttable presumption that minors, male or female, less than sixteen (16) years of age are unable to give consent to sex acts does not violate U.S. Const., Amend. 14 or Ky. Const., § 11. Payne v. Commonwealth, 623 S.W.2d 867, 1981 Ky. LEXIS 286 ( Ky. 1981 ), cert. denied, 456 U.S. 909, 102 S. Ct. 1758, 72 L. Ed. 2d 167, 1982 U.S. LEXIS 1573 (U.S. 1982).

2.Construction.

Mental incapacity to consent is no longer the equivalent of force but, rather, lack of consent is a separate element of every offense defined by this chapter; whether this element of the offense is supplied by forcible compulsion rather than incapacity to consent can affect the degree of the offense. Salsman v. Commonwealth, 565 S.W.2d 638, 1978 Ky. App. LEXIS 512 (Ky. Ct. App. 1978).

One may reasonably conclude that the lack of consent provision of KRS 510.020(1) is subsumed by KRS 510.110 ; that is to say, it is implicit in KRS 510.110 that a minor under the age of 18 is incapable of consenting to sexual contact with a person in a position of authority, even though that element is not expressly set out in KRS 510.110. Arguendo, if the statutes are in conflict, the latter enacted and more specific statute prevails; KRS 510.110 must prevail as it was enacted after KRS 510.020(1) and is more specific. Sprague v. Commonwealth, 2011 Ky. App. LEXIS 242 (Ky. Ct. App. Dec. 16, 2011, sub. op., 2011 Ky. App. Unpub. LEXIS 984 (Ky. Ct. App. Dec. 16, 2011).

3.Incest Distinguished from Rape.

The crime of incest is neither an offense included in rape nor a lower degree of rape because incest includes elements not present in rape. Consanguinity between the attacker and the victim is not a necessary element of the crime of rape or statutory rape. And the elements of force, consent, or age are not necessary to prove incest. Wombles v. Commonwealth, 831 S.W.2d 172, 1992 Ky. LEXIS 76 ( Ky. 1992 ).

4.Instructions.

In prosecution for first degree rape, sodomy and sexual abuse where jury might have believed beyond a reasonable doubt that defendant had engaged in sexual acts with victim but entertained reasonable doubt as to whether victim had been physically helpless at the time, trial court erred in failing to instruct the jury on sexual abuse in the third degree in connection with each of the sexual charges and, in addition, on sexual misconduct in relation to the charges of rape and sodomy, respectively. Skinner v. Commonwealth, 864 S.W.2d 290, 1993 Ky. LEXIS 149 ( Ky. 1993 ).

In a first degree rape prosecution, defendant had not been entitled to a special instruction that the jury had to find that the victim did not consent to sexual intercourse, as this was implicit in the instructions given by the trial court which tracked the definitions of first degree rape and forcible compulsion set out, respectively, in KRS 510.040(1) and 510.010(2). Day v. Commonwealth, 174 S.W.3d 496, 2004 Ky. App. LEXIS 361 (Ky. Ct. App. 2004).

5.Minor.

Father of an illegitimate child, although lacking the statutorily-defined capacity to consent to sexual relations on the date a child is conceived, may be adjudged liable in a civil paternity action for the years subsequent to the date upon which the father reaches the age of majority. Commonwealth ex rel. Rush v. Hatfield, 929 S.W.2d 200, 1996 Ky. App. LEXIS 148 (Ky. Ct. App. 1996).

6.Construction With Other Laws.

KRS 510.110(1)(d) prohibits any person who occupies such a position of authority or special trust from engaging in sexual contact with minors in his or her care; any sexual contact between such persons is presumed to be non-consensual, and this presumption is not rebuttable. Therefore, a trial court did not err by trial court rejecting a proposed jury instruction and finding that lack of consent was not an element of the offense of first-degree sexual abuse. Stinson v. Commonwealth, 2011 Ky. App. LEXIS 161 (Ky. Ct. App. Sept. 9, 2011).

Lack of consent is an element of first-degree sexual abuse, as required by KRS 510.020(1); that element may be satisfied by evidence that the victim was under the age of 18 and was abused by a person in a position of special authority or position of special trust. Stinson v. Commonwealth, 396 S.W.3d 900, 2013 Ky. LEXIS 87 ( Ky. 2013 ).

Cited:

Cooper v. Commonwealth, 550 S.W.2d 478, 1977 Ky. LEXIS 418 ( Ky. 1977 ); Alcorn v. Smith, 724 F.2d 37, 1983 U.S. App. LEXIS 14309 (6th Cir. 1983); Combs v. Commonwealth, 193 S.W.3d 267, 2006 Ky. LEXIS 105 ( Ky. 2006 ); Bullitt v. Commonwealth, 595 S.W.3d 106, 2019 Ky. LEXIS 543 ( Ky. 2019 ).

Research References and Practice Aids

Cross-References.

Endangering welfare of incompetent person, KRS 530.080 .

Kentucky Law Journal.

Kentucky Law Survey, Brice and Taylor, Criminal Law, 67 Ky. L.J. 569 (1978-1979).

Article: Sexting and Freedom of Expression: A Comparative Approach , 102 Ky. L.J. 103 (2013).

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Offenses Related to Sex and Pornography, Part 2 Rape, §§ 4.28A, 4.30, 4.32.

Kentucky Instructions to Juries (Criminal), 5th Ed., Offenses Related to Sex and Pornography, Part 3 Sodomy, §§ 4.40A, 4.42, 4.44.

Kentucky Instructions to Juries (Criminal), 5th Ed., Offenses Related to Sex and Pornography, Part 4 Sexual Abuse, §§ 4.49, 4.52, 4.52A.

510.030. Defenses to prosecution based on victim’s lack of consent.

In any prosecution under this chapter in which the victim’s lack of consent is based solely on his or her incapacity to consent because he or she was, at the time of the offense:

  1. Less than sixteen (16) years old;
  2. Sixteen (16) or seventeen (17) years old and the defendant was at least ten (10) years older than the victim;
  3. An individual with an intellectual disability;
  4. Mentally incapacitated; or
  5. Physically helpless;

the defendant may prove in exculpation that at the time of the conduct constituting the offense he or she did not know of the facts or conditions responsible for such incapacity to consent.

HISTORY: Enact. Acts 1974, ch. 406, § 83, effective January 1, 1975; 1988, ch. 283, § 11, effective July 15, 1988; 2012, ch. 146, § 125, effective July 12, 2012; 2018 ch. 43, § 2, effective July 14, 2018.

Legislative Research Commission Notes.

(7/14/2018). 2018 Ky. Acts ch. 43, sec. 5, provides that 2018 Ky. Acts ch. 43 may be cited as “Jenna’s Law.” This statute was amended in Section 2 of that Act.

Research References and Practice Aids

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., General Principles, Part 1 Matters of Substance, § 1.03.

Kentucky Instructions to Juries (Criminal), 5th Ed., Offenses Related to Sex and Pornography, Part 2 Rape, §§ 4.24, 4.27, 4.28A, 4.31, 4.33.

Kentucky Instructions to Juries (Criminal), 5th Ed., Offenses Related to Sex and Pornography, Part 3 Sodomy, §§ 4.39, 4.40A, 4.43, 4.45.

Kentucky Instructions to Juries (Criminal), 5th Ed., Offenses Related to Sex and Pornography, Part 4 Sexual Abuse, §§ 4.50, 4.53, 4.56.

510.035. Exception to KRS 510.020.

A person who engages in sexual intercourse or deviate sexual intercourse with another person to whom the person is married, or subjects another person to whom the person is married to sexual contact, does not commit an offense under this chapter regardless of the person’s age solely because the other person is less than sixteen (16) years old or an individual with an intellectual disability.

History. Enact. Acts 1990, ch. 448, § 5, effective July 13, 1990; 2012, ch. 146, § 126, effective July 12, 2012.

NOTES TO DECISIONS

1.Applicability.

Marriage of a person under 16 was voidable, not void, and thus, was not against Kentucky public policy; the denial of defendant’s request for an instruction under KRS 510.035 since he was married to the victim was error, and his convictions for third-degree rape were improper. However, defendant’s convictions for second degree rape as they related to the period preceding defendant’s marriage to the victim were proper. Robinson v. Commonwealth, 212 S.W.3d 100, 2006 Ky. LEXIS 298 ( Ky. 2006 ).

Defendant’s convictions of complicity to commit third-degree rape were improper in a case arising from sexual contact between defendant’s boyfriend and her minor daughter because, in a separate appeal, the Supreme Court of Kentucky found that the marriage between the boyfriend and the daughter was merely voidable and reversed the boyfriend’s third-degree rape conviction based on the trial court’s refusal to give a tendered marriage as a defense instruction; thus there was no underlying offense as required by KRS 502.020 . Robinson v. Commonwealth, 2007 Ky. App. LEXIS 319 (Ky. Ct. App. Aug. 31, 2007).

Research References and Practice Aids

Treatises

Petrilli, Kentucky Family Law, 1991 Supp., Actions, § 17.15.

510.037. Conviction for rape, sodomy, or sexual abuse or for criminal attempt, conspiracy, facilitation, or solicitation to commit any degree of these crimes triggers application for interpersonal protective order.

The entering of a judgment of conviction for any degree of rape, sodomy, or sexual abuse under this chapter, or for a criminal attempt, conspiracy, facilitation, or solicitation to commit any degree of rape, sodomy, or sexual abuse, shall operate as an application for an interpersonal protective order issued under KRS Chapter 456, unless the victim requests otherwise. Notwithstanding the provisions of KRS Chapter 456:

  1. An interpersonal protective order requested under this subsection may be issued by the court that entered the judgment of conviction;
  2. The judgment of conviction shall constitute sufficient cause for the entry of the order without the necessity of further proof being taken; and
  3. The order may be effective for up to ten (10) years, with further renewals in increments of up to ten (10) years.

HISTORY: 2015 ch. 102, § 47, effective January 1, 2016; 2021 ch. 175, § 2, effective April 1, 2021.

510.040. Rape in the first degree.

  1. A person is guilty of rape in the first degree when:
    1. He engages in sexual intercourse with another person by forcible compulsion; or
    2. He engages in sexual intercourse with another person who is incapable of consent because he:
      1. Is physically helpless; or
      2. Is less than twelve (12) years old.
  2. Rape in the first degree is a Class B felony unless the victim is under twelve (12) years old or receives a serious physical injury in which case it is a Class A felony.

History. Enact. Acts 1974, ch. 406, § 84, effective January 1, 1975.

NOTES TO DECISIONS

1.Constitutionality.

Former statute, which provided several alternative sentences including life imprisonment without parole, did not violate the prohibition against cruel and unusual punishment, U.S. Const., Amend. 8. (Decided under prior law) Moore v. Cowan, 560 F.2d 1298, 1977 U.S. App. LEXIS 11806 (6th Cir. Ky. 1977 ), cert. denied, 436 U.S. 960, 98 S. Ct. 3079, 57 L. Ed. 2d 1127, 1978 U.S. LEXIS 2233 (U.S. 1978), cert. denied, 435 U.S. 929, 98 S. Ct. 1500, 55 L. Ed. 2d 525, 1978 U.S. LEXIS 1174 (U.S. 1978); Smith v. Cowan, 436 U.S. 960, 98 S. Ct. 3079, 57 L. Ed. 2d 1127, 1978 U.S. LEXIS 2233 (U.S. 1978).

2.Defenses.

The carnal abuse of a child is a crime regardless of the reasons or intent with which it was done; thus, lack of mental capacity to form an intent to commit the crime due to intoxication is no defense. Isaacs v. Commonwealth, 553 S.W.2d 843, 1977 Ky. LEXIS 479 ( Ky. 1977 ).

The drafters of the Penal Code did not intend to inject the elements of intent or knowledge, as they are defined in KRS 501.020 , into the crimes of forcible rape and sodomy so as to make voluntary intoxication available as a defense. Malone v. Commonwealth, 636 S.W.2d 647, 1982 Ky. LEXIS 276 ( Ky. 1982 ).

3.Double Jeopardy.

Even though the evidence at the two (2) trials may be the same, a first trial and acquittal on the charge of detaining a woman against her will does not bar a subsequent trial on the charge of having carnal knowledge of her. (Decided under prior law) Davis v. Commonwealth, 545 S.W.2d 644, 1976 Ky. LEXIS 145 ( Ky. 1976 ), vacated, 433 U.S. 905, 97 S. Ct. 2968, 53 L. Ed. 2d 1089, 1977 U.S. LEXIS 2563 (U.S. 1977).

Although carnal knowledge and detaining a woman against her will are lesser included offenses of forcible rape, each of these two (2) lesser offenses is exclusive of the other and trial on one does not expose the accused to conviction of any component of the other. (Decided under prior law) Davis v. Commonwealth, 545 S.W.2d 644, 1976 Ky. LEXIS 145 ( Ky. 1976 ), vacated, 433 U.S. 905, 97 S. Ct. 2968, 53 L. Ed. 2d 1089, 1977 U.S. LEXIS 2563 (U.S. 1977).

Considering that a trial for the offense of carnal knowledge does not involve a relitigation of any issue necessarily presented by the charge of detaining a woman against her will, there is no sound reason for holding that one bars the other under the principle of double jeopardy and the separate offenses could be legally joined in one trial and result in consecutive sentences. (Decided under prior law) Davis v. Commonwealth, 561 S.W.2d 91, 1978 Ky. LEXIS 317 ( Ky. 1978 ).

Defendant’s trial on the charge of detaining a woman against her will precluded a subsequent conviction for the greater offense of rape because, it makes no difference whether it is the greater or the lesser charge that is the first tried. (Decided under prior law) Davis v. Commonwealth, 561 S.W.2d 91, 1978 Ky. LEXIS 317 ( Ky. 1978 ).

Where the defendant’s convictions and sentences for both rape and incest resulted from a single act of sexual intercourse with his ten-year-old daughter, the imposition of both sentences for the single act violated the defendant’s constitutional guarantee against double jeopardy; accordingly, the conviction and sentence for rape would be affirmed, while the conviction and sentence for incest would be set aside. Hamilton v. Commonwealth, 659 S.W.2d 201, 1983 Ky. LEXIS 272 ( Ky. 1983 ), cert. denied, 468 U.S. 1217, 104 S. Ct. 3587, 82 L. Ed. 2d 885, 1984 U.S. LEXIS 2833 (U.S. 1984), overruled in part, Commonwealth v. Burge, 947 S.W.2d 805, 1996 Ky. LEXIS 82 ( Ky. 1997 ).

The elements of first-degree sodomy and aiding and abetting first-degree rape have nothing in common, and where the court’s instruction on aiding and abetting first-degree rape required the jury to find that defendant aided codefendant in committing first-degree rape by holding or sitting on the victim while also forcing her to commit oral sodomy, such holding or sitting on the victim, while it occurred simultaneously with the commission of first-degree sodomy, was not an element of the sodomy; therefore, KRS 505.020(1)(a) prohibiting multiple convictions based on the same offense did not apply to this situation nor did double jeopardy bar conviction for both offenses since each crime required proof of different facts. Norris v. Commonwealth, 668 S.W.2d 557, 1984 Ky. App. LEXIS 456 (Ky. Ct. App. 1984).

Since to be convicted of second-degree assault, one must cause physical injury, and no such requirement exists for first-degree rape, and similarly, for a first-degree rape conviction, sexual intercourse must be proven, and, there is no such requirement for second-degree assault, neither offense is included in the other, and it was not double jeopardy to convict the defendant of both second-degree assault and first-degree rape. Wager v. Commonwealth, 751 S.W.2d 28, 1988 Ky. LEXIS 29 ( Ky. 1988 ).

Defendant’s convictions for rape and kidnapping were not multiple prosecutions in violation of the prohibition against double jeopardy; the offense of kidnapping was complete when defendant restrained the victim against her will with the intent to commit a felony. Bedell v. Commonwealth, 870 S.W.2d 779, 1993 Ky. LEXIS 179 ( Ky. 1993 ).

The trial court did not err by not severing the offenses against defendant, which involved offenses against two (2) women, whom he had persuaded to invite him to their respective homes, at which time he bound and assaulted them. Despite the offenses occurring almost 11 months apart, the facts of each offense were strikingly similar with regard to both women, in that defendant: bound each victim with articles of her own clothing, first vaginally raped, then anally sodomized each victim, threatened the life of each victim if she reported the crime to the police; and each victim described similar tattoos on her assailant and identified, with such evidence being admissible in a separate trial if in fact the offenses would have been severed. Edmonds v. Commonwealth, 189 S.W.3d 558, 2006 Ky. LEXIS 103 ( Ky. 2006 ).

Applying the Blockburger test, codified at KRS 505.020 , first-degree rape under KRS 510.040 , premised on serious physical injury, and first-degree assault under KRS 508.010 were separate offenses, as each contained an element that the other did not. First-degree rape requires sexual intercourse and assualt does not; first-degree assault requires that the serious physical injury was obtained by use of a deadly weapon or dangerous instrument, but first-degree rape involving serious physical injury to the victim contains no such deadly weapon or dangerous instrument requirement. Dixon v. Commonwealth, 263 S.W.3d 583, 2008 Ky. LEXIS 138 ( Ky. 2008 ).

Where defendant forced his daughters to engage in sex with him repeatedly over a 10-year period, defendant’s convictions of both rape and incest did not violate his Fifth Amendment protection against double jeopardy because he was convicted of both offenses for engaging in multiple acts of sexual intercourse with his daughters and because his acts did not constitute a single continuing offense. Even if the Commonwealth had only proved that defendant engaged in sexual intercourse with each of his daughters on one occasion, however, his Fifth Amendment protection against double jeopardy still would not have been violated because the test for determining whether a defendant can be convicted of more than one crime arising out of a single act is whether each charge requires proof of a fact that the other does not, and the crimes of rape and incest each required proof of a fact that the other did not; specifically, rape required proof of age, whereas incest did not but required proof of relationship, which rape did not. Johnson v. Commonwealth, 292 S.W.3d 889, 2009 Ky. LEXIS 209 ( Ky. 2009 ).

4.Due Process.

Person convicted of rape was not entitled to a writ of error coram nobis on the ground of newly discovered evidence which would affect the credibility of the prosecuting witness, where he did not prove exercise of due diligence to discover such evidence before or upon the trial, and where the testimony of the prosecuting witness had been corroborated by other witnesses, thus indicating that the newly discovered evidence would not have affected the result of the trial. (Decided under prior law) Walsh v. Tuggle, 303 Ky. 200 , 197 S.W.2d 253, 1946 Ky. LEXIS 821 ( Ky. 1946 ).

When defendant entered guilty plea to valid indictment under this section, he thereby confessed allegations therein, and could not subsequently attempt to vacate sentence on ground prosecutrix was under age of 12 years at time offense was committed. (Decided under prior law) Boles v. Commonwealth, 406 S.W.2d 853, 1966 Ky. LEXIS 230 ( Ky. 1966 ).

Where defendant was accused of assault and rape, denial of his right to cross-examine the prosecutrix about her psychiatric history constituted reversible error since proffered testimony tended to impeach her credibility. Wagner v. Commonwealth, 581 S.W.2d 352, 1979 Ky. LEXIS 262 ( Ky. 1979 ), overruled, Estep v. Commonwealth, 663 S.W.2d 213, 1983 Ky. LEXIS 316 ( Ky. 1983 ), overruled in part, Estep v. Commonwealth, 663 S.W.2d 213, 1983 Ky. LEXIS 316 ( Ky. 1983 ), overruled on other grounds, sub nom. Estep v. Commonwealth, 663 S.W.2d 213, 1983 Ky. LEXIS 316 (Ky. 1983).

Where, in prosecution for kidnapping, rape and forcible sodomy, the defendant, a black man, claimed that he and the victim, a white woman, had engaged in consensual sexual relations and that the victim lied to protect her relationship with her live-in lover, another black man, the Court of Appeals, in excluding all evidence of their living arrangement, violated the defendant’s Sixth Amendment right to be confronted with witnesses against him, as a reasonable jury might have received a significantly different impression of the victim’s credibility if the cross-examination had been permitted, speculation as to the effect of jurors’ racial bias could not justify the exclusion of cross-examination with such strong potential to impeach the victim’s testimony that she lived with her mother, the victim’s testimony was crucial to the prosecution’s case, and the prosecution’s case was far from overwhelming. Olden v. Kentucky, 488 U.S. 227, 109 S. Ct. 480, 102 L. Ed. 2d 513, 1988 U.S. LEXIS 5621 (U.S. 1988).

5.—Appeals.

Defendant’s assertion in a motion for a directed verdict of acquittal that there was insufficient evidence to convict defendant of the crimes charged did not adequately preserve for appellate review defendant’s claim on appeal that the Commonwealth failed to prove the element of forcible compulsion beyond a reasonable doubt, as required for convictions under KRS 510.040 , 510.070 , and 510.110 ; the matter can be reviewed for palpable error only. Bratcher v. Commonwealth, 2006 Ky. App. LEXIS 363 (Ky. Ct. App. Dec. 8, 2006, sub. op., 2006 Ky. App. Unpub. LEXIS 912 (Ky. Ct. App. Dec. 8, 2006).

6.—Impartial Jury.

Where a juror who sat on the jury in a case of first-degree rape failed to disclose during voir dire a pretrial conversation she had about the case with a doctor who testified at trial as the examining doctor, the right to a trial by an impartial jury required a reversal of the judgment of conviction and remand for a new trial. Paenitz v. Commonwealth, 820 S.W.2d 480, 1991 Ky. LEXIS 86 ( Ky. 1991 ).

7.—Improper Questions.

In rape prosecution, irrelevant questions by prosecution, as to defendant’s purchase of liquor and whether he thought prosecutrix was a grown woman, did not constitute reversible error. (Decided under prior law) Gilley v. Commonwealth, 280 Ky. 306 , 133 S.W.2d 67, 1939 Ky. LEXIS 119 ( Ky. 1939 ).

In a rape prosecution no prejudicial errors resulted from immaterial and irrelevant questions asked defendant by Commonwealth’s attorney (including questions implying defendant was army deserter) where objections thereto were invariably sustained. (Decided under prior law) Grigsby v. Commonwealth, 302 Ky. 266 , 194 S.W.2d 363, 1946 Ky. LEXIS 631 ( Ky. 1946 ).

Repetition by prosecutor of improper question constituted prejudicial, reversible error. (Decided under prior law) Rollyson v. Commonwealth, 320 S.W.2d 800, 1959 Ky. LEXIS 252 ( Ky. 1959 ).

8.—Leading Questions.

In prosecution under this section, it was error to allow prosecutor to ask 17 year old prosecutrix, and other witnesses, many leading questions. (Decided under prior law) Meland v. Commonwealth, 280 S.W.2d 145, 1955 Ky. LEXIS 127 ( Ky. 1955 ).

9.—Multiple Offenses.

Since testimony on one charge of rape would be admissible to show a pattern of conduct with reference to the other counts of rape, the fact that the defendant wished to testify as to one charge, but not the others was an insufficient showing of unfair prejudice to justify a severance under RCr 9.16. Owens v. Commonwealth, 572 S.W.2d 415, 1977 Ky. LEXIS 581 ( Ky. 1977 ).

Where the defendant was accused of three rapes in three months, all involving forcible entry followed by forcible rape, and all three alleged victims had the same first name, the trial court did not abuse its discretion in declining to grant a severance pursuant to RCr 9.16. Owens v. Commonwealth, 572 S.W.2d 415, 1977 Ky. LEXIS 581 ( Ky. 1977 ).

Where the evidence clearly disclosed that the defendant committed three distinct offenses — rape, sodomy and a second rape — when he penetrated prosecutrix’s vagina to accomplish the first act of intercourse, penetrated her mouth to accomplish the act of sodomy, and thereafter penetrated her vagina to accomplish the second act of intercourse, the fact that the acts occurred in a brief period of time with the same victim and in a continuum of force does not protect the defendant from prosecution and conviction of each separate offense. Van Dyke v. Commonwealth, 581 S.W.2d 563, 1979 Ky. LEXIS 257 ( Ky. 1979 ).

10.—Prosecutor’s Comments.

In prosecution for rape and sexual abuse, the prosecution’s question to the defendant “Do you recall saying to [the boy] ‘Why are you trying to hurt the one I love?’” was not reversible error, where, whatever the purpose of the question was, it did not materially prejudice the defense, and the question seemed to implicate the boy more than the defendant. Owsley v. Commonwealth, 743 S.W.2d 408, 1987 Ky. App. LEXIS 589 (Ky. Ct. App. 1987).

11.Elements.

The statutes defining the crimes of forcible rape and sodomy, subsection (1)(a) of this section and KRS 510.070(1)(a), do not say that a mental state is required for their commission; each statute only requires that the prohibited act be committed by forcible compulsion. Malone v. Commonwealth, 636 S.W.2d 647, 1982 Ky. LEXIS 276 ( Ky. 1982 ).

The crime of incest is neither an offense included in rape nor a lower degree of rape because incest includes elements not present in rape. Consanguinity between the attacker and the victim is not a necessary element of the crime of rape or statutory rape. And the elements of force, consent, or age are not necessary to prove incest. Wombles v. Commonwealth, 831 S.W.2d 172, 1992 Ky. LEXIS 76 ( Ky. 1992 ).

12.—Age.

Testimony of mother that the female was only ten (10) years old, supported by entries in family Bible, is sufficient to show child was under age of 12 years. (Decided under prior law) Clark v. Commonwealth, 92 S.W. 573, 29 Ky. L. Rptr. 154 (1906).

The offense under law that provided penalty for rape of child under 12 may be committed even though the female nominally consents, as she is not in legal contemplation capable of consenting. (Decided under prior law) White v. Commonwealth, 96 Ky. 180 , 28 S.W. 340, 16 Ky. L. Rptr. 421 , 1894 Ky. LEXIS 112 ( Ky. 1894 ).

In an indictment for rape, the fact that the prosecutrix was under 12 years of age did not constitute an additional statutory offense, and a motion to elect and demurrer for duplicity were properly overruled. (Decided under prior law) Blanks v. Commonwealth, 105 Ky. 41 , 48 S.W. 161, 20 Ky. L. Rptr. 1037 , 1898 Ky. LEXIS 242 ( Ky. 1898 ).

Court rejected defendant’s argument that the evidence was insufficient to support his conviction of first-degree and second-degree rape involving his daughters because the evidence failed to establish his age and held that sufficient evidence was presented to show that defendant was above the ages of 18 and 21 when he engaged in sexual intercourse with his daughters; at the time of trial, the older daughter was 18 and the younger was 14, and the rapes occurred when the older girl was between the ages of 12 and 15 and when the younger was between the ages of 8 and 11. From those facts, the jury could reasonably infer that, in order to have biological children that were the ages of his daughters, defendant must have been above the age of 21 so as to satisfy both the age requirements for rape in the first degree and rape in the second degree; in addition, the jury’s opportunity to actually see defendant at trial and to deduce his approximate age was not to be discounted. Johnson v. Commonwealth, 292 S.W.3d 889, 2009 Ky. LEXIS 209 ( Ky. 2009 ).

13.—Consent.

A female under 12 years of age is, in law, incapable of consenting to sexual intercourse, and to constitute rape, or an attempt to rape upon such a female, proof of force, actual or constructive, is unnecessary, intercourse even with her consent being rape. (Decided under prior law) Payne v. Commonwealth, 110 S.W. 311, 33 Ky. L. Rptr. 229 (1908).

Where prosecuting witness stated in her testimony more than once that the act was against her will and without her consent, but she also stated that, while she did not want to consent to the act, she finally did so, it was for the jury to say whether the act was with or without her consent. (Decided under prior law) Mitchell v. Commonwealth, 214 Ky. 4 , 282 S.W. 185, 1925 Ky. LEXIS 1136 ( Ky. 1925 ).

Lack of consent is an essential element of crime of rape. Morgan v. Commonwealth, 222 Ky. 742 , 2 S.W.2d 370, 1928 Ky. LEXIS 228 ( Ky. 1928 ).

Where testimony of prosecutrix, taken with surrounding facts and circumstances and considered in light of human experience, made it inconceivable that she did not consent to act of intercourse with defendant, verdict of guilty of forcible rape under this section was reversed as being flagrantly and palpably against weight of evidence. (Decided under prior law) Hightower v. Commonwealth, 286 Ky. 561 , 151 S.W.2d 39, 1941 Ky. LEXIS 282 ( Ky. 1941 ).

Although defendant was indicted, tried, and convicted under law that provided penalty for forcible rape of a female over 12, conviction was nevertheless reversed for new trial where it appeared there were issues as to whether mental condition of prosecutrix had rendered her mentally incapable of consent, and as to whether defendant could reasonably have known such condition, thus making inapplicable such law or any other law and putting case, as to these issues, under common law rape of insane women and idiots. (Decided under prior law) Wilson v. Commonwealth, 290 Ky. 223 , 160 S.W.2d 649, 1942 Ky. LEXIS 387 ( Ky. 1942 ).

14.—Forcible Compulsion.

It is not necessary on trial to prove that physical force was applied to the person of the female, for if she was made to yield through fear caused by threats of violence, the offense is proved. (Decided under prior law) Smith v. Commonwealth, 119 Ky. 280 , 83 S.W. 647, 26 Ky. L. Rptr. 1229 , 1904 Ky. LEXIS 172 ( Ky. 1904 ).

Force is not a necessary element of carnal knowledge. (Decided under prior law) Davis v. Commonwealth, 545 S.W.2d 644, 1976 Ky. LEXIS 145 ( Ky. 1976 ), vacated, 433 U.S. 905, 97 S. Ct. 2968, 53 L. Ed. 2d 1089, 1977 U.S. LEXIS 2563 (U.S. 1977).

Where a rape victim was 74 years old and in poor health and suffered from a chronic pulmonary condition, and where preceding and during the rape, she was choked and extensively bruised, the physical injuries sustained were sufficient to support a conclusion that a substantial risk of death had been created. Cooper v. Commonwealth, 569 S.W.2d 668, 1978 Ky. LEXIS 386 ( Ky. 1978 ).

Forcible compulsion places the victim in fear of death or physical injury but with mental incapacity to consent, fear may be completely absent. Salsman v. Commonwealth, 565 S.W.2d 638, 1978 Ky. App. LEXIS 512 (Ky. Ct. App. 1978).

Where the prosecutrix was mentally retarded, had difficulty understanding communications from other persons because of her deafness and was alone in the house and where the defendant ignored her physical resistance to his efforts to perform an oral sex act upon her, ignored her repeated indications that she did not wish to have sex with him, physically pulled her from a chair and physically held the prosecutrix while he removed her clothing, the trial court correctly submitted the question of forcible compulsion to the jury. Salsman v. Commonwealth, 565 S.W.2d 638, 1978 Ky. App. LEXIS 512 (Ky. Ct. App. 1978).

The “forcible compulsion” attendant to first-degree rape may or may not result in “physical injury” and the question of whether it does in a particular case is answered from the facts proved in that case. Van Dyke v. Commonwealth, 581 S.W.2d 563, 1979 Ky. LEXIS 257 ( Ky. 1979 ).

The evidence indicated that the two (2) sexually abused children were subject to constant emotional, verbal and physical duress. They lived in continued fear of what defendant might do to them or their mother. They testified that they went along with the deviate sexual behavior only because of this fear. Under the evidence as a whole, it was not clearly unreasonable for the jury to find that defendant engaged in sexual intercourse with the children by means of forcible compulsion. Accordingly, defendant was not entitled to a directed verdict of acquittal. Yarnell v. Commonwealth, 833 S.W.2d 834, 1992 Ky. LEXIS 155 ( Ky. 1992 ).

Evidence presented against defendant in a case where defendant was involved in a sexual relationship with an underage girl was sufficient to instruct the jury on third-degree rape based on her age, and, thus, defendant could be convicted of that charge under KRS 510.060 rather than first-degree rape based on forcible compulsion under KRS 510.040 . From the evidence presented, the jury could have believed that the encounter at issue was based on consent rather than force. Miller v. Commonwealth, 283 S.W.3d 690, 2009 Ky. LEXIS 97 ( Ky. 2009 ).

Under KRS 510.040(1)(a), the phrase “by forcible compulsion” means that the sexual intercourse had to be the result of an act or threat of physical force done by the defendant. Yates v. Commonwealth, 430 S.W.3d 883, 2014 Ky. LEXIS 9 ( Ky. 2014 ).

Defendant could not be convicted of first-degree rape by means of physical force against the victim where although the victim was incapable of consent due to her age, she had voluntarily engaged in sexual intercourse with defendant. Yates v. Commonwealth, 430 S.W.3d 883, 2014 Ky. LEXIS 9 ( Ky. 2014 ).

Evaluation of physical force is based on a victim’s express non-consent, or other involuntariness, to a defendant’s act. Thus, it may be in one case that a touch of the hand constitutes forcible compulsion while in another it does not.. Yates v. Commonwealth, 430 S.W.3d 883, 2014 Ky. LEXIS 9 ( Ky. 2014 ).

Defendant was not entitled to a directed verdict or to the dismissal of the rape and sodomy charges where there was sufficient evidence of forcible compulsion to raise a jury question, as the victim testified that defendant forcibly rolled her over, removed her pajama pants, and then physically pushed aside her several attempts to block him from sodomizing her, and defendant's acts were not actions merely incidental to sex. Jenkins v. Commonwealth, 496 S.W.3d 435, 2016 Ky. LEXIS 327 ( Ky. 2016 ), cert. denied, 137 S. Ct. 1205, 197 L. Ed. 2d 250, 2017 U.S. LEXIS 1566 (U.S. 2017).

15.—Penetration.

Penetration was essential to crime of rape but could be proved or disproved by circumstantial evidence and was question of fact for jury. (Decided under prior law) Moseley v. Commonwealth, 206 Ky. 173 , 266 S.W. 1048, 1924 Ky. LEXIS 285 ( Ky. 1924 ).

Any penetration, however slight, is sufficient to complete the crime of rape. (Decided under prior law) Fox v. Commonwealth, 299 Ky. 293 , 185 S.W.2d 394, 1945 Ky. LEXIS 414 ( Ky. 1945 ).

Where the victim testified she had been forced to have sexual relations with the defendant, the refusal of the trial court to dismiss the charge of rape for failure to prove penetration was proper. (Decided under prior law) Anderson v. Commonwealth, 500 S.W.2d 76, 1973 Ky. LEXIS 206 ( Ky. 1973 ).

16.—Seduction.

Seduction was not degree of crime defined by law that provided penalty for forcible rape of a female over twelve. (Decided under prior law) Yates v. Commonwealth, 211 Ky. 629 , 277 S.W. 995, 1925 Ky. LEXIS 936 ( Ky. 1925 ).

17.—Serious Physical Injury.

Although application of Apprendi v. New Jersey, 530 U.S. 466, 120 S. Ct. 2348, 2362-63, 147 L. Ed. 2d 435, 2000 U.S. LEXIS 4304 (2000), may make no practical difference in the sentence defendant received for rape because a 20-year sentence was permissible for a first-degree rape conviction regardless of whether the jury found that the victim suffered a serious physical injury, nevertheless Apprendi applied to all cases involving first-degree rape where the victim allegedly suffered a serious physical injury. Dixon v. Commonwealth, 263 S.W.3d 583, 2008 Ky. LEXIS 138 ( Ky. 2008 ).

Serious physical injury is a substantive element of first-degree rape if the Commonwealth seeks to have a rape offense classified as a Class A felony. Dixon v. Commonwealth, 263 S.W.3d 583, 2008 Ky. LEXIS 138 ( Ky. 2008 ).

18.Evidence.

In rape cases, defendant may be convicted on testimony of prosecutrix alone. (Decided under prior law) Fletcher v. Commonwealth, 250 Ky. 597 , 63 S.W.2d 780, 1933 Ky. LEXIS 745 ( Ky. 1933 ).

In attempted rape case, parents of infant prosecutrix were competent to testify that substance found by them on their daughter’s clothing was seminal fluid. (Decided under prior law) Wright v. Commonwealth, 267 Ky. 441 , 102 S.W.2d 376, 1937 Ky. LEXIS 336 ( Ky. 1937 ).

In prosecution for rape, where evidence was that defendant and two (2) of his companions all raped the girl, it was not error, after defendant testifying as a witness on his own behalf had related the movements of himself and the others, as well as the position of his body with reference to that of the prosecuting witness, to compel him to demonstrate before the jury the position he occupied with reference to the body of the prosecuting witness and to interrogate him fully for purposes of contradiction and for the purposes of testing the reasonableness and truthfulness of his statements for after he took the stand in his own behalf he became a witness for all purposes. (Decided under prior law) Fox v. Commonwealth, 299 Ky. 293 , 185 S.W.2d 394, 1945 Ky. LEXIS 414 ( Ky. 1945 ).

In a rape prosecution, where there were persons in another room so close to room in which rape was claimed to have occurred that they could have heard even ordinary conversation, but prosecuting witness made no outcry and there were no marks of violence upon her or her clothing, the evidence was not sufficient to support a conviction. (Decided under prior law) Weinel v. Commonwealth, 302 Ky. 742 , 196 S.W.2d 375, 1946 Ky. LEXIS 750 ( Ky. 1946 ).

Evidence that accused took indecent liberties with the person of six (6) year old victim was sufficient to establish intent to rape and support conviction against accused’s contention that at most the evidence could only support a conviction of assault and battery. (Decided under prior law) Muncie v. Commonwealth, 308 Ky. 155 , 213 S.W.2d 1019, 1948 Ky. LEXIS 892 ( Ky. 1948 ).

Evidence that eyewitness to intercourse had attempted to make a date with prosecutrix and had offered her money for that purpose, was properly excluded as irrelevant. (Decided under prior law) Rhye v. Commonwealth, 263 S.W.2d 923, 1953 Ky. LEXIS 1256 (Ky. Ct. App. 1953).

While there might have been evidence in rape case which, if believed, would have cast grave doubt on testimony of prosecutrix, still, since court could not say facts were inherently impossible and wholly at variance with universally recognized laws, sufficiency of evidence to sustain guilty verdict was upheld. (Decided under prior law) Bowling v. Commonwealth, 318 S.W.2d 53, 1958 Ky. LEXIS 127 ( Ky. 1958 ).

Where there was positive testimony that defendant sexually molested infant, in prosecution under law that provided penalty for rape of child under 12, defendant was not entitled to directed verdict. (Decided under prior law) Moore v. Commonwealth, 384 S.W.2d 498, 1964 Ky. LEXIS 102 ( Ky. 1964 ).

Where competency of eight (8) year old prosecutrix to testify was questioned, but voir dire examination of her was so superficial that no accurate appraisal of her mental capacity could be made, trial court erred in permitting her to testify. (Decided under prior law) Moore v. Commonwealth, 384 S.W.2d 498, 1964 Ky. LEXIS 102 ( Ky. 1964 ).

Where a witness’s testimony involved an alleged admission on the defendant’s part, it was clearly substantive in nature and had to be introduced in chief instead of as rebuttal. (Decided under prior law) Robinson v. Commonwealth, 459 S.W.2d 147, 1970 Ky. LEXIS 123 ( Ky. 1970 ).

Where the defendants admitted having intercourse with the prosecuting witness but denied it was by force, even though there was testimony that the girl was promiscuous the evidence was sufficient to sustain the guilty verdict. (Decided under prior law) Morris v. Commonwealth, 459 S.W.2d 589, 1970 Ky. LEXIS 134 ( Ky. 1970 ).

Where the evidence developed at trial placed the crime at a different site than that given in the police report and shown the defendant, the defendant was not prejudiced since he asserted an alibi. (Decided under prior law) Davis v. Commonwealth, 463 S.W.2d 133, 1970 Ky. LEXIS 658 ( Ky. 1970 ).

Where prosecutor told jury that incriminatory statement was contained in defendant’s statement, but it was actually contained in police officer’s testimony, it was not error to deny defendant the opportunity to prove that his written statement to police did not contain such remark since jury had copies of statement and of testimony. Smith v. Commonwealth, 566 S.W.2d 181, 1978 Ky. App. LEXIS 519 (Ky. Ct. App. 1978).

Victim of sexual crimes could testify as to her own relevant observations and actions, that she had not consented, or at least that she did not recall consenting to any sexual contact, to explain her reason for seeking medical treatment and that she had been abused at party; however, the jury in such case should have been admonished that the fact that she had heard the reports was admissible to explain her actions, but was not to be considered as evidence that such reports were true, or that the acts had occurred. Skinner v. Commonwealth, 864 S.W.2d 290, 1993 Ky. LEXIS 149 ( Ky. 1993 ).

19.—Accessories.

In prosecution for rape, Commonwealth was not required to confine its testimony to any single part of the assault complained of, but had the right to prove everything that occurred in connection with the rape, including rape by defendant’s companion. (Decided under prior law) Fox v. Commonwealth, 299 Ky. 293 , 185 S.W.2d 394, 1945 Ky. LEXIS 414 ( Ky. 1945 ).

20.—Admissibility.

In prosecution for rape, where prosecuting witness testified that both defendant and his companion raped her, and there was uncontradicted evidence that the companion had gonorrhea, it was not error to admit evidence that the prosecuting witness became infected with gonorrhea, such evidence being competent for the purpose of corroboration. (Decided under prior law) Fox v. Commonwealth, 299 Ky. 293 , 185 S.W.2d 394, 1945 Ky. LEXIS 414 ( Ky. 1945 ).

In prosecution of defendant for rape of his daughter, testimony of sister of prosecutrix as to whether defendant was father of his daughter’s child was incompetent. (Decided under prior law) Saltkill v. Commonwealth, 311 Ky. 296 , 223 S.W.2d 1004, 1949 Ky. LEXIS 1125 ( Ky. 1949 ).

Testimony of witness during rape prosecution when asked date of offense, that “it happened every day,” was competent as showing defendant’s lust for prosecutrix, but court should have admonished jury that such testimony could only be considered as corroborative evidence. (Decided under prior law) Moore v. Commonwealth, 384 S.W.2d 498, 1964 Ky. LEXIS 102 ( Ky. 1964 ).

In prosecution for first-degree rape of defendant’s 11-year-old granddaughter, trial court committed reversible error in allowing admission in the guise of rebuttal evidence of a tape recorded conversation between defendant and police officer during the course of which conversation defendant admitted to having had sexual intercourse with victim. Gilbert v. Commonwealth, 633 S.W.2d 69, 1982 Ky. LEXIS 250 ( Ky. 1982 ).

No evidence is admissible to show “lustful inclination.” Evidence of other crimes of sexual misconduct is admissible for the purpose of showing motive, a common pattern, scheme, plan, identity, absence of mistake or accident, intent, or knowledge. Pendleton v. Commonwealth, 685 S.W.2d 549, 1985 Ky. LEXIS 208 ( Ky. 1985 ).

Testimony of victim of sexual crimes, who was not an eyewitness to charged acts as she was allegedly helpless at the time due to her consumption of alcohol, as to what her friends had told her and as to the gossip she had heard at school, offered in proof of offenses charged was patent hearsay and was incompetent to prove that the criminal acts had occurred or that defendant had committed them and was not relevant, independent of its truth, to prove that any of the acts were committed without the victim’s consent. Skinner v. Commonwealth, 864 S.W.2d 290, 1993 Ky. LEXIS 149 ( Ky. 1993 ).

Testimony of psychologist to whom victim of sexual crimes had gone for counseling was inadmissible hearsay since it was based on what victim told her and victim was not an eyewitness but merely told psychologist what she believed had happened based upon things others had told her and reports she had heard. Skinner v. Commonwealth, 864 S.W.2d 290, 1993 Ky. LEXIS 149 ( Ky. 1993 ).

21.— —Photographs.

A photograph of the victim shown to the jury was not prejudicially gruesome, where all the damage done to the victim was by the defendant. Wager v. Commonwealth, 751 S.W.2d 28, 1988 Ky. LEXIS 29 ( Ky. 1988 ).

22.— —Tape Recordings.

Where the tape recording of the rape was inadvertently made by the defendants and there was no intrusion by the Commonwealth or any of its agents, the strict test for admissibility in Commonwealth v. Brinkley, 362 S.W.2d 494, 1962 Ky. LEXIS 259 ( Ky. 1962 ), was not applicable; instead, the test was similar to the one applicable to photographic evidence, and the victim needed only to testify that the tape was a true and accurate recording of the events. Commonwealth v. Prater, 714 S.W.2d 492, 1986 Ky. App. LEXIS 1181 (Ky. Ct. App. 1986).

23.—Character.

On a trial for rape, it is admissible to prove the bad character of the woman alleged to have been assaulted, upon the principle that a woman of bad character would be more apt to give consent than one of good character. (Decided under prior law) Bowman v. Commonwealth, 146 Ky. 486 , 143 S.W. 47, 1912 Ky. LEXIS 140 ( Ky. 1912 ).

In rape case, it was not error for prosecution to elicit from unmarried prosecutrix that she had been a virgin before alleged rape, as long as fact of her chastity was not emphasized by elaboration of it in her testimony, or by introduction of character witnesses. (Decided under prior law) Ford v. Commonwealth, 286 S.W.2d 518, 1956 Ky. LEXIS 414 ( Ky. 1956 ).

In rape prosecution, there was initial presumption of chastity of unmarried prosecutrix. (Decided under prior law) Ford v. Commonwealth, 286 S.W.2d 518, 1956 Ky. LEXIS 414 ( Ky. 1956 ).

Where a character witness for the defendant was not permitted to testify because she had remained in the courtroom during the trial, the other witnesses having been excluded by a rule for separation, the exclusion was not prejudicial because the evidence would have been cumulative and there was no avowal to show what the witness would have said. (Decided under prior law) Patrick v. Commonwealth, 436 S.W.2d 69, 1968 Ky. LEXIS 177 ( Ky. 1968 ).

24.—Examining Physician.

Testimony of examining doctor, that prosecutrix who came to him in middle of night for examination, told him she had been raped was not prejudicial but should have been excluded, since such statement by her was not necessary to have been made to enable him to determine treatment required. (Decided under prior law) Rollyson v. Commonwealth, 320 S.W.2d 800, 1959 Ky. LEXIS 252 ( Ky. 1959 ).

25.—Expert Witnesses.

Hypothetical question asked physician, relating to swelling or redness found about person of prosecuting witness, was not supported by evidence in record, and it was prejudicial error to permit witness to answer it. (Decided under prior law) Hodge v. Commonwealth, 289 Ky. 548 , 159 S.W.2d 422, 1942 Ky. LEXIS 604 ( Ky. 1942 ).

Where a medical doctor who specialized in obstetrics and gynecology treated the rape victim in the emergency room of a hospital within a few hours following her rape, robbery and assault, the doctor, by reason of his special skills and special training, was properly permitted to testify that it was his opinion that the victim had undergone forcible intercourse. Pevlor v. Commonwealth, 638 S.W.2d 272, 1982 Ky. LEXIS 291 ( Ky. 1982 ), cert. denied, 459 U.S. 1149, 103 S. Ct. 794, 74 L. Ed. 2d 998, 1983 U.S. LEXIS 3136 (U.S. 1983).

In a prosecution for first degree rape and first degree sodomy, the exclusion of testimony from a psychologist who had administered tests and offered his expert opinion that the defendant’s psychological profile was not indicative of or consistent with that of a sex offender was not error, where the accused did not rely on insanity as a defense and he did not file notice of an insanity defense before trial. Pendleton v. Commonwealth, 685 S.W.2d 549, 1985 Ky. LEXIS 208 ( Ky. 1985 ).

Where a social worker testified that the rape victim told him her father engaged in repeated acts of intercourse with her and that she did not report this fact immediately because she was afraid, the victim had previously testified in a similar vein, and there was nothing in the record to establish or indicate that the history given to the social worker by the victim was for the purpose of treatment, it was error to permit the testimony of the social worker that the victim fulfilled the criteria of the “sexual abuse accommodation syndrome.” Lantrip v. Commonwealth, 713 S.W.2d 816, 1986 Ky. LEXIS 273 ( Ky. 1986 ).

26.—Forcible Compulsion.

In a prosecution for rape, it was competent to admit evidence concerning the fact that the defendant had used a whip on the prosecutrix on one occasion and had slapped her around on others to show the extent of the defendant’s domination over the prosecutrix, with the result that her willpower was lessened to a great degree. (Decided under prior law) Rhye v. Commonwealth, 263 S.W.2d 923, 1953 Ky. LEXIS 1256 (Ky. Ct. App. 1953).

27.—Penetration.

Where, under the evidence, there was no doubt that defendant was guilty of an attempt to commit the crime of rape but penetration was not proven, the court should have instructed the jury upon the law governing the crime of rape, and attempt to rape, and lesser degrees of the crime of rape, and upon any theory of defense which defendant presented that would, under the law, excuse or mitigate the crime. (Decided under prior law) Moseley v. Commonwealth, 206 Ky. 173 , 266 S.W. 1048, 1924 Ky. LEXIS 285 ( Ky. 1924 ).

Prosecutrix was not required to use certain specific words to state fact of penetration. (Decided under prior law) Rollyson v. Commonwealth, 320 S.W.2d 800, 1959 Ky. LEXIS 252 ( Ky. 1959 ).

Where there was both physical evidence and the evidence of the victim that a partial penetration had occurred, there was sufficient evidence to warrant giving an instruction on the charge of rape. (Decided under prior law) Trimble v. Commonwealth, 447 S.W.2d 348, 1969 Ky. LEXIS 78 ( Ky. 1969 ).

28.—Physical Evidence.

Evidence was competent which consisted of bloody clothing of prosecutrix, worn by her on date of alleged rape, and of testimony establishing that such clothing was in same condition immediately after alleged attack. (Decided under prior law) Coldiron v. Commonwealth, 263 S.W.2d 125, 1953 Ky. LEXIS 1242 (Ky. Ct. App. 1953).

Where the alleged rape occurred in the early afternoon and the victim spent considerable time with defendant, it was impossible for the court to declare her identification inherently incredible or impossible, particularly where her description of his clothes was squarely corroborated by defendant’s own alibi witness. (Decided under prior law) Russell v. Commonwealth, 490 S.W.2d 726, 1973 Ky. LEXIS 633 ( Ky. 1973 ).

In a first degree rape prosecution, there was no need to prove a chain of custody before admitting shorts with a broken fastener into evidence, as the testimony of the victim and the officer who took her complaint was sufficient to establish that the shorts were the ones worn during the incident, and that they had not been altered in any material respect. Day v. Commonwealth, 174 S.W.3d 496, 2004 Ky. App. LEXIS 361 (Ky. Ct. App. 2004).

29.—Prior Acts.

Where any intercourse between defendant and prosecutrix would have been unlawful under this section, so that Commonwealth had to prove absence of consent, evidence relative to prior acts of intercourse with defendant should have been admitted as bearing upon question of consent. (Decided under prior law) Adams v. Commonwealth, 219 Ky. 711 , 294 S.W. 151, 1927 Ky. LEXIS 404 ( Ky. 1927 ).

Evidence of particular immoral acts of prosecutrix with other men, or especially with defendant, occurring shortly before alleged rape, was competent as bearing on issue of consent or its probability. (Decided under prior law) Grigsby v. Commonwealth, 299 Ky. 721 , 187 S.W.2d 259, 1945 Ky. LEXIS 786 ( Ky. 1945 ).

Testimony that prosecutrix had lived in adultery with other men while her husband was confined in penitentiary, at some undisclosed period, was incompetent due to apparent remoteness. (Decided under prior law) Grigsby v. Commonwealth, 299 Ky. 721 , 187 S.W.2d 259, 1945 Ky. LEXIS 786 ( Ky. 1945 ).

Prior acts of sexual misconduct toward the victim are admissible as tending to prove a lustful disposition toward the victim and such evidence is competent for the purpose of corroboration and to show design, disposition or intent on the part of the accused, and by an extension of this reasoning, it would not be logical to exclude a conviction for such acts. (Decided under prior law) McDonald v. Commonwealth, 569 S.W.2d 134, 1978 Ky. LEXIS 379 ( Ky. 1978 ), cert. denied, 439 U.S. 1119, 99 S. Ct. 1028, 59 L. Ed. 2d 79, 1979 U.S. LEXIS 530 (U.S. 1979) sub. nom.Fryrear v. Parker, 920 S.W.2d 519, 1996 Ky. LEXIS 1 ( Ky. 1996 ).

In a prosecution for rape, it was prejudicial error to admit into evidence the testimony of two (2) female witnesses concerning improper sexual advances made to them by the defendant, as prior acts are no longer admissible for the purpose of showing lustful inclination. Lantrip v. Commonwealth, 713 S.W.2d 816, 1986 Ky. LEXIS 273 ( Ky. 1986 ).

It was not error to admit evidence of defendant’s prior sexual abuse of young female step-family members where the pattern of conduct and method of operation was very similar and went on for many years. Lear v. Commonwealth, 884 S.W.2d 657, 1994 Ky. LEXIS 103 ( Ky. 1994 ).

Evidence of defendant’s prior acts of domestic violence against his wife, the victim, was relevant to show forcible compulsion, one of the elements of rape in the first degree. Fields v. Commonwealth, 2006 Ky. App. LEXIS 23 (Ky. Ct. App. Jan. 27, 2006), review denied, ordered not published, 2006 Ky. LEXIS 224 (Ky. Aug. 17, 2006).

30.—Statements by Victim.

In rape case, statements made by prosecutrix to her mother and another person, several days after alleged rape, were clearly not res gestae, and their admission constituted reversible error. (Decided under prior law) Hopper v. Commonwealth, 311 Ky. 655 , 225 S.W.2d 100, 1949 Ky. LEXIS 1215 ( Ky. 1949 ).

Where complaint of rape was made by prosecutrix to husband immediately upon his arrival home approximately one hour after alleged crime occurred, passage of one hour’s time was not sufficient to exclude her statement from exception afforded by res gestae doctrine. (Decided under prior law) Cook v. Commonwealth, 351 S.W.2d 187, 1961 Ky. LEXIS 155 ( Ky. 1961 ).

Statements made by prosecutrix at least an hour and five (5) minutes after happening of alleged rape was not “res gestae,” and testimony thereof was hearsay and reception of such testimony which additionally contained suggestion that prosecutrix might obtain $1,000 from defendant and that she had stated that “he had done other women this way” required reversal. (Decided under prior law) Cook v. Commonwealth, 379 S.W.2d 228, 1964 Ky. LEXIS 222 ( Ky. 1964 ).

Where the victim was 87 years old and had been severely traumatized, and her identification of the defendant was somewhat confused, the testimony of a detective regarding the victim’s identification of her assailant one and one-half (11/2) days after the crime should not have been admitted, even though the victim had since died, and there were no eyewitnesses. Wager v. Commonwealth, 751 S.W.2d 28, 1988 Ky. LEXIS 29 ( Ky. 1988 ).

Upon retrial of a case involving alleged child abuse, trial court was directed to decide hearsay questions regarding each of the various out-of-court statements made by the victim children to a psychiatrist and psychologist by making a judgment as to whether their prejudicial effect outweighed their probative value, taking into account that when such statements are not made for the purpose of treatment they have less inherent reliability than evidence admitted under the traditional common-law standard underlying the physician treatment rule. Drumm v. Commonwealth, 783 S.W.2d 380, 1990 Ky. LEXIS 3 ( Ky. 1990 ), overruled in part, Garrett v. Commonwealth, 48 S.W.3d 6, 2001 Ky. LEXIS 119 ( Ky. 2001 ).

31.—Nonprejudicial.

Where testimony was introduced as to the prosecutrix’s health subsequent to the commission of the crime of rape of a girl over 12 years old, it was not prejudicial to the defendant, under the circumstances of the case. (Decided under prior law) Coldiron v. Commonwealth, 263 S.W.2d 125, 1953 Ky. LEXIS 1242 (Ky. Ct. App. 1953).

Where overwhelming evidence, including identification by the prosecutrix, indicated that defendants were guilty of rape and where the life sentence imposed by the jury was not the maximum sentence allowed, errors pertaining to admission of defendants’ silence at the time of identification and at the time of arrest, though violating defendants’ right to remain silent, were not prejudicial and did not require reversal. (Decided under prior law) Niemeyer v. Commonwealth, 533 S.W.2d 218, 1976 Ky. LEXIS 111 ( Ky. 1976 ).

Where rape victim testified that police told her that blood found on her pillowcase matched that of defendant, but, on further questioning, indicated that the police did not specifically identify the defendant but merely told her that the blood was that of her attacker, a motion for mistrial was properly denied. Standard v. Buckner, 561 S.W.2d 329, 1977 Ky. App. LEXIS 893 (Ky. Ct. App. 1977).

Testimony of nurse who examined rape victim that, from her experience in assisting in the examination of rape victims, it was not an unusual situation for an alleged rape victim to have no sperm present, was irrelevant in the determination of the guilt or innocence of the defendant inasmuch as the presence of sperm is not necessary in order to sustain a conviction for rape, but there was no prejudice to defendant in its admission. Norris v. Commonwealth, 668 S.W.2d 557, 1984 Ky. App. LEXIS 456 (Ky. Ct. App. 1984).

At trial defendant objected to testimony by his natural daughter and his niece that defendant had previously engaged in sexual touching. Defendant argued that this testimony was too remote in time and too dissimilar in nature for the charges of rape and sodomy for which he was on trial, but a careful examination of the entire record indicated that there was strong direct evidence. Considering the entire case, there was no substantial possibility that the resulting conviction would have been any different, and the alleged errors were nonprejudicial. Yarnell v. Commonwealth, 833 S.W.2d 834, 1992 Ky. LEXIS 155 ( Ky. 1992 ).

32.—Sufficient.

Victim’s testimony was sufficient to sustain conviction of rape, although it was contradicted by companions who were present at time of alleged rape, and partly contradicted by another witness, where it was corroborated by testimony of doctor as to ruptured hymen and by victim’s brother as to condition of her clothing. (Decided under prior law) Hogue v. Commonwealth, 305 Ky. 298 , 203 S.W.2d 42, 1947 Ky. LEXIS 787 ( Ky. 1947 ).

In rape prosecution, conviction based upon prosecutrix’ uncorroborated testimony will be sustained unless her story is so improbable as to prove false. (Decided under prior law) Hogue v. Commonwealth, 305 Ky. 298 , 203 S.W.2d 42, 1947 Ky. LEXIS 787 ( Ky. 1947 ); Adams v. Commonwealth, 261 S.W.2d 811, 1953 Ky. LEXIS 1062 ( Ky. 1953 ); Newsome v. Commonwealth, 274 S.W.2d 484, 1954 Ky. LEXIS 1232 ( Ky. 1954 ); Meland v. Commonwealth, 280 S.W.2d 145, 1955 Ky. LEXIS 127 ( Ky. 1955 ).

In rape prosecution wherein defense of alibi was raised, evidence that prosecutrix, in an effort to avoid disgrace, had never used the word “rape” before going before grand jury but had used other terminology such as “mistreated,” was competent only for purpose of contradiction. (Decided under prior law) Bailey v. Commonwealth, 311 Ky. 487 , 224 S.W.2d 682, 1949 Ky. LEXIS 1183 ( Ky. 1949 ).

Testimony that prosecutrix said to defendant’s friend “you caught us,” when he found defendant and prosecutrix engaged in act of intercourse, was properly excluded. (Decided under prior law) Rhye v. Commonwealth, 263 S.W.2d 923, 1953 Ky. LEXIS 1256 (Ky. Ct. App. 1953).

Uncorroborated, unusual, and directly contradicted testimony of prosecutrix that, several years before, at age 12, she had been raped by defendant who was minister and director of children’s home, was not so highly improbable as to show it to be false, and was sufficient to take case to jury and sustain guilty verdict. Meland v. Commonwealth, 280 S.W.2d 145, 1955 Ky. LEXIS 127 ( Ky. 1955 ).

Where the only evidence of the alleged rape was the testimony of the 14 year old prosecutrix, the evidence was sufficient to convict. (Decided under prior law) Patrick v. Commonwealth, 436 S.W.2d 69, 1968 Ky. LEXIS 177 ( Ky. 1968 ).

Where the prosecutrix had a mental age of five (5) years, but she related in detail the occurrences in which she and the defendant had been involved and her testimony was corroborated by that of the defendant as well as other witnesses in all respects except as to the act of intercourse and her unlawful detention, the testimony was sufficient for the jury to consider it credible, probable and not at variance with the laws of common experience. (Decided under prior law) Clements v. Commonwealth, 424 S.W.2d 825, 1968 Ky. LEXIS 471 ( Ky. 1968 ).

The unsupported testimony of the prosecutrix, if not contradictory or incredible, or inherently improbable, may be sufficient to sustain a conviction of rape. (Decided under prior law) Robinson v. Commonwealth, 459 S.W.2d 147, 1970 Ky. LEXIS 123 ( Ky. 1970 ).

Where the defendant was observed by witnesses in the act of raping a 93-year-old, mentally incompetent woman, the evidence proved the elements or rape beyond a reasonable doubt and was sufficient to sustain a conviction. (Decided under prior law) Green v. Commonwealth, 556 S.W.2d 684, 1977 Ky. LEXIS 527 ( Ky. 1977 ).

Where two (2) defendants, one black and one white, were positively identified by the victim on direct examination and the evidence showed that they were seen together on the day of the rape and at the location thereof and were driving a car described by the victim as that of her attackers, the conviction of the black defendant, who owned the car in question, was sustained by sufficient evidence despite the victim’s admission on cross-examination that there was a reasonable doubt in her mind that he was the black man who raped her. Patterson v. Commonwealth, 555 S.W.2d 607, 1977 Ky. App. LEXIS 793 (Ky. Ct. App. 1977).

The evidence of rape was sufficient, and the case was properly submitted to the jury, where the autopsy of the victim revealed beating about the victim’s face, there was abundant evidence of a struggle, and the defendant’s former wife testified that the defendant told her about the rape before the television news reported it. Smith v. Commonwealth, 722 S.W.2d 892, 1987 Ky. LEXIS 190 ( Ky. 1987 ).

Although, in prosecution for rape and sexual abuse, the victim’s testimony contained several inconsistencies, her testimony was quite lucid and precise as to the incident of which the defendant was convicted, and the inconsistencies were not of a number or to a degree that would warrant taking the case from the jury. Owsley v. Commonwealth, 743 S.W.2d 408, 1987 Ky. App. LEXIS 589 (Ky. Ct. App. 1987).

In prosecution for first degree rape, sodomy and sexual abuse, where a number of eyewitnesses presented competent evidence sufficient to warrant inferences that defendant was in the room where alleged victim was taken after she passed out after extensive drinking, that he had been “on top” of her, that he had attempted intercourse, that there had been actual penetration, that defendant had put his face between victim’s legs, that defendant admitted to several witnesses that he had had sexual relations with the victim, such evidence was sufficient to enable jurors to find that defendant was guilty of the charges beyond a reasonable doubt. Skinner v. Commonwealth, 864 S.W.2d 290, 1993 Ky. LEXIS 149 ( Ky. 1993 ).

In a first degree rape prosecution, where the victim testified that she tried to resist defendant’s assault by punching and kicking him, but that he raped her, and the officer to whom she made outcry testified that she was shaking and crying and had a cut lip, defendant had not been entitled to a directed verdict, notwithstanding the fact that the victim had walked past another officer without alerting him to the rape. Day v. Commonwealth, 174 S.W.3d 496, 2004 Ky. App. LEXIS 361 (Ky. Ct. App. 2004).

Petitioner was not entitled to a writ of habeas corpus based on his claim of insufficiency of evidence in convictions for sodomy, KRS 510.070(1), and rape, KRS 510.040(1)(a), because a rational trier of fact, after viewing the evidence in the light most favorable to the prosecution, could have found the essential elements of those crimes, including the element of deviate sexual intercourse under KRS 510.010(1), beyond a reasonable doubt. Because the convictions were properly supported by evidence, they were properly used as aggravating circumstances during the penalty phase under KRS 532.025 . Sanborn v. Parker, 2005 U.S. Dist. LEXIS 44697 (W.D. Ky. Jan. 12, 2005).

Evidence was sufficient for a jury to conclude that defendant had acted with forcible compulsion when he committed sexual misconduct with the victim over a period of one (1) year, because the victim, who was 14 years old at the time of the crimes, testified numerous times that she was scared of defendant and identified specific instances when defendant had forced himself upon her. Bratcher v. Commonwealth, 2006 Ky. App. LEXIS 363 (Ky. Ct. App. Dec. 8, 2006, sub. op., 2006 Ky. App. Unpub. LEXIS 912 (Ky. Ct. App. Dec. 8, 2006).

Evidence was sufficient to sustain a first-degree rape conviction because defendant forced the victim to him, ignored her objections, kept kissing her neck, and unfastened her belt; when the victim re-fastened her belt, he unbuckled it again, pulled her pants down, and forced himself upon her. Newcomb v. Commonwealth, 410 S.W.3d 63, 2013 Ky. LEXIS 83 ( Ky. 2013 ).

32.—Sufficient.

Circuit court properly convicted defendant of first-degree sodomy and first-degree rape because evidence of the victim’s subsequent consensual sexual encounter with her boyfriend did not fall under any of the exceptions in, and was plainly excluded by, the Rules of Evidence, the prosecutor’s statements—characterizing defendant’s statements that he had sex with the victim on the night in question as confessions—could reasonably be inferred from the evidence, information of his familial relationship with the victim was not prejudicial or impacted the jury’s ultimate verdict, and a hearing was not necessary where defendant’s allegation of juror misconduct was not clear from the record. Powers v. Commonwealth, 2019 Ky. App. LEXIS 96 (Ky. Ct. App. May 24, 2019), aff'd, 2021 Ky. LEXIS 143 (Ky. June 17, 2021).

34.Indictment.

In an indictment under law that provided penalty for forcible rape of a female over 12, the use of word “ravish” is not necessary, nor is it necessary to use the word “feloniously.” (Decided under prior law) Wilkey v. Commonwealth, 104 Ky. 325 , 47 S.W. 219, 20 Ky. L. Rptr. 578 , 1898 Ky. LEXIS 163 ( Ky. 1898 ).

An indictment alleging the act was against the will and consent of the female, or while she was insensible, or incapable of exercising her will, a drug having been administered to her, need not allege defendant knew she was incapable of consent by reason of the administration of the drug. (Decided under prior law) Commonwealth v. Lowe, 116 Ky. 335 , 76 S.W. 119, 25 Ky. L. Rptr. 534 , 1903 Ky. LEXIS 195 ( Ky. 1903 ).

An indictment for rape need not charge that the female charged with being carnally known was above 12 years of age, as a failure to make such allegation in an indictment must be understood as meaning that the female was above that age. (Decided under prior law) Jones v. Commonwealth, 124 Ky. 26 , 97 S.W. 1118, 30 Ky. L. Rptr. 288 , 1906 Ky. LEXIS 231 ( Ky. 1906 ).

Under indictment charging defendant with rape committed by himself and by aiding his three (3) associates, defendant was charged with single crime of rape, and therefore such indictment was not invalid as charging more than one offense. (Decided under prior law) Shivley v. Commonwealth, 227 Ky. 748 , 14 S.W.2d 205, 1928 Ky. LEXIS 518 ( Ky. 1928 ).

Rape could have been committed by different means, and indictment could allege modes and means in alternative. (Decided under prior law) Deboe v. Commonwealth, 257 Ky. 792 , 79 S.W.2d 236, 1935 Ky. LEXIS 101 ( Ky. 1935 ); Green v. Commonwealth, 268 Ky. 475 , 105 S.W.2d 585, 1937 Ky. LEXIS 492 ( Ky. 1937 ).

Indictment under law that provided penalty for forcible rape of a female over 12, which employed words “unlawfully, feloniously, rape and ravish, . . . . . by the use of force,” was not defective in failing to use word “forcibly” following word “feloniously.” (Decided under prior law) Deboe v. Commonwealth, 257 Ky. 792 , 79 S.W.2d 236, 1935 Ky. LEXIS 101 ( Ky. 1935 ).

Indictment alleging the act was committed “unlawfully, willfully, and feloniously and maliciously and forcibly” held not defective for failure to allege that intercourse was “against her will or consent.” (Decided under prior law) Green v. Commonwealth, 268 Ky. 475 , 105 S.W.2d 585, 1937 Ky. LEXIS 492 ( Ky. 1937 ).

Indictment charging that intercourse was against the will or consent of prosecutrix need not also allege that intercourse was accomplished by force, but evidence that accused used force is admissible to show how offense was committed. (Decided under prior law) Kitchen v. Commonwealth, 275 Ky. 564 , 122 S.W.2d 121, 1938 Ky. LEXIS 463 ( Ky. 1938 ).

Indictment charging that defendant feloniously assaulted female and, without her consent, had sexual intercourse with her sufficiently charged a violation of law that provided penalty for forcible rape of a female over 12. (Decided under prior law) White v. Commonwealth, 292 Ky. 416 , 166 S.W.2d 873, 1942 Ky. LEXIS 105 ( Ky. 1942 ).

Indictment alleging defendants unlawfully carnally knew prosecutrix, and drawn in statutory language, was sufficient, notwithstanding it failed to state age of parties or that prosecutrix was wife of neither defendant. (Decided under prior law) Gambrell v. Commonwealth, 312 Ky. 573 , 228 S.W.2d 457, 1950 Ky. LEXIS 706 ( Ky. 1950 ).

Complaint of rape by prosecutrix should be made before there has been time to contrive and misrepresent, so as to preclude the complaint’s being the product of afterthought or deliberate design. (Decided under prior law) Cook v. Commonwealth, 351 S.W.2d 187, 1961 Ky. LEXIS 155 ( Ky. 1961 ).

35.— Age.

Indictment need not allege age of accused. (Decided under prior law) Merriss v. Commonwealth, 287 Ky. 58 , 151 S.W.2d 1030, 1941 Ky. LEXIS 486 ( Ky. 1941 ).

Under an indictment for rape, accused may be convicted under law that provided penalty for carnal knowledge of a child with consent although the indictment contains no allegation as to the age of the prosecutrix or the accused. (Decided under prior law) Merriss v. Commonwealth, 287 Ky. 58 , 151 S.W.2d 1030, 1941 Ky. LEXIS 486 ( Ky. 1941 ).

Where indictment does not allege that female upon whom rape allegedly was committed was under 12 years of age, it must be understood as meaning that she was above that age. (Decided under prior law) Gambrell v. Commonwealth, 312 Ky. 573 , 228 S.W.2d 457, 1950 Ky. LEXIS 706 ( Ky. 1950 ).

36.—Amendment.

Defendant was not unduly prejudiced by the amendment of count one of his indictment from first-degree sodomy to first-degree rape to conform to the evidence. The amendment did not amount to reversible error. The bill of particulars in this case gave defendant notice that the evidence on which the prosecution would rely did not pertain to sodomy but rather was first-degree rape. Defendant’s defense at trial also indicated no prejudice occurred by the amendment because he simply maintained a complete denial to all the charges against him and in some instances offered an alibi. Whether count one was a charge of sodomy or rape, the defense of denial would have still been present; therefore, there was no reversible error. Yarnell v. Commonwealth, 833 S.W.2d 834, 1992 Ky. LEXIS 155 ( Ky. 1992 ).

37.—One Offense.

The court did not err in failing to instruct the jury as to the lower degree of the crime of rape where, under the proof, defendant could not have been found guilty of a lower degree of the crime under this section since he denied that he ever had carnal knowledge of the prosecutrix, that he attempted to have such knowledge of her, or that he ever committed an assault upon her and unless her testimony was a fabrication, he was guilty of rape and nothing else. (Decided under prior law) Webb v. Commonwealth, 99 S.W. 909, 30 Ky. L. Rptr. 841 (1907).

38.—Variance.

Where the indictment had only charged rape by forcible compulsion, the jury instruction differed from the original indictment in that it mentioned the possibility that victim was incapable of consent because of physical helplessness, a possibility that had not been mentioned in the indictment. However, this difference constituted a variance, not an amendment of the indictment because this section provides only one offense of rape with two (2) different methods of commission. This section was drafted to define all kinds of forcible rape, by whatever mode or method. Martin v. Kassulke, 970 F.2d 1539, 1992 U.S. App. LEXIS 17332 (6th Cir. Ky. 1992 ).

Although there was a variance between the indictment charging defendant with first degree rape and first degree sodomy by “use of forcible compulsion” and the evidence at trial that victim’s physical helplessness due to her consumption of alcohol constituted the lack-of-consent element of each sexual offense, where the variance did not involve a different or additional offense and where it was readily apparent to defendant early on that the Commonwealth’s thesis was that the sexual acts had occurred not through physical force or threat, but while the victim was physically helpless due to her consumption of alcohol, the defense suffered no surprise or prejudice. Skinner v. Commonwealth, 864 S.W.2d 290, 1993 Ky. LEXIS 149 ( Ky. 1993 ).

39.Instructions.

Although indictment charged only violation of law that provided penalty for carnal knowledge of a child with consent, instruction given with regard to forcible rape under law that provided penalty for forcible rape of a female over 12 was prejudicial where jury convicted defendant under first mentioned law. (Decided under prior law) White v. Commonwealth, 292 Ky. 416 , 166 S.W.2d 873, 1942 Ky. LEXIS 105 ( Ky. 1942 ).

An instruction defining rape in the language of the statute and in terms of “by force or against her will and consent” was not objectionable. (Decided under prior law) Meland v. Commonwealth, 280 S.W.2d 145, 1955 Ky. LEXIS 127 ( Ky. 1955 ).

Where the Commonwealth’s evidence showed the defendant had committed rape and the defendant’s testimony showed he was not guilty by reason of his alibi, the issue in the case was adequately presented to the jury by an instruction covering the crime of rape and upon reasonable doubt. (Decided under prior law) Blanton v. Commonwealth, 429 S.W.2d 407, 1968 Ky. LEXIS 751 (Ky.), cert. denied, Blanton v. Ropke, 390 U.S. 970, 88 S. Ct. 1090, 19 L. Ed. 2d 1180, 1968 U.S. LEXIS 2508 (U.S. 1968).

In a first degree rape prosecution, defendant had not been entitled to a special instruction that the jury had to find that the victim did not consent to sexual intercourse, as this was implicit in the instructions given by the trial court which tracked the definitions of first degree rape and forcible compulsion set out, respectively, in KRS 510.040(1) and 510.010(2).

40.—Adultery.

In rape prosecution it was not error to omit an instruction on adultery since that offense is not a degree of the crime of rape. (Decided under prior law) Hollingsworth v. Commonwealth, 311 Ky. 787 , 225 S.W.2d 675, 1949 Ky. LEXIS 1252 ( Ky. 1949 ).

41.—Assault and Battery.

In prosecution for rape, evidence did not authorize giving assault and battery instruction. (Decided under prior law) Prewitt v. Commonwealth, 248 Ky. 845 , 60 S.W.2d 122, 1933 Ky. LEXIS 334 ( Ky. 1933 ).

Where uncontradicted testimony showed rape was completed, and defense was alibi, evidence did not justify assault and battery instruction. (Decided under prior law) Burnam v. Commonwealth, 289 Ky. 312 , 158 S.W.2d 131, 1941 Ky. LEXIS 26 ( Ky. 1941 ).

In prosecution for rape, defendant was not entitled to an instruction on assault and battery since that is not a lesser degree of the offense charged. (Decided under prior law) Hogue v. Commonwealth, 312 Ky. 755 , 229 S.W.2d 736, 1950 Ky. LEXIS 749 ( Ky. 1950 ).

Instruction on assault and battery was not necessary where prosecutrix and defendant testified that intercourse was had. (Decided under prior law) Stapleton v. Commonwealth, 305 S.W.2d 911, 1957 Ky. LEXIS 342 ( Ky. 1957 ).

42.—Attempted Rape.

In rape prosecution, where physicians testified that there had been no penetration, failure to instruct on attempted rape was error. (Decided under prior law) Kitchen v. Commonwealth, 275 Ky. 564 , 122 S.W.2d 121, 1938 Ky. LEXIS 463 ( Ky. 1938 ).

Where testimony of prosecutrix was clearly subject to legitimate inferences that intercourse was not actually consummated, and that if it was, it was with her consent, court erred in failing to instruct on common-law misdemeanor of attempt to have carnal knowledge of female with her consent. (Decided under prior law) Merriss v. Commonwealth, 287 Ky. 58 , 151 S.W.2d 1030, 1941 Ky. LEXIS 486 ( Ky. 1941 ).

Where instruction on detaining was given in prosecution for rape, such instruction of necessity covered crime of attempted rape and instruction on attempted rape was unnecessary. (Decided under prior law) Burnam v. Commonwealth, 289 Ky. 312 , 158 S.W.2d 131, 1941 Ky. LEXIS 26 ( Ky. 1941 ); Fox v. Commonwealth, 299 Ky. 293 , 185 S.W.2d 394, 1945 Ky. LEXIS 414 ( Ky. 1945 ); Hogue v. Commonwealth, 312 Ky. 755 , 229 S.W.2d 736, 1950 Ky. LEXIS 749 ( Ky. 1950 ).

Where uncontradicted testimony showed rape was completed, and defense was alibi, evidence did not justify attempted rape instruction, especially since instruction was given on detaining woman against her will, which of necessity covered crime of attempted rape. (Decided under prior law) Burnam v. Commonwealth, 289 Ky. 312 , 158 S.W.2d 131, 1941 Ky. LEXIS 26 ( Ky. 1941 ).

In a prosecution for rape, wherein there was positive evidence that the crime was consummated but the defendant denied that the incident ever occurred, the court correctly refused an instruction covering the offense of attempted rape, as the jury could accept the evidence of the prosecutrix and eyewitness concerning the act, or reject it entirely. (Decided under prior law) Rhye v. Commonwealth, 263 S.W.2d 923, 1953 Ky. LEXIS 1256 (Ky. Ct. App. 1953).

Instruction on attempted rape was not warranted where prosecutrix testified to penetration of half inch or inch. (Decided under prior law) Meland v. Commonwealth, 280 S.W.2d 145, 1955 Ky. LEXIS 127 ( Ky. 1955 ).

43.—Consent.

In a prosecution under law that provided penalty for forcible rape of a female over twelve, failure of court to give an affirmative instruction for defendant on theory of prosecutrix’s consent was not error, the instructions given requiring the jury to believe to the exclusion of a reasonable doubt that act was committed forcibly and without consent of prosecutrix. (Decided under prior law) Webb v. Commonwealth, 223 Ky. 424 , 3 S.W.2d 1080, 1928 Ky. LEXIS 363 ( Ky. 1928 ).

In rape prosecution, where there was no direct evidence, nor any circumstantial evidence, to indicate intercourse with prosecutrix had been with her consent, trial court properly omitted jury instruction on carnal knowledge of child with her consent. (Decided under prior law) Elmore v. Commonwealth, 282 Ky. 443 , 138 S.W.2d 956, 1940 Ky. LEXIS 186 ( Ky. 1940 ).

Where, in rape prosecution, jury was instructed on reasonable doubt, including requirement for conviction that they believe beyond reasonable doubt that defendant’s act was committed forcibly and against will of prosecutrix, specific instruction on consent of prosecutrix was not necessary. (Decided under prior law) Hightower v. Commonwealth, 286 Ky. 561 , 151 S.W.2d 39, 1941 Ky. LEXIS 282 ( Ky. 1941 ). See Grigsby v. Commonwealth, 299 Ky. 721 , 187 S.W.2d 259, 1945 Ky. LEXIS 786 ( Ky. 1945 ).

44.—Lesser Offenses.

Evidence held to justify instructions as to attempted rape and statutory rape as well as rape by force, though prosecutrix testified that intercourse was consummated by use of force, and failure to include instructions as to the lesser offenses was reversible error. (Decided under prior law) Gilley v. Commonwealth, 280 Ky. 306 , 133 S.W.2d 67, 1939 Ky. LEXIS 119 ( Ky. 1939 ).

Where the evidence for the Commonwealth established that rape had been consummated, and the testimony of the accused was to the effect that no assault of any kind had been directed toward the prosecuting witness, an instruction on the crime of rape and reasonable doubt was sufficient, and an instruction upon the lesser degree of the offense was unnecessary. (Decided under prior law) Lewis v. Commonwealth, 279 S.W.2d 15, 1955 Ky. LEXIS 503 ( Ky. 1955 ).

Where testimony as a whole was subject to interpretation only that there was penetration, defendant was not entitled to instruction on lesser degrees of rape. (Decided under prior law) Rollyson v. Commonwealth, 320 S.W.2d 800, 1959 Ky. LEXIS 252 ( Ky. 1959 ).

In the absence of evidence sufficient to raise a reasonable doubt as to whether victim’s vaginal injuries were caused by some other object or instrumentality than a man’s penis, defendant in prosecution of first-degree rape was not entitled to an instruction on the lesser offense of sexual abuse. Isaacs v. Commonwealth, 553 S.W.2d 843, 1977 Ky. LEXIS 479 ( Ky. 1977 ).

Where there was no evidence supporting the accused’s contention that he was entitled to an instruction on attempted rape, such an instruction was not warranted. Cooper v. Commonwealth, 569 S.W.2d 668, 1978 Ky. LEXIS 386 ( Ky. 1978 ).

When all of the evidence indicates that there was sexual intercourse and there is no evidence that there was only sexual contact, a defendant is not entitled to an instruction on the lesser offense of sexual abuse in the first degree. Salsman v. Commonwealth, 565 S.W.2d 638, 1978 Ky. App. LEXIS 512 (Ky. Ct. App. 1978).

Where the defendant made three attempts before he succeeded in having sexual intercourse with the prosecutrix, the evidence would support a finding that there was sexual contact when he attempted to force the prosecutrix to perform fellatio upon him and when he first attempted sexual intercourse with her and his substantial rights were not prejudiced when the trial court gave an instruction on sexual abuse in the first degree. Salsman v. Commonwealth, 565 S.W.2d 638, 1978 Ky. App. LEXIS 512 (Ky. Ct. App. 1978).

Where, in prosecution for rape, the victim had given a statement to her social worker as well as the city police that the defendant had “sexually abused” her, and a social worker reported that she made allegations of two (2) incidents of sexual molestation by the defendant, and there was testimony that the social worker’s use of the terms “sexual abuse” and “sexual molestation” did not include intercourse, failure of the trial court to instruct the jury on sexual abuse in the second degree was prejudicial and the judgment was reversed. Reed v. Commonwealth, 738 S.W.2d 818, 1987 Ky. LEXIS 249 ( Ky. 1987 ).

Where, in a prosecution for murder, first-degree rape, first-degree sodomy, and first-degree kidnapping, the defendant’s theory was that the kidnapping, and in particular the sex offenses, were committed after the victim was already dead, if upon remand there was any substantial evidence to support this theory, the defendant would be entitled, upon request, to instructions accordingly; rather than the jury being left with no alternative except to convict or acquit of the principal charges. Sanborn v. Commonwealth, 754 S.W.2d 534, 1988 Ky. LEXIS 35 ( Ky. 1988 ).

Where, in a prosecution for rape, the victim’s testimony concerning the act of penetration was equivocal, none of the experts were able to opine that penetration had occurred, one expert’s testimony on the effects of alcohol on a man’s ability to perform sexually, and the negative results of the lab analyses raised further doubt on the question of penetration, the defendant’s right to due process was violated when and instruction on first-degree sexual abuse was refused. Bagby v. Sowders, 853 F.2d 1340, 1988 U.S. App. LEXIS 10845 (6th Cir. Ky. 1988 ).

In prosecution for first degree rape, sodomy and sexual abuse, where jury might have believed beyond a reasonable doubt that defendant had engaged in sexual acts with victim but entertained reasonable doubt as to whether victim had been physically helpless at the time, trial court erred in failing to instruct the jury on sexual abuse in the third degree in connection with each of the sexual charges and on sexual misconduct in relation to the charges of rape and sodomy, respectively. Skinner v. Commonwealth, 864 S.W.2d 290, 1993 Ky. LEXIS 149 ( Ky. 1993 ).

While there was sufficient evidence to convict defendant of first degree rape, sexual abuse, and sodomy, the nature of the evidence was such that the jury might reasonably have found defendant not guilty of those offenses but instead guilty of sexual abuse in the first degree in each instance, and therefore jury should have been given instructions on lesser included offenses of third degree sexual abuse and sexual misconduct. Skinner v. Commonwealth, 864 S.W.2d 290, 1993 Ky. LEXIS 149 ( Ky. 1993 ).

Where defendant was charged with rape in the first degree under KRS 510.040 for engaging in sexual intercourse with his eight-year-old niece, the trial court did not err in refusing to instruct the jury on first-degree sexual abuse under KRS 510.110(1)(b)(2) because the victim’s testimony was unequivocal that defendant inserted his penis into her vagina and defendant did not take the stand or otherwise offer evidence to controvert this testimony. Although the victim also gave brief testimony regarding an instance during which defendant removed her clothing and touched her vagina, she denied being raped on this occasions; this testimony did not warrant the giving of a jury instruction on the lesser-included offense, however, because the testimony did not contradict the victim’s testimony of sexual penetration but was merely testimony regarding a separate, uncharged offense. Cecil v. Commonwealth, 297 S.W.3d 12, 2009 Ky. LEXIS 245 ( Ky. 2009 ).

Trial court did not err by denying defendant's request for a sexual misconduct jury instruction under Ky. Rev. Stat. Ann. § 510.140 because it was not a lesser included offense of rape. Jenkins v. Commonwealth, 496 S.W.3d 435, 2016 Ky. LEXIS 327 ( Ky. 2016 ), cert. denied, 137 S. Ct. 1205, 197 L. Ed. 2d 250, 2017 U.S. LEXIS 1566 (U.S. 2017).

45.—Prior Acts.

Instruction that testimony of prosecutrix as to prior acts of intercourse with defendant, with her consent, could only be considered as corroborative of alleged act of rape, was not erroneous where defendant denied having intercourse with prosecutrix either with or without her consent. (Decided under prior law) Merriss v. Commonwealth, 287 Ky. 58 , 151 S.W.2d 1030, 1941 Ky. LEXIS 486 ( Ky. 1941 ).

In a rape prosecution wherein the indictment was sufficient and the evidence supported the indictment, an instruction which followed the indictment and the phraseology of the statute as to permissible punishment and which instructed the jury, if it found the defendant guilty, to fix his punishment within statutory limits, was proper. (Decided under prior law) Hensley v. Commonwealth, 271 S.W.2d 891, 1954 Ky. LEXIS 1058 ( Ky. 1954 ).

46.Lesser Included Offense.

Although carnal knowledge and detaining a woman against her will are lesser included offenses of forcible rape, each of these two (2) lesser offenses is exclusive of the other and trial on one does not expose the accused to conviction of any component of the other. (Decided under prior law) Davis v. Commonwealth, 545 S.W.2d 644, 1976 Ky. LEXIS 145 ( Ky. 1976 ), vacated, 433 U.S. 905, 97 S. Ct. 2968, 53 L. Ed. 2d 1089, 1977 U.S. LEXIS 2563 (U.S. 1977).

Sexual abuse in the first degree is a lesser included offense of both rape in the first degree and sodomy in the first degree. Skinner v. Commonwealth, 864 S.W.2d 290, 1993 Ky. LEXIS 149 ( Ky. 1993 ).

In a first degree rape prosecution, as defendant admitted having sexual intercourse with the victim but claimed it was consensual, he was not entitled to an instruction on the lesser offense of sexual abuse in the first degree. Day v. Commonwealth, 174 S.W.3d 496, 2004 Ky. App. LEXIS 361 (Ky. Ct. App. 2004).

It was not error for the trial court to refuse the requested instruction on the lesser included offense of rape in the third degree because the evidence presented and the defense theory that the conduct did not happen could only lead the jury to conclude that either the first-degree crimes as charged were committed or the conduct did not happen at all. Bratcher v. Commonwealth, 2006 Ky. App. LEXIS 363 (Ky. Ct. App. Dec. 8, 2006, sub. op., 2006 Ky. App. Unpub. LEXIS 912 (Ky. Ct. App. Dec. 8, 2006).

Under the Blockburger test, codified at KRS 505.020 , assault in the first degree under KRS 508.010 is not a lesser included offense of first-degree rape under KRS 510.040 , involving serious physical injury to the victim. Dixon v. Commonwealth, 263 S.W.3d 583, 2008 Ky. LEXIS 138 ( Ky. 2008 ).

47.Sentencing.

Very nature of crime of rape was such that, if defendant was convicted by jury on evidence, his argument that penalty was excessive would be summarily rejected. (Decided under prior law) Walsh v. Commonwealth, 300 Ky. 545 , 189 S.W.2d 840, 1945 Ky. LEXIS 595 ( Ky. 1945 ).

Where indictment properly charged defendant with rape, instruction to jury that they should fix defendant’s punishment, if guilty, at confinement for life, or at death in their discretion, correctly defined punishment to be applied. (Decided under prior law) Catlett v. Commonwealth, 246 S.W.2d 580, 1952 Ky. LEXIS 636 ( Ky. 1952 ).

In a prosecution for first degree rape and first degree sodomy, testimony by the victim during the sentencing phase about defendant’s HIV-positive status was propertly admitted under KRS 532.055(2)(a)(7) as evidence of the impact of the crime upon her. The prejudicial nature of the HIV evidence did not outweigh its probative value. Torrence v. Commonwealth, 269 S.W.3d 842, 2008 Ky. LEXIS 324 ( Ky. 2008 ).

Cited in:

Blondell v. Commonwealth, 556 S.W.2d 682, 1977 Ky. LEXIS 526 ( Ky. 1977 ); Sherley v. Commonwealth, 558 S.W.2d 615, 1977 Ky. LEXIS 545 ( Ky. 1977 ); Moore v. Cowan, 560 F.2d 1298, 1977 U.S. App. LEXIS 11806 (6th Cir. 1977); Wilhite v. Commonwealth, 574 S.W.2d 304, 1978 Ky. LEXIS 447 ( Ky. 1978 ); Cook v. Bordenkircher, 602 F.2d 117, 1979 U.S. App. LEXIS 13600 (6th Cir. 1979), cert. denied, 444 U.S. 936, 100 S. Ct. 286, 62 L. Ed. 2d 196, 1979 U.S. LEXIS 3597 (1979); Zachery v. Commonwealth, 580 S.W.2d 220, 1979 Ky. LEXIS 245 ( Ky. 1979 ); Warner v. Commonwealth, 621 S.W.2d 22, 1981 Ky. LEXIS 268 ( Ky. 1981 ); Hulan v. Commonwealth, 634 S.W.2d 410, 1982 Ky. LEXIS 258 ( Ky. 1982 ); Gilbert v. Commonwealth, 637 S.W.2d 632, 1982 Ky. LEXIS 282 ( Ky. 1982 ), cert. denied, Gilbert v. Kentucky, 459 U.S. 1149, 103 S. Ct. 794, 74 L. Ed. 2d 998, 1983 U.S. LEXIS 3135 (1983); James v. Commonwealth, 647 S.W.2d 794, 1983 Ky. LEXIS 230 ( Ky. 1983 ); Commonwealth v. McFerron, 680 S.W.2d 924, 1984 Ky. LEXIS 274 ( Ky. 1984 ); Knox v. Commonwealth, 735 S.W.2d 711, 1987 Ky. LEXIS 229 ( Ky. 1987 ); Young v. Commonwealth, 968 S.W.2d 670, 1998 Ky. LEXIS 82 ( Ky. 1998 ), overruled in part, Matthews v. Commonwealth, 163 S.W.3d 11, 2005 Ky. LEXIS 161 ( Ky. 2005 ); Russell v. Commonwealth, 992 S.W.2d 871, 1999 Ky. App. LEXIS 21 (Ky. Ct. App. 1999); Jordan v. Commonwealth, 74 S.W.3d 263, 2002 Ky. LEXIS 83 ( Ky. 2002 ); Sanborn v. Parker, — F. Supp. 2d —, 2007 U.S. Dist. LEXIS 10747 (W.D. Ky. 2007 ); N.L. v. Commonwealth, 323 S.W.3d 732, 2009 Ky. App. LEXIS 136 (Ky. Ct. App. 2009); Bullitt v. Commonwealth, 595 S.W.3d 106, 2019 Ky. LEXIS 543 ( Ky. 2019 ).

Opinions of Attorney General.

Law enforcement officers, acting upon probable cause or reasonable grounds, can obtain physical samples of an accused’s blood, saliva, combed and pulled pubic hair or swabs from the pubic area, in a rape prosecution, provided that the officers do not act in a coercive manner in obtaining such samples. OAG 80-183 .

Research References and Practice Aids

Kentucky Bench & Bar.

Palmore, A Summary of Significant Decisions by the Supreme Court of Kentucky April 1982-April 1983, Vol. 47, No. 3, July 1983 Ky. Bench & B. 14.

Kentucky Law Journal.

Comments, The Kentucky Rape Shield Law: One Step Too Far, 66 Ky. L.J. 426 (1977-1978).

Kentucky Law Survey, Brice and Taylor, Criminal Law, 67 Ky. L.J. 569 (1978-1979).

Kentucky Law Survey, Patterson, Juvenile Code, 70 Ky. L.J. 343 (1981-82).

Northern Kentucky Law Review.

Comments, Relevancy of Evidence of Prior Sexual Conduct Under the Kentucky Revised Statutes Section 510.145

Notes, Search and Seizures — Kentucky’s Constitutional Requirement of a Search Warrant to Inventory an Automobile — The Exceptions, 7 N. Ky. L. Rev. 125 (1980).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Appellant’s Brief, Form 104.04.

Kentucky Instructions to Juries (Criminal), 5th Ed., Offenses Related to Sex and Pornography, Part 2 Rape, §§ 4.22 — 4.26.

Kentucky Instructions to Juries (Criminal), 5th Ed., Offenses Related to Sex and Pornography, Part 9 Sexual Exploitation of Minors, § 4..

Petrilli, Kentucky Family Law, Torts and Crimes, § 18.2.

510.050. Rape in the second degree.

  1. A person is guilty of rape in the second degree when:
    1. Being eighteen (18) years old or more, he or she engages in sexual intercourse with another person less than fourteen (14) years old; or
    2. He or she engages in sexual intercourse with another person who is mentally incapacitated or who is incapable of consent because he or she is an individual with an intellectual disability.
  2. Rape in the second degree is a Class C felony.

HISTORY: Enact. Acts 1974, ch. 406, § 85, effective January 1, 1975; 2002, ch. 259, § 3, effective July 15, 2002; 2018 ch. 109, § 1, effective July 14, 2018.

NOTES TO DECISIONS

1.Evidence.
2.— Admissibility.

Where the tape recording of the rape was inadvertently made by the defendants and there was no intrusion by the Commonwealth or any of its agents, the strict test for admissibility in Commonwealth v. Brinkley, 362 S.W.2d 494, 1962 Ky. LEXIS 259 ( Ky. 1962 ), was not applicable; instead, the test was similar to the one applicable to photographic evidence, and the victim needed only to testify that the tape was a true and accurate recording of the events. Commonwealth v. Prater, 714 S.W.2d 492, 1986 Ky. App. LEXIS 1181 (Ky. Ct. App. 1986).

3.— Sufficient.

In a prosecution for rape of 13 year old female, the uncorroborated testimony of the prosecutrix, supported by medical testimony that she had been the victim of debasement, was sufficient evidence to sustain a conviction. (Decided under prior law) Adams v. Commonwealth, 261 S.W.2d 811, 1953 Ky. LEXIS 1062 ( Ky. 1953 ).

Victim’s testimony that she engaged in sexual relations with defendant the first time they met in October 2004, had the last of five (5) sexual encounters with defendant on November 9th, accurately described a mole on defendant’s body and the interior of defendant’s house, and the fact that defendant’s semen was found on the victim’s panties were sufficient to support defendant’s convictions for five (5) counts each of second degree rape and second degree sodomy. Capshaw v. Commonwealth, 253 S.W.3d 557, 2007 Ky. App. LEXIS 375 (Ky. Ct. App. 2007), cert. denied, 555 U.S. 1016, 129 S. Ct. 578, 172 L. Ed. 2d 437, 2008 U.S. LEXIS 8225 (U.S. 2008).

There was sufficient evidence to support a prisoner’s conviction for second-degree rape under KRS 510.050(1) because there was no dispute that the prisoner was over 18 years old at the relevant time or that the victim was under 14 years old; further, the victim’s testimony that the prisoner raped her and the physical evidence consistent with that testimony provided sufficient evidence to support the conviction. Morningstar v. Haney, 625 F. Supp. 2d 434, 2008 U.S. Dist. LEXIS 55547 (E.D. Ky. 2008 ).

Court rejected defendant’s argument that the evidence was insufficient to support his conviction of first-degree and second-degree rape involving his daughters because the evidence failed to establish his age and held that sufficient evidence was presented to show that defendant was above the ages of 18 and 21 when he engaged in sexual intercourse with his daughters; at the time of trial, the older daughter was 18 and the younger was 14, and the rapes occurred when the older girl was between the ages of 12 and 15 and when the younger was between the ages of 8 and 11. From those facts, the jury could reasonably infer that, in order to have biological children that were the ages of his daughters, defendant must have been above the age of 21 so as to satisfy both the age requirements for both rape in the first degree and rape in the second degree; in addition, the jury’s opportunity to actually see defendant at trial and to deduce his approximate age was not to be discounted. Johnson v. Commonwealth, 292 S.W.3d 889, 2009 Ky. LEXIS 209 ( Ky. 2009 ).

Cited:

Gibbs v. Commonwealth, 208 S.W.3d 848, 2006 Ky. LEXIS 239 ( Ky. 2006 ); Bullitt v. Commonwealth, 595 S.W.3d 106, 2019 Ky. LEXIS 543 ( Ky. 2019 ).

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Patterson, Juvenile Code, 70 Ky. L.J. 343 (1981-82).

West, Criminal Law, 74 Ky. L.J. 403 (1985-86).

Northern Kentucky Law Review.

Comments, Relevancy of Evidence of Prior Sexual Conduct Under the Kentucky Revised Statute Section 510.145

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Offenses Related to Sex and Pornography, Part 2 Rape, §§ 4.28, 4.28A.

510.060. Rape in the third degree.

  1. A person is guilty of rape in the third degree when:
    1. Being twenty-one (21) years old or more, he or she engages in sexual intercourse with another person less than sixteen (16) years old;
    2. Being at least ten (10) years older than a person who is sixteen (16) or seventeen (17) years old at the time of sexual intercourse, he or she engages in sexual intercourse with the person;
    3. Being twenty-one (21) years old or more, he or she engages in sexual intercourse with another person less than eighteen (18) years old and for whom he or she provides a foster family home as defined in KRS 600.020 ;
    4. Being a person in a position of authority or position of special trust, as defined in KRS 532.045 , he or she engages in sexual intercourse with a minor under eighteen (18) years old with whom he or she comes into contact as a result of that position;
    5. Being a jailer, or an employee, contractor, vendor, or volunteer of the Department of Corrections, Department of Juvenile Justice, or a detention facility as defined in KRS 520.010 , or of an entity under contract with either department or a detention facility for the custody, supervision, evaluation, or treatment of offenders, he or she subjects a person who he or she knows is incarcerated, supervised, evaluated, or treated by the Department of Corrections, Department of Juvenile Justice, detention facility, or contracting entity, to sexual intercourse; or
    6. Being a peace officer, while serving in his or her official capacity, he or she subjects a person who the officer:
      1. Arrested, held in custody, or investigated for commission of a traffic or criminal offense; or
      2. Knew or should have known was under arrest, held in custody, or being investigated for commission of a traffic or criminal offense; to sexual intercourse.
  2. Rape in the third degree is a Class D felony.

HISTORY: Enact. Acts 1974, ch. 406, § 86, effective January 1, 1975; 1988, ch. 283, § 12, effective July 15, 1988; 2002, ch. 259, § 7, effective July 15, 2002; 2002, ch. 282, § 1, effective July 15, 2002; 2006, ch. 182, § 31, effective July 12, 2006; 2010, ch. 26, § 1, effective July 15, 2010; 2012, ch. 146, § 127, effective July 12, 2012; 2012, ch. 148, § 2, effective July 12, 2012; 2018 ch. 43, § 3, effective July 14, 2018; 2018 ch. 109, § 2, effective July 14, 2018; 2021 ch. 135, § 1, effective June 29, 2021.

Legislative Research Commission Notes.

(7/14/2018). 2018 Ky. Acts ch. 43, sec. 5, provides that 2018 Ky. Acts ch. 43 may be cited as “Jenna’s Law.” This statute was amended in Section 3 of that Act.

NOTES TO DECISIONS

1.Due Process.

Where Commonwealth made no effort to secure presence as witness of female, with whom offense of rape was alleged to have been committed, and defendant was unsuccessful in first attempt to subpoena her, court should have granted a continuance to enable further effort to be made. (Decided under prior law) Taylor v. Commonwealth, 291 Ky. 625 , 165 S.W.2d 169, 1942 Ky. LEXIS 287 ( Ky. 1942 ).

2.— Leading Questions.

Leading questions asked plaintiff by Commonwealth in a carnal knowledge prosecution were justified in view of plaintiff’s reluctance to speak on subject, her speech impediment, and her subnormal mental condition, classifying her as a child of tender years. (Decided under prior law) Grace v. Commonwealth, 302 Ky. 796 , 196 S.W.2d 417, 1946 Ky. LEXIS 753 ( Ky. 1946 ), overruled in part, Lee v. International Harvester Co., 373 S.W.2d 418, 1963 Ky. LEXIS 156 ( Ky. 1963 ).

Evidence warranted submission to the jury of the issue whether defendant had sexual relations with the prosecutrix as the testimony of prosecutrix, uncorroborated as to the actual act of intercourse, was not so incredible as to require a directed verdict of acquittal. (Decided under prior law) Wise v. Commonwealth, 387 S.W.2d 292, 1965 Ky. LEXIS 464 ( Ky. 1965 ).

3.Elements.

In an indictment for statutory rape, the act being admitted, when on trial the prosecuting witness admitted she was over 16 years of age on date fixed, the only question for the jury was whether the girl was over 16 years of age at the time the crime was committed. (Decided under prior law) Lewis v. Commonwealth, 190 Ky. 160 , 227 S.W. 149, 1920 Ky. LEXIS 553 ( Ky. 1920 ).

No matter how fully consent may have been given by 14 year old prosecutrix, or how mutual may have been the anxiety of both the 28 year old defendant and the prosecutrix for intercourse, it was illicit and in view of his age and her age, it was felonious on the part of the defendant. (Decided under prior law) Stewart v. Commonwealth, 225 Ky. 731 , 9 S.W.2d 1087, 1928 Ky. LEXIS 863 ( Ky. 1928 ).

Consent of prosecutrix, when of such age she could not legally do so, held no defense to rape prosecution. (Decided under prior law) Hamilton v. Commonwealth, 247 Ky. 579 , 57 S.W.2d 516, 1933 Ky. LEXIS 432 ( Ky. 1933 ).

Conflicting evidence as to whether the prosecuting witness was over or under the age of 16 was an issue for the jury. (Decided under prior law) McCloud v. Commonwealth, 303 S.W.2d 299, 1957 Ky. LEXIS 253 ( Ky. 1957 ).

A man is guilty of rape in the third degree if he engages in sexual intercourse with a woman who is incapable of consent because she is mentally defective. Salsman v. Commonwealth, 565 S.W.2d 638, 1978 Ky. App. LEXIS 512 (Ky. Ct. App. 1978).

Where the record established that the prosecutrix did understand that the defendant was seeking to perform sexual acts upon her, the defendant could not be guilty of either rape in the third degree or sexual abuse in the second degree on the theory that the prosecutrix was incapable of giving consent. Salsman v. Commonwealth, 565 S.W.2d 638, 1978 Ky. App. LEXIS 512 (Ky. Ct. App. 1978).

Defendant’s sentencing enhancement was proper because his prior Kentucky rape convictions related to aggravated sexual abuse, sexual abuse, or abusive sexual contact involving minor or ward and, thus, qualified for sentencing enhancement as ordinary meaning of “sexual abuse” cover statutory rape of 15-year-old (or younger) by someone who was at least 21, and district court properly determined that was defendant’s crime of conviction based on presentence report. United States v. Armes, 953 F.3d 875, 2020 FED App. 91P, 2020 U.S. App. LEXIS 9462 (6th Cir. Ky. 2020 ).

4.— Attempt.

It was error for the trial court to refuse an instruction on a lesser-included-offense of attempted rape when defendant was charged with three (3) violations of KRS 510.060 , because the testimony presented at trial varied from an assertion that defendant attempted to have intercourse with the juvenile three (3) times to a conclusion that defendant had intercourse with the victim five (5) times. Based on the evidence, the jury could have concluded that a violation of attempted rape had occurred. Williams v. Commonwealth, 208 S.W.3d 881, 2006 Ky. LEXIS 320 ( Ky. 2006 ).

5.— Election of Offenses.

Each particular act of sexual intercourse with a female under 16 years of age is a separate offense, and upon the trial of one accused of such an offense, the election of a particular act which prosecution may rely on for convicting does not have the effect of a nolle prosequi as to offenses proven in corroboration of offense relied on. (Decided under prior law) McCreary v. Commonwealth, 163 Ky. 206 , 173 S.W. 351, 1915 Ky. LEXIS 197 ( Ky. 1915 ); Gilbert v. Commonwealth, 204 Ky. 505 , 264 S.W. 1095, 1924 Ky. LEXIS 508 ( Ky. 1924 ).

Where the prosecuting witness was permitted to testify to repeated acts by the defendant constituting the crime of carnally knowing a female under the age of 16 as charged in the indictment, the court should have required Commonwealth to select one certain time at which defendant was alleged to have committed the offense and to rely upon same for conviction, or should have treated as an election the first act proved by the Commonwealth. (Decided under prior law) Earl v. Commonwealth, 202 Ky. 726 , 261 S.W. 239, 1924 Ky. LEXIS 790 ( Ky. 1924 ).

Where no specific date is alleged in the indictment on which it is claimed the act complained of occurred, and the Commonwealth introduces evidence concerning numerous acts, and makes no formal election as to which it will rely on for conviction, the law elects the act concerning which evidence is first introduced. (Decided under prior law) Kayes v. Commonwealth, 221 Ky. 474 , 298 S.W. 1096, 1927 Ky. LEXIS 746 ( Ky. 1927 ).

Defendant may move to require Commonwealth to elect which offense it will prosecute at any time before the evidence is closed. (Decided under prior law) Bowen v. Commonwealth, 288 Ky. 515 , 156 S.W.2d 870, 1941 Ky. LEXIS 150 ( Ky. 1941 ).

Admonition of court that, to prove and to determine the guilt of defendant, evidence should go to one particular time and one particular act of intercourse, and that any other acts of intercourse were admissible only for the purpose of showing likelihood, if it did, was proper, and although Commonwealth did not make a formal election of a particular act where the jury could not possibly have had difficulty in determining the main act for which defendant was being tried, and it was the first act proved and was certain as to time and location, instruction was not erroneous for failing to identify with certainty the main act. (Decided under prior law) Montgomery v. Commonwealth, 262 S.W.2d 475, 1953 Ky. LEXIS 1102 ( Ky. 1953 ).

6.Evidence.

Affidavit of prosecutrix made under threat of disgrace stating that defendant had not violated law that provided penalty for carnal knowledge of a child with consent at any time was admissible only for the purpose of contradicting prosecutrix. (Decided under prior law) Owens v. Commonwealth, 231 Ky. 479 , 21 S.W.2d 809, 1929 Ky. LEXIS 302 ( Ky. 1929 ).

Evidence of details of intercourse was competent to test the credibility of the complaining witness. (Decided under prior law) Williams v. Commonwealth, 277 Ky. 227 , 126 S.W.2d 131, 1939 Ky. LEXIS 634 ( Ky. 1939 ).

Fact that after prosecutrix had testified that accused was father of her child, her mother brought baby into court and handed it to prosecutrix was not prejudicial to accused, where there was no effort to exhibit baby to show paternity resemblance and attention of jury was not directed, nor reference made by Commonwealth, to baby. (Decided under prior law) Tuttle v. Commonwealth, 287 Ky. 371 , 153 S.W.2d 931, 1941 Ky. LEXIS 562 ( Ky. 1941 ).

In a prosecution for carnal knowledge, growing out of alleged bigamous marriage, proof of issuance of marriage license for first marriage, admissions by accused to witnesses that he was married, and the filing of a divorce action by accused against alleged first wife, shortly after time of second marriage, was sufficient to prove the first marriage, notwithstanding that there was no record of the first marriage having been performed. (Decided under prior law) Fields v. Commonwealth, 301 Ky. 551 , 192 S.W.2d 478, 1946 Ky. LEXIS 513 ( Ky. 1946 ).

In a prosecution under law that provided penalty for carnal knowledge of a child with consent, the court followed a previously approved procedure and did not abuse its discretion in permitting the Commonwealth, after defendant had moved for a directed verdict at the close of the Commonwealth’s evidence, to reopen the case and introduce evidence as to the age of the defendant, a material fact in the case. (Decided under prior law) Montgomery v. Commonwealth, 262 S.W.2d 475, 1953 Ky. LEXIS 1102 ( Ky. 1953 ).

The statement in an indictment as to time is not material where the felony of having carnal knowledge of a girl over the age of 12 and under the age of 16 is charged, and the Commonwealth may prove the offense was committed at any time prior to the finding of the indictment. (Decided under prior law) Riley v. Commonwealth, 271 S.W.2d 882, 1954 Ky. LEXIS 1055 ( Ky. 1954 ).

It is peculiar province of jury to determine credibility of witnesses as to assess weight to be given to their testimony to extent that in most cases jury may believe one witness even though he is contradicted by others, or may believe one set of witnesses to the exclusion of another, but certain distinctions are made in cases such as sexual crimes. (Decided under prior law) Carrier v. Commonwealth, 356 S.W.2d 752, 1962 Ky. LEXIS 98 ( Ky. 1962 ).

7.— Admissibility.

In prosecution under law that provided penalty for carnal knowledge of a child with consent, court should have excluded statements of deceased who died following childbirth as to the defendant having caused her death and also her statements that defendant was the only man who had carnally known her and was the father of her child. (Decided under prior law) Hansel v. Commonwealth, 260 Ky. 148 , 84 S.W.2d 68, 1935 Ky. LEXIS 450 ( Ky. 1935 ).

Where the tape recording of the rape was inadvertently made by the defendants and there was no intrusion by the Commonwealth or any of its agents, the strict test for admissibility in Commonwealth v. Brinkley, 362 S.W.2d 494, 1962 Ky. LEXIS 259 ( Ky. 1962 ), was not applicable; instead, the test was similar to the one applicable to photographic evidence, and the victim needed only to testify that the tape was a true and accurate recording of the events. Commonwealth v. Prater, 714 S.W.2d 492, 1986 Ky. App. LEXIS 1181 (Ky. Ct. App. 1986).

8.— Age.

In prosecution under law that provided penalty for carnal knowledge of a child with consent, evidence was sufficient to show child was under 12 years of age where mother testified the child was only ten (10) years of age and her evidence was supported by entries made in the family Bible showing the date of the child’s birth. (Decided under prior law) Clark v. Commonwealth, 92 S.W. 573, 29 Ky. L. Rptr. 154 (1906).

It was not prejudicial error to admit testimony which may have raised inference that 15 year old prosecutrix consented to intercourse with defendant, since child of such age could not legally consent, and since, even if jury had believed she had actually consented, it possibly imposed lesser penalty on defendant for that reason. (Decided under prior law) Rhye v. Commonwealth, 263 S.W.2d 923, 1953 Ky. LEXIS 1256 (Ky. Ct. App. 1953).

Evidence presented against defendant in a case where defendant was involved in a sexual relationship with an underage girl was sufficient to instruct the jury on third-degree rape based on her age, and, thus, defendant could be convicted of that charge under KRS 510.060 rather than first-degree rape based on forcible compulsion under KRS 510.040 . From the evidence presented, the jury could have believed that the encounter at issue was based on consent rather than force. Miller v. Commonwealth, 283 S.W.3d 690, 2009 Ky. LEXIS 97 ( Ky. 2009 ).

9.— Corroboration.

Pregnancy of prosecuting witness may be proven by Commonwealth for the purpose of corroborating her statement that defendant had carnal knowledge of her person. (Decided under prior law) Gilbert v. Commonwealth, 204 Ky. 505 , 264 S.W. 1095, 1924 Ky. LEXIS 508 ( Ky. 1924 ).

Evidence that prosecuting witness was pregnant held competent as being evidence of intercourse, but such evidence may be met by showing that another was responsible for her condition. (Decided under prior law) Kayes v. Commonwealth, 221 Ky. 474 , 298 S.W. 1096, 1927 Ky. LEXIS 746 ( Ky. 1927 ).

In a rape and sodomy case, prosecutrix’s account of the alleged incidents at trial varied from reports she gave to the examining and treating doctors concerning minor details (e.g. the exact dates of each occurrence). There is, however, no requirement of corroborating evidence, and it was within the purview of the jury to determine the credibility and weight of prosecutrix’s testimony. Commonwealth v. Cox, 837 S.W.2d 898, 1992 Ky. LEXIS 119 ( Ky. 1992 ).

10.— Date of Offense.

In a prosecution under law that provided penalty for carnal knowledge of a child with consent, the Commonwealth may prove the offense was committed any time prior to the finding of the indictment. (Decided under prior law) Riley v. Commonwealth, 190 Ky. 204 , 227 S.W. 146, 1921 Ky. LEXIS 409 ( Ky. 1921 ).

In a prosecution where no specific date was alleged in the indictment on which it was claimed the act occurred, and the Commonwealth introduced evidence concerning numerous acts and itself made no formal election as to which act it would rely upon for a conviction, the law elected the act concerning which evidence was first introduced. (Decided under prior law) Render v. Commonwealth, 206 Ky. 1 , 266 S.W. 914, 1924 Ky. LEXIS 279 ( Ky. 1 924).

Failure of trial court, in prosecution for carnally knowing a female, to require Commonwealth to designate specific date of offense was not error, where approximate time of offense was proven, and court admonished jury that evidence of subsequent offenses was admissible only to determine relation and disposition of parties. (Decided under prior law) Williams v. Commonwealth, 277 Ky. 227 , 126 S.W.2d 131, 1939 Ky. LEXIS 634 ( Ky. 1939 ).

Evidence was definite enough as to time and place of offense where prosecutrix testified that she could not remember date or date of birth of child, but finally fixed time and place, “some time last summer . . . . . June last year,” at stated place. (Decided under prior law) Tuttle v. Commonwealth, 287 Ky. 371 , 153 S.W.2d 931, 1941 Ky. LEXIS 562 ( Ky. 1941 ).

11.— Expert Witnesses.

Hypothetical question asked physician, relating to swelling or redness found about person of prosecuting witness, was not supported by evidence in record, and it was prejudicial error to permit witness to answer it. (Decided under prior law) Hodge v. Commonwealth, 289 Ky. 548 , 159 S.W.2d 422, 1942 Ky. LEXIS 604 ( Ky. 1942 ).

12.— Other Acts With Victim.

The prosecution may show other similar acts than the one relied on, between the parties, occurring within a reasonable time before or after the one selected, as corroborative of the main act involved. (Decided under prior law) McCreary v. Commonwealth, 158 Ky. 612 , 165 S.W. 981, 1914 Ky. LEXIS 674 ( Ky. 1914 ); McCreary v. Commonwealth, 163 Ky. 206 , 173 S.W. 351, 1915 Ky. LEXIS 197 ( Ky. 1915 ); Earl v. Commonwealth, 202 Ky. 726 , 261 S.W. 239, 1924 Ky. LEXIS 790 ( Ky. 1924 ); Williams v. Commonwealth, 277 Ky. 227 , 126 S.W.2d 131, 1939 Ky. LEXIS 634 ( Ky. 1939 ).

Evidence of intercourse with girl after she became 16 years of age may be received in corroboration of primary evidence of intercourse with her while under that age. (Decided under prior law) Warner v. Commonwealth, 184 Ky. 189 , 211 S.W. 759, 1919 Ky. LEXIS 59 ( Ky. 1919 ).

In prosecution for sexual crimes it is competent to introduce evidence of both prior and subsequent acts of a similar nature with the same person, in corroboration or explanation of the act in question, or to show the relation and mutual disposition of the parties, or guilty knowledge or intention on the part of the accused, but the prosecution must be confined to one of the acts. (Decided under prior law) Williams v. Commonwealth, 277 Ky. 227 , 126 S.W.2d 131, 1939 Ky. LEXIS 634 ( Ky. 1939 ).

On the trial for carnally knowing a girl under 16 years of age, evidence as to subsequent acts of intercourse with defendant after she passes that age is admissible. (Decided under prior law) Williams v. Commonwealth, 277 Ky. 227 , 126 S.W.2d 131, 1939 Ky. LEXIS 634 ( Ky. 1939 ).

Evidence as to prior offenses with prosecuting witness is competent to show defendant’s lust for prosecuting witness, but when such evidence is admitted the Commonwealth should be required to elect which offense it will prosecute for, or the jury should be instructed as to the consideration they may give such testimony. (Decided under prior law) Mullins v. Commonwealth, 293 Ky. 572 , 169 S.W.2d 611, 1943 Ky. LEXIS 664 ( Ky. 1943 ).

The court’s admonition to the jury that in order to prove and to determine the guilt or innocence of the defendant the evidence would go to one particular time and one particular act of intercourse, and that other acts of intercourse were admissible only for the purpose of showing likelihood, contained a clear statement of the issue to be tried and the purpose of the adduction of testimony concerning subsequent acts, and while it lacked the quality of fullness, it was sufficient. (Decided under prior law) Montgomery v. Commonwealth, 262 S.W.2d 475, 1953 Ky. LEXIS 1102 ( Ky. 1953 ).

Where prosecutrix testified as to carnal knowledge of female under 16 years of age and, also, to five (5) other prior acts of sexual intercourse with the defendant, in instructing the jury, the failure of court to restrict the use or effect of evidence of the prior acts was prejudicial error, and the election of the Commonwealth to try the defendant for one specified offense did not cure this defect. (Decided under prior law) Ashcraft v. Commonwealth, 317 S.W.2d 179, 1958 Ky. LEXIS 83 ( Ky. 1958 ).

Testimony of prosecutrix, who was under the age of consent, that defendant attempted to have sexual intercourse with her prior to the time for which defendant was being prosecuted was evidence of a prior crime and the failure of the court to admonish the jury as to the consideration it could accord the testimony was prejudicial error. (Decided under prior law) Wise v. Commonwealth, 387 S.W.2d 292, 1965 Ky. LEXIS 464 ( Ky. 1965 ).

13.— Penetration.

To sustain a conviction under law that made it a crime to have carnal knowledge of a female under the age of 16 years, there must have been some evidence of penetration, however slight. (Decided under prior law) Nider v. Commonwealth, 140 Ky. 684 , 131 S.W. 1024, 1910 Ky. LEXIS 377 ( Ky. 1910 ).

Crime of carnal knowledge of female under the age of 16 is a degree of the crime of rape, and, as such, it cannot be committed unless there has been some degree of penetration, though slight. (Decided under prior law) Hale v. Commonwealth, 196 Ky. 44 , 244 S.W. 78, 1922 Ky. LEXIS 454 ( Ky. 1922 ).

Penetration may be proved by circumstances as in other cases of fact. (Decided under prior law) Williams v. Commonwealth, 202 Ky. 664 , 261 S.W. 18, 1924 Ky. LEXIS 783 ( Ky. 1924 ). See Moseley v. Commonwealth, 206 Ky. 173 , 266 S.W. 1048, 1924 Ky. LEXIS 285 ( Ky. 1924 ).

Evidence was sufficient to sustain verdict finding that act of intercourse was consummated, where female testified that accused attempted carnal knowledge with her on several occasions and succeeded once, despite other testimony by her sufficient only to show that he attempted carnal knowledge but did not succeed. (Decided under prior law) Merriss v. Commonwealth, 287 Ky. 58 , 151 S.W.2d 1030, 1941 Ky. LEXIS 486 ( Ky. 1941 ).

In prosecution where evidence raised a doubt on the question of penetration, an instruction should have been given on the common-law misdemeanor of attempting to carnally know a female under the age of consent, and that if the jury was in doubt as to the degree of the offense it should convict of the lesser crime. (Decided under prior law) Blankenship v. Commonwealth, 311 Ky. 338 , 224 S.W.2d 152, 1949 Ky. LEXIS 1135 ( Ky. 1949 ).

14.— Sexual Immorality of Prosecutrix.

The trial court properly limited the testimony, as to the misconduct of the prosecutrix with others, to its evidential effect upon the question of her veracity. (Decided under prior law) Chaney v. Commonwealth, 149 Ky. 464 , 149 S.W. 923, 1912 Ky. LEXIS 670 ( Ky. 1912 ).

In a prosecution hereunder evidence tending to prove that prosecutrix had been guilty of indiscretions, and possibly acts of intercourse with other men is not admissible, such acts being no defense. (Decided under prior law) Render v. Commonwealth, 206 Ky. 1 , 266 S.W. 914, 1924 Ky. LEXIS 279 ( Ky. 1 924).

The chastity of the female is not involved, and evidence as to intercourse with others was justifiably excluded by the trial court. (Decided under prior law) Yates v. Commonwealth, 211 Ky. 629 , 277 S.W. 995, 1925 Ky. LEXIS 936 ( Ky. 1925 ).

In prosecution for carnal knowing female child under age of consent, evidence as to unchastity of child’s sister was inadmissible, since it would be wholly immaterial and irrelevant, and chastity of prosecutrix is immaterial where statute prohibits act even with consent of female. (Decided under prior law) Williams v. Commonwealth, 277 Ky. 227 , 126 S.W.2d 131, 1939 Ky. LEXIS 634 ( Ky. 1939 ).

The proof of sexual immorality of the female was proof of acts of intercourse with persons other than the defendant; where only proof of sexual immorality was of acts of intercourse with defendant, such proof was not sufficient to reduce offense to misdemeanor. (Decided under prior law) Cannon v. Commonwealth, 291 Ky. 517 , 165 S.W.2d 44, 1942 Ky. LEXIS 274 ( Ky. 1942 ).

Discovery after trial that prosecuting witness was three (3) months pregnant at time of trial did not constitute sufficient ground for issuance of writ of coram nobis to review judgment of conviction for having carnal knowledge of a female under 18 years of age on theory that such pregnancy would show that prosecuting witness had had intercourse with some other person after alleged offense and would tend to impeach her testimony and show her general immorality. (Decided under prior law) Commonwealth v. Newsome, 296 S.W.2d 703, 1956 Ky. LEXIS 221 ( Ky. 1956 ). (See RCr 11.42).

Evidence that a third person, who was present at the trial but who did not testify, had had intercourse with prosecutrix was not newly discovered evidence which would support a petition for writ of error coram nobis to review judgment of conviction where another witness testified at the trial that he had seen prosecutrix engaging in acts of intercourse with the named third person since such alleged newly discovered evidence would have been merely cumulative on the question of immorality and for impeachment and no reason was given why such third person did not testify at the trial. (Decided under prior law) Commonwealth v. Newsome, 296 S.W.2d 703, 1956 Ky. LEXIS 221 ( Ky. 1956 ). (See RCr 11.42).

Where there was conflict in the testimony as to the age of prosecutrix, the jury could have believed she was over 16 years of age and the rejection of proffered evidence of sexual immorality and general reputation for sexual immorality of prosecutrix was prejudicial to defendant. (Decided under prior law) McCloud v. Commonwealth, 303 S.W.2d 299, 1957 Ky. LEXIS 253 ( Ky. 1957 ).

15.— Uncorroborated Testimony of Prosecutrix.

Uncorroborated testimony of girl was sufficient to sustain conviction, where her story was not improbable, notwithstanding that defendant’s alibi was supported by four (4) witnesses. (Decided under prior law) Fugate v. Commonwealth, 291 Ky. 793 , 165 S.W.2d 573, 1942 Ky. LEXIS 322 ( Ky. 1942 ).

The uncorroborated testimony of a prosecutrix will sustain a conviction for carnally knowing a female over 16 and under 18 years of age, unless her story is so highly improbable as to show it is false. (Decided under prior law) Bailey v. Commonwealth, 312 Ky. 764 , 229 S.W.2d 767, 1950 Ky. LEXIS 766 ( Ky. 1950 ); Riley v. Commonwealth, 271 S.W.2d 882, 1954 Ky. LEXIS 1055 ( Ky. 1954 ); Newsome v. Commonwealth, 274 S.W.2d 484, 1954 Ky. LEXIS 1232 ( Ky. 1954 ).

Uncorroborated testimony of prosecutrix may be sufficient to sustain conviction of rape if proof is clear and convincing and surrounding circumstances are such as to indicate probable guilt of accused or, at least, to corroborate indirectly her testimony, but if testimony of prosecutrix is intrinsically improbable or her actions before and after time of alleged offense are such as indicate that related event did not happen, then the uncorroborated testimony is not sufficient. (Decided under prior law) Carrier v. Commonwealth, 356 S.W.2d 752, 1962 Ky. LEXIS 98 ( Ky. 1962 ).

In prosecution for having carnal knowledge of a girl 14 years of age with her consent, where there were no facts that corroborated the simple statement of prosecutrix that she was raped or had sexual intercourse with defendant but on the contrary, the evidence pointed to the conclusion that the act did not occur, verdict of conviction was flagrantly against the evidence. (Decided under prior law) Carrier v. Commonwealth, 356 S.W.2d 752, 1962 Ky. LEXIS 98 ( Ky. 1962 ).

16.Indictment.

The offense of carnally knowing a female under the age of 16 years is purely statutory and where the language of the indictment followed the statute it was unnecessary to allege felonious intent. (Decided under prior law) Howerton v. Commonwealth, 129 Ky. 482 , 112 S.W. 606, 33 Ky. L. Rptr. 1008 , 1908 Ky. LEXIS 182 ( Ky. 1908 ).

An indictment for willfully and feloniously having carnal knowledge of a female under 16 years of age was not fatal on demurrer because of failure to allege in language of statute at that time that he unlawfully had such carnal knowledge. (Decided under prior law) Clark v. Commonwealth, 165 Ky. 472 , 177 S.W. 251, 1915 Ky. LEXIS 547 ( Ky. 1915 ).

An indictment charging defendant did unlawfully and feloniously make an assault upon prosecutrix, a female under age of 16 years, and did unlawfully and feloniously carnally know her, is not duplicitous, as alleging an assault in addition to violation of statute. (Decided under prior law) Sebree v. Commonwealth, 200 Ky. 534 , 255 S.W. 142, 1923 Ky. LEXIS 143 ( Ky. 1923 ).

The date of an act is purely a matter of description, and if the transaction be so identified that defendant can fairly know with what he is charged and so present his defense, and that a jury can reasonably know what it is considering, and that a court can intelligently pass judgment, then that is all that should be or is required. (Decided under prior law) Render v. Commonwealth, 206 Ky. 1 , 266 S.W. 914, 1924 Ky. LEXIS 279 ( Ky. 1 924).

Indictment charging offense of rape which failed to charge prosecuting witness was not defendant’s wife was insufficient. (Decided under prior law) Hunley v. Commonwealth, 217 Ky. 675 , 290 S.W. 511, 1927 Ky. LEXIS 48 ( Ky. 1927 ).

Indictment which failed to allege whether intercourse was with or without the consent of female under the age of 16 years, was sufficient. (Decided under prior law) Morgan v. Commonwealth, 222 Ky. 742 , 2 S.W.2d 370, 1928 Ky. LEXIS 228 ( Ky. 1928 ).

Indictment, stating that prosecutrix was under age 16 without alleging that she was above age 12, was not objectionable as charging two (2) offenses, since in indictment age of parties was not important. (Decided under prior law) Prewitt v. Commonwealth, 248 Ky. 845 , 60 S.W.2d 122, 1933 Ky. LEXIS 334 ( Ky. 1933 ).

Indictment charging that defendant did “unlawfully, feloniously and willfully carnally know a female infant under the age of 18 years,” which did not state her age definitely, was sufficient since there was but one offense under prior law, having sexual intercourse with a female less than 18 years of age with her consent, with different punishments graded according to the age of the perpetrator and the victim. (Decided under prior law) Woods v. Commonwealth, 250 Ky. 822 , 64 S.W.2d 155, 1933 Ky. LEXIS 787 ( Ky. 1933 ).

Indictment need not allege age of accused. (Decided under prior law) Merriss v. Commonwealth, 287 Ky. 58 , 151 S.W.2d 1030, 1941 Ky. LEXIS 486 ( Ky. 1941 ).

It was sufficient to allege that offense of rape was committed before the finding of the indictment, without fixing a definite date. (Decided under prior law) Taylor v. Commonwealth, 291 Ky. 625 , 165 S.W.2d 169, 1942 Ky. LEXIS 287 ( Ky. 1942 ).

In a prosecution in 1945 for carnally knowing a female 15 years of age, defendant’s own testimony that he was married in 1938 and was 28 years old at time of trial was sufficient evidence to establish and prove for the Commonwealth that defendant was 21 years old when act occurred. (Decided under prior law) Grace v. Commonwealth, 302 Ky. 796 , 196 S.W.2d 417, 1946 Ky. LEXIS 753 ( Ky. 1946 ), overruled in part, Lee v. International Harvester Co., 373 S.W.2d 418, 1963 Ky. LEXIS 156 ( Ky. 1963 ).

It was not an abuse of the court’s discretion to allow Commonwealth’s attorney, after defense had closed, and without stating his reason, to recall defendant for further cross-examination for purpose of proving his age where it was not set forth in indictment or proved previously. (Decided under prior law) Bailey v. Commonwealth, 312 Ky. 764 , 229 S.W.2d 767, 1950 Ky. LEXIS 766 ( Ky. 1950 ).

A letter written by defendant to the prosecuting witness after his arrest was admissible as a statement against interest where it was proven that the prosecutrix was not yet 13 and had lived with defendant for a few days in an apartment. (Decided under prior law) Glasscock v. Commonwealth, 307 S.W.2d 188, 1957 Ky. LEXIS 79 ( Ky. 1957 ).

It is necessary to state defendant’s age in an indictment to charge him with the felony of carnal knowledge of a female under 16 years of age. (Decided under prior law) Vickers v. Commonwealth, 472 S.W.2d 469, 1971 Ky. LEXIS 191 ( Ky. 1971 ).

17.Instructions.

It was not error to include in one paragraph of instruction all the various degrees of the offense of law providing penalty for carnal knowledge of a child with consent, nor was it error to instruct on detaining a woman against her will and on assault and battery, where defendant denied the act entirely. (Decided under prior law) White v. Commonwealth, 292 Ky. 416 , 166 S.W.2d 873, 1942 Ky. LEXIS 105 ( Ky. 1942 ).

Although indictment charged only violation of law providing penalty for carnal knowledge of a child with consent, instruction given with regard to forcible rape was not prejudicial where jury convicted defendant under first mentioned law. (Decided under prior law) White v. Commonwealth, 292 Ky. 416 , 166 S.W.2d 873, 1942 Ky. LEXIS 105 ( Ky. 1942 ).

Where 15 year old prosecutrix in rape prosecution testified positively that she was forcibly assaulted, and there was no evidence to the contrary, defendant was not entitled to a jury instruction on statutory crime of carnal knowledge of an infant. (Decided under prior law) Dobbs v. Commonwealth, 329 S.W.2d 206, 1959 Ky. LEXIS 152 ( Ky. 1959 ).

18.— Corroborative Evidence.

In a carnal knowledge prosecution an instruction defining “corroborative” evidence as meaning “additional evidence tending to prove similar facts, or facts tending to produce the same results as facts already given in evidence,” was not misleading to the jury and therefore not objectionable. (Decided under prior law) Grace v. Commonwealth, 302 Ky. 796 , 196 S.W.2d 417, 1946 Ky. LEXIS 753 ( Ky. 1946 ), overruled in part, Lee v. International Harvester Co., 373 S.W.2d 418, 1963 Ky. LEXIS 156 ( Ky. 1963 ).

19.— Credibility of Witnesses.

Where witnesses for defendant testified that they were at place where offense was alleged to have been committed and that girl came and left without any mistreatment by defendant, and Commonwealth then introduced witnesses who testified that defendant’s witnesses were not there when girl came, it was error for trial court to instruct jury that testimony of Commonwealth’s witnesses could only be considered for the purpose of affecting the credibility of defendant’s witnesses. (Decided under prior law) Kitchen v. Commonwealth, 291 Ky. 756 , 165 S.W.2d 547, 1942 Ky. LEXIS 315 ( Ky. 1942 ).

In a prosecution where there is a conflict of evidence as to the girl’s age the trial court should so frame the instructions as to give the defendant the benefit of any doubts the jury might have as to the girl’s age. (Decided under prior law) Carroll v. Commonwealth, 295 Ky. 522 , 174 S.W.2d 770, 1943 Ky. LEXIS 277 ( Ky. 1943 ).

20.— Election of offenses.

An instruction failing to limit jury to a particular act was erroneous. (Decided under prior law) Kayes v. Commonwealth, 221 Ky. 474 , 298 S.W. 1096, 1927 Ky. LEXIS 746 ( Ky. 1927 ).

It was reversible error, where prosecutrix testified to other acts with defendant, for the court to fail to instruct the jury that the prosecution was limited to the time and place for which the Commonwealth elected to try defendant and to fail to admonish the jury that such evidence was competent to show other acts of intercourse between the parties within reasonable time before or after the one elected, as corroborative only to the main act. (Decided under prior law) Wilson v. Commonwealth, 265 Ky. 337 , 96 S.W.2d 1026, 1936 Ky. LEXIS 492 ( Ky. 1936 ).

Instruction that jury should convict if they believed that accused had carnal knowledge of prosecutrix with her consent, “at the time mentioned in the evidence,” was not erroneous, where counsel for accused had insisted on election as to time and place of offense and court had told jury to consider prior acts merely to corroborate other evidence, notwithstanding prosecutrix had testified to intercourse with accused for about four (4) years. (Decided under prior law) Tuttle v. Commonwealth, 287 Ky. 371 , 153 S.W.2d 931, 1941 Ky. LEXIS 562 ( Ky. 1941 ).

If Commonwealth fails to elect which offense it will try, the court will make an election in its instructions, by specifying the first act concerning which substantive evidence was introduced. (Decided under prior law) Bowen v. Commonwealth, 288 Ky. 515 , 156 S.W.2d 870, 1941 Ky. LEXIS 150 ( Ky. 1941 ).

Where defendant admits several acts of intercourse, it is doubtful whether instructions must confine issue to one violation. (Decided under prior law) Cannon v. Commonwealth, 291 Ky. 517 , 165 S.W.2d 44, 1942 Ky. LEXIS 274 ( Ky. 1942 ).

21.— More Favorable to Defendant.

Neither force nor unlawful assault was necessary to constitute the crime of statutory rape, but it was not prejudicial error for the court to instruct the jury that they must believe beyond a reasonable doubt that the act was committed with force and arms and by assaulting the prosecutrix, since the instruction was more favorable to the defendant than was proper. (Decided under prior law) Perkins v. Commonwealth, 124 S.W. 794, 1910 Ky. LEXIS 668 ( Ky. 1910 ).

22.— Time of Offense.

Although indictment for statutory rape charged offense was committed within 12 months past, and Commonwealth’s evidence showed offense was committed three (3) years before finding of indictment, defendant was not entitled to peremptory instruction, as Commonwealth may prove commission offense at any time before finding of indictment. (Decided under prior law) Arn v. Commonwealth, 225 Ky. 444 , 9 S.W.2d 47, 1928 Ky. LEXIS 788 ( Ky. 1928 ).

Instruction requiring jury to base guilt or innocence on finding as to whether act of intercourse was committed “on or about” a certain day was proper, where there was evidence that one of acts charged in indictment was committed on or about that day. (Decided under prior law) Cannon v. Commonwealth, 291 Ky. 517 , 165 S.W.2d 44, 1942 Ky. LEXIS 274 ( Ky. 1942 ).

In a prosecution for rape, wherein the first instruction omitted the date the offense was alleged to have been committed, but the indictment, the proof, and the carnal knowledge instruction immediately following the first instruction definitely fixed the time of the act, the first instruction was not reversibly erroneous. (Decided under prior law) Adams v. Commonwealth, 261 S.W.2d 811, 1953 Ky. LEXIS 1062 ( Ky. 1953 ).

In prosecution for carnal knowledge of female under 16 years of age, instruction authorizing the jury to find the defendant guilty of offense charged, if he had carnal knowledge of prosecutrix in October or November, 1956, although Commonwealth had elected November, 1956, as time of offense for which defendant would be tried, was erroneous. (Decided under prior law) Ashcraft v. Commonwealth, 317 S.W.2d 179, 1958 Ky. LEXIS 83 ( Ky. 1958 ).

23.— Victim's Age.

Instruction to find accused guilty if jury believed that he carnally knew named female, “a female under 18 years of age, not his wife,” did not prejudice accused’s substantial rights by failing to leave to the jury the questions as to age and relationship, there having been no controversy as to her age nor intimation that she was his wife. (Decided under prior law) Merriss v. Commonwealth, 287 Ky. 58 , 151 S.W.2d 1030, 1941 Ky. LEXIS 486 ( Ky. 1941 ).

24.Lesser Included Offenses.

Even if the offense of adultery is a lower degree of that for carnally knowing a female under the age of 16 years, it is not error to refuse to instruct upon it, when the intercourse is denied in toto by both parties upon trial under an indictment for latter offense. (Decided under prior law) Morgan v. Commonwealth, 172 Ky. 684 , 189 S.W. 943, 1916 Ky. LEXIS 265 ( Ky. 1916 ).

The crime of seduction cannot be declared a degree of crime of carnally knowing a female under 18. (Decided under prior law) Yates v. Commonwealth, 211 Ky. 629 , 277 S.W. 995, 1925 Ky. LEXIS 936 ( Ky. 1925 ).

25.Post-Conviction Motions.

Even though the record contained an affidavit by the complaining witness to the effect that she did not have intercourse with the defendant and signed the complaint because officials had threatened to send her to reform school, such a statement was not a basis for relief under RCr 11.42. (Decided under prior law) Hendrickson v. Commonwealth, 450 S.W.2d 234, 1970 Ky. LEXIS 430 ( Ky. 1970 ).

There was no basis for post-conviction relief on the defendant’s allegation that he was not properly advised of the consequences of his guilty plea where the record refuted his allegation. (Decided under prior law) Hendrickson v. Commonwealth, 450 S.W.2d 234, 1970 Ky. LEXIS 430 ( Ky. 1970 ).

Cited:

Moore v. Cowan, 560 F.2d 1298, 1977 U.S. App. LEXIS 11806 (6th Cir. 1977), cert. denied, 435 U.S. 929, 98 S. Ct. 1500, 55 L. Ed. 2d 525, 1978 U.S. LEXIS 1174 (1978), cert. denied, Smith v. Cowan, 436 U.S. 960, 98 S. Ct. 3079, 57 L. Ed. 2d 1127, 1978 U.S. LEXIS 2233 (1978); Hulan v. Commonwealth, 634 S.W.2d 410, 1982 Ky. LEXIS 258 ( Ky. 1982 ); Stacey v. Commonwealth, — S.W.3d —, 2004 Ky. App. LEXIS 150 (Ky. Ct. App. 2004); Wilfong v. Commonwealth, 175 S.W.3d 84, 2004 Ky. App. LEXIS 353 (Ky. Ct. App. 2004); Gibbs v. Commonwealth, 208 S.W.3d 848, 2006 Ky. LEXIS 239 ( Ky. 2006 ); Bullitt v. Commonwealth, 595 S.W.3d 106, 2019 Ky. LEXIS 543 ( Ky. 2019 ).

Research References and Practice Aids

Kentucky Bench & Bar.

Palmore, A Summary of Significant Decisions by the Supreme Court of Kentucky April 1982-April 1983, Vol. 47, No. 3, July 1983, Ky. Bench & Bar 14.

Northern Kentucky Law Review.

Comments, Relevancy of Evidence of Prior Sexual Conduct Under the Kentucky Revised Statute Section 510.145

Kentucky Law Survey, Brice and Taylor, Criminal Law, 67 Ky. L.J. 569 (1978-1979).

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Offenses Related to Sex and Pornography, Part 1 Definitions, § 4.21A.

Kentucky Instructions to Juries (Criminal), 5th Ed., Offenses Related to Sex and Pornography, Part 2 Rape, §§ 4.29 — 4.30.

Kentucky Instructions to Juries (Criminal), 5th Ed., Offenses Related to Sex and Pornography, Part 3 Sodomy, § 4.42.

510.070. Sodomy in the first degree.

  1. A person is guilty of sodomy in the first degree when:
    1. He engages in deviate sexual intercourse with another person by forcible compulsion; or
    2. He engages in deviate sexual intercourse with another person who is incapable of consent because he:
      1. Is physically helpless; or
      2. Is less than twelve (12) years old.
  2. Sodomy in the first degree is a Class B felony unless the victim is under twelve (12) years old or receives a serious physical injury in which case it is a Class A felony.

History. Enact. Acts 1974, ch. 406, § 87, effective January 1, 1975.

NOTES TO DECISIONS

1.Constitutionality.

The irrebuttable presumption that minors, male or female, less than 16 years of age, which would of course encompass minors 12 years of age, are unable to give consent to sex acts does not violate U.S. Const., Amend. 14 or Ky. Const., § 11. Payne v. Commonwealth, 623 S.W.2d 867, 1981 Ky. LEXIS 286 ( Ky. 1981 ), cert. denied, 456 U.S. 909, 102 S. Ct. 1758, 72 L. Ed. 2d 167, 1982 U.S. LEXIS 1573 (U.S. 1982).

In prosecution for first degree sodomy, the defendant’s rights under the confrontation clause of the 6th Amendment of the U.S. Constitution and his due process right to be present under the 14th Amendment were not violated by his exclusion from a hearing held to determine the competency of two (2) child witnesses to testify, where his counsel was present at such hearing and since there was ample opportunity for full and effective cross-examination at the trial. Kentucky v. Stincer, 482 U.S. 730, 107 S. Ct. 2658, 96 L. Ed. 2d 631, 1987 U.S. LEXIS 2727 (U.S. 1987).

2.Appeals.

Defendant’s assertion in a motion for a directed verdict of acquittal that there was insufficient evidence to convict defendant of the crimes charged did not adequately preserve for appellate review defendant’s claim on appeal that the Commonwealth failed to prove the element of forcible compulsion beyond a reasonable doubt, as required for convictions under KRS 510.040 , 510.070 , and 510.110 ; the matter can be reviewed for palpable error only. Bratcher v. Commonwealth, 2006 Ky. App. LEXIS 363 (Ky. Ct. App. Dec. 8, 2006, sub. op., 2006 Ky. App. Unpub. LEXIS 912 (Ky. Ct. App. Dec. 8, 2006).

3.Defenses.

The drafters of the Penal Code did not intend to inject the elements of intent or knowledge, as they are defined in KRS 501.020 , into the crimes of forcible rape and sodomy so as to make voluntary intoxication available as a defense. Malone v. Commonwealth, 636 S.W.2d 647, 1982 Ky. LEXIS 276 ( Ky. 1982 ).

4.Due Process.

Where, prior to placing the child prosecuting witnesses in the care of social workers, the trial judge properly admonished the social workers to refrain from discussing the case with the children, the trial judge did not abuse his discretion in permitting social workers to care for child witnesses during a luncheon recess. Stincer v. Commonwealth, 712 S.W.2d 939, 1986 Ky. LEXIS 279 ( Ky. 1986 ), rev'd, 482 U.S. 730, 107 S. Ct. 2658, 96 L. Ed. 2d 631, 1987 U.S. LEXIS 2727 (U.S. 1987).

5.Elements.

In order for the act of sodomy to be committed by one person on another, it is necessary that there be an anal penetration. (Decided under prior law) United States v. Milby, 400 F.2d 702, 1968 U.S. App. LEXIS 5461 (6th Cir. Ky. 1968 ).

Where prosecuting witness was convinced that the defendant was armed with a pistol, that said witness had been verbally threatened with death if he failed to cooperate, and that he had been grabbed by the throat and hit in the back of the head, the “forcible compulsion” element of sodomy offense was sufficiently proved. Howard v. Commonwealth, 554 S.W.2d 375, 1977 Ky. LEXIS 493 ( Ky. 1977 ).

Penetration under subsection (8) of KRS 510.010 can be proved by circumstantial evidence in order to convict defendant of first-degree sodomy under this section. Gregory v. Commonwealth, 610 S.W.2d 598, 1980 Ky. LEXIS 282 ( Ky. 1980 ).

Penetration is not necessary to the crime of sodomy as defined in the Kentucky Penal Code. Hulan v. Commonwealth, 634 S.W.2d 410, 1982 Ky. LEXIS 258 ( Ky. 1982 ).

The statutes defining the crimes of forcible rape and sodomy, KRS 510.040(1)(a) and subsection (1)(a) of this section, do not say that a mental state is required for their commission; each statute only requires that the prohibited act be committed by forcible compulsion. Malone v. Commonwealth, 636 S.W.2d 647, 1982 Ky. LEXIS 276 ( Ky. 1982 ).

Trial court did not err in denying defendant’s motion for a directed verdict on a sodomy charge where the victim’s testimony established that there was an act of sexual gratifications involving defendant’s sex organs and the victim’s mouth. Galloway v. Commonwealth, 424 S.W.3d 921, 2014 Ky. LEXIS 97 ( Ky. 2014 ).

6.Indictment.

There was no possibility of defendant’s being twice placed in jeopardy as a result of the failure of the indictment to specify which subsection of this section he was charged with violating because if the prosecution had originally failed, the Commonwealth could not have then again proceeded against the defendant by a second indictment charging defendant by a specific violation of one of the subsections of this section. Howard v. Commonwealth, 554 S.W.2d 375, 1977 Ky. LEXIS 493 ( Ky. 1977 ).

Indictment which charged that defendant on a certain date committed first-degree sodomy with the prosecuting witness, designated this statute number as the one alleged to have been violated and indicated this to be a Class B felony was not insufficient for failure to give defendant notice that he was being charged with committing a felony. Howard v. Commonwealth, 554 S.W.2d 375, 1977 Ky. LEXIS 493 ( Ky. 1977 ).

Although there was a variance between the indictment charging defendant with first degree rape and first degree sodomy by “use of forcible compulsion” and the evidence at trial that victim’s physical helplessness due to her consumption of alcohol constituted the lack-of-consent element of each sexual offense, where the variance did not involve a different or additional offense and where it was readily apparent to defendant early on that the Commonwealth’s thesis was that the sexual acts had occurred not through physical force or threat, but while the victim was physically helpless due to her consumption of alcohol, the defense suffered no surprise or prejudice. Skinner v. Commonwealth, 864 S.W.2d 290, 1993 Ky. LEXIS 149 ( Ky. 1993 ).

Defendant was entitled to a third trial with regard to his alleged sexual abuse of his wife’s daughter while the wife was at work because the Commonwealth improperly joined a misdemeanor charge of failing to register as a sex offender under 2000 Ky. Acts 401 with a misdemeanor handgun charge, instead of retaining a felony sodomy charge and, therefore, the circuit court did not have jurisdiction to try the case and should have remanded the same to the district court for disposition since the district court had exclusive jurisdiction over misdemeanor cases. Dickerson v. Commonwealth, 174 S.W.3d 451, 2005 Ky. LEXIS 325 ( Ky. 2005 ).

7.Evidence.

The admission of testimony by two (2) witnesses that the victim of the attack was frightened by the defendant and that the defendant and his cellmate were overheard boasting about the crime was not prejudicial error where the remarks could not have significantly influenced the jury, although the testimony concerning the cellmate’s boasts was inadmissible hearsay. Alcorn v. Commonwealth, 557 S.W.2d 624, 1977 Ky. LEXIS 534 ( Ky. 1977 ).

Where defendant and two (2) others seized the complainant at 2 a.m. and took him to a house half a block away, where defendant forced complainant to strip at gunpoint, and sodomized him for 90 minutes, there was a greater interference with complainant’s liberty than is ordinarily incident to sodomy and the kidnap exemption, provided for by KRS 509.050 , was inapplicable. Griffin v. Commonwealth, 576 S.W.2d 514, 1978 Ky. LEXIS 457 ( Ky. 1978 ).

Where two (2) sons under three (3) years of age did not testify, but there was testimony that defendant father had closed himself in bedroom or taken rides with them to exclusion of others and that they cried and their rectal areas were discolored following these events, there was sufficient circumstantial evidence to convict father of first-degree sodomy. Gregory v. Commonwealth, 610 S.W.2d 598, 1980 Ky. LEXIS 282 ( Ky. 1980 ).

The testimony of the six-(6) year-old victim and her mother supported the jury’s finding that defendant performed an act of oral sex upon her. This met the statutory definition of sodomy. Hulan v. Commonwealth, 634 S.W.2d 410, 1982 Ky. LEXIS 258 ( Ky. 1982 ).

The trial court, in prosecution for multiple offenses of sodomy and sexual abuse, properly excluded defendant’s offer of evidence from a witness designated a “clinical social worker,” who testified by avowal that in his opinion the defendant would not have become involved with the 12-year-old victim because this victim was too young to attract him; defendant offered no evidence to show that this witness was qualified as an expert, the testimony as proffered went to the ultimate question of guilt or innocence rather than being limited to a professional opinion regarding mental condition and, as such, it invaded the province of the jury and the evidence was offered as “mitigating evidence” and was therefore irrelevant in a case not involving the death penalty. Hampton v. Commonwealth, 666 S.W.2d 737, 1984 Ky. LEXIS 219 ( Ky. 1984 ).

Where the physician’s testimony was not based upon material alleged to be contained in his files, there was no error in the trial court’s refusal to disclose these files. Bussey v. Commonwealth, 697 S.W.2d 139, 1985 Ky. LEXIS 254 ( Ky. 1985 ).

Where the witness was an 11-year-old girl not shown to be incompetent to testify, and there was no showing that it was a certainty that she would be unable to testify, the trial court did not err by allowing the victim to be called as a witness. Bussey v. Commonwealth, 697 S.W.2d 139, 1985 Ky. LEXIS 254 ( Ky. 1985 ).

Where the prosecution did not establish that the sexual abuse syndrome is a generally accepted medical concept, and the evidence was immaterial since the syndrome as described could have been caused by prior sexual abuse of the victim by persons other than defendant, the trial court erred in admitting testimony concerning the sexual abuse syndrome. Bussey v. Commonwealth, 697 S.W.2d 139, 1985 Ky. LEXIS 254 ( Ky. 1985 ).

Where the victim’s two (2) brothers testified concerning at least five (5) instances in which defendant fondled the victim prior to the abuse charged in the indictment, the trial court properly admitted the evidence in order to show the intent of the defendant. Bussey v. Commonwealth, 697 S.W.2d 139, 1985 Ky. LEXIS 254 ( Ky. 1985 ).

Where the victim’s brothers were able to testify as to the same facts, and such testimony had at least as much probative value as the testimony offered, the testimony of the social worker did not meet the criteria of the so called residual exception to the hearsay rule, and the court declined to decide whether such a rule should be adopted in this case. Bussey v. Commonwealth, 697 S.W.2d 139, 1985 Ky. LEXIS 254 ( Ky. 1985 ).

Upon retrial for attempted first-degree sodomy, no evidence should be admitted concerning sexual abuse of the other children by the appellant’s brothers, and the Commonwealth should not cross-examine defendant regarding nonsexual abuse of his children nor about sexual conduct of defendant with other women in the presence of the children. Bussey v. Commonwealth, 697 S.W.2d 139, 1985 Ky. LEXIS 254 ( Ky. 1985 ).

In a prosecution for first degree rape and first degree sodomy, the exclusion of testimony from a psychologist who had administered tests and offered his expert opinion that the defendant’s psychological profile was not indicative of or consistent with that of a sex offender was not error, where the accused did not rely on insanity as a defense and he did not file notice of an insanity defense before trial. Pendleton v. Commonwealth, 685 S.W.2d 549, 1985 Ky. LEXIS 208 ( Ky. 1985 ).

Where the child witnesses identified the defendant and the acts perpetrated against them, there was sufficient evidence to withstand the defendant’s motion for a directed verdict of acquittal. Stincer v. Commonwealth, 712 S.W.2d 939, 1986 Ky. LEXIS 279 ( Ky. 1986 ), rev'd, 482 U.S. 730, 107 S. Ct. 2658, 96 L. Ed. 2d 631, 1987 U.S. LEXIS 2727 (U.S. 1987).

Where the small rectal tears found on the victim may have been sufficient to indicate that there had been some effort to penetrate the victim’s anus, but the medical evidence of record tended to prove that the rectal tears were not made by a male’s sex organ, but on the contrary by some hard object other than a male sex organ, the defendant’s motion for directed verdict on the charge of first-degree sodomy should have been sustained. Souder v. Commonwealth, 719 S.W.2d 730, 1986 Ky. LEXIS 303 ( Ky. 1986 ), overruled in part, B.B. v. Commonwealth, 226 S.W.3d 47, 2007 Ky. LEXIS 131 ( Ky. 2007 ).

Where, in prosecution for kidnapping, rape and forcible sodomy, the defendant, a black man, claimed that he and the victim, a white woman, had engaged in consensual sexual relations and that the victim lied to protect her relationship with her live-in lover, another black man, the Court of Appeals, in excluding all evidence of their living arrangement, violated the defendant’s Sixth Amendment right to be confronted with witnesses against him, as a reasonable jury might have received a significantly different impression of the victim’s credibility if the cross-examination had been permitted, speculation as to the effect of jurors’ racial bias could not justify the exclusion of cross-examination with such strong potential to impeach the victim’s testimony that she lived with her mother, the victim’s testimony was crucial to the prosecution’s case, and the prosecution’s case was far from overwhelming. Olden v. Kentucky, 488 U.S. 227, 109 S. Ct. 480, 102 L. Ed. 2d 513, 1988 U.S. LEXIS 5621 (U.S. 1988).

Defendant’s convictions for sodomy and incest, allegedly perpetrated against his infant children, required reversal because of the prejudicial effect of the erroneous admission of testimony by a social worker concerning what was denominated as a child sexual abuse accommodation syndrome; the admission of such evidence was erroneous because there was no medical testimony that the syndrome is a generally accepted medical concept, and because the testimony had no substantial relevance with regard to the issue of defendant’s guilt or innocence. Mitchell v. Commonwealth, 777 S.W.2d 930, 1989 Ky. LEXIS 91 ( Ky. 1989 ).

In prosecution for first degree rape, sodomy and sexual abuse, where a number of eyewitnesses presented competent evidence sufficient to warrant inferences that defendant was in the room where alleged victim was taken after she passed out after extensive drinking, that he had been “on top” of her, that he had attempted intercourse, that there had been actual penetration, that defendant had put his face between victim’s legs, that defendant admitted to several witnesses that he had had sexual relations with the victim, such evidence was sufficient to enable jurors to find that defendant was guilty of the charges beyond a reasonable doubt. Skinner v. Commonwealth, 864 S.W.2d 290, 1993 Ky. LEXIS 149 ( Ky. 1993 ).

It was not error to admit evidence of defendant’s prior sexual abuse of young female step-family members where the pattern of conduct and method of operation was very similar and went on for many years. Lear v. Commonwealth, 884 S.W.2d 657, 1994 Ky. LEXIS 103 ( Ky. 1994 ).

Specific dates and times when a felony occurred are not required to convict; in a sexual abuse case, it was enough that the victim established that she was under twelve years old when the alleged acts occurred. Stringer v. Commonwealth, 956 S.W.2d 883, 1997 Ky. LEXIS 149 ( Ky. 1997 ), cert. denied, 523 U.S. 1052, 118 S. Ct. 1374, 140 L. Ed. 2d 522, 1998 U.S. LEXIS 2234 (U.S. 1998).

Petitioner was not entitled to a writ of habeas corpus based on his claim of insufficiency of evidence in convictions for sodomy, KRS 510.070(1), and rape, KRS 510.040(1)(a), because a rational trier of fact, after viewing the evidence in the light most favorable to the prosecution, could have found the essential elements of those crimes, including the element of deviate sexual intercourse under KRS 510.010(1), beyond a reasonable doubt. Because the convictions were properly supported by evidence, they were properly used as aggravating circumstances during the penalty phase under KRS 532.025 . Sanborn v. Parker, 2005 U.S. Dist. LEXIS 44697 (W.D. Ky. Jan. 12, 2005).

Evidence was sufficient for a jury to conclude that defendant had acted with forcible compulsion when he committed sexual misconduct with the victim over a period of one (1) year, because the victim, who was 14 years old at the time of the crimes, testified numerous times that she was scared of defendant and identified specific instances when defendant had forced himself upon her. Bratcher v. Commonwealth, 2006 Ky. App. LEXIS 363 (Ky. Ct. App. Dec. 8, 2006, sub. op., 2006 Ky. App. Unpub. LEXIS 912 (Ky. Ct. App. Dec. 8, 2006).

Where the victim testified that defendant spread her legs with his knees, held her legs, pulled down her shorts, and inserted his tongue and fingers into her vagina, the testimony was sufficient to establish the forcible compulsion element of first-degree sodomy; pursuant to KRS 510.010(2), it was not necessary for the victim to testify that she attempted to get away from defendant. Gordon v. Commonwealth, 214 S.W.3d 921, 2006 Ky. App. LEXIS 399 (Ky. Ct. App. 2006).

Defendant’s conviction for first-degree anal sodomy of another inmate, in violation of KRS 510.070(1)(a), was supported by the evidence because the victim’s testimony about the attack was consistent with the physical evidence; testing of an anal swab taken by a sexual-assault nurse showed the presence of sperm cells that matched defendant’s DNA. Mash v. Commonwealth, 376 S.W.3d 548, 2012 Ky. LEXIS 21 ( Ky. 2012 ).

Evidence was sufficient to support defendant’s conviction for attempted sodomy in the first degree, in violation of KRS 506.010 and 510.070(1)(a), where there was testimony from the victim that defendant used force to place his penis directly in front of her mouth in an attempt to penetrate her mouth; such conduct constituted an attempt at deviate sexual intercourse, as that term was defined in KRS 510.010(1). Chames v. Commonwealth, 405 S.W.3d 519, 2012 Ky. App. LEXIS 231 (Ky. Ct. App. 2012).

Other than defendant's confession, there was evidence that defendant engaged in anal sex with the victim while she was unconscious and physically helpless, including testimony from the medical examiner that the victim was significantly intoxicated, which would have impeded her ability to resist while being strangled; the other proof, in conjunction with defendant's confession, was sufficient to establish first-degree sodomy. Bond v. Commonwealth, 453 S.W.3d 729, 2015 Ky. LEXIS 6 ( Ky. 2015 ).

8.—Admissibility.

The testimony of an investigating police officer that an accused had the profile of a pedophile, based on the contents of his library and miscellaneous memorabilia found in his residence, fell short of the threshold of admissible evidence. Dyer v. Commonwealth, 816 S.W.2d 647, 1991 Ky. LEXIS 150 ( Ky. 1991 ), overruled, Baker v. Commonwealth, 973 S.W.2d 54, 1998 Ky. LEXIS 86 ( Ky. 1998 ).

No evidence should be admitted, and no argument permitted, characterizing a defendant as a “pedophile,” or suggesting that he suffers from “pedophilia,” unless there is proof from an expert on the subject qualified to express an opinion about the defendant’s mental condition. Dyer v. Commonwealth, 816 S.W.2d 647, 1991 Ky. LEXIS 150 ( Ky. 1991 ), overruled, Baker v. Commonwealth, 973 S.W.2d 54, 1998 Ky. LEXIS 86 ( Ky. 1998 ).

Pornographic material could not be used to characterize the defendant as a pedophile as such profile evidence is inadmissible in criminal cases to prove either guilt or innocence. Dyer v. Commonwealth, 816 S.W.2d 647, 1991 Ky. LEXIS 150 ( Ky. 1991 ), overruled, Baker v. Commonwealth, 973 S.W.2d 54, 1998 Ky. LEXIS 86 ( Ky. 1998 ).

Where social worker listed symptoms but refrained from classifying them directly as the “child sexual abuse syndrome,” avoiding the term “syndrome” did not transform inadmissible hearsay into reliable scientific evidence; neither the syndrome nor the symptoms that comprise the syndrome have recognized reliability in diagnosing child sexual abuse as a scientific entity; nor was social worker qualified to express an opinion suggesting child was suffering from a psychological disorder or other abnormal mental condition; thus the testimony remained inadmissible and its admission was reversible error. Hellstrom v. Commonwealth, 825 S.W.2d 612, 1992 Ky. LEXIS 9 ( Ky. 1992 ).

Testimony of psychologist to whom victim of sexual crimes had gone for counseling was inadmissible hearsay since it was based on what victim told her and victim was not an eyewitness but merely told psychologist what she believed had happened based upon things others had told her and reports she had heard. Skinner v. Commonwealth, 864 S.W.2d 290, 1993 Ky. LEXIS 149 ( Ky. 1993 ).

Testimony of victim of sexual crimes who was not an eyewitness to charged acts as she was allegedly helpless at the time due to her consumption of alcohol, as to what her friends had told her and as to the gossip she had heard at school, offered in proof of offenses charged was patent hearsay and was incompetent to prove that the criminal acts had occurred or that defendant had committed them and was not relevant, independent of its truth, to prove that any of the acts were committed without the victim’s consent. Skinner v. Commonwealth, 864 S.W.2d 290, 1993 Ky. LEXIS 149 ( Ky. 1993 ).

In a prosecution for first degree rape and first degree sodomy, testimony by the victim during the sentencing phase about defendant’s HIV-positive status was propertly admitted under KRS 532.055(2)(a)(7) as evidence of the impact of the crime upon her. The prejudicial nature of the HIV evidence did not outweigh its probative value. Torrence v. Commonwealth, 269 S.W.3d 842, 2008 Ky. LEXIS 324 ( Ky. 2008 ).

9.—Uncorroborated Testimony.

Where, although uncorroborated, the testimony of the alleged sodomy victim was neither self-contradictory, incredible, nor inherently improbable, standing alone it was sufficient to withstand a challenge even though the bulk of the evidence mitigated against it. Dyer v. Commonwealth, 816 S.W.2d 647, 1991 Ky. LEXIS 150 ( Ky. 1991 ), overruled, Baker v. Commonwealth, 973 S.W.2d 54, 1998 Ky. LEXIS 86 ( Ky. 1998 ).

Victim of sexual crimes could testify as to her own relevant observations and actions, that she had not consented, or at least that she did not recall consenting to any sexual contact, to explain her reason for seeking medical treatment and that she had been abused at party; however, the jury in such case should have been admonished that the fact that she had heard the reports was admissible to explain her actions, but was not to be considered as evidence that such reports were true, or that the acts had occurred. Skinner v. Commonwealth, 864 S.W.2d 290, 1993 Ky. LEXIS 149 ( Ky. 1993 ).

9.5.—Sufficient.

Victim's testimony that defendant put his mouth on the victim's penis was sufficient evidence of an act of sexual gratification to establish that defendant committed sodomy. King v. Commonwealth, 472 S.W.3d 523, 2015 Ky. LEXIS 1940 ( Ky. 2015 ).

Defendant was not entitled to a directed verdict or to the dismissal of the rape and sodomy charges where there was sufficient evidence of forcible compulsion to raise a jury question, as the victim testified that defendant forcibly rolled her over, removed her pajama pants, and then physically pushed aside her several attempts to block him from sodomizing her, and defendant's acts were not actions merely incidental to sex. Jenkins v. Commonwealth, 496 S.W.3d 435, 2016 Ky. LEXIS 327 ( Ky. 2016 ), cert. denied, 137 S. Ct. 1205, 197 L. Ed. 2d 250, 2017 U.S. LEXIS 1566 (U.S. 2017).

Appellant was not entitled to a directed verdict on a first-degree forcible compulsion sodomy charge given appellant's distinct size advantage and the victim's testimony describing her efforts to resist appellant's advances. Gullett v. Commonwealth, 514 S.W.3d 518, 2017 Ky. LEXIS 82 ( Ky. 2017 ).

Circuit court properly convicted defendant of first-degree sodomy and first-degree rape because evidence of the victim’s subsequent consensual sexual encounter with her boyfriend did not fall under any of the exceptions in, and was plainly excluded by, the Rules of Evidence, the prosecutor’s statements—characterizing defendant’s statements that he had sex with the victim on the night in question as confessions—could reasonably be inferred from the evidence, information of his familial relationship with the victim was not prejudicial or impacted the jury’s ultimate verdict, and a hearing was not necessary where defendant’s allegation of juror misconduct was not clear from the record. Powers v. Commonwealth, 2019 Ky. App. LEXIS 96 (Ky. Ct. App. May 24, 2019), aff'd, 2021 Ky. LEXIS 143 (Ky. June 17, 2021).

Evidence was sufficient to support defendant’s conviction of two counts of first-degree sodomy because he admitted to the detective to having oral sex with the victim multiple times and the victim testified at trial to having performed oral sex on defendant. Towe v. Commonwealth, 617 S.W.3d 355, 2021 Ky. LEXIS 16 ( Ky. 2021 ).

10.Instructions.

Where both defendant and victim were over 21 years of age and neither was physically or mentally handicapped, KRS 510.140 , the basic purpose of which is to preserve the concept of statutory rape and statutory sodomy, was not applicable and the court did not violate the equal protection amendment by submitting a sodomy instruction but refusing to instruct on sexual misconduct. Cooper v. Commonwealth, 550 S.W.2d 478, 1977 Ky. LEXIS 418 ( Ky. 1977 ).

Where defendant’s testimony was that he choked victim, not to avoid being forced to perform a sexual act, but to avoid being “hurt,” and he stated that he knew that the victim was going to “hurt” him whether he performed the act or not, from the context of his testimony, the “hurt” which defendant wanted to avoid was the immediate and no doubt acute pain which the victim was inflicting upon him from the manner in which he was holding defendant and some future hurt of an unexplained nature, which the victim might later inflict upon defendant. An instruction on self-protection from compelled sexual intercourse was not warranted. Boyle v. Commonwealth, 694 S.W.2d 711, 1985 Ky. App. LEXIS 546 (Ky. Ct. App. 1985).

While there was sufficient evidence to convict defendant of first degree rape, sexual abuse, and sodomy, the nature of the evidence was such that the jury might reasonably have found defendant not guilty of those offenses but instead guilty of sexual abuse in the first degree in each instance, and therefore jury should have been given instructions on lesser included offenses of third degree sexual abuse and sexual misconduct. Skinner v. Commonwealth, 864 S.W.2d 290, 1993 Ky. LEXIS 149 ( Ky. 1993 ).

In prosecution for first degree rape, sodomy and sexual abuse, where jury might have believed beyond a reasonable doubt that defendant had engaged in sexual acts with victim but entertained reasonable doubt as to whether victim had been physically helpless at the time, trial court erred in failing to instruct the jury on sexual abuse in the third degree in connection with each of the sexual charges and on sexual misconduct in relation to the charges of rape and sodomy, respectively. Skinner v. Commonwealth, 864 S.W.2d 290, 1993 Ky. LEXIS 149 ( Ky. 1993 ).

Defendant's sodomy conviction was reversed because, while he was charged with a single count of sodomy, there was proof of two sodomies in the case, and the trial court gave a duplicitous jury instruction that allowed the jury to convict on the basis of either one. Jenkins v. Commonwealth, 496 S.W.3d 435, 2016 Ky. LEXIS 327 ( Ky. 2016 ), cert. denied, 137 S. Ct. 1205, 197 L. Ed. 2d 250, 2017 U.S. LEXIS 1566 (U.S. 2017).

11.Lesser Included Offense.

Sexual abuse in the first degree is a lesser included offense of both rape in the first degree and sodomy in the first degree. Skinner v. Commonwealth, 864 S.W.2d 290, 1993 Ky. LEXIS 149 ( Ky. 1993 ).

It was not error for the trial court to refuse the requested instruction on the lesser included offense of sodomy in the third degree because the evidence presented and the defense theory that the conduct did not happen could only lead the jury to conclude that either the first-degree crimes as charged were committed or the conduct did not happen at all. Bratcher v. Commonwealth, 2006 Ky. App. LEXIS 363 (Ky. Ct. App. Dec. 8, 2006, sub. op., 2006 Ky. App. Unpub. LEXIS 912 (Ky. Ct. App. Dec. 8, 2006).

In a prosecution for first-degree sodomy under KRS 510.070(1), as the evidence supported either a verdict that deviate sexual intercourse occurred by forcible compulsion, or that none occurred at all, but did not support a verdict that deviate sexual intercourse occurred without forcible compulsion, defendant was not entitled to an instruction on the lesser-included offense of second-degree sodomy under KRS 510.080(1)(a). Gordon v. Commonwealth, 214 S.W.3d 921, 2006 Ky. App. LEXIS 399 (Ky. Ct. App. 2006).

12.Multiple Offenses.

Where the evidence clearly disclosed that the defendant committed three (3) distinct offenses — rape, sodomy and a second rape when he penetrated prosecutrix’s vagina to accomplish the first act of intercourse, penetrated her mouth to accomplish the act of sodomy, and thereafter penetrated her vagina to accomplish the second act of intercourse, the fact that the acts occurred in a brief period of time with the same victim and in a continuum of force does not protect the defendant from prosecution and conviction of each separate offense. Van Dyke v. Commonwealth, 581 S.W.2d 563, 1979 Ky. LEXIS 257 ( Ky. 1979 ).

Where first-degree sodomy and first-degree sexual abuse were both charged from a single sexual transaction in which the defendant performed fellatio on the victim and caused the child to perform the same act on him either simultaneously or continuously, the separate charge of sexual abuse was based not on incidental contact, but on a separate act of sexual gratification and the fact that the two (2) sexual acts occurred either simultaneously or nearly so was irrelevant; accordingly, defendant was properly charged with both offenses. Hampton v. Commonwealth, 666 S.W.2d 737, 1984 Ky. LEXIS 219 ( Ky. 1984 ).

The elements of first-degree sodomy and aiding and abetting first-degree rape have nothing in common, and where the court’s instruction on aiding and abetting first-degree rape required the jury to find that defendant aided codefendant in committing first-degree rape by holding or sitting on the victim while also forcing her to commit oral sodomy, such holding or sitting on the victim, while it occurred simultaneously with the commission of first-degree sodomy, was not an element of the sodomy; therefore, KRS 505.020(1)(a) prohibiting multiple convictions based on the same offense did not apply to this situation nor did double jeopardy bar conviction for both offenses since each crime required proof of different facts. Norris v. Commonwealth, 668 S.W.2d 557, 1984 Ky. App. LEXIS 456 (Ky. Ct. App. 1984).

The trial court did not err by not severing the offenses against defendant, which involved offenses against two (2) women, whom he had persuaded to invite him to their respective homes, at which time he bound and assaulted them. Despite the offenses occurring almost 11 months apart, the facts of each offense were strikingly similar with regard to both women, in that defendant: bound each victim with articles of her own clothing, first vaginally raped, then anally sodomized each victim, threatened the life of each victim if she reported the crime to the police; and each victim described similar tattoos on her assailant and identified, with such evidence being admissible in a separate trial if in fact the offenses would have been severed. Edmonds v. Commonwealth, 189 S.W.3d 558, 2006 Ky. LEXIS 103 ( Ky. 2006 ).

Because defendant’s act of touching the victim’s genitals was an entirely separate act and offense than his orally sodomizing the victim, there was no double jeopardy violation. Benet v. Commonwealth, 253 S.W.3d 528, 2008 Ky. LEXIS 132 ( Ky. 2008 ).

13.Sentence.

In a prosecution under 18 USCS § 113 for an “assault with intent to commit a felony, that is, sodomy” within the special maritime and territorial jurisdiction of the United States the provisions of the federal statute permitting a ten year sentence are applicable, even though under Kentucky law the maximum sentence is five (5) years for the crime of sodomy. United States v. Milby, 400 F.2d 702, 1968 U.S. App. LEXIS 5461 (6th Cir. Ky. 1968 ).

Sentence of 105 years imprisonment for multiple convictions of sodomy and sexual abuse did not constitute cruel and unusual punishment; whether to run the sentences concurrently or consecutively was within the trial court’s discretion. Hampton v. Commonwealth, 666 S.W.2d 737, 1984 Ky. LEXIS 219 ( Ky. 1984 ).

It was erroneous to run the sentence of life imprisonment for first-degree sodomy consecutively with the sentence of five (5) years’ imprisonment for first-degree sexual abuse. Hall v. Commonwealth, 862 S.W.2d 321, 1993 Ky. LEXIS 137 ( Ky. 1993 ).

Defendant’s sentence after he was convicted of first-degree sodomy was improper; while the instructions in the case erroneously included both age and forcible compulsion, the jury’s only finding was that both counts were by forcible compulsion, which were Class B felonies under KRS 510.070 . Although the age of the alleged victim was uncontroverted at trial, the jury did not find beyond a reasonable doubt that the victim was under 12 years old and defendant’s punishment could exceed the maximum he would receive if punished according to the facts reflected in the jury verdict alone; therefore, defendant was improperly sentenced under the Class A guidelines. Newman v. Commonwealth, 366 S.W.3d 435, 2012 Ky. LEXIS 68 ( Ky. 2012 ).

Where appellant was charged with four counts of first-degree sodomy in violation of KRS 510.070 , he could have been sentenced to prison for at least twenty, but not more than fifty, years, or for life, on each count under KRS 532.020(1)(d). In the victim’s tort suit for compensatory and punitive damages, the circuit court’s award of $6,000,000 in punitive damages was not constitutionally excessive given the severity of the penalty the circuit court could have imposed on the original charges. R.O. v. A.C., 384 S.W.3d 185, 2012 Ky. App. LEXIS 53 (Ky. Ct. App. 2012).

14.Double Jeopardy.

Jury instructions sufficiently differentiated the culpable conduct required for a conviction of first-degree sexual abuse and first-degree sodomy, and therefore defendant’s convictions for both did not result in a double-jeopardy violation because the sexual-abuse instruction did not state with which body part the jury must find that the victim touched defendant for defendant to be guilty of sexual abuse, but the sodomy instruction explicitly required the jury to find the victim placed his penis in her mouth. Towe v. Commonwealth, 617 S.W.3d 355, 2021 Ky. LEXIS 16 ( Ky. 2021 ).

Cited in:

Blondell v. Commonwealth, 556 S.W.2d 682, 1977 Ky. LEXIS 526 ( Ky. 1977 ); Capps v. Commonwealth, 560 S.W.2d 559, 1977 Ky. LEXIS 572 ( Ky. 1977 ); Cook v. Bordenkircher, 602 F.2d 117, 1979 U.S. App. LEXIS 13600 (6th Cir. 1979); Warner v. Commonwealth, 621 S.W.2d 22, 1981 Ky. LEXIS 268 ( Ky. 1981 ); United States v. Short, 790 F.2d 464, 1986 U.S. App. LEXIS 24813 (6th Cir. 1986); Kentucky v. Stincer, 482 U.S. 730, 107 S. Ct. 2658, 96 L. Ed. 2d 631, 1987 U.S. LEXIS 2727 (1987); Commonwealth v. Taylor, 945 S.W.2d 420, 1997 Ky. LEXIS 35 ( Ky. 1997 ); Young v. Commonwealth, 968 S.W.2d 670, 1998 Ky. LEXIS 82 ( Ky. 1998 ); Sanborn v. Parker, — F. Supp. 2d —, 2007 U.S. Dist. LEXIS 10747 (W.D. Ky. 2007 ); Ward v. Commonwealth, 568 S.W.3d 824, 2019 Ky. LEXIS 80 ( Ky. 2019 ); Vincent v. Commonwealth, 584 S.W.3d 762, 2019 Ky. App. LEXIS 108 (Ky. Ct. App. 2019).

Research References and Practice Aids

Kentucky Bench & Bar.

Palmore, A Summary of Significant Decisions by the Supreme Court of Kentucky April 1982-April 1983, Vol. 47, No. 3, July 1983, Ky. Bench & Bar 14.

Kentucky Law Journal.

Kentucky Law Survey, Patterson, Juvenile Code, 70 Ky. L.J. 343 (1981-82).

Northern Kentucky Law Review.

Comments, Relevancy of Evidence of Prior Sexual Conduct Under the Kentucky Revised Statute Section 510.145

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Offenses Related to Sex and Pornography, Part 3 Sodomy, §§ 4.34 — 4.38.

510.080. Sodomy in the second degree.

  1. A person is guilty of sodomy in the second degree when:
    1. Being eighteen (18) years old or more, he or she engages in deviate sexual intercourse with another person less than fourteen (14) years old; or
    2. He or she engages in deviate sexual intercourse with another person who is mentally incapacitated or who is incapable of consent because he or she is an individual with an intellectual disability.
  2. Sodomy in the second degree is a Class C felony.

HISTORY: Enact. Acts 1974, ch. 406, § 88, effective January 1, 1975; 2002, ch. 259, § 4, effective July 15, 2002; 2018 ch. 109, § 3, effective July 14, 2018.

NOTES TO DECISIONS

1.Evidence.

Victim’s testimony that she engaged in sexual relations with defendant the first time they met in October 2004, had the last of five (5) sexual encounters with defendant on November 9th, accurately described a mole on defendant’s body and the interior of defendant’s house, and the fact that defendant’s semen was found on the victim’s panties were sufficient to support defendant’s convictions for five (5) counts each of second degree rape and second degree sodomy. Capshaw v. Commonwealth, 253 S.W.3d 557, 2007 Ky. App. LEXIS 375 (Ky. Ct. App. 2007), cert. denied, 555 U.S. 1016, 129 S. Ct. 578, 172 L. Ed. 2d 437, 2008 U.S. LEXIS 8225 (U.S. 2008).

2.Lesser Included Offenses.

In a prosecution for first-degree sodomy under KRS 510.070(1), as the evidence supported either a verdict that deviate sexual intercourse occurred by forcible compulsion, or that none occurred at all, but did not support a verdict that deviate sexual intercourse occurred without forcible compulsion, defendant was not entitled to an instruction on the lesser-included offense of second-degree sodomy under KRS 510.080(1)(a). Gordon v. Commonwealth, 214 S.W.3d 921, 2006 Ky. App. LEXIS 399 (Ky. Ct. App. 2006).

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Patterson, Juvenile Code, 70 Ky. L.J. 343 (1981-82).

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Offenses Related to Sex and Pornography, Part 3 Sodomy, §§ 4.40, 4.40A.

510.090. Sodomy in the third degree.

  1. A person is guilty of sodomy in the third degree when:
    1. Being twenty-one (21) years old or more, he or she engages in deviate sexual intercourse with another person less than sixteen (16) years old;
    2. Being at least ten (10) years older than a person who is sixteen (16) or seventeen (17) years old at the time of deviate sexual interco urse, he or she engages in deviate sexual intercourse with the person;
    3. Being twenty-one (21) years old or more, he or she engages in deviate sexual intercourse with another person less than eighteen (18) years old and for whom he or she provides a foster family home as defined in KRS 600.020 ;
    4. Being a person in a position of authority or position of special trust, as defined in KRS 532.045 , he or she engages in deviate sexual intercourse with a minor less than eighteen (18) years old with whom he or she comes into contact as a result of that position;
    5. Being a jailer, or an employee, contractor, vendor, or volunteer of the Department of Corrections, Department of Juvenile Justice, or a detention facility as defined in KRS 520.010 , or of an entity under contract with either department or a detention facility for the custody, supervision, evaluation, or treatment of offenders, he or she subjects a person who he or she knows is incarcerated, supervised, evaluated, or treated by the Department of Corrections, Department of Juvenile Justice, detention facility, or contracting entity, to deviate sexual intercourse; or
    6. Being a peace officer, while serving in his or her official capacity, he or she subjects a person who the officer:
      1. Arrested, held in custody, or investigated for commission of a traffic or criminal offense; or
      2. Knew or should have known was under arrest, held in custody, or being investigated for commission of a traffic or criminal offense; to deviate sexual intercourse.
  2. Sodomy in the third degree is a Class D felony.

History. Enact. Acts 1974, ch. 406, § 89, effective January 1, 1975; 1988, ch. 283, § 13, effective July 15, 1988; 2002, ch. 259, § 8, effective July 15, 2002; 2002, ch. 282, § 2, effective July 15, 2002; 2006, ch. 182, § 32, effective July 12, 2006; 2010, ch. 26, § 2, effective July 15, 2010; 2012, ch. 143, § 128, effective July 12, 2012; 2012, ch. 148, § 3, effective July 12, 2012; 2018 ch. 43, § 4, effective July 14, 2018; 2018 ch. 109, § 4, effective July 14, 2018; 2021 ch. 135, § 2, effective June 29, 2021.

Legislative Research Commission Notes.

(7/14/2018). 2018 Ky. Acts ch. 43, sec. 5, provides that 2018 Ky. Acts ch. 43 may be cited as “Jenna’s Law.” This statute was amended in Section 4 of that Act.

NOTES TO DECISIONS

Cited in:

Stacey v. Commonwealth, — S.W.3d —, 2004 Ky. App. LEXIS 150 (Ky. Ct. App. 2004), rev’d, 177 S.W.3d 813, 2005 Ky. LEXIS 363 ( Ky. 2006 ).

Research References and Practice Aids

Northern Kentucky Law Review.

Comments, Relevancy of Evidence of Prior Sexual Conduct Under the Kentucky Revised Statute Section 510.145

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Offenses Related to Sex and Pornography, Part 3 Sodomy, §§ 4.41 — 4.41B.

510.100. Sodomy in the fourth degree.

  1. A person is guilty of sodomy in the fourth degree when he engages in deviate sexual intercourse with another person of the same sex.
  2. Notwithstanding the provisions of KRS 510.020 , consent of the other person shall not be a defense under this section, nor shall lack of consent of the other person be an element of this offense.
  3. Sodomy in the fourth degree is a Class A misdemeanor.

History. Enact. Acts 1974, ch. 406, § 90, effective January 1, 1975.

NOTES TO DECISIONS

1.Constitutionality.

This section which criminalizes deviate sexual intercourse between consenting adults of the same sex, even if the act was committed in the privacy of a home, violated the Kentucky Constitution as: (1) An invasion of a constitutionally protected right of privacy; and (2) invidious discrimination in violation of constitutionally protected rights to equal treatment. Commonwealth v. Wasson, 842 S.W.2d 487, 1992 Ky. LEXIS 140 ( Ky. 1992 ).

2.Preemption of City Ordinance.

Where a city ordinance prohibits sodomy solicitation more explicitly than does KRS 506.030 in combination with this section, but where in either instance, solicitation of the same illegal act is condemned and made unlawful, as the General Assembly chose the language used in the statutes, it did so intentionally and an ordinance which amounts to an enlargement of the conduct proscribed by the act of the General Assembly is not valid. Pierce v. Commonwealth, 777 S.W.2d 926, 1989 Ky. LEXIS 90 ( Ky. 1989 ).

Cited:

Lexington Theological Seminary, Inc. v. Vance, 596 S.W.2d 11, 1979 Ky. App. LEXIS 516 (Ky. Ct. App. 1979).

Research References and Practice Aids

Kentucky Law Journal.

Comments, Doe v. Commonwealth’s Attorney: A Set-back for the Right of Privacy, 65 Ky. L.J. 748 (1976-1977).

Comments, Sodomy Statutes, the Ninth Amendment, and the Aftermath of Bowers v. Hardwick, 76 Ky. L.J. 301 (1987-88).

Roach, Rule of Men, 81 Ky. L.J. 483 (1992-93).

Fine, Beware That False First Step, 82 Ky. L.J. 731 (1993-94).

Currents in the Stream: The Evolving Legal Status of Gay and Lesbian Persons in Kentucky, 89 Ky. L.J. 1159 (2000-2001).

Northern Kentucky Law Review.

Comments, Relevancy of Evidence of Prior Sexual Conduct Under the Kentucky Revised Statute Section 510.145

Schechter, Survey of Kentucky Family Law Cases, 20 N. Ky. L. Rev. 645 (1993).

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Offenses Related to Sex and Pornography, Part 3 Sodomy, § 4.46.

510.110. Sexual abuse in the first degree.

  1. A person is guilty of sexual abuse in the first degree when:
    1. He or she subjects another person to sexual contact by forcible compulsion; or
    2. He or she subjects another person to sexual contact who is incapable of consent because he or she:
      1. Is physically helpless;
      2. Is less than twelve (12) years old;
      3. Is mentally incapacitated; or
      4. Is an individual with an intellectual disability; or
    3. Being twenty-one (21) years old or more, he or she:
      1. Subjects another person who is less than sixteen (16) years old to sexual contact;
      2. Engages in masturbation in the presence of another person who is less than sixteen (16) years old and knows or has reason to know the other person is present; or
      3. Engages in masturbation while using the Internet, telephone, or other electronic communication device while communicating with a minor who the person knows is less than sixteen (16) years old, and the minor can see or hear the person masturbate; or
    4. Being a person in a position of authority or position of special trust, as defined in KRS 532.045 , he or she, regardless of his or her age, subjects a minor who is less than eighteen (18) years old, with whom he or she comes into contact as a result of that position, to sexual contact or engages in masturbation in the presence of the minor and knows or has reason to know the minor is present or engages in masturbation while using the Internet, telephone, or other electronic communication device while communicating with a minor who the person knows is less than sixteen (16) years old, and the minor can see or hear the person masturbate.
  2. Sexual abuse in the first degree is a Class D felony, unless the victim is less than twelve (12) years old, in which case the offense shall be a Class C felony.

HISTORY: Enacts. Acts 1974, ch. 406, § 91, effective January 1, 1975; 2002, ch. 259, § 5, effective July 15, 2002; 2006, ch. 182, § 33, effective April 18, 2006; 2008, ch. 72, § 1, effective July 15, 2008; 2018 ch. 109, § 5, effective July 14, 2018.

NOTES TO DECISIONS

Analysis

1.Constitutionality.

The irrebuttable presumption that minors, male or female, less than 16 years of age, which would of course encompass minors 12 years of age, are unable to give consent to sex acts does not violate U.S. Const., Amend. 14 or Const., § 11. Payne v. Commonwealth, 623 S.W.2d 867, 1981 Ky. LEXIS 286 ( Ky. 1981 ), cert. denied, 456 U.S. 909, 102 S. Ct. 1758, 72 L. Ed. 2d 167, 1982 U.S. LEXIS 1573 (U.S. 1982).

KRS 510.110(1)(d) is not unconstitutionally vague under U.S. Const. amend. XIV; although 16-17 year olds could have legally consented to sexual activity, the Kentucky General Assembly has recognized that certain persons may be able to abuse a position of authority or influence to obtain sexual contact with minors, and the legislature has a rational basis to impose a higher standard on persons who have an advantageous position of authority or influence over minors in their care. Even if the statutory definitions of “position of authority” and “position of special trust” were potentially vague in some situations, they clearly applied to appellant, who was exercising parental authority over a child staying at his house, and a dismissal of the indictment for first-degree sexual abuse was not appropriate. Stinson v. Commonwealth, 2011 Ky. App. LEXIS 161 (Ky. Ct. App. Sept. 9, 2011).

KRS 510.110(1)(d) is not unconstitutionally overbroad under U.S. Const. amend. XIV; the focus of KRS 510.110(1)(d) is not necessarily on the defendant’s use of his or her position of authority or special trust to obtain sexual contact with a minor, but rather on the fact that the sexual contact occurred while the person occupied that position of authority or special trust with respect to the minor; since KRS 510.110(1)(d) addresses this narrow issue, it does not needlessly prohibit or restrict constitutionally protected activities or invites enforcement in an arbitrary manner. Therefore, a dismissal of an indictment for first-degree sexual abuse based on a failure to state an offense was not appropriate. Stinson v. Commonwealth, 2011 Ky. App. LEXIS 161 (Ky. Ct. App. Sept. 9, 2011).

Requirement under KRS 510.110(1)(d) that the perpetrator be in a “position of authority” and/or “position of special trust” does not render the statute unconstitutionally void for vagueness, as those terms are defined by KRS 532.045 . Stinson v. Commonwealth, 396 S.W.3d 900, 2013 Ky. LEXIS 87 ( Ky. 2013 ).

KRS 510.110(1)(d) is not rendered unconstitutionally overbroad by deterring sexual conduct between persons who are 16 to 18 years of age. Stinson v. Commonwealth, 396 S.W.3d 900, 2013 Ky. LEXIS 87 ( Ky. 2013 ).

2.Appeals.

Defendant’s assertion in a motion for a directed verdict of acquittal that there was insufficient evidence to convict defendant of the crimes charged did not adequately preserve for appellate review defendant’s claim on appeal that the Commonwealth failed to prove the element of forcible compulsion beyond a reasonable doubt, as required for convictions under KRS 510.040 , KRS 510.070 , and KRS 510.110 ; the matter can be reviewed for palpable error only. Bratcher v. Commonwealth, 2006 Ky. App. LEXIS 363 (Ky. Ct. App. Dec. 8, 2006, sub. op., 2006 Ky. App. Unpub. LEXIS 912 (Ky. Ct. App. Dec. 8, 2006).

3.Defenses.

There was no abuse of discretion in the denial of a continuance where the defendant relied on a defense of having blackouts and had spent part of the time prior to trial in a mental hospital for observation and his doctor’s statement deemed the defendant “anxious” but did not show any real urgency for a continuance. (Decided under prior law) Futrell v. Commonwealth, 437 S.W.2d 487, 1969 Ky. LEXIS 437 ( Ky. 1969 ).

Where carnal abuse of child constitutes a crime regardless of the intention with which the act was done, the defendant is not entitled to an instruction on his intoxication when the act was committed. (Decided under prior law) Hatfield v. Commonwealth, 473 S.W.2d 104, 1971 Ky. LEXIS 131 ( Ky. 1971 ).

Exclusion of evidence of abuse of the victims by a different family member was proper in defendant’s trial for unlawful imprisonment and first degree sexual abuse because defendant not only failed to comply with the notice requirements of KRE 412, but made no attempt to offer evidence to establish that the accusations against the other family member were untrue; further, the facts as alleged, even if true, did not present a viable defense. Abuse by the other family member would not have exonerated defendant from his crimes because, while the evidence may have tended to prove there was an additional perpetrator, it did not tend to establish there was an alternative perpetrator. Adkins v. Commonwealth, 2009 Ky. App. LEXIS 67 (Ky. Ct. App. May 22, 2009, sub. op., 2009 Ky. App. Unpub. LEXIS 1086 (Ky. Ct. App. May 22, 2009), review denied, ordered not published, 2010 Ky. LEXIS 29 (Ky. Jan. 13, 2010).

One may reasonably conclude that the lack of consent provision of KRS 510.020(1) is subsumed by KRS 510.110 ; that is to say, it is implicit in KRS 510.110 that a minor under the age of 18 is incapable of consenting to sexual contact with a person in a position of authority, even though that element is not expressly set out in KRS 510.110. Arguendo, if the statutes are in conflict, the latter enacted and more specific statute prevails; KRS 510.110 must prevail as it was enacted after KRS 510.020(1) and is more specific. Sprague v. Commonwealth, 2011 Ky. App. LEXIS 242 (Ky. Ct. App. Dec. 16, 2011, sub. op., 2011 Ky. App. Unpub. LEXIS 984 (Ky. Ct. App. Dec. 16, 2011).

4.Due Process.

Defendant, accused of indecent practices with 12 year old girl in swimming pool, was not prejudiced by juror’s question to trial judge as to whether swimming pool guards have police powers and trial judge’s answer that he did not know and that guards were at pools principally to safeguard children. (Decided under prior law) Faulkner v. Commonwealth, 343 S.W.2d 581, 1961 Ky. LEXIS 427 ( Ky. 1961 ).

There was no denial of rights nor any prejudice arising out of the time and manner in which examining trial was held, where preliminary hearing was held eight (8) days after signing of the warrant and defendant had counsel only on the morning of the actual hearing and was without advice or counsel during the period of incarceration, since defendant did have two (2) attorneys of his own choice on the day of the examining trial and they did not ask for a continuance to prepare a defense. (Decided under prior law) Jones v. Commonwealth, 388 S.W.2d 601, 1965 Ky. LEXIS 444 ( Ky. 1965 ).

5.—Prosecutor’s Comments.

Record which showed that prosecutrix’s husband and accused had had trouble which ended in a fight prior to the time of the indictment, justified the statement in prosecuting attorney’s closing argument as to why prosecutrix waited four (4) years before making the accusation but even if statement was not justified it was not so inflammatory as to be prejudicial. (Decided under prior law) Young v. Commonwealth, 335 S.W.2d 949, 1960 Ky. LEXIS 306 ( Ky. 1960 ).

In prosecution for rape and sexual abuse, the prosecution’s question to the defendant “Do you recall saying to [the boy] ‘Why are you trying to hurt the one I love?’” was not reversible error, where whatever the purpose of the question was, it did not materially prejudice the defense, and the question seemed to implicate the boy more than the defendant. Owsley v. Commonwealth, 743 S.W.2d 408, 1987 Ky. App. LEXIS 589 (Ky. Ct. App. 1987).

6.Elements.

In a prosecution for violation of statute proscribing indecent or immoral practices with a child under 15 years by any person of the age of 17 years or over, the ages of the two (2) persons involved in the conduct are material elements of the offense and must be shown in proof. (Decided under prior law) Lair v. Commonwealth, 330 S.W.2d 938, 1959 Ky. LEXIS 212 ( Ky. 1959 ).

Where the prosecutrix was mentally retarded, had difficulty understanding communications, from other persons because of her deafness and was alone in the house and where the defendant ignored her physical resistance to his efforts to perform an oral sex act upon her, ignored her repeated indications that she did not wish to have sex with him, physically pulled her from a chair and physically held the prosecutrix while he removed her clothing, the trial court correctly submitted the question of forcible compulsion to the jury. Salsman v. Commonwealth, 565 S.W.2d 638, 1978 Ky. App. LEXIS 512 (Ky. Ct. App. 1978).

Since only contact by force is required for first degree sexual abuse, and force cannot be implied, and since sexual contact does not have an implied forcible compulsion element, there must be a close examination of whether physical force or threats of physical force caused the sexual contact, and an offender’s intention must be taken into consideration. Here, defendant’s act of taking the victim’s hand and placing it on his penis is required physical force and his intent was to cause the sexual contact between the two. Gibbs v. Commonwealth, 208 S.W.3d 848, 2006 Ky. LEXIS 239 ( Ky. 2006 ), overruled in part, Padgett v. Commonwealth, 312 S.W.3d 336, 2010 Ky. LEXIS 71 ( Ky. 2010 ).

KRS 510.110(1)(d) prohibits any person who occupies such a position of authority or special trust from engaging in sexual contact with minors in his or her care; any sexual contact between such persons is presumed to be non-consensual, and this presumption is not rebuttable. Therefore, a trial court did not err by trial court rejecting a proposed jury instruction and finding that lack of consent was not an element of the offense of first-degree sexual abuse. Stinson v. Commonwealth, 2011 Ky. App. LEXIS 161 (Ky. Ct. App. Sept. 9, 2011).

Trial court did not err by denying defendant’s motion for a directed verdict after determining that the phrase “with whom he or she comes into contact as a result of that position” of KRS 510.110 (d) merely required proof that defendant came into contact with the child victim as a result of his position of authority, but that the contact could, though did not have to be, the initial contact or the sexual contact. Sprague v. Commonwealth, 2011 Ky. App. LEXIS 242 (Ky. Ct. App. Dec. 16, 2011, sub. op., 2011 Ky. App. Unpub. LEXIS 984 (Ky. Ct. App. Dec. 16, 2011).

Lack of consent is an element under KRS 510.110(1)(d); that element is satisfied by evidence that the victim was under the age of 18 and was abused by a person in a position of special authority or position of special trust. Stinson v. Commonwealth, 396 S.W.3d 900, 2013 Ky. LEXIS 87 ( Ky. 2013 ).

7.Evidence.

That alleged victim’s story was uncorroborated, was vague in most details, and had been elicited many months after supposed date of the offense did not preclude conviction for indulging in immoral and indecent practices with body of child under age of 15. (Decided under prior law) Hurt v. Commonwealth, 379 S.W.2d 726, 1964 Ky. LEXIS 254 ( Ky. 1964 ).

Where the alleged victim of molestation, at the trial was allowed to testify without objection that she had identified the defendant in a lineup, and there was no real question as to the correctness of the identity of the defendant, the alleged error in the admission of the evidence was not reviewable because of the failure to make objection on the trial. (Decided under prior law) Futrell v. Commonwealth, 437 S.W.2d 487, 1969 Ky. LEXIS 437 ( Ky. 1969 ).

Where social worker listed symptoms but refrained from classifying them directly as the “child sexual abuse syndrome,” avoiding the term “syndrome” did not transform inadmissible hearsay into reliable scientific evidence; neither the syndrome nor the symptoms that comprise the syndrome have recognized reliability in diagnosing child sexual abuse as a scientific entity; nor was social worker qualified to express an opinion suggesting child was suffering from a psychological disorder or other abnormal mental condition; thus the testimony remained inadmissible and its admission was reversible error. Hellstrom v. Commonwealth, 825 S.W.2d 612, 1992 Ky. LEXIS 9 ( Ky. 1992 ).

The trial judge did not abuse his discretion in admitting testimony of an alleged rape eight (8) years prior to trial and five (5) years prior to the sexual abuse because it was not too remote or too dissimilar to the charges being tried to show a common plan. Anastasi v. Commonwealth, 754 S.W.2d 860, 1988 Ky. LEXIS 43 ( Ky. 1988 ).

The standard for Supreme Court’s review of the trial court’s ruling denying admissibility of scientific evidence is whether such ruling was “clearly erroneous.” Tungate v. Commonwealth, 901 S.W.2d 41, 1995 Ky. LEXIS 88 ( Ky. 1995 ).

Allowing evidence of defendant’s prior sexual misconduct involving a minor while defendant was a priest to be introduced during the guilt phase of defendant’s trial for sexual abuse of two (2) other boys was an abuse of discretion since the Commonwealth did not meet its heavy burden to show that defendant’s conduct toward the three (3) boys was so similar and distinctive as to have been admissible under the modus operandi exception to KRE 404(b). Clark v. Commonwealth, 223 S.W.3d 90, 2007 Ky. LEXIS 117 ( Ky. 2007 ).

In defendant’s prosecution on charges of second-degree sodomy and first-degree sexual abuse, the trial court erred when it allowed a clinical psychologist to testify that sexually abused children, like the victim, commonly added details over time through counseling and erred in allowing the psychologist to identify generic characteristics of child sex abuse victims by describing them as outwardly appearing happy as this testimony did not answer the question of whether other children who had not been similarly abused might also develop the same symptoms or traits. This testimony was not relevant under KRE. 401. Sanderson v. Commonwealth, 291 S.W.3d 610, 2009 Ky. LEXIS 96 ( Ky. 2009 ).

Where defendant was convicted of sexually abusing his stepdaughter after entering her room while she was asleep with a friend who was an overnight guest and engaging in inappropriate sexual contact with her, evidence that defendant had similarly abused three other young girls was properly admitted under the modus operandi exception to KRE. 404(b) because the facts—including that all victims were approximately the same age, that defendant had access to all of the victims in his home, that he assaulted each of them in the same manner while they were asleep with another girl or girls sleeping nearby, and that, in each case, he silently withdrew when the victim awoke—established a pattern of conduct distinctive enough to be deemed a modus operandi. Montgomery v. Commonwealth, 320 S.W.3d 28, 2010 Ky. LEXIS 68 ( Ky. 2010 ).

There was sufficient evidence from which the jury could have found that defendant occupied a position of authority and special trust in relation to the victim, and came into contact with the victim as a result of that position, and thus the denial of defendant’s motion for a directed verdict for his charge of first degree sexual abuse was proper. Boone v. Commonwealth, 2013 Ky. App. LEXIS 152 (Ky. Ct. App. Oct. 18, 2013), review denied, ordered not published, 2014 Ky. LEXIS 407 (Ky. Aug. 13, 2014).

8.—Expert Witnesses.

The trial court, in prosecution for multiple offenses of sodomy and sexual abuse, properly excluded defendant’s offer of evidence from a witness designated a “clinical social worker,” who testified by avowal that in his opinion the defendant would not have become involved with the 12-year-old victim because this victim was too young to attract him; defendant offered no evidence to show that this witness was qualified as an expert, the testimony as proffered went to the ultimate question of guilt or innocence rather than being limited to a professional opinion regarding mental condition and, as such, it invaded the province of the jury and the evidence was offered as “mitigating evidence” and was therefore irrelevant in a case not involving the death penalty. Hampton v. Commonwealth, 666 S.W.2d 737, 1984 Ky. LEXIS 219 ( Ky. 1984 ).

In prosecution for sexual abuse of three-year-old victim, the trial court did not err in admitting testimony of the social worker with respect to his observations of the victim demonstrating sexual acts between the anatomically correct dolls, where the thrust of his testimony was to simply relate what the victim did with the dolls, in effect, identifying the victim’s verbal acts. Eastman v. Commonwealth, 720 S.W.2d 348, 1986 Ky. App. LEXIS 1478 (Ky. Ct. App. 1986).

In prosecution for sexual abuse of three-year-old victim, the trial court did not err in allowing a clinical psychologist to testify that the sexual behavior described by the victim did, in her own mind, actually happen, and was not the result of fantasy or pressure from others. Eastman v. Commonwealth, 720 S.W.2d 348, 1986 Ky. App. LEXIS 1478 (Ky. Ct. App. 1986).

Where a clinical psychologist testified with respect to post-abuse sexual syndrome in small children, but he did not describe specific behavioral patterns in the victim, any error involved was harmless, and did not mandate a reversal. Eastman v. Commonwealth, 720 S.W.2d 348, 1986 Ky. App. LEXIS 1478 (Ky. Ct. App. 1986).

In the case of a psychologist or social worker, testimony of whether sexual abuse has occurred is impermissible, as these experts are simply not qualified to express an opinion that a person has been sexually abused. Hall v. Commonwealth, 862 S.W.2d 321, 1993 Ky. LEXIS 137 ( Ky. 1993 ).

As to any expert (including medical doctors), vouching for the truth of a sexual abuse victim’s out-of-court statements invades the province of the jury and is impermissible. Hall v. Commonwealth, 862 S.W.2d 321, 1993 Ky. LEXIS 137 ( Ky. 1993 ).

The trial court committed reversible error by allowing a psychologist intern to testify that in her professional opinion, child victim was sexually abused, and that in her opinion child victim was telling the truth in her accusations of abuse against defendant. Hall v. Commonwealth, 862 S.W.2d 321, 1993 Ky. LEXIS 137 ( Ky. 1993 ).

Testimony of psychologist to whom victim of sexual crimes had gone for counseling was inadmissible hearsay since it was based on what victim told her and victim was not an eyewitness but merely told psychologist what she believed had happened based upon things others had told her and reports she had heard. Skinner v. Commonwealth, 864 S.W.2d 290, 1993 Ky. LEXIS 149 ( Ky. 1993 ).

9.—Hearsay Testimony.

Testimony of victim of sexual crimes who was not an eyewitness to charged acts as she was allegedly helpless at the time due to her consumption of alcohol, as to what her friends had told her and as to the gossip she had heard at school, offered in proof of offenses changed was patent hearsay and was incompetent to prove that the criminal acts had occurred or that defendant had committed them and was not relevant, independent of its truth, to prove that any of the acts were committed without the victim’s consent. Skinner v. Commonwealth, 864 S.W.2d 290, 1993 Ky. LEXIS 149 ( Ky. 1993 ).

10.—Prior Acts.

Admission of evidence concerning more than one offense, where at time defendant’s objection was made, evidence of other similar offenses had already been admitted without objection and defendant’s counsel had cross-examined a witness concerning such other offenses, was not erroneous. (Decided under prior law) Lair v. Commonwealth, 330 S.W.2d 938, 1959 Ky. LEXIS 212 ( Ky. 1959 ).

It was not prejudicial error for the Commonwealth, over defendant’s objections, to show other assaults of the same nature committed with and upon the same child. (Decided under prior law) Young v. Commonwealth, 335 S.W.2d 949, 1960 Ky. LEXIS 306 ( Ky. 1960 ).

In sex crimes, evidence of assaults of the same nature committed with and upon same child is competent for purpose of corroboration and to show design, disposition or intent on the part of the accused. (Decided under prior law) Young v. Commonwealth, 335 S.W.2d 949, 1960 Ky. LEXIS 306 ( Ky. 1960 ).

Evidence of previous conviction would have been admissible, if properly proved, as rebuttal to defendant’s testimony on direct examination that he had never been arrested on a moral charge. (Decided under prior law) Dixon v. Commonwealth, 487 S.W.2d 928, 1972 Ky. LEXIS 91 ( Ky. 1972 ).

In those cases where a defendant is charged with indecent or immoral practices with a child under the age of fifteen (15), evidence of separate and distinct prior acts of a similar or identical nature, not too remote in time, committed upon children other than those charged in the indictment is admissible for the purposes of showing disposition and intent as to act charged, lustful inclination, motive, a common pattern scheme, or plan. (Decided under prior law) Russell v. Commonwealth, 482 S.W.2d 584, 1972 Ky. LEXIS 196 ( Ky. 1972 ), overruled, Pendleton v. Commonwealth, 685 S.W.2d 549, 1985 Ky. LEXIS 208 ( Ky. 1985 ).

Where defendant was charged with indecent exposure, first-degree sodomy, and seven (7) counts of first-degree sexual abuse, all involving a four-year-old girl, evidence of his uncharged sexual contact with the victim was admissible under KRE 404(b)(1) to prove intent, identity, and absence of mistake or accident. Harp v. Commonwealth, 266 S.W.3d 813, 2008 Ky. LEXIS 323 ( Ky. 2008 ).

Defendant’s sexual abuse of an older daughter when the daughter was four or five and defendant’s alleged subsequent sexual abuse of an infant daughter were not simultaneously similar and so peculiar or distinct as to be admissible under the modus operandi exception to KRE. 404(b)(1); the difference in age especially weighed against establishing modus operandi. Woodlee v. Commonwealth, 2010 Ky. LEXIS 2 (Ky. Jan. 21, 2010).

11.—Sufficiency.

In prosecution for committing indecent and immoral acts upon female child under 15 years of age, evidence in the form of testimony of the girl as to her birthdate was sufficient to establish that child was under 15 years of age at time that offense was committed. (Decided under prior law) Young v. Commonwealth, 335 S.W.2d 949, 1960 Ky. LEXIS 306 ( Ky. 1960 ).

Testimony of 12 year old prosecutrix concerning defendant’s behavior with her as well as the suggestive remarks he made to her while his hands were upon her body, was sufficient proof of defendant’s criminal intention to take the case to the jury and to sustain the verdict of guilty of forcibly engaging in indecent practices with a child under 15 years of age. (Decided under prior law) Faulkner v. Commonwealth, 343 S.W.2d 581, 1961 Ky. LEXIS 427 ( Ky. 1961 ).

It was clearly not unreasonable for the jury to have found the defendant guilty of first-degree sexual abuse of three-year-old victim given the victim’s testimony together with the testimony of the other witnesses as to the verbal acts of the victim. Eastman v. Commonwealth, 720 S.W.2d 348, 1986 Ky. App. LEXIS 1478 (Ky. Ct. App. 1986).

Although, in prosecution for rape and sexual abuse, the victim’s testimony contained several inconsistencies, her testimony was quite lucid and precise as to the incident of which the defendant was convicted, and the inconsistencies were not of a number or to a degree that would warrant taking the case from the jury. Owsley v. Commonwealth, 743 S.W.2d 408, 1987 Ky. App. LEXIS 589 (Ky. Ct. App. 1987).

In prosecution for first degree rape, sodomy and sexual abuse, where a number of eyewitnesses presented competent evidence sufficient to warrant inferences that defendant was in the room where alleged victim was taken after she passed out after extensive drinking, that he had been “on top” of her, that he had attempted intercourse, that there had been actual penetration, that defendant had put his face between victim’s legs, that defendant admitted to several witnesses that he had had sexual relations with the victim, such evidence was sufficient to enable jurors to find that defendant was guilty of the charges beyond a reasonable doubt. Skinner v. Commonwealth, 864 S.W.2d 290, 1993 Ky. LEXIS 149 ( Ky. 1993 ).

There was sufficient evidence to establish that defendant was of majority age when two (2) of the sexual offenses occurred where victim testified that all sexual contact occurred before her age 12 and after defendant’s age 18; it was not necessary that victim give specific dates that the offenses occurred as it would be wholly unreasonable to expect a child of such tender years to remember specific dates, especially given the long time period over which the abuse occurred. Farler v. Commonwealth, 880 S.W.2d 882, 1994 Ky. App. LEXIS 19 (Ky. Ct. App. 1994).

In prosecution for first degree sexual abuse of little girls under 12 years of age evidence that the alleged sexual abuse occurred in day care center and involved the little girls sitting in the defendant’s lap while he was sitting in a large chair, and consisted of his putting his hand under the clothing of the children and touching their vaginal areas and that all three (3) of the little girls whom the defendant was convicted of sexually abusing testified that the physical contact or touching felt “bad” taken as a whole, accepted as true and viewed in a light most favorable to the Commonwealth, was certainly not clearly unreasonable for the jury to find beyond a reasonable doubt that the Commonwealth met its burden of proving each element of each offense, including that the touching was done for the purpose of sexual gratification. Tungate v. Commonwealth, 901 S.W.2d 41, 1995 Ky. LEXIS 88 ( Ky. 1995 ).

Specific dates and times when a felony occurred are not required to convict; in a sexual abuse case, it was enough that the victim established that she was under 12 years old when the alleged acts occurred. Stringer v. Commonwealth, 956 S.W.2d 883, 1997 Ky. LEXIS 149 ( Ky. 1997 ), cert. denied, 523 U.S. 1052, 118 S. Ct. 1374, 140 L. Ed. 2d 522, 1998 U.S. LEXIS 2234 (U.S. 1998).

It was not unreasonable for the jury to find that defendant touched his niece’s vaginal area for the purpose of sexual gratification, and defendant’s conviction for first-degree sexual abuse pursuant to KRS 510.110 was affirmed; the niece said that she had written a note to her mother because her mother had told her about good touches and bad touches, and this was a bad touch. None of the evidence pointed to an accidental touching. Calloway v. Commonwealth, 187 S.W.3d 861, 2006 Ky. App. LEXIS 83 (Ky. Ct. App. 2006).

Evidence was sufficient for a jury to conclude that defendant had acted with forcible error when he committed sexual misconduct with the victim over a period of one (1) year, because the victim, who was 14 years old at the time of the crimes, testified numerous times that she was scared of defendant and identified specific instances when defendant had forced himself upon her. Bratcher v. Commonwealth, 2006 Ky. App. LEXIS 363 (Ky. Ct. App. Dec. 8, 2006, sub. op., 2006 Ky. App. Unpub. LEXIS 912 (Ky. Ct. App. Dec. 8, 2006).

Defendant was properly convicted of first-degree sexual abuse under KRS 510.110(1)(b)(2), as the victim testified that defendant put defendant’s finger in the victim’s buttocks and that the victim asked defendant to stop but defendant did not; a nurse also testified that there were physical findings consistent with the victim’s allegations. Jackson v. Commonwealth, 2011 Ky. App. LEXIS 77 (Ky. Ct. App. Apr. 29, 2011, sub. op., 2011 Ky. App. Unpub. LEXIS 978 (Ky. Ct. App. Apr. 29, 2011).

Evidence was sufficient to support defendant’s conviction for sexual abuse in the first degree, in violation of KRS 510.110(1)(a), where defendant forced the victim to engage in various sexual acts and she testified that she was scared of him; his actions constituted forcible compulsion under KRS 510.010(2). Chames v. Commonwealth, 405 S.W.3d 519, 2012 Ky. App. LEXIS 231 (Ky. Ct. App. 2012).

Element of lack of consent under KRS 510.110(1)(d) was satisfied by the fact that the victim was unable to consent, as she was 17 and was subjected to sexual contact by a person in a position of authority or special trust within the meaning of KRS 532.045(1)(b); defendant was the victim’s uncle and the head of her household at the time of the offense. Stinson v. Commonwealth, 396 S.W.3d 900, 2013 Ky. LEXIS 87 ( Ky. 2013 ).

Commonwealth presented sufficient proof from which jurors inferred that defendant's actions in touching the victim's butt and squeezing it were for the purpose of sexual gratification. Edmondson v. Commonwealth, 2016 Ky. App. LEXIS 130 (Ky. Ct. App. July 22, 2016).

Appellant was not entitled to a directed verdict on a a first-degree sexual abuse charge given the victim's testimony of her resistance to appellant's attempts to remove her undershorts. Gullett v. Commonwealth, 514 S.W.3d 518, 2017 Ky. LEXIS 82 ( Ky. 2017 ).

12.—Victim’s Testimony.

Victim of sexual crimes could testify as to her own relevant observations and actions, that she had not consented, or at least that she did not recall consenting to any sexual contact, to explain her reason for seeking medical treatment and that she had been abused at party; however, the jury in such case should have been admonished that the fact that she had heard the reports was admissible to explain her actions, but was not to be considered as evidence that such reports were true, or that the acts had occurred. Skinner v. Commonwealth, 864 S.W.2d 290, 1993 Ky. LEXIS 149 ( Ky. 1993 ).

Circuit court properly denied defendant’s motion for directed verdict and sentenced him to serve three years’ imprisonment for first-degree sexual abuse because there was evidence in the record that defendant was a long-time family friend of the 14-year-old victim, the question of whether defendant held a special position with the victim was included in the jury instructions as one of the facts they must find in order to find him guilty, and combining the victim’s testimony concerning her relationship with defendant and the fact that the victim and her two siblings spent the night at defendant’s house with defendant being the adult in charge, the finding of guilt by the jury was not unreasonable. Caldwell v. Commonwealth, 554 S.W.3d 874, 2018 Ky. App. LEXIS 211 (Ky. Ct. App. 2018).

13.Indictment.

The objection that the indictment was defective because it was not directed and certain as regards to the offense charged, and also that carnal abuse was not appropriately described, should have been raised upon the trial by a motion to elect, or a demurrer, and, where not so raised, would be considered on appeal as having been waived. (Decided under prior law) Clark v. Commonwealth, 274 S.W.2d 654, 1954 Ky. LEXIS 1234 ( Ky. 1954 ).

Where, in 1957, mother of victim swore out a warrant on defendant, her husband, charging him with violation of law that provided penalty for carnal knowledge of a child with consent and defendant was arrested on the warrant and subsequently the matter was considered by the grand jury which dismissed the charge and the matter was not re-referred to the grand jury and three (3) grand juries convened before another warrant was sworn against defendant under law that provided penalty for engaging in indecent or immoral practices with another charging commission of offense in 1958, the indictment under such law was for a separate and distinct offense and was not void. (Decided under prior law) Lair v. Commonwealth, 330 S.W.2d 938, 1959 Ky. LEXIS 212 ( Ky. 1959 ).

Indictment charging molestation of a child could be amended to change the time in which the offense was alleged to have been committed since the amendment did not state an additional or different offense. (Decided under prior law) Stephens v. Commonwealth, 397 S.W.2d 157, 1965 Ky. LEXIS 70 ( Ky. 1965 ).

Although there was a variance between the indictment charging defendant with first degree rape and first degree sodomy by “use of forcible compulsion” and the evidence at trial that victim’s physical helplessness due to her consumption of alcohol constituted the lack-of-consent element of each sexual offense, where the variance did not involve a different or additional offense and where it was readily apparent to defendant early on that the Commonwealth’s thesis was that the sexual acts had occurred not through physical force or threat, but while the victim was physically helpless due to her consumption of alcohol, the defense suffered no surprise or prejudice. Skinner v. Commonwealth, 864 S.W.2d 290, 1993 Ky. LEXIS 149 ( Ky. 1993 ).

14.Instructions.

Where defendant, in prosecution for attempt to commit rape upon a child under 12 years of age, denied that he harmed the child in any way, and evidence of the prosecution made out a case of attempted rape of a child under 12, and nothing else, refusal to instruct on the lesser crimes of detaining a woman against her will, or of indulging in indecent or immoral practices with a child under 15, was proper. (Decided under prior law) Jewell v. Commonwealth, 290 S.W.2d 47, 1956 Ky. LEXIS 310 ( Ky. 1956 ).

Even though victim, an 11 year old girl, was not touched by defendant’s sexual organ and there was premature ejaculation, where it was proved that defendant had taken possession of girl and had laid hands on her and had endeavored to have intercourse, defendant charged with attempted rape was not entitled to instructions submitting lesser offense of indecent or immoral practices with child under age 15. (Decided under prior law) Shepherd v. Commonwealth, 327 S.W.2d 956, 1959 Ky. LEXIS 87 ( Ky. 1959 ).

Since defendant denied that he had indulged in indecent practices with 12 year old girl or that he had otherwise assaulted her, the failure to give an instruction on assault and battery was not prejudicial, because the only issue was whether defendant had committed the offense denounced by this section. (Decided under prior law) Faulkner v. Commonwealth, 343 S.W.2d 581, 1961 Ky. LEXIS 427 ( Ky. 1961 ).

In the absence of evidence sufficient to raise a reasonable doubt as to whether victim’s vaginal injuries were caused by some other object or instrumentality than a man’s penis, defendant in prosecution of first-degree rape was not entitled to an instruction on the lesser offense of sexual abuse. Isaacs v. Commonwealth, 553 S.W.2d 843, 1977 Ky. LEXIS 479 ( Ky. 1977 ).

When all of the evidence indicates that there was sexual intercourse and there is no evidence that there was only sexual contact, a defendant is not entitled to an instruction on the lessor offense of sexual abuse in the first degree. Salsman v. Commonwealth, 565 S.W.2d 638, 1978 Ky. App. LEXIS 512 (Ky. Ct. App. 1978).

Where the defendant made three (3) attempts before he succeeded in having sexual intercourse with the prosecutrix, the evidence would support a finding that there was sexual contact when he attempted to force the prosecutrix to perform fellatio upon him and when he first attempted sexual intercourse with her and his substantial rights were not prejudiced when the trial court gave an instruction on sexual abuse in the first degree. Salsman v. Commonwealth, 565 S.W.2d 638, 1978 Ky. App. LEXIS 512 (Ky. Ct. App. 1978).

Where, in a prosecution for rape, the victim’s testimony concerning the act of penetration was equivocal, none of the experts were able to opine that penetration had occurred, one expert’s testimony on the effects of alcohol on a man’s ability to perform sexually and the negative results of the lab analyses raised further doubt on the question of penetration, petitioner’s right to due process was violated when an instruction on first-degree sexual abuse was refused. Bagby v. Sowders, 853 F.2d 1340, 1988 U.S. App. LEXIS 10845 (6th Cir. Ky. 1988 ).

Where all three (3) little girls whom the jury found the defendant to have sexually abused, were under the age of 12 years, no juror could have entertained a reasonable doubt as to the defendant’s guilt of first-degree sexual abuse and yet believed beyond a reasonable doubt that he was guilty of second-degree sexual abuse; consequently, the trial court’s refusal to instruct the jury on the lesser-included offense of second-degree sexual abuse was correct. Tungate v. Commonwealth, 901 S.W.2d 41, 1995 Ky. LEXIS 88 ( Ky. 1995 ).

Where the dates of the sexual abuse are not described with particularity in either the indictment or the testimony such that a reasonable juror could have concluded that the victim was either 11 or 12 years of age when the abuse occurred, a trial court errs by failing to instruct a jury on both first and second-degree sexual abuse. Clark v. Commonwealth, 223 S.W.3d 90, 2007 Ky. LEXIS 117 ( Ky. 2007 ).

It was error to give the jury seven (7) identical instructions on seven (7) counts of sexual abuse which contained no identifying characteristics so that the jury could differentiate among the counts. This error was not cured by the prosecutor’s closing argument, which was not evidence, and as the error was not harmless, defendant was entitled to a new trial. Harp v. Commonwealth, 266 S.W.3d 813, 2008 Ky. LEXIS 323 ( Ky. 2008 ).

As second-degree sexual abuse under KRS 510.120(1)(a) was not a lesser included offense of sexual abuse in the first degree, in violation of KRS 510.110(1)(a), as it required additional facts to prove that a victim was incapable of consent due to being intellectually disabled, the trial court did not err in failing to instruct the jury on that charge. Chames v. Commonwealth, 405 S.W.3d 519, 2012 Ky. App. LEXIS 231 (Ky. Ct. App. 2012).

15.Lesser Included Offenses.

Engaging in indecent practices with a child must involve lesser offense of assault. (Decided under prior law) Faulkner v. Commonwealth, 343 S.W.2d 581, 1961 Ky. LEXIS 427 ( Ky. 1961 ).

The crime of sexual abuse is clearly a lesser included offense of the crime of rape. Salsman v. Commonwealth, 565 S.W.2d 638, 1978 Ky. App. LEXIS 512 (Ky. Ct. App. 1978).

In prosecution for first degree rape, sodomy and sexual abuse, where jury might have believed beyond a reasonable doubt that defendant had engaged in sexual acts with victim but entertained reasonable doubt as to whether victim had been physically helpless at the time, trial court erred in failing to instruct the jury on sexual abuse in the third degree in connection with each of the sexual charges and on sexual misconduct in relation to the charges of rape and sodomy, respectively. Skinner v. Commonwealth, 864 S.W.2d 290, 1993 Ky. LEXIS 149 ( Ky. 1993 ).

While there was sufficient evidence to convict defendant of first degree rape, sexual abuse, and sodomy, the nature of the evidence was such that the jury might reasonably have found defendant not guilty of those offenses but instead guilty of sexual abuse in the first degree in each instance, and therefore jury should have been given instructions on lesser included offenses of third degree sexual abuse and sexual misconduct. Skinner v. Commonwealth, 864 S.W.2d 290, 1993 Ky. LEXIS 149 ( Ky. 1993 ).

Sexual abuse in the first degree is a lesser included offense of both rape in the first degree and sodomy in the first degree. Skinner v. Commonwealth, 864 S.W.2d 290, 1993 Ky. LEXIS 149 ( Ky. 1993 ).

In a first degree rape prosecution, as defendant admitted having sexual intercourse with the victim but claimed it was consensual, he was not entitled to an instruction on the lesser offense of sexual abuse in the first degree. Day v. Commonwealth, 174 S.W.3d 496, 2004 Ky. App. LEXIS 361 (Ky. Ct. App. 2004).

Since the only element that distinguishes unlawful transaction with a minor in the first degree from sexual abuse in the first degree is the victim’s willing participation in the illegal conduct, sexual abuse in the first degree is a lesser included offense of unlawful transaction with a minor in the first degree. The trial court properly instructed the jury on sexual abuse in the first degree as a lesser included offense of unlawful transaction with a minor in the first degree where the minor victim testified to incidents that constituted sexual abuse, but where the victim did not testify to having consented or participated in the sexual activities. Combs v. Commonwealth, 193 S.W.3d 267, 2006 Ky. LEXIS 105 (Ky.), op. withdrawn, 198 S.W.3d 574, 2006 Ky. LEXIS 252 ( Ky. 2006 ).

It was not error for the trial court to refuse the requested instruction on the lesser included offense of sexual abuse in the third degree because the evidence presented and the defense theory that the conduct did not happen could only lead the jury to conclude that either the first-degree crimes as charged were committed or the conduct did not happen at all. Bratcher v. Commonwealth, 2006 Ky. App. LEXIS 363 (Ky. Ct. App. Dec. 8, 2006, sub. op., 2006 Ky. App. Unpub. LEXIS 912 (Ky. Ct. App. Dec. 8, 2006).

Defendant’s conviction of indecent exposure in the first degree (KRS 510.148(1)), based on his exposing his penis to a four-year-old girl and masturbating in front her, did not merge with a sexual abuse charge (KRS 510.110 ), because exposure of his penis without any touching of or by the victim would have been insufficient to have constituted sexual abuse. Harp v. Commonwealth, 266 S.W.3d 813, 2008 Ky. LEXIS 323 ( Ky. 2008 ).

Where defendant was charged with rape in the first degree under KRS 510.040 for engaging in sexual intercourse with his eight-year-old niece, the trial court did not err in refusing to instruct the jury on first-degree sexual abuse under KRS 510.110(1)(b)(2) because the victim’s testimony was unequivocal that defendant inserted his penis into her vagina and defendant did not take the stand or otherwise offer evidence to controvert this testimony. Although the victim also gave brief testimony regarding an instance during which defendant removed her clothing and touched her vagina, she denied being raped on this occasions; this testimony did not warrant the giving of a jury instruction on the lesser-included offense, however, because the testimony did not contradict the victim’s testimony of sexual penetration but was merely testimony regarding a separate, uncharged offense. Cecil v. Commonwealth, 297 S.W.3d 12, 2009 Ky. LEXIS 245 ( Ky. 2009 ).

During defendant’s trial for first-degree anal sodomy, the court did not err in denying defendant’s request for an instruction on the lesser included offense of sexual abuse, in violation of KRS 510.110(1); the victim’s testimony only supported the primary offense of first-degree sodomy. Mash v. Commonwealth, 376 S.W.3d 548, 2012 Ky. LEXIS 21 ( Ky. 2012 ).

16.Multiple Offenses.

Where first-degree sodomy and first-degree sexual abuse were both charged from a single sexual transaction in which the defendant performed fellatio on the victim and caused the child to perform the same act on him either simultaneously or continuously, the separate charge of sexual abuse was based not on incidential contact, but on a separate act of sexual gratification and the fact that the two (2) sexual acts occurred either simultaneously or nearly so was irrelevant; accordingly, defendant was properly charged with both offenses. Hampton v. Commonwealth, 666 S.W.2d 737, 1984 Ky. LEXIS 219 ( Ky. 1984 ).

Because defendant’s act of touching the victim’s genitals was an entirely separate act and offense than his orally sodomizing the victim, there was no double jeopardy violation. Benet v. Commonwealth, 253 S.W.3d 528, 2008 Ky. LEXIS 132 ( Ky. 2008 ).

In defendant’s prosecution for sexual abuse, the trial court did not abuse its discretion or deny defendant the protection against double jeopardy in denying defendant’s motion arguing that he was entitled to a directed verdict because he could not be convicted of multiple counts of sexual abuse arising out of touching of different protected body parts within the same encounter. Multiple offenses could occur when different body parts were touched within the same sexual assault. Allen v. Commonwealth, 278 S.W.3d 649, 2009 Ky. App. LEXIS 36 (Ky. Ct. App. 2009).

17.Sentence.

Sentence of 105 years imprisonment for multiple convictions of sodomy and sexual abuse did not constitute cruel and unusual punishment; whether to run the sentences concurrently or consecutively was within the trial court’s discretion. Hampton v. Commonwealth, 666 S.W.2d 737, 1984 Ky. LEXIS 219 ( Ky. 1984 ).

It was erroneous to run the sentence of life imprisonment for first-degree sodomy consecutively with the sentence of five (5) years’ imprisonment for first-degree sexual abuse. Hall v. Commonwealth, 862 S.W.2d 321, 1993 Ky. LEXIS 137 ( Ky. 1993 ).

Where defendant was convicted of sexual abuse in violation of KRS 510.110 , the trial court erred in holding that he was ineligible for probation due to the constraints of KRS 532.045 (b) because he was in a “position of authority” with the victim, as the more lenient language of KRS 533.030(6) indicated the legislative intent to allow probation in such situations in order to reduce prison overcrowding; however, as the trial court also relied on other more traditional reasons for denying probation, any error was harmless. Ebertshauser v. Commonwealth, 2005 Ky. App. Unpub. LEXIS 47 (Ky. Ct. App. Feb. 4, 2005).

Trial court erred in sentencing defendant to an aggregate sentence of 35 years in prison upon defendant’s convictions on two counts of second-degree sodomy and three counts of first-degree sexual aubse, rather than the maximum twenty-year sentence under KRS 532.110(1)(c) and 532.080 (6)(b), as the 35-year-sentence exceeded in length the longest extended term authorized by KRS 532.080 for the Class C felony conviction of second-degree sodomy, the highest class of crimes of which defendant was convicted. Sanderson v. Commonwealth, 291 S.W.3d 610, 2009 Ky. LEXIS 96 ( Ky. 2009 ).

Trial court erred in requiring defendant, who was 15 at the time of the offenses, to register for lifetime as a sexual offender pursuant to KRS 17.520 upon defendant’s convictions on two (2) counts of first-degree sexual abuse; none of the sections in KRS 17.520 requiring lifetime registration applied to defendant, in that defendant’s conduct was criminal based solely upon the age of the victims, not because he had used forcible compulsion, and as a result, the trial court should have applied KRS 17.500(2)(b) to exempt defendant from the lifetime registration requirement. Dever v. Commonwealth, 300 S.W.3d 198, 2009 Ky. App. LEXIS 1 (Ky. Ct. App. 2009).

18.— Juvenile Offenders.

Defendant was properly committed to the Kentucky Department of Juvenile Justice as a juvenile sexual offender under KRS 635.510 for violating KRS 510.110 and KRS 510.010(7) as the Commonwealth’s proof corroborated defendant’s confession as to the time of the crime, the persons present, and the place, as required by RCr 9.60. W.D.B. v. Commonwealth, 246 S.W.3d 448, 2007 Ky. LEXIS 241 ( Ky. 2007 ).

20.Unanimity.

Definitions of position of authority and position of special trust are not mutually exclusive, and rather, one defines the other; the jury was not presented with alternate theories of guilt in this first-degree sexual abuse case and defendant’s unanimity argument failed. Boone v. Commonwealth, 2013 Ky. App. LEXIS 152 (Ky. Ct. App. Oct. 18, 2013), review denied, ordered not published, 2014 Ky. LEXIS 407 (Ky. Aug. 13, 2014).

Cited in:

Hulan v. Commonwealth, 634 S.W.2d 410, 1982 Ky. LEXIS 258 ( Ky. 1982 ); Commonwealth v. Arnette, 701 S.W.2d 407, 1985 Ky. LEXIS 296 ( Ky. 1985 ); Fields v. Commonwealth, 905 S.W.2d 510, 1995 Ky. App. LEXIS 158 (Ky. Ct. App. 1995); Commonwealth v. Taylor, 945 S.W.2d 420, 1997 Ky. LEXIS 35 ( Ky. 1997 ); Williams v. Commonwealth, 233 S.W.3d 206, 2007 Ky. App. LEXIS 326 (Ky. Ct. App. 2007).

Notes to Unpublished Decisions

Analysis

1.Evidence.
2.— Sufficiency.

Unpublished decision: Where the evidence was sufficient to support the convictions for sexual abuse and incest, the age of the victim and the dates of the acts of incest and sexual abuse were not necessary elements of the offenses pursuant to under KRS 510.110(1)(b)(2). Woods v. Commonwealth, 2003 Ky. Unpub. LEXIS 135 (Ky. Mar. 20, 2003).

Unpublished decision: Officemate, who was arrested and tried for improper sexual contact with a young boy who had accompanied his father to the office that the parties shared, sued the boys’ parents, a police department, and a police detective for malicious prosecution upon his acquittal. His action was properly summarily dismissed, however, because the parents, at most, reported the action, and the arrest and prosecution were supported by probable cause, defeating a 42 U.S.C.S. § 1983 claim under the Fourth Amendment; moreover, the fact that the detective testified that there was a touching was all the contact that was required for first degree sexual abuse under KRS 510.110(1)(b)(2). Bielefeld v. Haines, 192 Fed. Appx. 516, 2006 FED App. 0610N, 2006 U.S. App. LEXIS 21442 (6th Cir. Ky. 2006 ).

3.Relationship to other laws

Unpublished decision: District court did not err by enhancing defendant’s sentence under U.S. Sentencing Guidelines Manual § 2K2.1(b)(4)(A) following his guilty plea to being a felon in possession of a firearm in violation of 18 U.S.C.S. § 922(g)(1); it was squarely within the province of the district court to determine that defendant’s prior conviction for sexual abuse under KRS 510.110 (b) constituted a “crime of violence” within the meaning of U.S. Sentencing Guidelines Manual § 4B1.2(a), and the district court properly employed the categorical approach in determining that the sexual offense involving a minor constituted a crime of violence. United States v. Grundy, 178 Fed. Appx. 509, 2006 FED App. 0281N, 2006 U.S. App. LEXIS 10686 (6th Cir. Ky. 2006 ).

Research References and Practice Aids

Kentucky Bench & Bar.

Hawse, Spoliation of Evidence, Vol. 54, No. 3, Summer 1990, Ky. Bench & Bar 13.

Kentucky Law Journal.

Kentucky Law Survey, Brice and Taylor, Criminal Law, 67 Ky. L.J. 569 (1978-1979).

Northern Kentucky Law Review.

Comments, Relevancy of Evidence of Prior Sexual Conduct Under the Kentucky Revised Statute Section 510.145

Armstrong & Gillig, Responding to Child Sexual Abuse and Exploitation: The Kentucky Approach, 16 N. Ky. L. Rev. 17 (1988).

Lotz, A Survey of Criminal Law Statutes Enacted in 1992, 20 N. Ky. L. Rev. 745 (1993).

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Offenses Related to Sex and Pornography, Part 4 Sexual Abuse, §§ 4.47 — 4.49.

Petrilli, Kentucky Family Law, Promise of Marriage, § 2.6.

510.120. Sexual abuse in the second degree.

  1. A person is guilty of sexual abuse in the second degree when:
    1. He or she is at least eighteen (18) years old but less than twenty-one (21) years old and subjects another person who is less than sixteen (16) years old to sexual contact;
    2. Being a jailer, or an employee, contractor, vendor, or volunteer of the Department of Corrections, Department of Juvenile Justice, or a detention facility as defined in KRS 520.010 , or of an entity under contract with either department or a detention facility for the custody, supervision, evaluation, or treatment of offenders, he or she subjects a person who is at least eighteen (18) years old and who he or she knows is incarcerated, supervised, evaluated, or treated by the Department of Corrections, Department of Juvenile Justice, detention facility, or contracting entity, to sexual contact; or
    3. Being a peace officer, while serving in his or her official capacity, he or she subjects a person who the officer:
      1. Arrested, held in custody, or investigated for commission of a traffic or criminal offense; or
      2. Knew or should have known was under arrest, held in custody, or being investigated for commission of a traffic or criminal offense; to sexual contact.
  2. In any prosecution under subsection (1)(a) of this section, it is a defense that:
    1. The other person’s lack of consent was due solely to incapacity to consent by reason of being less than sixteen (16) years old; and
    2. The other person was at least fourteen (14) years old; and
    3. The actor was less than five (5) years older than the other person.
  3. Sexual abuse in the second degree is a Class A misdemeanor.

History. Enact. Acts 1974, ch. 406, § 92, effective January 1, 1975; 1988, ch. 283, § 14, effective July 15, 1988; 2000, ch. 345, § 8, effective July 14, 2000; 2002, ch. 259, § 9, effective July 15, 2002; 2002, ch. 282, § 3, effective July 15, 2002; 2006, ch. 182, § 34, effective April 18, 2006; 2008, ch. 72, § 2, effective July 15, 2008; 2010, ch. 26, § 3, effective July 15, 2010; 2012, ch. 146, § 129, effective July 12, 2012; 2018 ch. 109, § 6, effective July 14, 2018; 2021 ch. 135, § 3, effective June 29, 2021.

Legislative Research Commission Notes.

(7/15/2008). The numbering of subsections in this section has been altered by the Reviser of Statutes from the numbering in 2008 Ky. Acts ch. 72, sec. 2, under the authority of KRS 7.136 .

NOTES TO DECISIONS

1.Elements.

A man is guilty of sexual abuse in the second degree if he subjects a woman to sexual contact who is incapable of consent because she is mentally defective. Salsman v. Commonwealth, 565 S.W.2d 638, 1978 Ky. App. LEXIS 512 (Ky. Ct. App. 1978).

Where the record established that the prosecutrix did understand that the defendant was seeking to perform sexual acts upon her, the defendant could not be guilty of either rape in the third degree or sexual abuse in the second degree on the theory that the prosecutrix was incapable of giving consent. Salsman v. Commonwealth, 565 S.W.2d 638, 1978 Ky. App. LEXIS 512 (Ky. Ct. App. 1978).

2.Evidence.

Allowing evidence of defendant’s prior sexual misconduct involving a minor while defendant was a priest to be introduced during the guilt phase of defendant’s trial for sexual abuse of two (2) other boys was an abuse of discretion since the Commonwealth did not meet its heavy burden to show that defendant’s conduct toward the three (3) boys was so similar and distinctive as to have been admissible under the modus operandi exception to KRE 404(b). Clark v. Commonwealth, 223 S.W.3d 90, 2007 Ky. LEXIS 117 ( Ky. 2007 ).

3.Instructions.

Where, in prosecution for rape, the victim had given a statement to her social worker as well as the city police that the defendant had “sexually abused” her, and a social worker reported that she made allegations of two (2) incidents of sexual molestation by the defendant, and there was testimony that the social worker’s use of the terms “sexual abuse” and “sexual molestation” did not include intercourse, failure of the trial court to instruct the jury on sexual abuse in the second degree was prejudicial and the judgment was reversed. Reed v. Commonwealth, 738 S.W.2d 818, 1987 Ky. LEXIS 249 ( Ky. 1987 ).

Where all three (3) little girls whom the jury found the defendant to have sexually abused, were under the age of 12 years, no juror could have entertained a reasonable doubt as to the defendant’s guilt of first-degree sexual abuse and yet believed beyond a reasonable doubt that he was guilty of second-degree sexual abuse; consequently, the trial court’s refusal to instruct the jury on the lesser-included offense of second-degree sexual abuse was correct. Tungate v. Commonwealth, 901 S.W.2d 41, 1995 Ky. LEXIS 88 ( Ky. 1995 ).

Where the dates of the sexual abuse are not described with particularity in either the indictment or the testimony such that a reasonable juror could have concluded that the victim was either 11 or 12 years of age when the abuse occurred, a trial court errs by failing to instruct a jury on both first and second-degree sexual abuse. Clark v. Commonwealth, 223 S.W.3d 90, 2007 Ky. LEXIS 117 ( Ky. 2007 ).

Evidence showed that (1) a fictitious person, who had been created by volunteers of a not-for-profit organization which collaborated with law enforcement to catch internet child-predators, that defendant believed was 13 years old willingly participated in the sexually explicit chats, as well as in scheduling to meet defendant, and conversed with defendant over the telephone, and (2) defendant wanted to induce the 13-year-old to willingly engage in sexual activity, but no evidence was presented to show that defendant subjected the 13-year-old to sexual touching without her consent under KRS 510.010 ; thus, the evidence did not support an instruction on attempted sexual abuse in the second degree under KRS 510.120 as a lesser-included offense to attempted unlawful transaction with a minor in the first degree under KRS 506.010 and 530.064 . Therefore, the trial court did not err by declining to give a lesser-included offense instruction to the jury. Quist v. Commonwealth, 338 S.W.3d 778, 2010 Ky. App. LEXIS 93 (Ky. Ct. App. 2010).

As second-degree sexual abuse under KRS 510.120(1)(a) was not a lesser included offense of sexual abuse in the first degree, in violation of KRS 510.110(1)(a), as it required additional facts to prove that a victim was incapable of consent due to being intellectually disabled, the trial court did not err in failing to instruct the jury on that charge. Chames v. Commonwealth, 405 S.W.3d 519, 2012 Ky. App. LEXIS 231 (Ky. Ct. App. 2012).

Cited:

Young v. Commonwealth, 968 S.W.2d 670, 1998 Ky. LEXIS 82 ( Ky. 1998 ), overruled in part, Matthews v. Commonwealth, 163 S.W.3d 11, 2005 Ky. LEXIS 161 ( Ky. 2005 ).

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Sellars, Criminal Law, 71 Ky. L.J. 355 (1982-83).

Article: Sexting and Freedom of Expression: A Comparative Approach , 102 Ky. L.J. 103 (2013).

Northern Kentucky Law Review.

Comments, Relevancy of Evidence of Prior Sexual Conduct Under the Kentucky Revised Statute Section 510.145

Lotz, A Survey of Criminal Law Statutes Enacted in 1992, 20 N. Ky. L. Rev. 745 (1993).

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Offenses Related to Sex and Pornography, Part 4 Sexual Abuse, §§ 4.51 — 4.52C.

Petrilli, Kentucky Family Law, Promise of Marriage, § 2.6.

510.130. Sexual abuse in the third degree.

  1. A person is guilty of sexual abuse in the third degree when he or she subjects another person to sexual contact without the latter’s consent.
  2. In any prosecution under this section, it is a defense that:
    1. The other person’s lack of consent was due solely to incapacity to consent by reason of being less than sixteen (16) years old; and
    2. The other person was at least fourteen (14) years old; and
    3. The actor was less than eighteen (18) years old.
  3. Sexual abuse in the third degree is a Class B misdemeanor.

History. Enact. Acts 1974, ch. 406, § 93, effective January 1, 1975; 2008, ch. 72, § 3, effective July 15, 2008.

Legislative Research Commission Note.

(7/15/2008). The numbering of subsections in this section has been altered by the Reviser of Statutes from the numbering in 2008 Ky. Acts ch. 72, sec. 3, under the authority of KRS 7.136 .

NOTES TO DECISIONS

1.Instructions.

In prosecution for first degree rape, sodomy and sexual abuse, where jury might have believed beyond a reasonable doubt that defendant had engaged in sexual acts with victim but entertained reasonable doubt as to whether victim had been physically helpless at the time, trial court erred in failing to instruct the jury on sexual abuse in the third degree in connection with each of the sexual charges and on sexual misconduct in relation to the charges of rape and sodomy, respectively. Skinner v. Commonwealth, 864 S.W.2d 290, 1993 Ky. LEXIS 149 ( Ky. 1993 ).

While there was sufficient evidence to convict defendant of first degree rape, sexual abuse, and sodomy, the nature of the evidence was such that the jury might reasonably have found defendant not guilty of those offenses but instead guilty of sexual abuse in the first degree in each instance, and therefore jury should have been given instructions on lesser included offenses of third degree sexual abuse and sexual misconduct. Skinner v. Commonwealth, 864 S.W.2d 290, 1993 Ky. LEXIS 149 ( Ky. 1993 ).

Cited:

Commonwealth v. McFerron, 680 S.W.2d 924, 1984 Ky. LEXIS 274 ( Ky. 1984 ); Williams v. Commonwealth, 233 S.W.3d 206, 2007 Ky. App. LEXIS 326 (Ky. Ct. App. 2007).

Notes to Unpublished Decisions

1.“Sexual Conduct.”

Unpublished decision: “Fisting” constitutes “illegal sexual activity,” as prohibited by KRS 530.064 , and is embraced by the provision of KRS 510.130(1)(a), which provides that a person commits the offense of sexual abuse in the third degree when he subjects another person to “sexual conduct” without the latter’s consent. “Sexual conduct,” as defined in KRS 510.010(7), includes any touching of the sexual “or other intimate parts” of a person done for the purpose of gratifying either party’s sexual desire. Hillard v. Commonwealth, 158 S.W.3d 758, 2005 Ky. LEXIS 38 ( Ky. 2005 ).

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Sellars, Criminal Law, 71 Ky. L.J. 355 (1982-83).

Northern Kentucky Law Review.

Comments, Relevancy of Evidence of Prior Sexual Conduct Under the Kentucky Revised Statute Section 510.145

Lotz, A Survey of Criminal Law Statutes Enacted in 1992, 20 N. Ky. L. Rev. 745 (1993).

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Offenses Related to Sex and Pornography, Part 4 Sexual Abuse, §§ 4.52B, 4.54, 4.55.

Petrilli, Kentucky Family Law, Promise of Marriage, § 2.6.

510.140. Sexual misconduct.

  1. A person is guilty of sexual misconduct when he engages in sexual intercourse or deviate sexual intercourse with another person without the latter’s consent.
  2. Sexual misconduct is a Class A misdemeanor.

History. Enact. Acts 1974, ch. 406, § 94, effective January 1, 1975.

NOTES TO DECISIONS

1.Applicability.

Where both defendant and the victim were over 21 years of age and neither was physically or mentally handicapped, this section, the basic purpose of which was to preserve the concept of statutory rape and statutory sodomy, was not applicable and the court did not violate the equal protection amendment by submitting a sodomy instruction but refusing to instruct on sexual misconduct. Cooper v. Commonwealth, 550 S.W.2d 478, 1977 Ky. LEXIS 418 ( Ky. 1977 ).

This section is concerned with cases not specifically covered by other sections of this chapter. Cooper v. Commonwealth, 550 S.W.2d 478, 1977 Ky. LEXIS 418 ( Ky. 1977 ).

This section is not applicable where both parties are over 21 years of age and neither was physically or mentally incapacitated at the time of the occurrence. Spencer v. Commonwealth, 554 S.W.2d 355, 1977 Ky. LEXIS 487 ( Ky. 1977 ).

2.Instructions.

Where the evidence as to a rape showed that force was used and that the victim was 18 years old at the time of the attack, the trial court properly refused to give an instruction on the offense of sexual misconduct since this section is designed to deal with statutory rape and sodomy and force is not an element of the offense. Patterson v. Commonwealth, 555 S.W.2d 607, 1977 Ky. App. LEXIS 793 (Ky. Ct. App. 1977).

The evidence did not require an instruction on sexual misconduct. A trial judge must instruct the jury on all lesser-included offenses which are supported by the evidence, but the evidence clearly established that defendant used forcible compulsion by means of threats and intimidation to engage in sexual intercourse with step-daughter. The fact that the trial judge gave lesser-included instructions on counts two (2) through five (5) and count fifteen (15) was based on the age of the victim at the time of the incident and not on any question as to lack of forcible compulsion. The evidence did not support an instruction on sexual misconduct, thus the trial judge correctly declined to give such an instruction. Yarnell v. Commonwealth, 833 S.W.2d 834, 1992 Ky. LEXIS 155 ( Ky. 1992 ).

While there was sufficient evidence to convict defendant of first degree rape, sexual abuse, and sodomy, the nature of the evidence was such that the jury might reasonably have found defendant not guilty of those offenses but instead guilty of sexual abuse in the first degree in each instance, and therefore jury should have been given instructions on lesser included offenses of third degree sexual abuse and sexual misconduct. Skinner v. Commonwealth, 864 S.W.2d 290, 1993 Ky. LEXIS 149 ( Ky. 1993 ).

In prosecution for first degree rape, sodomy and sexual abuse, where jury might have believed beyond a reasonable doubt that defendant had engaged in sexual acts with victim but entertained reasonable doubt as to whether victim had been physically helpless at the time, trial court erred in failing to instruct the jury on sexual abuse in the third degree in connection with each of the sexual charges and, in addition, on sexual misconduct in relation to the charges of rape and sodomy, respectively. Skinner v. Commonwealth, 864 S.W.2d 290, 1993 Ky. LEXIS 149 ( Ky. 1993 ).

Trial court did not err by denying defendant's request for a sexual misconduct jury instruction because it was not a lesser included offense of rape. Jenkins v. Commonwealth, 496 S.W.3d 435, 2016 Ky. LEXIS 327 ( Ky. 2016 ), cert. denied, 137 S. Ct. 1205, 197 L. Ed. 2d 250, 2017 U.S. LEXIS 1566 (U.S. 2017).

3.Juvenile Sexual Offender.

Although the plea bargain to two counts of sexual misconduct, class A misdemeanors under KRS 510.140 , prevented the application of the mandatory language in KRS 635.510(1), the District Court had discretion to declare defendant to be a juvenile sex offender under KRS 635.510(2)(b). C.W.C.S. v. Commonwealth, 282 S.W.3d 818, 2009 Ky. App. LEXIS 38 (Ky. Ct. App. 2009).

4.Punitive damages.

Appellant pleaded guilty to four counts of sexual misconduct, which could have resulted in a maximum four-year prison sentence under KRS 510.140 , 532.020(2). In the victim’s tort suit for compensatory and punitive damages, the circuit court’s award of $6,000,000 in punitive damages was not constitutionally excessive given the severity of the penalty that could have been imposed. R.O. v. A.C., 384 S.W.3d 185, 2012 Ky. App. LEXIS 53 (Ky. Ct. App. 2012).

Cited:

Commonwealth v. McFerron, 680 S.W.2d 924, 1984 Ky. LEXIS 274 ( Ky. 1984 ); Bullitt v. Commonwealth, 595 S.W.3d 106, 2019 Ky. LEXIS 543 ( Ky. 2019 ).

Research References and Practice Aids

Northern Kentucky Law Review.

Comments, Relevancy of Evidence of Prior Sexual Conduct Under the Kentucky Revised Statute Section 510.145

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Offenses Related to Sex and Pornography, Part 2 Rape, § 4.32.

Kentucky Instructions to Juries (Criminal), 5th Ed., Offenses Related to Sex and Pornography, Part 3 Sodomy, § 4.44.

510.145. Inadmissibility of evidence of prior sexual conduct or habits of complaining witness — Exception — Procedure for admission. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1976, ch. 144, §§ 1, 2) was repealed by § 92 of Acts 1990, ch. 88 to contingently become effective as provided by § 93 of Acts 1990, ch. 88. However, § 93 of Acts 1990, ch. 88 was repealed by § 30 of Acts 1992, ch. 324, effective July 1, 1992. Therefore the repeal of this section by § 92 of Acts 1990, ch. 88 became effective July 1, 1992. For present law see Kentucky Rules of Evidence, Rule 412.

510.148. Indecent exposure in the first degree.

  1. A person is guilty of indecent exposure in the first degree when he intentionally exposes his genitals under circumstances in which he knows or should know that his conduct is likely to cause affront or alarm to a person under the age of eighteen (18) years.
  2. Indecent exposure in the first degree is a:
    1. Class B misdemeanor for the first offense;
    2. Class A misdemeanor for the second offense, if it was committed within three (3) years of the first conviction;
    3. Class D felony for the third offense, if it was committed within three (3) years of the second conviction; and
    4. Class D felony for any subsequent offense, if it was committed within three (3) years of the prior conviction.

History. Enact. Acts 2004, ch. 190, § 1, effective July 13, 2004.

NOTES TO DECISIONS

1.Merger of Offenses.

Defendant’s conviction of indecent exposure in the first degree (KRS 510.148(1)), based on his exposing his penis to a four-year-old girl and masturbating in front her, did not merge with a sexual abuse charge (KRS 510.110 ), because exposure of his penis without any touching of or by the victim would have been insufficient to have constituted sexual abuse. Harp v. Commonwealth, 266 S.W.3d 813, 2008 Ky. LEXIS 323 ( Ky. 2008 ).

2.Evidence.

As the evidence showed that defendant exposed his penis to a four-year-old girl and masturbated in front of her, it was suffiicent to convict him of indecent exposure in the first degree (KRS 510.148(1)). Therefore, he had not been entitled to a directed verdict on that charge. Harp v. Commonwealth, 266 S.W.3d 813, 2008 Ky. LEXIS 323 ( Ky. 2008 ).

There was no evidence that defendant removed his swimming trunks for any purpose other than to take a shower and change clothes and the boys’ testimony provided no evidence that the removal of defendant’s swimming trunks had any effect on either of them; the two employees who were watching the three in the shower to determine if any abuse was occurring described the three as taking showers in the nude. Because the Commonwealth did not present evidence that would prove all elements of indecent exposure, only nudity in a public shower, it would be clearly unreasonable for a jury to find guilt and a directed verdict on the indecent exposure charge was improperly denied. Jenkins v. Commonwealth, 308 S.W.3d 704, 2010 Ky. LEXIS 100 ( Ky. 2010 ).

Research References and Practice Aids

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Offenses Related to Sex and Pornography, Part 5 Indecent Exposure, § 4.57A.

510.150. Indecent exposure in the second degree.

  1. A person is guilty of indecent exposure in the second degree when he intentionally exposes his genitals under circumstances in which he knows or should know that his conduct is likely to cause affront or alarm to a person eighteen (18) years of age or older.
  2. Indecent exposure in the second degree is a Class B misdemeanor.

History. Enact. Acts 1974, ch. 406, § 95, effective January 1, 1975; 2004, ch. 190, § 2, effective July 13, 2004.

Research References and Practice Aids

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Offenses Related to Sex and Pornography, Part 5 Indecent Exposure, § 4.57B.

510.155. Unlawful use of electronic means originating or received within the Commonwealth to induce a minor to engage in sexual or other prohibited activities — Prohibition of multiple convictions arising from single course of conduct — Solicitation as evidence of intent.

  1. It shall be unlawful for any person to knowingly use a communications system, including computers, computer networks, computer bulletin boards, cellular telephones, or any other electronic means, for the purpose of:
    1. Procuring or promoting the use of a minor, including a peace officer, or a person working in coordination with law enforcement, posing as a minor if the person believes that the peace officer or the person working in coordination with law enforcement is a minor or is wanton or reckless in that belief; or
    2. Procuring or promoting the use of a minor from an adult intermediary, including a peace officer, or a person working in coordination with law enforcement, posing as an adult intermediary for a minor if the person believes that the peace officer or the person working in coordination with law enforcement is an adult intermediary for a minor or is wanton or reckless in that belief; for any activity in violation of KRS 510.040 , 510.050 , 510.060 , 510.070 , 510.080 , 510.090 , 510.110 , 529.100 where that offense involves commercial sexual activity, or 530.064(1)(a), or KRS Chapter 531.
  2. No person shall be convicted of this offense and an offense specified in KRS 506.010 , 506.030 , 506.040 , or 506.080 for a single course of conduct intended to consummate in the commission of the same offense with the same minor or peace officer.
  3. Each day a person knowingly uses a communications system for the purpose of procuring or promoting the use of a minor shall be a separate violation of this section.
  4. The solicitation of a minor through electronic communication under subsection (1) of this section shall be prima facie evidence of the person’s intent to commit the offense, and the offense is complete at that point without regard to whether the person met or attempted to meet the minor.
  5. This section shall apply to electronic communications originating within or received within the Commonwealth.
  6. Except as provided in subsection (7) of this section, a violation of this section is punishable as a Class D felony.
  7. A violation of this section is punishable as a Class C felony if:
    1. The minor or perceived minor procured or promoted is under twelve (12) years old;
    2. The offender is a registrant; or
    3. A person enters into the Commonwealth from another jurisdiction for the purpose of procuring or promoting the use of a minor or perceived minor in violation of this section.

History. Enact. Acts 2005, ch. 160, § 1, effective June 20, 2005; 2006, ch. 182, § 35, effective July 12, 2006; 2007, ch. 19, § 12, effective June 26, 2007; 2009, ch. 100, § 1, effective June 25, 2009; 2013, ch. 41, § 4, effective June 25, 2013; 2021 ch. 88, § 2, effective June 29, 2021.

NOTES TO DECISIONS

1.Lesser-included Offense Instructions.

Defendant, who was charged with use of a minor in a sexual performance, was not entitled to a lesser-included offense charge on unlawful use of electronic means to induce a minor to engage in sexual or other prohibited activities because the latter crime required proof of use of electronic means which the former crime did not require, so the latter crime was not a lesser-included offense of the former. Durrant v. Commonwealth, 2015 Ky. App. LEXIS 112 (Ky. Ct. App. July 24, 2015), review denied, ordered not published, 2016 Ky. LEXIS 267 (Ky. June 8, 2016).

2.Communication through intermediary.

Defendant could be convicted for sending e-mails and text messages to a peace officer posing as an adult parent offering to arrange for a sexual encounter between defendant and the parent’s under age child because a person could be guilty by communicating through an adult intermediary. Direct communication with a minor or a police officer posing as a minor was not necessary for a conviction as the statute made unlawful any use of a communications system for the purpose of procuring or promoting a minor for sexual or other prohibited activities. Cayton v. Commonwealth, 580 S.W.3d 553, 2019 Ky. App. LEXIS 35 (Ky. Ct. App. 2019).

Research References and Practice Aids

Kentucky Bench & Bar.

Hunt, Human Trafficking: A Primer for Kentucky Lawyers. Vol. 73, No. 4, July 2009, Ky. Bench & Bar, 17.

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Offenses Related to Sex and Pornography, Part 9 Sexual Exploitation of Minors, § 4.92.

510.300. Expungement of record.

  1. The arrest record of anyone accused by his spouse of an offense under this chapter shall be expunged if said charge was either dismissed with prejudice or a verdict of not guilty on said charge was entered.
  2. If the charges brought against a defendant under this chapter are dismissed with prejudice or the defendant is found not guilty, the court shall order all law enforcement and other public agencies holding records of the offense to expunge the records.
  3. No person whose records have been expunged pursuant to this section shall have to answer “Yes” and may answer “No” to the question “Have you ever been arrested?” or any similar question with regard to the offense for which the records were expunged.

History. Enact. Acts 1986, ch. 486, § 3, effective July 15, 1986; 1990, ch. 448, § 4, effective July 13, 1990.

Research References and Practice Aids

Kentucky Bench & Bar.

Wiederstein, Closed Courtrooms and the Public’s Right of Access, Vol. 67, No. 4, July 2003, Ky. Bench & Bar 15.

510.310. Evidence of violation inadmissible in child custody or visitation suit — Exception. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1990, ch. 448, § 3, effective July 13, 1990) was repealed by Acts 2000, ch. 401, § 38, effective July 14, 2000.

510.320. Human immunodeficiency virus testing for defendants accused of certain sexual offenses — Results — Counseling when test positive — Cost — Effect of appeal.

  1. For purposes of this section, “human immunodeficiency virus test” means a test of an individual for presence of human immunodeficiency virus, or for antibodies or antigens that result from human immunodeficiency virus infection, or for any other substance specifically indicating human immunodeficiency virus infection.
  2. A defendant charged with an offense pursuant to this chapter which has sexual intercourse or deviate sexual intercourse as an element, or has sexual contact as an element when the circumstances of the case demonstrate a possibility of transmission of human immunodeficiency virus, shall upon initial court appearance on the charge, be informed by the judge of the availability of human immunodeficiency virus testing. The judge shall also notify the victim of the offense, or parent or guardian of the victim, that the defendant has been so notified.
  3. When a defendant has been convicted of any offense in subsection (2) of this section, other provisions of law to the contrary notwithstanding, the sentencing court, regardless of any prior human immunodeficiency virus test, shall order the defendant to undergo a human immunodeficiency virus test, under the direction of the Cabinet for Health and Family Services.
    1. The result of any human immunodeficiency virus test conducted pursuant to this section shall not be a public record for purposes of KRS Chapter 61. (4) (a) The result of any human immunodeficiency virus test conducted pursuant to this section shall not be a public record for purposes of KRS Chapter 61.
    2. The result of any human immunodeficiency virus test conducted pursuant to this section shall only be made available by the Cabinet for Health and Family Services to the victim, or the parent or guardian of a victim who is a minor, an individual with an intellectual disability, or mentally incapacitated, the defendant, the court issuing the order for testing, and to any other agency as directed pursuant to KRS Chapter 214.
    3. The Cabinet for Health and Family Services shall immediately provide to the victim the results of any human immunodeficiency virus test conducted under this section.
    4. In addition, the Cabinet for Health and Family Services shall provide to the Department of Corrections the result of any human immunodeficiency virus test conducted pursuant to this section which indicates that the defendant is infected with the human immunodeficiency virus. The Department of Corrections shall use this information solely for the purpose of providing medical treatment to the defendant while incarcerated in a state penitentiary or correctional institution or county jail.
  4. If the human immunodeficiency virus test indicates the presence of human immunodeficiency virus infection, the Cabinet for Health and Family Services shall provide counseling to the victim and the defendant regarding human immunodeficiency virus disease, and referral for appropriate health-care and support services.
  5. The cost of testing under this section shall be paid by the defendant tested, unless the court has determined the defendant to be indigent.
  6. Filing of a notice of appeal shall not automatically stay an order that the defendant submit to a human immunodeficiency virus test.

History. Enact. Acts 1992, ch. 389, § 1, effective July 14, 1992; 1998, ch. 426, § 608, effective July 15, 1998; 2000, ch. 400, § 5, effective July 14, 2000; 2005, ch. 99, § 656, effective June 20, 2005; 2012, ch. 146, § 130, effective July 12, 2012.

NOTES TO DECISIONS

1.Testing Erroneously Ordered.

Circuit court’s order requiring defendant to be tested for HIV pursuant to KRS 510.320 was contrary to the statute and had to be vacated as defendant was convicted of kidnapping, and that offense was not encompassed by the statute concerning HIV testing. Ladriere v. Commonwealth, 329 S.W.3d 278, 2010 Ky. LEXIS 259 ( Ky. 2010 ).

Research References and Practice Aids

Northern Kentucky Law Review.

Lotz, A Survey of Criminal Law Statutes Enacted in 1992, 20 N. Ky. L. Rev. 745 (1993).

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Offenses Related to Sex and Pornography, Part 1 Definitions, § 4.01.

CHAPTER 511 Burglary and Related Offenses

511.010. Definitions.

The following definitions apply in this chapter unless the context otherwise requires:

  1. “Building,” in addition to its ordinary meaning, means any structure, vehicle, watercraft or aircraft:
    1. Where any person lives; or
    2. Where people assemble for purposes of business, government, education, religion, entertainment or public transportation.

      Each unit of a building consisting of two (2) or more units separately secured or occupied is a separate building.

  2. “Dwelling” means a building which is usually occupied by a person lodging therein.
  3. “Premises” includes the term “building” as defined herein and any real property.

History. Enact. Acts 1974, ch. 406, § 96, effective January 1, 1975; 1980, ch. 376, § 1, effective July 15, 1980.

NOTES TO DECISIONS

1.In General.

The drafters of the 1978 amendments to KRS 511.020 , 511.030 and 511.040 meant to base the second degree/third degree distinction on the presence or absence of persons in the building at the time of the burglary, because the potential for physical injury is made greater by the presence of other persons who may be encountered in the process of the burglary. Litton v. Commonwealth, 597 S.W.2d 616, 1980 Ky. LEXIS 210 ( Ky. 1980 ).

Remand was required in sentencing of defendant under Armed Career Criminal Act, 18 U.S.C.S. § 924(e) because the record was not sufficiently developed to undertake the modified categorical analysis to determine whether defendant's three prior third-degree burglary convictions under Kentucky law qualified as violent felonies since Kentucky law defined a burglary offense broader than generic burglary since the statutes covered break-ins of buildings, vehicles, watercraft, and aircraft, and Kentucky's third-degree burglary statute was divisible. United States v. Brumback, 614 Fed. Appx. 288, 2015 FED App. 0420N, 2015 U.S. App. LEXIS 9679 (6th Cir. Ky. 2015 ).

2.Building.

Although the structure where victim’s body was found was abandoned, condemned and uninhabited, it was within the definition of a “building” as it applied to first-degree burglary. Funk v. Commonwealth, 842 S.W.2d 476, 1992 Ky. LEXIS 145 ( Ky. 1992 ).

Where a storage trailer and shed were being used by employees of a convenience store for storage of merchandise or supplies, the trailer and the shed met the definition of a building; thus, defendant’s convictions for two (2) counts of criminal attempt to commit burglary in the third degree of the trailer and the shed were affirmed. Spears v. Commonwealth, 78 S.W.3d 755, 2002 Ky. App. LEXIS 1157 (Ky. Ct. App. 2002).

In a capital murder case, the trial court properly charged the jury on the aggravating circumstance of murder while engaged in the commission of a first degree burglary, under KRS 532.025(2)(a)(2), because the tool shed in which defendant murdered one of the victims qualified as a “building,” for purposes of first degree burglary, under KRS 511.010(1). Soto v. Commonwealth, 139 S.W.3d 827, 2004 Ky. LEXIS 93 ( Ky. 2004 ), cert. denied, 544 U.S. 931, 125 S. Ct. 1670, 161 L. Ed. 2d 495, 2005 U.S. LEXIS 2608 (U.S. 2005).

Because a zoo did not qualify as a “structure” or a “building” under KRS ch. 511, the evidence was insufficient to support defendant’s conviction for third-degree burglary and theft by unlawful taking over $300 under KRS 511.040(1) after defendant entered the zoo and stole money from vending machines. Kiser v. Commonwealth, 289 S.W.3d 589, 2008 Ky. App. LEXIS 367 (Ky. Ct. App. 2008).

3.Dwelling.

The fact the victims were in the process of moving and did not stay in the house the night of the burglary did not affect the status of the house as being “usually occupied by a person lodging therein.” Starnes v. Commonwealth, 597 S.W.2d 614, 1980 Ky. LEXIS 209 ( Ky. 1980 ).

Where the evidence showed that the house which was broken into was still infrequently used as it had customarily been used, as a dwelling, and that at no time was the house abandoned or totally emptied, the defendant was properly convicted for burglarizing a “dwelling.” Haynes v. Commonwealth, 657 S.W.2d 948, 1983 Ky. LEXIS 283 ( Ky. 1983 ).

A home which had been irreparably damaged by a tornado, was uninhabitable and scheduled for demolition, and was not fit for usual occupation by a person lodging therein was not a dwelling, and the defendant could not be found guilty of second-degree burglary for entering it, although he might have been guilty of a lesser or theft offense. Shackelford v. Commonwealth, 757 S.W.2d 193, 1988 Ky. App. LEXIS 3 (Ky. Ct. App. 1988).

A cellar or basement would be considered part and parcel of the dwelling, for the purposes of this section, whether it could be reached from the interior of the house or only from an exterior door. Stewart v. Commonwealth, 793 S.W.2d 859, 1990 Ky. App. LEXIS 114 (Ky. Ct. App. 1990).

A hospital room constitutes a dwelling within the meaning of the statute. Colson v. Commonwealth, 27 S.W.3d 481, 2000 Ky. App. LEXIS 100 (Ky. Ct. App. 2000).

Where the occupant of the house had recently passed away when defendant burglarized the occupant’s house, the house was still considered to be a dwelling pursuant to KRS 511.010(2) that could support a second-degree burglary conviction under KRS 511.030(1), because a dwelling included buildings that were occupied in the immediate past by a recently deceased resident. Cochran v. Commonwealth, 114 S.W.3d 837, 2003 Ky. LEXIS 206 ( Ky. 2003 ), overruled in part, Castle v. Commonwealth, 411 S.W.3d 754, 2013 Ky. LEXIS 460 ( Ky. 2013 ).

As Kentucky’s second-degree burglary statute, Ky. Rev. Stat. § 511.030(1), categorically qualified as generic burglary under the Armed Career Criminal Act (ACCA) and satisfied the ACCA’s enumerated-offenses clause because it limited its proscription to “dwellings,” it was a “violent felony” that was properly used to enhance defendant’s felon-in-possession-of-a-firearm sentence. United States v. Malone, 889 F.3d 310, 2018 FED App. 0088P, 2018 U.S. App. LEXIS 11973 (6th Cir. Tenn. 2018), cert. denied, 139 S. Ct. 1323, 203 L. Ed. 2d 573, 2019 U.S. LEXIS 2015 (U.S. 2019).

Cited:

Wiley v. Sowders, 669 F.2d 386, 1982 U.S. App. LEXIS 22724 (6th Cir. 1982); Baker v. Commonwealth, 677 S.W.2d 316, 1984 Ky. App. LEXIS 565 (Ky. Ct. App. 1984); Skaggs v. Commonwealth, 1985 Ky. LEXIS 304 ( Ky. 1985 ); Baker v. Commonwealth, 677 S.W.2d 316, 1984 Ky. App. LEXIS 565 (Ky. Ct. App. 1984).

Opinions of Attorney General.

Because of the express language in subdivision (1)(a) and (b), coupled with the commentary explanation, the ordinary car or pick-up truck does not fall within the definition of “building,” for purposes of prosecution for third-degree burglary. OAG 78-721 .

Since premises is defined in subdivision (4) (now (3)) of this section as including buildings and any real property, the parking lots of businesses and other establishments, as well as private residential property, would be included in the definition of premises as used in KRS 511.080 and this section, since there is no differentiation between various types of owners of property, and, therefore, the ownership of property makes no difference in a prosecution under KRS 511.080 . OAG 80-643 .

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Malone and Malone, Criminal Law, 69 Ky. L.J. 545 (1980-81).

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Damage To or Intrusion Upon Property, Part 1 Definitions, §§ 5.01 — 5.03.

Kentucky Instructions to Juries (Criminal), 5th Ed., Damage To or Intrusion Upon Property, Part 2 Burglary and Trespass, § 5.07.

511.020. Burglary in the first degree.

  1. A person is guilty of burglary in the first degree when, with the intent to commit a crime, he knowingly enters or remains unlawfully in a building, and when in effecting entry or while in the building or in the immediate flight therefrom, he or another participant in the crime:
    1. Is armed with explosives or a deadly weapon; or
    2. Causes physical injury to any person who is not a participant in the crime; or
    3. Uses or threatens the use of a dangerous instrument against any person who is not a participant in the crime.
  2. Burglary in the first degree is a Class B felony.

History. Enact. Acts 1974, ch. 406, § 97, effective January 1, 1975; 1978, ch. 125, § 1, effective June 17, 1978; 1980, ch. 376, § 2, effective July 15, 1980.

NOTES TO DECISIONS

1.Double Jeopardy.

A defendant can be convicted both of burglary and of retaining possession of property stolen by him in the burglary. Sebastian v. Commonwealth, 623 S.W.2d 880, 1981 Ky. LEXIS 288 ( Ky. 1981 ).

Burglary is basically an offense against property inasmuch as it mandates unlawful entry into a building to obtain a conviction; however, such entry is not a part of the evidence necessary to convict of first degree robbery which is an offense against persons. Therefore, robbery and burglary are separate offenses and prosecution for both is not double jeopardy. Jordan v. Commonwealth, 703 S.W.2d 870, 1985 Ky. LEXIS 269 ( Ky. 1985 ).

Convictions of both theft and burglary are not double jeopardy. Campbell v. Commonwealth, 732 S.W.2d 878, 1987 Ky. LEXIS 225 ( Ky. 1987 ).

Criminal contempt conviction for violating restraining order prohibiting defendant from entering wife’s house did not bar action against him for burglary; double jeopardy did not attach because the contempt conviction required proof of an element unnecessary to convict him of burglary. Commonwealth v. Burge, 1996 Ky. LEXIS 82 (Ky. Aug. 29, 1996).

The Double Jeopardy Clause required vacating an appellant’s conviction for fourth degree assault because the physical injury proven as one of the elements of that charge was the same alleged and proven as an element of a first degree burglary charge against him. Butts v. Commonwealth, 953 S.W.2d 943, 1997 Ky. LEXIS 93 ( Ky. 1997 ), overruled in part, Commonwealth v. McCombs, 304 S.W.3d 676, 2009 Ky. LEXIS 61 ( Ky. 2009 ), abrogated in part, Elery v. Commonwealth, 368 S.W.3d 78, 2012 Ky. LEXIS 87 ( Ky. 2012 ).

Defendant’s convictions for first-degree burglary under KRS 511.020 and fourth-degree assault under KRS 508.030 did not violate double jeopardy principles under U.S. Const. amend. V. and Ky. Const. § 13 as assault required a specific finding of an intentional, wanton, or reckless mental state, and the physical injury element of burglary did not require such a finding; to the extent of a conflict, Butts v. Commonwealth, 953 S.W.2d 943, 1997 Ky. LEXIS 93 ( Ky. 1997 ), was overruled. Commonwealth v. McCombs, 304 S.W.3d 676, 2009 Ky. LEXIS 61 ( Ky. 2009 ), modified, 2010 Ky. LEXIS 139 (Ky. Mar. 18, 2010).

Conviction upon first-degree burglary and fourth-degree assault violated the prohibition against double jeopardy when the same physical injury was used to satisfy the physical injury elements of both KRS 511.020(1)(b) and 508.030(1)(a); fourth-degree assault did not contain an element different from first-degree burglary because if the jury believed defendant acted intentionally to cause the physical injury as to fourth-degree assault, it had to, likewise, have believed defendant acted intentionally to cause the physical injury as to first-degree burglary. McCombs v. Commonwealth, 2006 Ky. App. LEXIS 397 (Ky. Ct. App. June 23, 2006).

2.Due Process.

The rule in Kentucky which allows possession of stolen property to create a prima facie case of guilt of the theft thereof is not unconstitutional because it is not unreasonable for a juror to believe that one found in possession of stolen property is guilty of the theft and the jury is not instructed to find such a person guilty unless he proves that his possession is innocent, and no burden of proof is even placed upon the accused; the burden of proof remains with the Commonwealth throughout the trial. Jackson v. Commonwealth, 670 S.W.2d 828, 1984 Ky. LEXIS 205 ( Ky. 1984 ), cert. denied, 469 U.S. 1111, 105 S. Ct. 791, 83 L. Ed. 2d 784, 1985 U.S. LEXIS 413 (U.S. 1985).

The trial judge did not abuse his discretion in refusing to allow cross-examination of a witness about her prior psychiatric condition of manic depression, where no expert medical testimony was offered to connect the past episodes of manic depression with any challenge to her credibility, and the victim of the burglary supplied corroborating evidence to support the challenged testimony. Commonwealth v. Huber, 711 S.W.2d 490, 1986 Ky. LEXIS 276 ( Ky. 1986 ).

3.—Aggravating Circumstance in Murder Prosecution.

Fact that defendant in murder case was a minor and could not, under KRS 208.170(1) (repealed), be tried as an adult for first-degree burglary, did not prevent the burglary from being submitted as an aggravating circumstance in the sentencing phase of the murder trial. Ice v. Commonwealth, 667 S.W.2d 671, 1984 Ky. LEXIS 212 (Ky.), cert. denied, 469 U.S. 860, 105 S. Ct. 192, 83 L. Ed. 2d 125, 1984 U.S. LEXIS 3642 (U.S. 1984).

4.—Identity of Informant.

Where the defendant sought the disclosure of the identity of an informant who had provided information to the police which led to the defendant’s arrest, but the defendant failed to allege that disclosure would be relevant or helpful to his defense, disclosure of the informant’s identity was not required because it was not necessary to a fair determination of guilt or innocence in view of the brief time between the burglary and the arrest a short distance from the burglarized store and the overwhelming evidence of guilt. Schooley v. Commonwealth, 627 S.W.2d 576, 1982 Ky. LEXIS 226 ( Ky. 1982 ).

5.—Prosecutor’s Comments.

Comments by prosecutor in burglary trial that defendant said “something about being out there in that house” and that defendant had “a lot of time to do some drinking” were improper where there was no proof as to either statement in the record. McGuire v. Commonwealth, 573 S.W.2d 360, 1978 Ky. App. LEXIS 609 (Ky. Ct. App. 1978).

6.—Voluntary Confession.

Where defendant, after being advised of his rights, voluntarily confessed his participation in murder, burglary and theft, evidence did not support contention that confession was induced by promises of more lenient sentence coupled with fear of death penalty or that it was taken in violation of Miranda v. Arizona. Walker v. Commonwealth, 561 S.W.2d 656, 1977 Ky. LEXIS 578 ( Ky. 1977 ).

7.—Waiver of Rights.

Where after being informed of his Miranda rights, the defendant was asked if he cared to make a statement, and in the same breath with which he declined to make a confession he made other statements which tended to indicate his guilt, the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to counsel. Fair v. Commonwealth, 652 S.W.2d 864, 1983 Ky. LEXIS 260 ( Ky. 1983 ).

8.Elements.

In a burglary prosecution, testimony of the resident that all doors and windows of house were closed before defendant was seen in the house was amply sufficient to justify jury’s finding that the door was opened by the defendant and that there was, therefore, “breaking.” (Decided under prior law) Rayburn v. Commonwealth, 474 S.W.2d 405, 1971 Ky. LEXIS 120 ( Ky. 1971 ).

Where there is a breaking and entering and property taken from a dwelling, and the property is found in possession of the accused, such showing makes a submissible case for the jury on a charge of burglary. Jackson v. Commonwealth, 670 S.W.2d 828, 1984 Ky. LEXIS 205 ( Ky. 1984 ), cert. denied, 469 U.S. 1111, 105 S. Ct. 791, 83 L. Ed. 2d 784, 1985 U.S. LEXIS 413 (U.S. 1985).

The crime of first-degree burglary was complete once the defendant unlawfully entered the premises while armed with an intent to commit a crime. McClellan v. Commonwealth, 715 S.W.2d 464, 1986 Ky. LEXIS 274 ( Ky. 1986 ), cert. denied, 479 U.S. 1057, 107 S. Ct. 935, 93 L. Ed. 2d 986, 1987 U.S. LEXIS 379 (U.S. 1987).

Where evidence indicated that defendant entered the apartment with permission and thereafter went into the victim’s bedroom and raped her, but immediately left the premises and removed no property belonging to the victim, the elements required to constitute the offense of burglary in the first degree were not met. Robey v. Commonwealth, 943 S.W.2d 616, 1997 Ky. LEXIS 21 ( Ky. 1997 ).

First-degree burglary is an aggravated burglary of any building, including, but not limited to, a dwelling; absent proof of the aggravating element, the offense is reduced from first-degree burglary to either second-degree burglary, if the building is a dwelling, or third-degree burglary, if the building is not a dwelling. Colwell v. Commonwealth, 37 S.W.3d 721, 2000 Ky. LEXIS 202 ( Ky. 2000 ).

Given that a jury convicted defendant of both fourth-degree assault under KRS 508.030 and first-degree burglary under KRS 511.020 , and because the appellate court was unable to tell if the jury predicated both convictions on the same physical injury to the victim, a remand was necessary. If the same physical injury was the basis of both convictions, the Double Jeopardy Clause of the Fifth Amendment to the United States Constitution and Ky. Const. § 13 were both violated. McCombs v. Commonwealth, 2006 Ky. App. LEXIS 180 (Ky. Ct. App. June 23, 2006), modified, 2007 Ky. App. LEXIS 3 (Ky. Ct. App. Jan. 12, 2007).

9.—Building.

Although the structure where victim’s body was found was abandoned, condemned and uninhabited, it was within the definition of a “building” as it applied to first-degree burglary. Funk v. Commonwealth, 842 S.W.2d 476, 1992 Ky. LEXIS 145 ( Ky. 1992 ).

Trial court did not abuse its discretion in prohibiting defense counsel from arguing that defendant's possession of an opened bar of soap showed he did not intend to commit a crime in the building because the attempted inference did not actually raise a viable defense; the unauthorized use of the unlawfully entered building's bathtub or sink would itself be a crime since it involves the theft of the building owner's water. McGruder v. Commonwealth, 487 S.W.3d 884, 2016 Ky. LEXIS 176 ( Ky. 2016 ).

10.—Deadly Weapon.

Defendant, who had broken into a temporarily unoccupied house trailer and stolen a shotgun, was armed with a deadly weapon within the meaning of this section as there is virtually no difference between being in possession of a deadly weapon and being armed with a deadly weapon. Meadows v. Commonwealth, 551 S.W.2d 253, 1977 Ky. App. LEXIS 719 (Ky. Ct. App. 1977).

One who steals a deadly weapon during the course of a burglary is armed within the meaning of this section. Jackson v. Commonwealth, 670 S.W.2d 828, 1984 Ky. LEXIS 205 ( Ky. 1984 ), cert. denied, 469 U.S. 1111, 105 S. Ct. 791, 83 L. Ed. 2d 784, 1985 U.S. LEXIS 413 (U.S. 1985).

One who enters a dwelling unarmed and steals guns becomes armed with a deadly weapon within the meaning of this section; the Commonwealth is not required to further prove that the guns taken, while in the possession of the burglar, are “ready for use.” Hayes v. Commonwealth, 698 S.W.2d 827, 1985 Ky. LEXIS 277 ( Ky. 1985 ).

This section does not require that a burglar be armed at every moment during his flight from a dwelling; where a burglar arms himself at any time while in immediate flight from a dwelling, he may be convicted of first-degree burglary. Baker v. Commonwealth, 860 S.W.2d 760, 1993 Ky. LEXIS 89 ( Ky. 1993 ).

This section does not limit itself to consideration of acts which take place within the curtilage of the dwelling being burglarized, but is written to protect occupants, neighbors, and passers-by; thus, where defendant was carrying a gun when apprehended by a neighbor, during “immediate flight” from the dwelling, defendant was guilty of first-degree burglary. Baker v. Commonwealth, 860 S.W.2d 760, 1993 Ky. LEXIS 89 ( Ky. 1993 ).

The “utility knife” was in fact a knife as defined by statute, and because of it defendant was considered armed with a deadly weapon when he burglarized the hardware store and was guilty of burglary in the first degree. Stout v. Commonwealth, 33 S.W.3d 531, 2000 Ky. App. LEXIS 1 (Ky. Ct. App. 2000).

General Assembly expressly limited the types of implements that can constitute deadly weapons, and relegated others to the category of dangerous instruments, depending on their use and potential for danger; a hatchet is not a deadly weapon as a matter of law. McGruder v. Commonwealth, 487 S.W.3d 884, 2016 Ky. LEXIS 176 ( Ky. 2016 ).

Accounting for the fact that the presence of instruments which might be used dangerously, in and of itself, does not necessarily make a given situation more dangerous, the statute makes only the use or threatened use of such dangerous instruments in the course of committing a burglary an aggravating factor; such instruments are not weapons per se and should only be treated by the Penal Code as weapons when the offender makes use of them as such. McGruder v. Commonwealth, 487 S.W.3d 884, 2016 Ky. LEXIS 176 ( Ky. 2016 ).

Trial court erred in denying defendant's motion for a directed verdict on the first-degree burglary count because based on the plain meaning of the statute and the legislative intent, the small hatchet in his possession was at most a dangerous instrument, not a deadly weapon; a hatchet was not among the weapons listed in the definition of deadly weapon, and that statutorily defined term could not be expanded by analogy. McGruder v. Commonwealth, 487 S.W.3d 884, 2016 Ky. LEXIS 176 ( Ky. 2016 ).

11.—Dwelling.

A small room partitioned off in a cellar under a dwelling house was a part of the dwelling house, not a storehouse, and feloniously breaking therein was a burglary. (Decided under prior law) Mason v. Commonwealth, 101 Ky. 397 , 41 S.W. 305, 19 Ky. L. Rptr. 622 , 1897 Ky. LEXIS 210 ( Ky. 1897 ).

Where a building was erected as a dwelling house but tenant had removed therefrom, the tenant’s son leaving his wearing apparel and other articles therein, and continuing to claim the house his residence, retaining keys thereto, it was a dwelling house under law that provided penalty for breaking into a dwelling house with intent to steal. (Decided under prior law) Commonwealth v. Woolfolk, 121 Ky. 164 , 89 S.W. 110, 28 Ky. L. Rptr. 114 , 1905 Ky. LEXIS 187 ( Ky. 1905 ).

Burglary is breaking and entering the mansion house of another in the night with the intent to commit some felony within the same whether such felonious intent be executed or not. (Decided under prior law) Hayes v. Commonwealth, 171 Ky. 291 , 188 S.W. 415, 1916 Ky. LEXIS 362 ( Ky. 1916 ).

The fact the victims were in the process of moving and did not stay in the house the night of the burglary did not affect the status of the house as being “usually occupied by a person lodging therein.” Starnes v. Commonwealth, 597 S.W.2d 614, 1980 Ky. LEXIS 209 ( Ky. 1980 ).

Where the evidence showed that the house which was broken into was still infrequently used as it had customarily been used, as a dwelling, and that at no time was the house abandoned or totally emptied, the defendant was properly convicted for burglarizing a “dwelling.” Haynes v. Commonwealth, 657 S.W.2d 948, 1983 Ky. LEXIS 283 ( Ky. 1983 ). (Decision prior to 1980 amendment).

There is no absolute right on the part of one spouse to be with the other against the other’s wishes, giving a right to break into the home of the other with the intent to commit a crime; therefore, where the husband forcibly broke into a house owned by his wife’s brother and rented to her, he was not entitled to a directed verdict on the burglary charge because he had formerly shared occupancy of the premises. Matthews v. Commonwealth, 709 S.W.2d 414, 1985 Ky. LEXIS 257 ( Ky. 1985 ), cert. denied, 479 U.S. 871, 107 S. Ct. 245, 93 L. Ed. 2d 170, 1986 U.S. LEXIS 4150 (U.S. 1986).

12.—Intent.

While defendant contended he went to the house to confer with his wife and not with the intent to commit assault, he may be convicted of the crime of burglary if the jury finds that he knowingly entered the building with intent to commit a crime or that he remained unlawfully in the building with intent to commit a crime. McCarthy v. Commonwealth, 867 S.W.2d 469, 1993 Ky. LEXIS 139 ( Ky. 1993 ), overruled in part, Lawson v. Commonwealth, 53 S.W.3d 534, 2001 Ky. LEXIS 87 ( Ky. 2001 ).

The physical injury element of first-degree burglary impliedly requires that a defendant acted intentionally, knowingly, wantonly, or recklessly to cause the physical injury. McCombs v. Commonwealth, 2006 Ky. App. LEXIS 180 (Ky. Ct. App. June 23, 2006), modified, 2007 Ky. App. LEXIS 3 (Ky. Ct. App. Jan. 12, 2007).

Although the first-degree burglary statute, KRS 511.020(1)(b), does not expressly provide the culpable mental state(s) relevant to the physical injury element, such culpable mental states are necessarily implied. In KRS 511.020(1)(b) the General Assembly intended to broadly criminalize any conduct that causes physical injury and thus did not specify the required mens rea, and the General Assembly contemplated that all relevant culpable mental states be applied to the physical injury element of first-degree burglary. McCombs v. Commonwealth, 2006 Ky. App. LEXIS 180 (Ky. Ct. App. June 23, 2006), modified, 2007 Ky. App. LEXIS 3 (Ky. Ct. App. Jan. 12, 2007).

Trial court abused its discretion in excluding during the guilt phase of a first-degree burglary trial expert testimony relevant to a defense under KRS 501.080 that voluntary intoxication rendered defendant unable to form the specific-intent element of burglary; it was error to relegate the expert testimony to the penalty phase only. Weaver v. Commonwealth, 298 S.W.3d 851, 2009 Ky. LEXIS 328 ( Ky. 2009 ).

Trial court properly denied defendant’s motion for a directed verdict on a first-degree burglary charge because it was not unreasonable to conclude that he entered the victim’s apartment without permission, with the intent to sodomize him, and in doing so, caused him physical injury. Minter v. Commonwealth, 415 S.W.3d 614, 2013 Ky. LEXIS 635 ( Ky. 2013 ).

13.—Remaining Unlawfully.

Where defendant and his companions were invited into victim’s home, they were mere licensees whose license expired on the death of the victim and, accordingly, when they stayed to rob the dwelling, they remained unlawfully on the premises within the meaning of this section. Tribbett v. Commonwealth, 561 S.W.2d 662, 1978 Ky. LEXIS 328 ( Ky. 1978 ).

Evidence was insufficient to sustain a burglary conviction because the liquor store was open to the walk-in public, defendant entered the store armed with an unloaded revolver, defendant demanded money, the employee fired a gun at defendant, and defendant fled as quickly as possible. The employee’s firing of the gun revoked defendant’s license to remain in the store; defendant did not remain unlawfully, but rather he fled. Wilburn v. Commonwealth, 312 S.W.3d 321, 2010 Ky. LEXIS 52 ( Ky. 2010 ).

Postconviction relief should have been granted because appellant received ineffective assistance of counsel based on advice to plead guilty to second-degree burglary under KRS 511.030 by determining, without any research, that the absence of an ownership or rental agreement negated any lawful status on the premises; this rendered the plea not knowingly and voluntarily entered into. There was no dispute that appellant legally resided at the location at issue, and a showing of a tenancy-at-will that was not terminated would have constituted a defense against the burglary charge. Farmer v. Commonwealth, 2012 Ky. App. LEXIS 221 (Ky. Ct. App. Oct. 19, 2012).

Proposition stated in Bowling v. Commonwealth, 942 S.W.2d 293, that a license can be implicitly revoked from acts inconsistent with the purpose of the business, is obiter dictum. Therefore, appellant was entitled to a directed verdict of acquittal because the elements of first-degree burglary under KRS 511.020(1) were not satisfied; appellant entered a pharmacy open to the public, and his license to be there was not explicitly or implicitly revoked. Lewis v. Commonwealth, 392 S.W.3d 917, 2013 Ky. LEXIS 34 ( Ky. 2013 ).

14.Evidence.

In a burglary prosecution, arresting officer’s testimony that stolen articles were found in car in which accused and his accomplice were riding and that other articles were taken from the person of both at the same time was sufficient evidence to connect the accused with the stolen property and sustain conviction, even though officer could not specifically identify which articles were taken from the accused. (Decided under prior law) Scott v. Commonwealth, 303 Ky. 473 , 198 S.W.2d 53, 1946 Ky. LEXIS 879 ( Ky. 1946 ).

In a prosecution for burglary, a confession of the accused or his possession of the stolen property would be sufficient corroboration of an accomplice’s testimony to take case to jury. (Decided under prior law) Scott v. Commonwealth, 303 Ky. 473 , 198 S.W.2d 53, 1946 Ky. LEXIS 879 ( Ky. 1946 ).

In prosecution for housebreaking there is no requirement imposed on the Commonwealth to allege or prove the name or names of the owner or occupant of the house forcibly entered. (Decided under prior law) Dunn v. Commonwealth, 350 S.W.2d 709, 1961 Ky. LEXIS 130 ( Ky. 1961 ).

Where the defendant broke open a door at nighttime and entered the prosecutrix’s home, evidence was sufficient to sustain a verdict of guilty on a burglary charge. (Decided under prior law) Rayburn v. Commonwealth, 476 S.W.2d 187, 1972 Ky. LEXIS 379 ( Ky. 1972 ).

Where the defendant murdered his wife and mother-in-law and burglarized their home after a warrant had been issued charging him with burglary of the same house three (3) days earlier, there was no error in admitting the burglary warrant where there was other evidence tying the defendant to the previous break-in, and there were striking similarities between the vandalism on the previous occasion and the vandalism on the occasion of the burglary charged in the present indictment. Matthews v. Commonwealth, 709 S.W.2d 414, 1985 Ky. LEXIS 257 ( Ky. 1985 ), cert. denied, 479 U.S. 871, 107 S. Ct. 245, 93 L. Ed. 2d 170, 1986 U.S. LEXIS 4150 (U.S. 1986).

Where circumstantial evidence showed that defendant possessed a gun while in victim’s home, the jury was justified in disbelieving defendant’s testimony to the contrary and finding defendant guilty of first-degree burglary. Baker v. Commonwealth, 860 S.W.2d 760, 1993 Ky. LEXIS 89 ( Ky. 1993 ).

Recovered stolen property was credible evidence supporting convictions for second-degree and first-degree burglary. Riley v. Commonwealth, 91 S.W.3d 560, 2002 Ky. LEXIS 250 ( Ky. 2002 ).

Evidence that defendants unlawfully entered the victim’s residence for the purpose of committing a crime, that she was murdered while in her residence, that defendants robbed her, and were armed with deadly weapons while in immediate flight from the residence, was sufficient to convict them of murder, robbery in the first degree, and burglary in the first degree; it was immaterial to the robbery convictions that the theft may have occurred after the murder so long as the theft and murder were part of the same criminal episode. Caudill v. Commonwealth, 120 S.W.3d 635, 2003 Ky. LEXIS 140 ( Ky. 2003 ).

Admission of evidence of a murder/robbery victim’s character for being “very cautious” about who she let into her house to prove she acted in conformity therewith (i.e., that she did not invite defendants into her home on the night she was killed and thus they committed burglary) was harmless error, as defendants admitted at trial that they “unlawfully entered” the victim’s home. Caudill v. Commonwealth, 120 S.W.3d 635, 2003 Ky. LEXIS 140 ( Ky. 2003 ).

Because a co-conspirator in a robbery testified that defendant entered the residence, armed with a nine millimeter handgun, there was sufficient evidence to convict defendant of first degree robbery and first degree burglary as the testimony represented more than a mere scintilla of evidence from which jurors could find guilt beyond a reasonable doubt. Rice v. Commonwealth, 199 S.W.3d 732, 2006 Ky. LEXIS 190 ( Ky. 2006 ) sub. nom.Hester v. Commonwealth, 2006 Ky. Unpub. LEXIS 149 (Ky. Sept. 21, 2006).

Defendant’s presence in a gas station without a valid license, combined with his intent to steal money from the gas station, constituted a burglary under KRS 511.020 . Bowling v. Parker, 2012 U.S. Dist. LEXIS 88222 (E.D. Ky. June 26, 2012).

Defendant was not entitled to a directed verdict on the burglary charge, because there was evidence he and an accomplice entered the victim's residence with an intent to retrieve properly unlawfully from the victim or purchase illegal drugs, the accomplice carried a shotgun into the victim's residence, the victim asked the men to leave, and defendant shot the victim Williams v. Commonwealth, 486 S.W.3d 291, 2016 Ky. LEXIS 173 ( Ky. 2016 ).

Directed verdict of acquittal was properly denied as to the counts of first-degree robbery and first-degree burglary because an accomplice testified that he and defendant took a bag of marijuana from the victim's apartment; the chain of custody was sufficiently proven to overcome a directed verdict motion and to allow the evidence to be presented to the jury for its consideration; it was irrelevant whether the marijuana in the bag was real or not as the jury only had to believe that defendant was one of the assailants who went into the victim's apartment and stole his property; and the accomplice testified that he saw a gun and a cell phone in a bag used to carry the stolen items away that had not been there before. Forte v. Commonwealth, 2016 Ky. App. LEXIS 182 (Ky. Ct. App. Nov. 4, 2016).

15.—Identity.

Detective’s testimony in burglary prosecution that victim’s “eyes got larger” when he saw defendant’s photograph was inadmissible where it was intricately connected to evidence of threatening phone calls and an attempt to bolster the victim’s identification of defendant. McGuire v. Commonwealth, 573 S.W.2d 360, 1978 Ky. App. LEXIS 609 (Ky. Ct. App. 1978).

16.—Prejudicial.

Admission of evidence of threatening phone calls received by witness to burglary, where witness could not identify the caller, was prejudicial error. McGuire v. Commonwealth, 573 S.W.2d 360, 1978 Ky. App. LEXIS 609 (Ky. Ct. App. 1978).

The trial court, in a prosecution for first-degree burglary and attempted first-degree rape, committed prejudicial error when it permitted the jury to experiment on items which were not, and could not have been, admitted in evidence. Smith v. Commonwealth, 645 S.W.2d 707, 1983 Ky. LEXIS 217 ( Ky. 1983 ).

17.Instructions.

The gravamen of the common-law crime of burglary is that there be a forcible breaking into a dwelling in the nighttime. An instruction authorizing a conviction merely if the defendant unlawfully, willfully and feloniously “entered” the dwelling is erroneous. (Decided under prior law) Carter v. Commonwealth, 196 Ky. 47 , 244 S.W. 321, 1922 Ky. LEXIS 473 ( Ky. 1922 ), disapproved, Gibson v. Commonwealth, 204 Ky. 748 , 265 S.W. 339, 1924 Ky. LEXIS 585 ( Ky. 1924 ).

The trial court’s failure to instruct the jury upon criminal trespass was error, since it is always the duty of a trial court to instruct a jury on lesser included offenses when it is so requested and it is justified by the evidence. Martin v. Commonwealth, 571 S.W.2d 613, 1978 Ky. LEXIS 392 ( Ky. 1978 ).

Where there was not a shred of evidence to indicate that the burglary occurred during the day or other than at night, the trial court properly refused to give the tendered instruction on third-degree burglary. Eversole v. Commonwealth, 575 S.W.2d 457, 1978 Ky. LEXIS 452 ( Ky. 1978 ).

Where the jury could have believed the defendant’s testimony that he had no intent to commit a crime when he entered the room and was guilty of criminal trespass only, but there was no instruction to the jury which would permit it to find that the defendant entered the apartment unlawfully, but without an intent at that time, to commit a crime, the defendant’s conviction of first-degree burglary was reversed. McClellan v. Commonwealth, 715 S.W.2d 464, 1986 Ky. LEXIS 274 ( Ky. 1986 ), cert. denied, 479 U.S. 1057, 107 S. Ct. 935, 93 L. Ed. 2d 986, 1987 U.S. LEXIS 379 (U.S. 1987).

Where a separate instruction on first degree burglary was given as to each defendant and for conviction the jury was required to find in each case that the defendant himself was armed with a deadly weapon, not that any participant was so armed, and where instruction on first degree by complicity required for conviction that defendant intended that another defendant would commit first degree burglary, it was consistent for the jury to find that defendant was armed with a deadly weapon and thus guilty of first degree burglary, while his co-defendants were unarmed and unaware that defendant was armed and thus were guilty of second degree burglary. Skinner v. Commonwealth, 864 S.W.2d 290, 1993 Ky. LEXIS 149 ( Ky. 1993 ).

In instructing a jury on fourth degree assault under KRS 508.030 and first degree burglary under KRS 511.020 , the trial court erroneously inserted the term “crowbar” for the terms “dangerous instrument” and/or “deadly weapon,” thereby committing reversible error. A crowbar, as a matter of law, was not a deadly weapon, it was a tool, and whether the crowbar constituted a dangerous instrument was, in view of the disputed testimony, a fact question for the jury to decide. McCombs v. Commonwealth, 2006 Ky. App. LEXIS 180 (Ky. Ct. App. June 23, 2006), modified, 2007 Ky. App. LEXIS 3 (Ky. Ct. App. Jan. 12, 2007).

Insertion of the term “crowbar” in the jury instructions where the terms “deadly weapon” and “dangerous instrument” were used by the burglary and assault statutes (KRS 511.020 and 508.030 ) was harmless error as a deadly weapon included a billy, nightstick, or club under KRS 500.080(4)(d), and a crowbar was very similar to a nightstick or billyclub when wielded as a weapon; there was substantial evidence that defendant used the crowbar as a metal club in defendant’s attack on the victim. Commonwealth v. McCombs, 304 S.W.3d 676, 2009 Ky. LEXIS 61 ( Ky. 2009 ), modified, 2010 Ky. LEXIS 139 (Ky. Mar. 18, 2010).

Defendant's right to an unanimous verdict was not violated because the evidence consisted of only one criminal act on which liability could be found for robbery and one criminal act on which liability could be found for burglary as the Commonwealth presented evidence that defendant assisted in the planning and execution of the robbery; the Commonwealth clearly supported alternative theories that defendant acted as either a principle or an accomplice as to both the robbery and burglary charges; and the instructions were not so confusing or misleading as to lead the jury to believe that more than one criminal act was committed and that it could find guilt based on either one. Forte v. Commonwealth, 2016 Ky. App. LEXIS 182 (Ky. Ct. App. Nov. 4, 2016).

18.Lesser Included Offenses.

Criminal trespass in the third degree is not a lesser included offense of burglary since to prove guilt of criminal trespass in the third degree, the Commonwealth is required to prove that the defendant entered upon the victim’s unimproved land and proof of that fact is not necessary to convict of any degree of burglary. Colwell v. Commonwealth, 37 S.W.3d 721, 2000 Ky. LEXIS 202 ( Ky. 2000 ).

Trial court’s denial of defendant’s request to instruct the jury on voyeurism, under KRS 531.090(1), as a lesser included offense of burglary under KRS 511.020(1), was not error, as voyeurism was not a lesser included offense of burglary where proof of the fact that defendant entered or remained unlawfully for the purpose of viewing another individual’s body or sexual conduct was not a required element of burglary. Morgan v. Commonwealth, 189 S.W.3d 99, 2006 Ky. LEXIS 12 ( Ky. 2006 ), overruled, Shane v. Commonwealth, 243 S.W.3d 336, 2007 Ky. LEXIS 262 ( Ky. 2007 ), overruled in part, Roe v. Commonwealth, 2015 Ky. LEXIS 2080 (Ky. Sept. 24, 2015).

Where defendant went to his mother-in-law’s home where his estranged wife was residing after leaving him and where defendant killed her and was convicted of murder, first-degree burglary, and first-degree wanton endangerment, the trial court did not err in refusing to instruct the jury on criminal trespass as a lesser-included offense of burglary because the evidence was overwhelming that defendant intended to commit a crime; if defendant did not intend to murder the victim, he at least intended to harass, menace, threaten, or wantonly endanger the victim. Hunt v. Commonwealth, 2009 Ky. LEXIS 292 (Ky. Nov. 25, 2009), sub. op., 304 S.W.3d 15, 2009 Ky. LEXIS 346 ( Ky. 2009 ), modified, 2010 Ky. LEXIS 138 (Ky. Mar. 18, 2010).

Trial court did not err in denying a jury instruction on facilitation as a lesser-included offense to the complicity charges for robbery, burglary, and assault because, although the jury might choose to disbelieve part of the testimony of the two accomplices, that did not constitute evidence of the lesser mental state required for a facilitation instruction; and because defendant presented no evidence demonstrating that he was wholly indifferent to the completion of the crime. Forte v. Commonwealth, 2016 Ky. App. LEXIS 182 (Ky. Ct. App. Nov. 4, 2016).

Cited in:

Wilhite v. Commonwealth, 574 S.W.2d 304, 1978 Ky. LEXIS 447 ( Ky. 1978 ); Van Dyke v. Commonwealth, 581 S.W.2d 563, 1979 Ky. LEXIS 257 ( Ky. 1979 ); Wiley v. Sowders, 647 F.2d 642, 1981 U.S. App. LEXIS 13929 (6th Cir. 1981); Wiley v. Sowders, 669 F.2d 386, 1982 U.S. App. LEXIS 22724 (6th Cir. 1982); Haymon v. Commonwealth, 657 S.W.2d 239, 1983 Ky. LEXIS 269 ( Ky. 1983 ); Commonwealth v. Richardson, 674 S.W.2d 515, 1984 Ky. LEXIS 264 ( Ky. 1984 ); Phillips v. Commonwealth, 679 S.W.2d 235, 1984 Ky. LEXIS 296 ( Ky. 1984 ); Skaggs v. Parker, 27 F. Supp. 2d 952, 1998 U.S. Dist. LEXIS 21264 (W.D. Ky. 1998 ); Grundy v. Commonwealth, 25 S.W.3d 76, 2000 Ky. LEXIS 107 ( Ky. 2000 ); Colvard v. Commonwealth, 309 S.W.3d 239, 2010 Ky. LEXIS 62 ( Ky. 2010 ).

Opinions of Attorney General.

“Dwelling” means a building that is usually occupied by a person lodging therein, including a home, apartment, sleeping room or other shelter in which a person normally lives, whether or not a person was present at the time of entering and remaining therein. OAG 78-721 , 78-458.

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Ashdown, Criminal Law, 64 Ky. L.J. 337 (1975-76).

Kentucky Law Survey, Brice and Taylor, Criminal Law, 67 Ky. L.J. 569 (1978-1979).

Kentucky Law Survey, Malone and Malone, Criminal Law, 69 Ky. L.J. 545 (1980-81).

Kentucky Law Survey, Patterson, Juvenile Code, 70 Ky. L.J. 343 (1981-82).

Kentucky Law Survey, Fowler, Evidence, 73 Ky. L.J. 407 (1984-85).

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Damage To or Intrusion Upon Property, Part 2 Burglary and Trespass, § 5.07.

511.030. Burglary in the second degree.

  1. A person is guilty of burglary in the second degree when, with the intent to commit a crime, he knowingly enters or remains unlawfully in a dwelling.
  2. Burglary in the second degree is a Class C felony.

History. Enact. Acts 1974, ch. 406, § 98, effective January 1, 1975; 1978, ch. 125, § 2, effective June 17, 1978; 1980, ch. 376, § 3, effective July 15, 1980.

NOTES TO DECISIONS

Analysis

1.In General.

The drafters of the 1978 amendments to KRS 511.020 , this section and KRS 511.040 meant to base the second degree/third degree distinction on the presence or absence of persons in the building at the time of the burglary, because the potential for physical injury is made greater by the presence of other persons who may be encountered in the process of the burglary. Litton v. Commonwealth, 597 S.W.2d 616, 1980 Ky. LEXIS 210 ( Ky. 1980 ).

2.Double Jeopardy.

Convictions of both theft and burglary are not double jeopardy. Campbell v. Commonwealth, 732 S.W.2d 878, 1987 Ky. LEXIS 225 ( Ky. 1987 ).

3.Elements.

Second-degree burglary is committed only when a person or persons, other than the burglary or burglars, are present in the building at the time of the burglary. Litton v. Commonwealth, 597 S.W.2d 616, 1980 Ky. LEXIS 210 ( Ky. 1980 ).

Second-degree burglary in Kentucky, KRS 511.030 , was “violent felony” within 18 U.S.C.S. § 924(e) and defendants’ prior crimes amounted to violent felonies; defendant’s argument concerning counsel did not fall within the exception to the rule that a defendant may not use a § 924(e) sentencing hearing to attack a prior state conviction collaterally. United States v. Jenkins, 528 Fed. Appx. 483, 2013 FED App. 0560N, 2013 U.S. App. LEXIS 11758 (6th Cir. Ohio), cert. denied, 571 U.S. 980, 134 S. Ct. 488, 187 L. Ed. 2d 330, 2013 U.S. LEXIS 7659 (U.S. 2013), cert. denied, 571 U.S. 965, 134 S. Ct. 455, 187 L. Ed. 2d 304, 2013 U.S. LEXIS 7272 (U.S. 2013).

4.—Domestic Violence Orders.

The mere violation of a domestic violence protection order (DOV) without an intent to commit a crime is impermissible to support a finding of burglary. Hedges v. Commonwealth, 937 S.W.2d 703, 1996 Ky. LEXIS 122 ( Ky. 1996 ).

5.—Dwelling.

A home which had been irreparably damaged by a tornado, was uninhabitable and scheduled for demolition, and was not fit for usual occupation by a person lodging therein was not a dwelling, and the defendant could not be found guilty of second-degree burglary for entering it, although he might have been guilty of a lesser or theft offense. Shackelford v. Commonwealth, 757 S.W.2d 193, 1988 Ky. App. LEXIS 3 (Ky. Ct. App. 1988).

A cellar or basement would be considered part and parcel of the dwelling, for the purposes of KRS 511.010 , whether it could be reached from the interior of the house or only from an exterior door. Stewart v. Commonwealth, 793 S.W.2d 859, 1990 Ky. App. LEXIS 114 (Ky. Ct. App. 1990).

Screened-in porch, which was attached to house and completely contained under the roof of the house, satisfied the test of “contributing materially to the comfort and convenience of habitation in the dwelling house,” and qualifed as part of the “dwelling.” Johnson v. Commonwealth, 875 S.W.2d 105, 1994 Ky. App. LEXIS 43 (Ky. Ct. App. 1994).

Question of whether a screened-in porch constituted part of the “dwelling” for purposes of this section was a question of law for the trial judge. Johnson v. Commonwealth, 875 S.W.2d 105, 1994 Ky. App. LEXIS 43 (Ky. Ct. App. 1994).

Where the occupant of the house had recently passed away when defendant burglarized the occupant’s house, the house was still considered to be a dwelling pursuant to KRS 511.010(2) that could support a second-degree burglary conviction under KRS 511.030(1), because a dwelling included buildings that were occupied in the immediate past by a recently deceased resident. Cochran v. Commonwealth, 114 S.W.3d 837, 2003 Ky. LEXIS 206 ( Ky. 2003 ), overruled in part, Castle v. Commonwealth, 411 S.W.3d 754, 2013 Ky. LEXIS 460 ( Ky. 2013 ).

As Kentucky’s second-degree burglary statute categorically qualified as generic burglary under the Armed Career Criminal Act (ACCA) and satisfied the ACCA’s enumerated-offenses clause because it limited its proscription to “dwellings,” it was a “violent felony” that was properly used to enhance defendant’s felon-in-possession-of-a-firearm sentence. United States v. Malone, 889 F.3d 310, 2018 FED App. 0088P, 2018 U.S. App. LEXIS 11973 (6th Cir. Tenn. 2018), cert. denied, 139 S. Ct. 1323, 203 L. Ed. 2d 573, 2019 U.S. LEXIS 2015 (U.S. 2019).

6.Indictment.

It was not necessary that the phrase “with intent to commit a crime” be contained in an indictment for second-degree burglary. Godsey v. Commonwealth, 661 S.W.2d 2, 1983 Ky. App. LEXIS 399 (Ky. Ct. App. 1983).

Where charges against juvenile for third-degree burglary and second-degree criminal mischief were raised to second-degree and first-degree, respectively, after commencement of the trial, but in both cases complaints clearly stated facts to support the raised charges, and where juvenile proceeding took place under the Unified Juvenile Code which makes no distinctions between felonies and misdemeanors, defects were not tantamount to an additional or different offense, and did not mislead the defendant or cause him to suffer any prejudice. A.E. v. Commonwealth, 860 S.W.2d 790, 1993 Ky. App. LEXIS 98 (Ky. Ct. App. 1993).

7.Instructions.

Where defendant in second-degree burglary prosecution admitted to taking the property belonging to the owner of the burglarized home, the evidence did not justify an instruction on the lesser included offense of criminal trespass. Godsey v. Commonwealth, 661 S.W.2d 2, 1983 Ky. App. LEXIS 399 (Ky. Ct. App. 1983).

Where there was direct evidence of defendant’s commission of burglary and the defense was alibi, the trial court properly refused to give an instruction on criminal trespass, since there was no evidence or circumstance from which the jury could have inferred that defendant was present in the house with no intent to commit a crime, and evidence showed that items of value were stolen. Commonwealth v. Sanders, 685 S.W.2d 557, 1985 Ky. LEXIS 205 ( Ky. 1985 ).

8.Evidence.

While on trial for second-degree burglary and for theft by unlawful taking, the accused waived any objection to the taking of fingerprints during trial when he denied that they were his fingerprints found at the scene of the burglary. Frank v. Commonwealth, 907 S.W.2d 771, 1995 Ky. LEXIS 127 ( Ky. 1995 ).

In prosecution for burglary where defendant, who was under a domestic violence protection order (DOV), after being admitted by his wife to her apartment, broke into wife’s bedroom after hearing noises and observed a man leaving by the window, proceeded to break several items and grab his wife by the neck, since there was no evidence to show that defendant knew his permission to be in the apartment had been withdrawn and while wife asked defendant to stop what he was doing and to stop damaging their property, this was not sufficient to constitute a revoking of the privilege she gave him to be in the apartment and if she did revoke her permission it was not until after he had already destroyed the property and thus he did not unlawfully remain or have the intent to commit a crime in his wife’s apartment and therefore cannot be guilty of burglary under subsection (1) of this section. Hedges v. Commonwealth, 937 S.W.2d 703, 1996 Ky. LEXIS 122 ( Ky. 1996 ).

Where defendant, who was under a domestic violence emergency protective order regarding his wife which order did not contain a no contact provision, sought admission to wife’s apartment and was admitted after wife had her male visitor wait in locked bedroom and defendant hearing a noise in the bedroom, went to investigate, forced the door and observed the friend diving out the window, whereupon the defendant proceeded to break several items and grab his wife by the neck, the facts do not support a finding that an assault occurred since no weapon or dangerous instrument was used and since there was no serious injury, and as the facts did not support a finding of assault and therefore the “intent to commit a crime” element of KRS 511.030(1) cannot be satisfied court’s overruling of defendant’s motion for directed verdict on burglary charge was error. Hedges v. Commonwealth, 937 S.W.2d 703, 1996 Ky. LEXIS 122 ( Ky. 1996 ).

Evidence was sufficient to support a conviction since the victim was hit by the defendant after the victim opened his door in answer to a knock by the defendant and while he was standing inside the house, and the opening of the door by the victim did not constitute an explicit or implicit invitation to the defendant to enter the house. Fletcher v. Commonwealth, 59 S.W.3d 920, 2001 Ky. App. LEXIS 20 (Ky. Ct. App. 2001).

Trial court erred by excluding defendant’s testimony concerning his seizures on redirect examination under KRE. 611(a). The Commonwealth opened the door when it asked defendant whether he had ever wandered off after a seizure, and his defense to the burglary charge was that he suffered a seizure, became confused, and wandered into the wrong house; the fact that defendant had suffered the same side-effect after a seizure on a previous occasion was relevant and probative. Jackson v. Commonwealth, 2011 Ky. App. LEXIS 238 (Ky. Ct. App. Dec. 16, 2011, sub. op., 2011 Ky. App. Unpub. LEXIS 990 (Ky. Ct. App. Dec. 16, 2011).

Trial court properly denied defendant’s motion for a directed verdict on the burglary charge against him because given the evidence that a window of the residence was open, jewelry was allegedly out of place, and defendant was observed coming out of the residence, it was not unreasonable for a jury to find defendant guilty of burglary in the second degree. Jackson v. Commonwealth, 2011 Ky. App. LEXIS 238 (Ky. Ct. App. Dec. 16, 2011, sub. op., 2011 Ky. App. Unpub. LEXIS 990 (Ky. Ct. App. Dec. 16, 2011).

9.—Prior Offenses.

A person accused of burglary can be impeached by a prior burglary conviction, provided that the trial court determines that the defendant will not be unduly prejudiced by the introduction of such evidence. Diehl v. Commonwealth, 673 S.W.2d 711, 1984 Ky. LEXIS 260 ( Ky. 1984 ).

The determination as to whether prior felony convictions are too remote in time to be used to impeach a witness’ testimony rests within the sound discretion of the trial court, and the court did not abuse its discretion in ruling that the defendant’s prior burglary convictions which occurred ten and 12 years prior to his present trial for burglary were not too remote in time to be used for impeachment purposes if the defendant chose to testify. Diehl v. Commonwealth, 673 S.W.2d 711, 1984 Ky. LEXIS 260 ( Ky. 1984 ).

10.Lesser Included Offenses.

Criminal trespass in the third degree is not a lesser included offense of burglary since to prove guilt of criminal trespass in the third degree, the Commonwealth is required to prove that the defendant entered upon the victim’s unimproved land and proof of that fact is not necessary to convict of any degree of burglary. Colwell v. Commonwealth, 37 S.W.3d 721, 2000 Ky. LEXIS 202 ( Ky. 2000 ).

Trial court did not err by refusing to give jury instructions on second-degree burglary under KRS 511.030(1) and second-degree robbery under KRS 515.030(1) during defendant’s trial on charges of first-degree robbery and first-degree burglary because they were not warranted by the evidence, particularly the overwhelming and uncontradicted evidence that the intruder caused the victim physical injury. The victim testified that the intruder hit him with a gun and that he suffered a sprained ankle fleeing from the intruder, a man who helped the victim testified that he was bleeding from his face and feet, and a detective testified that the victim appeared to be in shock and was obviously beaten. Johnson v. Commonwealth, 327 S.W.3d 501, 2010 Ky. LEXIS 300 ( Ky. 2010 ).

11.Separate Offenses.

Receiving stolen property is a separate offense and not a lesser included offense of burglary; an individual may be convicted of both of these crimes if he is charged with them in the indictment. Macklin v. Commonwealth, 687 S.W.2d 540, 1984 Ky. App. LEXIS 616 (Ky. Ct. App. 1984).

12.Unlawful Entry.

Postconviction relief should have been granted because appellant received ineffective assistance of counsel based on advice to plead guilty to second-degree burglary under KRS 511.030 by determining, without any research, that the absence of an ownership or rental agreement negated any lawful status on the premises; this rendered the plea not knowingly and voluntarily entered into. There was no dispute that appellant legally resided at the location at issue, and a showing of a tenancy-at-will that was not terminated would have constituted a defense against the burglary charge. Farmer v. Commonwealth, 2012 Ky. App. LEXIS 221 (Ky. Ct. App. Oct. 19, 2012).

13.Miscellaneous.

Where an inmate appealed denial of his 28 U.S.C.S. § 2241 petition, Kentucky second-degree burglary qualified as a predicate offense for the Armed Career Criminal Act (ACCA) enhancement, and even if he could overcome all the procedural obstacles to his petition, he was properly sentenced under the ACCA. Shepherd v. Krueger, 911 F.3d 861, 2018 U.S. App. LEXIS 36513 (7th Cir. Ind. 2018), cert. denied, 139 S. Ct. 1582, 203 L. Ed. 2d 740, 2019 U.S. LEXIS 2596 (U.S. 2019).

Cited in:

James v. Commonwealth, 647 S.W.2d 794, 1983 Ky. LEXIS 230 ( Ky. 1983 ), rev’d, James v. Kentucky, 466 U.S. 341, 104 S. Ct. 1830, 80 L. Ed. 2d 346, 1984 U.S. LEXIS 61 (1984); Phillips v. Commonwealth, 679 S.W.2d 235, 1984 Ky. LEXIS 296 ( Ky. 1984 ); Bagby v. Sowders, 853 F.2d 1340, 1988 U.S. App. LEXIS 10845 (6th Cir. 1988); Nichols v. Commonwealth, 839 S.W.2d 263, 1992 Ky. LEXIS 143 ( Ky. 1992 ); D.F. v. Commonwealth, 2006 Ky. App. LEXIS 81 (Ky. Ct. App. 2006).

Notes to Unpublished Decisions

1.In General.

Unpublished decision: Where a defendant appealed his sentence for violating 18 U.S.C.S. § 922(g)(1), his status as an armed career criminal under U.S. Sentencing Guidelines Manual § 4B1.4 was based on the finding that he met the statutory requirements for an enhanced sentence under 18 U.S.C.S. § 924(e)(1); he had three second-degree felony burglary convictions under Ky. Rev. Stat. Ann. § 511.030(1). United States v. Shepherd, 2011 U.S. App. LEXIS 26847 (6th Cir. Ky. May 4, 2011).

Opinions of Attorney General.

Examples of an inhabited building within the meaning of this section include an office, warehouse, store, barn, church, tent, camper-trailer in which a person was physically present at the time of entry or during the time the offender remained. OAG 78-721 .

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Brice and Taylor, Criminal Law, 67 Ky. L.J. 569 (1978-1979).

Kentucky Law Survey, Malone and Malone, Criminal Law, 69 Ky. L.J. 545 (1980-81).

West, Criminal Law, 74 Ky. L.J. 403 (1985-86).

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Damage To or Intrusion Upon Property, Part 2 Burglary and Trespass, §§ 5.07, 5.08.

511.040. Burglary in the third degree.

  1. A person is guilty of burglary in the third degree when, with the intent to commit a crime, he knowingly enters or remains unlawfully in a building.
  2. Burglary in the third degree is a Class D felony.

History. Enact. Acts 1974, ch. 406, § 99, effective January 1, 1975; 1978, ch. 125, § 3, effective June 17, 1978; 1980, ch. 376, § 4, effective July 15, 1980.

NOTES TO DECISIONS

1.In General.

The drafters of the 1978 amendments to KRS 511.020 , 511.030 and this section meant to base the second degree/third degree distinction on the presence or absence of persons in the building at the time of the burglary, because the potential for physical injury is made greater by the presence of other persons who may be encountered in the process of the burglary. Litton v. Commonwealth, 597 S.W.2d 616, 1980 Ky. LEXIS 210 ( Ky. 1980 ).

Remand was required in sentencing of defendant under Armed Career Criminal Act, 18 U.S.C.S. § 924(e) because the record was not sufficiently developed to undertake the modified categorical analysis to determine whether defendant's three prior third-degree burglary convictions under Kentucky law qualified as violent felonies since Kentucky law defined a burglary offense broader than generic burglary since the statutes covered break-ins of buildings, vehicles, watercraft, and aircraft, and Kentucky's third-degree burglary statute was divisible. United States v. Brumback, 614 Fed. Appx. 288, 2015 FED App. 0420N, 2015 U.S. App. LEXIS 9679 (6th Cir. Ky. 2015 ).

2.Double Jeopardy.

Convictions of both theft and burglary are not double jeopardy. Campbell v. Commonwealth, 732 S.W.2d 878, 1987 Ky. LEXIS 225 ( Ky. 1987 ).

Defendant’s retrial on burglary in the third degree under KRS 511.040 was barred by double jeopardy pursuant to Ky. Const., § 13; the jury was called on to consider two (2) distinct offenses, complicity to burglary and burglary in the third degree, and the jury convicted defendant of complicity to burglary, thereby necessarily acquitting defendant of burglary in the third degree. McKenzie v. Commonwealth, 2005 Ky. App. LEXIS 54 (Ky. Ct. App. Mar. 4, 2005), rev'd, 214 S.W.3d 306, 2007 Ky. LEXIS 22 ( Ky. 2007 ).

3.Elements.

Mere breaking into the warehouse with a felonious intent to steal therefrom property of value was sufficient to constitute an offense without actually taking such property, the fact that accused did not steal anything of value while in the building being due to his arrest before the larceny could be accomplished. (Decided under prior law) Mulligan v. Commonwealth, 144 Ky. 246 , 137 S.W. 1062, 1911 Ky. LEXIS 589 ( Ky. 1911 ).

The crime of “storehouse breaking” requires both a felonious breaking and an intent to steal and use of the slightest force is sufficient to constitute “breaking”; thus the intent was sufficiently shown by evidence that watchman heard crash of broken glass, saw and heard door slam, that accused fled from the scene, was caught and then escaped. (Decided under prior law) Kidd v. Commonwealth, 273 Ky. 300 , 116 S.W.2d 636, 1938 Ky. LEXIS 630 ( Ky. 1938 ).

It is not essential to a conviction that property be actually taken. It is sufficient if there is a breaking with intent to steal. (Decided under prior law) Bryant v. Commonwealth, 293 Ky. 149 , 168 S.W.2d 587, 1943 Ky. LEXIS 579 ( Ky. 1943 ); Broughton v. Commonwealth, 303 Ky. 18 , 196 S.W.2d 890, 1946 Ky. LEXIS 788 ( Ky. 1946 ); Keathley v. Commonwealth, 258 S.W.2d 699, 1953 Ky. LEXIS 868 ( Ky. 1953 ).

An actual taking of property is not necessary to constitute the crime of housebreaking. The gravamen of the crime is the felonious breaking with intent to steal, and only slight force is necessary to constitute “breaking.” (Decided under prior law) Norris v. Commonwealth, 307 Ky. 675 , 212 S.W.2d 120, 1948 Ky. LEXIS 812 ( Ky. 1948 ).

4.—Attempted Burglary.

Where defendants had only broken through the concrete blocks to the air pockets, where no part of the body or an instrument had extended into the interior of the building, where air pockets of concrete blocks were not a protected space absent some showing of something of value in the particular wall which could be the subject of the crime, and where the men were still attempting to get through the blocks to the point of entering the store when apprehended, the maximum charge under which they could be convicted would be attempted third-degree burglary which is a Class A misdemeanor pursuant to KRS 506.010 . Stamps v. Commonwealth, 602 S.W.2d 172, 1980 Ky. LEXIS 239 ( Ky. 1980 ).

5.—Building.

Because a zoo did not qualify as a “structure” or a “building” under KRS ch. 511, the evidence was insufficient to support defendant’s conviction for third-degree burglary and theft by unlawful taking over $300 under KRS 511.040(1) after defendant entered the zoo and stole money from vending machines. Kiser v. Commonwealth, 289 S.W.3d 589, 2008 Ky. App. LEXIS 367 (Ky. Ct. App. 2008).

Trial court did not abuse its discretion in prohibiting defense counsel from arguing that defendant's possession of an opened bar of soap showed he did not intend to commit a crime in the building because the attempted inference did not actually raise a viable defense; the unauthorized use of the unlawfully entered building's bathtub or sink would itself be a crime since it involves the theft of the building owner's water. McGruder v. Commonwealth, 487 S.W.3d 884, 2016 Ky. LEXIS 176 ( Ky. 2016 ).

6.—Dwelling.

A cellar or basement would be considered part and parcel of the dwelling, for the purposes of KRS 511.010 , whether it could be reached from the interior of the house or only from an exterior door. Stewart v. Commonwealth, 793 S.W.2d 859, 1990 Ky. App. LEXIS 114 (Ky. Ct. App. 1990).

7.—Entry.

It was a violation of law that provided penalty for breaking into a dwelling house with intent to steal where the defendant, a laborer living in the house with the owner, obtained a key under the pretense of removing his own property and then entered the house and took away property other than his own. (Decided under prior law) Young v. Commonwealth, 126 Ky. 474 , 104 S.W. 266, 31 Ky. L. Rptr. 842 , 1907 Ky. LEXIS 59 ( Ky. 1907 ).

Where the entry into the building was made exclusively with intent and purpose of procuring entrant’s property in the building, upon which owner had no lien or other interest, yet if other property not belonging to the entrant was taken therefrom and appropriated with intent to convert to his own use and deprive owner of it, the crime was committed. (Decided under prior law) Bradley v. Commonwealth, 195 Ky. 432 , 242 S.W. 610, 1922 Ky. LEXIS 336 ( Ky. 1922 ).

Where the defendant testified the door was partially open but the owners testified it was securely locked and barred, the testimony was sufficient to make it a jury question. (Decided under prior law) Whitaker v. Commonwealth, 479 S.W.2d 592, 1972 Ky. LEXIS 298 ( Ky. 1972 ).

8.—Intent.

Forcibly entering or breaking into a railroad depot, factory, railroad station or railroad car with mere intent to steal therefrom a thing of value is a felony, though no overt act be done. (Decided under prior law) Arthur v. Commonwealth, 99 Ky. 35 , 34 S.W. 900, 17 Ky. L. Rptr. 1351 , 1896 Ky. LEXIS 45 ( Ky. 1896 ).

The prosecution must show an entry for purpose of stealing, though an entry, however slight, such as putting the hand through an opening with intent to steal is sufficient. Proof that accused cut seal on car door and slid it back a little and then pushed door back in place and walked away is insufficient. (Decided under prior law) Price v. Commonwealth, 129 Ky. 716 , 112 S.W. 855, 1908 Ky. LEXIS 213 ( Ky. 1908 ).

The fact of the breaking may create an inference of intent to steal. (Decided under prior law) Patterson v. Commonwealth, 251 Ky. 395 , 65 S.W.2d 75, 1933 Ky. LEXIS 879 ( Ky. 1933 ). See Kidd v. Commonwealth, 273 Ky. 300 , 116 S.W.2d 636, 1938 Ky. LEXIS 630 ( Ky. 1938 ).

Where defendant had placed a coin-operated Victrola with a storekeeper under a rental agreement by which the storekeeper was to receive a portion of the coins placed in the machine, the intent of the defendant to break into the store and recover possession of the Victrola constituted an intent to steal, since the taking would constitute a theft as to the portion of the coins in the machine that belonged to the storekeeper. (Decided under prior law) Evans v. Commonwealth, 299 Ky. 273 , 184 S.W.2d 981, 1945 Ky. LEXIS 397 ( Ky. 1945 ).

The gravamen of the offense of breaking into a storehouse with intent to steal is the felonious breaking with intent to steal and not the actual taking of property; however, it was competent to prove that goods were taken from the building broken into for the purpose of establishing the intent with which the breaking was done but it was not necessary to prove that the accused actually stole or carried away anything. (Decided under prior law) Wilson v. Commonwealth, 258 S.W.2d 497, 1953 Ky. LEXIS 848 ( Ky. 1953 ).

Since a peace officer’s right to enter a storehouse was predicated on protection of property, where he entered the shop “for the purpose of carrying out a previously formed design to steal,“ he shed his official immunity at the door and broke and entered feloniously. (Decided under prior law) Green v. Commonwealth, 488 S.W.2d 339, 1972 Ky. LEXIS 39 ( Ky. 1972 ).

9.—Protected Space.

Air pockets of concrete blocks are not a protected space within the meaning of this section absent some showing of something of value in the particular wall which could be the subject of the crime. Stamps v. Commonwealth, 602 S.W.2d 172, 1980 Ky. LEXIS 239 ( Ky. 1980 ).

10.—Presence of Other Persons.

Second-degree burglary is committed only when a person or persons, other than the burglar or burglars, are present in the building at the time of the burglary. Litton v. Commonwealth, 597 S.W.2d 616, 1980 Ky. LEXIS 210 ( Ky. 1980 ).

11.Evidence.

It is unnecessary for Commonwealth to show that property taken belonged to named company, but it is sufficient to show that they were articles of value taken from storehouse by breaking in. (Decided under prior law) Tartar v. Commonwealth, 274 Ky. 109 , 118 S.W.2d 190, 1938 Ky. LEXIS 237 ( Ky. 1938 ).

Where defendant had made a quasi confession of his part in the robbery, had possession of the stolen goods, and had driven with others to the scene of the robbery, though he did not enter the store or participate in the actual taking of the goods, this was sufficient to submit the case to the jury. (Decided under prior law) Miller v. Commonwealth, 285 Ky. 251 , 147 S.W.2d 394, 1941 Ky. LEXIS 364 ( Ky. 1941 ).

In prosecution for breaking into a dwelling house and stealing a pistol, where defendant claimed that the pistol, which was found in his possession, had been purchased by him from another person, evidence offered by defendant as to numerous thefts committed by the other person, and as to the latter’s reputation of being a thief, was irrelevant and incompetent. (Decided under prior law) Wilson v. Commonwealth, 303 Ky. 219 , 197 S.W.2d 240, 1946 Ky. LEXIS 815 ( Ky. 1946 ).

In a prosecution for storehouse breaking where the defendant’s alibi was that he was at his mother’s home at the time the crime was committed but the evidence offered in behalf of the Commonwealth was clearly sufficient to make an issue for the jury, the Court of Appeals would not usurp the jury’s function and reach a different conclusion on the question of fact. (Decided under prior law) Keathley v. Commonwealth, 258 S.W.2d 699, 1953 Ky. LEXIS 868 ( Ky. 1953 ).

Where evidence only shows that the defendant was at the store which was broken into on the night the break-in occurred, and that he removed gas from a pump that could not be operated unless a switch inside the store was turned on, this was not sufficient to sustain a conviction. (Decided under prior law) Baker v. Commonwealth, 288 S.W.2d 56, 1956 Ky. LEXIS 246 ( Ky. 1956 ).

In light of testimony that the window of the store was pried open, the cash register was broken into, a bag of burglary tools was found in the building, and that the defendant was found hiding in the back of the building, the introduction of tools referred to as “burglary tools” without properly identifying them was not a prejudicial error. (Decided under prior law) Eastham v. Commonwealth, 390 S.W.2d 136, 1965 Ky. LEXIS 331 ( Ky. 1965 ).

All evidence which is pertinent to the issue and tends to prove the crime charged against the accused is admissible, although it may also prove or tend to prove the commission of other crimes by him or to establish collateral facts. (Decided under prior law) Johnson v. Commonwealth, 431 S.W.2d 857, 1968 Ky. LEXIS 376 ( Ky. 1968 ).

Bags which contained vending machine keys, pills, a depth gauge tool, paper wrappers, a vending machine tool and a large number of coins and which were found on a road near a service station where a vending machine had been opened an hour earlier did not constitute evidence too remote to be admissible. (Decided under prior law) Shumate v. Commonwealth, 433 S.W.2d 340, 1968 Ky. LEXIS 267 ( Ky. 1968 ), cert. denied, 394 U.S. 993, 89 S. Ct. 1485, 22 L. Ed. 2d 769, 1969 U.S. LEXIS 1957 (U.S. 1969).

The proof of ownership of a vending machine was sufficient where it was shown that is was owned by a corporation and was in a service station owned by two (2) individuals. (Decided under prior law) Koonce v. Commonwealth, 452 S.W.2d 822, 1970 Ky. LEXIS 373 ( Ky. 1970 ).

Where there was a discrepancy in the evidence, even though that point was not raised, a manifest injustice resulted which warranted a new trial. (Decided under prior law) Stone v. Commonwealth, 456 S.W.2d 43, 1970 Ky. LEXIS 221 ( Ky. 1970 ).

To convict the defendant of breaking and entering a storehouse on circumstantial evidence alone, the evidence must afford fair and reasonable ground upon which the verdict of a jury might be rested so that the case can go to the jury. (Decided under prior law) Hodges v. Commonwealth, 473 S.W.2d 811, 1971 Ky. LEXIS 161 ( Ky. 1971 ).

Where there were a very limited number of questions pertaining to the record of defendant, an objection to the sole reference to the penalty was sustained, and the court gave an emphatic admonishment to the jury concerning the narrow purpose of the evidence, the admission of testimony regarding of a similar felony conviction which occurred ten years previously had no prejudicial effect. Stiles v. Commonwealth, 570 S.W.2d 645, 1978 Ky. App. LEXIS 577 (Ky. Ct. App. 1978).

Witness’ remark that police felt that people responsible for burglaries were from Bowling Green area was not prejudicial error where court delivered a strong admonishment and there was ample evidence of guilt. Stiles v. Commonwealth, 570 S.W.2d 645, 1978 Ky. App. LEXIS 577 (Ky. Ct. App. 1978).

In a prosecution for burglary, any error in admitting evidence of the defendant’s prior conviction was harmless, where critical evidence seized from the victim’s home was admitted, and the Commonwealth introduced the defendant’s latent fingerprints taken from two (2) liquor bottles at the burglarized tavern at the time of the investigation of the burglary therein. Brown v. Commonwealth, 711 S.W.2d 488, 1986 Ky. LEXIS 277 ( Ky. 1986 ).

There was sufficient evidence to support a burglary conviction based on defendant’s theft of coins from a credit union where, although defendant was authorized to enter the credit union after hours to clean it, his license to be at the credit union was sufficiently circumscribed to entitle the jury to believe that his third visit there on the weekend in question was without any license, where the jury could have believed that defendant mispositioned a security camera to prevent detection, and that he made multiple trips to the credit union to carry away the large quantity of missing coins; defendant’s departure from the normal practice of going to the credit union with a co-worker allowed the jury to infer that he intended to commit a crime. Commonwealth v. Partee, 122 S.W.3d 572, 2003 Ky. LEXIS 257 ( Ky. 2003 ).

12.—Aiding and Abetting.

To make one guilty of aiding and abetting a housebreaker, it is not necessary that he should assist in breaking, or enter the house, or have been in the house while the other was removing the property therefrom, but it was sufficient if he advised the housebreaker to commit the crime, or assisted him in removing the property obtained by breaking, or went with him and was present, though on the outside when crime was committed by the principal. (Decided under prior law) Vance v. Commonwealth, 115 S.W. 774 ( Ky. 1909 ).

Evidence that both before and after crime, accused and another man were seen with man who committed the offense, without further evidence from which inference could arise that crime was in contemplation, was insufficient to convict accused of aiding and abetting within former criminal rule that provided that a conviction cannot be had on the testimony of an accomplice unless it is corroborated by other evidence connecting the defendant with the crime. (Decided under prior law) Conrad v. Commonwealth, 287 Ky. 848 , 155 S.W.2d 454, 1941 Ky. LEXIS 652 ( Ky. 1941 ). See RCr 9.62.

Though the car in which the tools were found did not belong to one of the defendants there was sufficient evidence from which the jury could infer there was a concerted effort between the defendant and his codefendant, the owner of the car. (Decided under prior law) Franklin v. Commonwealth, 477 S.W.2d 788, 1972 Ky. LEXIS 364 ( Ky. 1972 ).

There was sufficient evidence to sustain a conviction as an aider and abettor where there was testimony that the defendant drove the principal to the scene of the breaking, waited in the vicinity and told other parties in the car that they were going to wait in the area and pick up the principal at daybreak. (Decided under prior law) Hunt v. Commonwealth, 483 S.W.2d 128, 1972 Ky. LEXIS 173 ( Ky. 1972 ).

Where evidence on housebreaking charge probably would have entitled defendant to a directed verdict, but after such motion was denied, defendant introduced evidence that indicted codefendants would testify that they committed the robbery, there was then sufficient evidence for jury to believe defendant was an accomplice. (Decided under prior law) Kessinger v. Commonwealth, 510 S.W.2d 244, 1974 Ky. LEXIS 542 ( Ky. 1974 ).

13.—Best Evidence.

Where a police officer testified that the records of a scrap company showed the defendant had sold copper there, the records of the company were the best evidence of what they contained and should have been produced. (Decided under prior law) Castle v. Commonwealth, 463 S.W.2d 120, 1971 Ky. LEXIS 574 ( Ky. 1971 ).

14.—Circumstantial.

Breaking and entering of railroad car may be established by circumstantial evidence. (Decided under prior law) Stringer v. Commonwealth, 192 Ky. 318 , 233 S.W. 718, 1921 Ky. LEXIS 51 ( Ky. 1921 ).

A conviction for housebreaking may be sustained by circumstantial evidence. (Decided under prior law) Rains v. Commonwealth, 293 Ky. 429 , 169 S.W.2d 41, 1943 Ky. LEXIS 637 ( Ky. 1943 ). See Strong v. Commonwealth, 297 Ky. 591 , 180 S.W.2d 560, 1944 Ky. LEXIS 773 ( Ky. 1944 ); Franklin v. Commonwealth, 477 S.W.2d 788, 1972 Ky. LEXIS 364 ( Ky. 1972 ).

Where the evidence, although circumstantial, afforded fair and reasonable grounds upon which the verdict might be rested, defendant was not entitled to a directed verdict of acquittal. (Decided under prior law) Smith v. Commonwealth, 489 S.W.2d 825, 1973 Ky. LEXIS 654 ( Ky. 1973 ).

15.—Corroboration.

Testimony of an accomplice was sufficiently corroborated by evidence that the defendant had been with the two (2) accomplices prior to and after the crime, that he had made no comment to the fact that they returned with five-gallon can of gas rather than the two-gallon can he had given them, and that he had seen them hide the five-gallon can after he had put the gas into the tank of his car. (Decided under prior law) Hunt v. Commonwealth, 288 Ky. 138 , 155 S.W.2d 732, 1941 Ky. LEXIS 59 ( Ky. 1941 ).

Evidence that defendant was apprehended in a room in which a portion of the stolen merchandise was found, in the company of his alleged accomplice, was sufficient corroboration of accomplice’s testimony, as against defendant’s contention that he was a guest of accomplice and was staying with him to evade arrest on another charge. (Decided under prior law) Orndorff v. Commonwealth, 294 Ky. 344 , 171 S.W.2d 984, 1943 Ky. LEXIS 447 ( Ky. 1943 ).

In prosecution for storehouse breaking in which the defendant admitted being in the company of witness for Commonwealth who testified as an accomplice, but claimed that he did not enter the store and that his only purpose in going to the store was to regain possession of an automatic Victrola which belonged to him, fact that the trip to the store was made in the dead of night, and the testimony of the storekeeper identifying the defendants as one of the persons who broke into the store, constituted sufficient corroboration of testimony of accomplice that he and the defendant intended to steal some slot machines in addition to taking the Victrola. (Decided under prior law) Evans v. Commonwealth, 299 Ky. 273 , 184 S.W.2d 981, 1945 Ky. LEXIS 397 ( Ky. 1945 ).

Flight of accused and alleged accomplice, on seeing police car, from house where part of loot from burglarized store was later found after their capture sufficiently corroborated testimony of accomplice to connect accused with commission of crime and to sustain his conviction. (Decided under prior law) Hager v. Commonwealth, 300 Ky. 585 , 189 S.W.2d 867, 1945 Ky. LEXIS 606 ( Ky. 1945 ).

In prosecution for storehouse breaking growing out of theft of automobile tires from auto supply store, evidence that part of a label found in defendant’s car matched missing part of label on one of stolen tires recovered after the arrest of defendant and his accomplices was sufficient corroboration of testimony of accomplices as to defendant’s participation in the crime. (Decided under prior law) Broughton v. Commonwealth, 303 Ky. 18 , 196 S.W.2d 890, 1946 Ky. LEXIS 788 ( Ky. 1946 ).

Where only evidence, other than that of accomplice, tending to connect a codefendant in any way with commission of the crime was testimony that codefendant was with accomplice early in the evening on night crime was committed and that he slept that night at home of defendant, whose conviction was sufficiently sustained by the evidence, there was not sufficient corroboration to sustain conviction of codefendant. (Decided under prior law) Luster v. Commonwealth, 333 S.W.2d 267, 1960 Ky. LEXIS 185 ( Ky. 1960 ).

Where the only other possible evidence linking the defendant to the crime, aside from the testimony of his two (2) accomplices, was his own statement that he knew nothing and remembered nothing, this was not at all sufficient corroboration of the accomplices’ testimony. (Decided under prior law) Hart v. Commonwealth, 389 S.W.2d 939, 1965 Ky. LEXIS 408 ( Ky. 1965 ).

Where there was no indication that two (2) witnesses who implicated the defendant were accomplices of the defendant, their testimony was sufficient corroboration of the testimony of defendant’s actual accomplice to sustain a conviction. (Decided under prior law) Durham v. Commonwealth, 398 S.W.2d 696, 1966 Ky. LEXIS 503 ( Ky. 1966 ).

Testimony that the defendant had been seen with his alleged accomplices just prior to the crime, that he helped push their car to start it, and that he met them early the next day and tried to sell one of the stolen items was sufficient corroboration of the testimony given by the defendant’s accomplices to sustain a conviction. (Decided under prior law) Peck v. Commonwealth, 415 S.W.2d 854, 1967 Ky. LEXIS 343 ( Ky. 1967 ).

Where the evidence was not sufficient to prove that a witness was an accomplice, the witness’s testimony did not require corroboration. (Decided under prior law) Benge v. Commonwealth, 476 S.W.2d 618, 1971 Ky. LEXIS 61 ( Ky. 1971 ).

Where there was separate testimony on identification of the car involved in the robbery and testimony of persons in the store on the night it was robbed, there was sufficient evidence to submit the issue of corroboration to the jury under a proper cautionary instruction. (Decided under prior law) Benge v. Commonwealth, 476 S.W.2d 618, 1971 Ky. LEXIS 61 ( Ky. 1971 ).

16.—Entry.

Where there is no evidence to show how the entrance was effected, or that it was effected, there can be no conviction of housebreaking. (Decided under prior law) Wallace v. Commonwealth, 162 Ky. 85 , 172 S.W. 118, 1915 Ky. LEXIS 32 ( Ky. 1915 ).

Testimony of a housewife that she had left home for a short time, leaving door latched by a string wound around a nail, and that upon her return the string was wound a different way and a ham was missing from the house was sufficient to support a finding by the jury that her house had been broken into and something of value taken therefrom. (Decided under prior law) Rains v. Commonwealth, 293 Ky. 429 , 169 S.W.2d 41, 1943 Ky. LEXIS 637 ( Ky. 1943 ).

17.—Fingerprints.

The inference of guilt arising from the presence of the defendant’s prints on the vending machine immediately after it had been broken into was not offset by the chance that the defendant had, as one member of the public, touched the sides and back of the machine some three (3) months or more before the offense was committed. (Decided under prior law) Mason v. Commonwealth, 357 S.W.2d 667, 1962 Ky. LEXIS 127 ( Ky. 1962 ).

18.—Hearsay.

Evidence consisting of testimony by a police officer that the victim of the housebreaking had told him someone called her and offered to return her jewelry in exchange for $3,000 was not hearsay but a verbal fact. (Decided under prior law) Johnson v. Commonwealth, 431 S.W.2d 857, 1968 Ky. LEXIS 376 ( Ky. 1968 ).

Testimony of a witness who said that the defendant once said he knew where there was some copper in two (2) old houses without specifying where the houses were was hearsay and should have been excluded on the defendant’s trial for housebreaking. (Decided under prior law) Castle v. Commonwealth, 463 S.W.2d 120, 1971 Ky. LEXIS 574 ( Ky. 1971 ).

Testimony of a police officer that at some unspecified time the defendants had gone to a scrap yard to sell wire without disclosing when they did so or how the information was obtained was hearsay and should have been excluded. (Decided under prior law) Castle v. Commonwealth, 463 S.W.2d 120, 1971 Ky. LEXIS 574 ( Ky. 1971 ).

When the hearsay evidence was excluded the only evidence consisted of proof of a break-in and evidence that one of the defendants had at sometime suggested the theft of copper wire, although sufficient to raise a suspicion was not sufficient to convict. (Decided under prior law) Castle v. Commonwealth, 463 S.W.2d 120, 1971 Ky. LEXIS 574 ( Ky. 1971 ).

19.—Identification of Defendant.

Where it was proved that defendant sold property alleged to have been stolen to a third person a short time after theft was alleged to have been committed, and at time of sale defendant told purchaser that property had been given to him by his brother, but on trial testified that a member of the family from whose house the property was taken had given it to him, neither of which stories was corroborated, the evidence was sufficient to identify defendant as the offender. (Decided under prior law) Rains v. Commonwealth, 293 Ky. 429 , 169 S.W.2d 41, 1943 Ky. LEXIS 637 ( Ky. 1943 ).

Where three (3) robberies were committed within an hour, two (2) witnesses saw the car, with defendant and his accomplice, drive away from the first store robbed and the defendant was arrested 15 minutes after the third robbery, and cards from the last store were found in his car and old coins from that store on the person of his accomplice, this evidence was sufficient to establish the identity of the defendant. (Decided under prior law) Daniels v. Commonwealth, 269 S.W.2d 705, 1954 Ky. LEXIS 1009 ( Ky. 1954 ).

Where the two (2) defendants were identified by the victims of a theft although they had only seen at the scene of the theft through a car window in the dusk of the evening, the identifications were not incredible as a matter of law and were sufficient to sustain the guilty verdict. (Decided under prior law) Burton v. Commonwealth, 442 S.W.2d 583, 1969 Ky. LEXIS 276 ( Ky. 1969 ).

20.—Illegal Search.

Evidence of possession of stolen property obtained in illegal search, even though erroneously admitted in evidence over defendant’s objection, was not ground for reversal when defendant later took the stand and admitted facts authorizing a conviction. (Decided under prior law) Clark v. Commonwealth, 288 Ky. 845 , 157 S.W.2d 485, 1941 Ky. LEXIS 201 ( Ky. 1941 ).

21.—Prior Offenses.

Where defendant was convicted on an indictment charging him with storehouse breaking, evidence of a prior armed robbery conviction was admissible for purposes of impeachment of credibility. (Decided under prior law) Thomas v. Commonwealth, 487 S.W.2d 954, 1972 Ky. LEXIS 103 ( Ky. 1972 ).

22.—Possession of Stolen Property.

Stolen property found in one’s possession is a circumstance sufficient to authorize the submission of guilt on the question of breaking. (Decided under prior law) Clark v. Commonwealth, 288 Ky. 845 , 157 S.W.2d 485, 1941 Ky. LEXIS 201 ( Ky. 1941 ).

Where there was substantial evidence showing a breaking and entering of a dwelling and a taking of property therefrom, supported by proof that the stolen property was found in the possession of the defendant, or in the possession of a third person who testified that the property was obtained by him from the defendant, such showing was sufficient to make out a prima facie case of housebreaking against the defendant. (Decided under prior law) Rains v. Commonwealth, 293 Ky. 429 , 169 S.W.2d 41, 1943 Ky. LEXIS 637 ( Ky. 1943 ).

Evidence that one of stolen articles was found in defendant’s possession, that they gave conflicting stories to explain such possession, and that a tool in their automobile matched marks on window sill of place that was robbed by entering through window was sufficient to corroborate testimony of accomplice. (Decided under prior law) Carroll v. Commonwealth, 306 Ky. 175 , 206 S.W.2d 818, 1947 Ky. LEXIS 975 ( Ky. 1947 ).

Where articles taken from storage room of a service station were recovered after having been in the defendant’s possession and were identified as the missing articles, this evidence warranted submitting the case to the jury. (Decided under prior law) Norris v. Commonwealth, 307 Ky. 675 , 212 S.W.2d 120, 1948 Ky. LEXIS 812 ( Ky. 1948 ).

Evidence of the possession of property stolen from a dwelling raises such a strong presumption of guilt of the offense of housebreaking as to be deemed prima facie evidence of such guilt. (Decided under prior law) Ray v. Commonwealth, 284 S.W.2d 76, 1955 Ky. LEXIS 11 ( Ky. 1955 ).

Where the owner of the stolen merchandise identified the goods found in the defendant’s possession, the defendant’s accomplice testified as to the guilt of the defendant, and the accomplice’s mother testified that the defendant told her he had committed the crime, this was sufficient to sustain the conviction. (Decided under prior law) Cox v. Commonwealth, 356 S.W.2d 766, 1962 Ky. LEXIS 102 ( Ky. 1962 ).

The possession of stolen property by the defendant is sufficient to submit the case to the jury and raises a presumption of guilt. (Decided under prior law) Taylor v. Commonwealth, 392 S.W.2d 914, 1965 Ky. LEXIS 291 ( Ky. 1965 ).

Where there was testimony that a stolen item had been purchased from the defendant and this was partially corroborated by another person who stated that the person who bought the item and the defendant were in fact together on the day the purchase was made, this was sufficient evidence to sustain a conviction. (Decided under prior law) Hack v. Commonwealth, 418 S.W.2d 216, 1967 Ky. LEXIS 199 ( Ky. 1967 ).

Where the owner of the store which had been robbed saw footprints leading from his store to the defendant’s residence on the morning the theft was discovered, and another person testified that she had persuaded the defendant to give her the stolen clothes to return to the police, this evidence was sufficient to sustain a conviction. (Decided under prior law) Cissell v. Commonwealth, 419 S.W.2d 555, 1967 Ky. LEXIS 164 ( Ky. 1967 ).

Where the sheriff testified that he pursued the defendants and forced their car to a stop because he thought they had been involved in a robbery, the admission of evidence of stolen property found during a search of the car was proper as such a search was not illegal. (Decided under prior law) Tucker v. Commonwealth, 423 S.W.2d 538, 1968 Ky. LEXIS 490 ( Ky. 1968 ).

Where there was testimony of police officers to the effect that they had discovered food packages in the automobile occupied by the defendants and the school principal identified the food as that taken from the school cafeteria, the testimony had sufficient probative value to sustain the guilty verdict of the jury. (Decided under prior law) Little v. Commonwealth, 438 S.W.2d 527, 1968 Ky. LEXIS 156 ( Ky. 1968 ).

Testimony concerning other stolen property found in the defendant’s possession but not involved in the crime being prosecuted was improperly admitted and an admonition did not cure the error. (Decided under prior law) Alexander v. Commonwealth, 450 S.W.2d 808, 1970 Ky. LEXIS 459 ( Ky. 1970 ).

Where there was proof that the defendants took the money box from a vending machine, the proof was sufficient even though it could not be proved that there was any money in it. (Decided under prior law) Koonce v. Commonwealth, 452 S.W.2d 822, 1970 Ky. LEXIS 373 ( Ky. 1970 ).

Where the presumption of guilt created by the defendant’s possession was not fully overcome by his weak explanation, a jury issue was presented and he was not entitled to a directed verdict. (Decided under prior law) Howe v. Commonwealth, 462 S.W.2d 935, 1971 Ky. LEXIS 567 ( Ky. 1971 ).

Where the stolen property was positively identified, evidence of possession was sufficient to support the conviction of breaking and entering. (Decided under prior law) Jenkins v. Commonwealth, 477 S.W.2d 795, 1972 Ky. LEXIS 367 ( Ky. 1972 ).

While possession of stolen property alone justified the conviction of theft under KRS 186.990 , possession alone was not sufficient to prove a breaking and entering. (Decided under prior law) Ralya v. Commwealth, 495 S.W.2d 506, 1973 Ky. LEXIS 402 ( Ky. 1973 ).

Defendant was not entitled to a directed verdict on charges of burglary, criminal mischief, and theft because, after a jury found defendant possessed a stolen item, which defendant did not contest, the jury could believe defendant stole the item, committed burglary to do so, and damaged the property from which the item was stolen. Allen v. Commonwealth, 410 S.W.3d 125, 2013 Ky. LEXIS 395 ( Ky. 2013 ).

23.—Sufficient.

Evidence showing prying off slats nailed over car door and taking of onions from car, which were found in deceased’s pocket, showed violation of law that provided penalty for breaking into railroad car with intent to steal by deceased when killed by officers in trying to effect his arrest. (Decided under prior law) Mylett's Adm'r v. Burnley, 163 Ky. 277 , 173 S.W. 759, 1915 Ky. LEXIS 211 ( Ky. 1915 ).

Where the defendant was charged with breaking into a clothing store and the evidence indicated only that the defendant was seen at a restaurant where the tools, stolen from another place and used in the robbery, were found, and that he was seen with the man who had been in the room with those tools, this was not sufficient evidence to sustain a conviction for the robbery from the clothing store. (Decided under prior law) Aubrey v. Commonwealth, 302 Ky. 205 , 194 S.W.2d 371, 1946 Ky. LEXIS 634 ( Ky. 1946 ).

Where the defendant was identified by the night watchman of the warehouse, three (3) police officers testified that the defendant’s accomplice had told them that the defendant was with him in the warehouse though the accomplice had told them that the defendant was with him in the warehouse though the accomplice denied this, and the defendant’s alibi witnesses testified that he was with them on the night specified in the indictment but there was confusion as to the actual date of the breaking, the evidence was sufficient to sustain a conviction. (Decided under prior law) Montgomery v. Commonwealth, 313 Ky. 415 , 231 S.W.2d 72, 1950 Ky. LEXIS 886 ( Ky. 1950 ).

Where a car belonging to the defendant’s father was identified as being parked near the scene of the crime at the time the crime was committed, a safe taken in the crime was found a mile and a half from the defendant’s home, and paint chips matching the paint from the safe were found in the car, this was sufficient evidence to sustain a conviction. (Decided under prior law) Thompson v. Commonwealth, 298 S.W.2d 16, 1957 Ky. LEXIS 359 ( Ky. 1957 ).

Where police on the scene of a crime were informed that the thief wearing a tan jacket had fled with a case of liquor, and defendant was found in the vicinity wearing a brown jacket and with a case of gin which was identified as being stolen from the store, this was sufficient evidence to sustain a conviction. (Decided under prior law) Etherton v. Commonwealth, 335 S.W.2d 899, 1960 Ky. LEXIS 288 ( Ky. 1960 ).

Where a witness testified that the defendant was seen near the scene of the crime, and tools which matched marks made in the wood of the storehouse which was entered were found in a car in which the defendant was riding, this was sufficient evidence to sustain a conviction. (Decided under prior law) Arrington v. Commonwealth, 343 S.W.2d 580, 1961 Ky. LEXIS 426 ( Ky. 1961 ).

Where the defendant was observed in the driveway at the site of the housebreaking and, when headlights were aimed at his car, drove away at a high rate of speed, and his car later the same night was observed at his home, and he was later seen at the proposed site for the delivery of money in exchange for the stolen jewelry, even though the property taken was never recovered, the circumstances afforded reasonable grounds for the jury to find the defendant guilty of housebreaking. (Decided under prior law) Johnson v. Commonwealth, 431 S.W.2d 857, 1968 Ky. LEXIS 376 ( Ky. 1968 ).

The evidence was sufficient to sustain the conviction where the victim made a positive identification of the defendants and the defendants were apprehended shortly after the robbery in an automobile of the same description and having the same license number as the one described by the victim. (Decided under prior law) Alford v. Commonwealth, 432 S.W.2d 414, 1968 Ky. LEXIS 334 ( Ky. 1968 ).

Where there was evidence that two (2) men fitting the description of defendants were seen at 3:00 a.m., leaving the scene of the crime in a 1961 model, light blue Mercury automobile with a Tennessee license, and within an hour the defendants, fitting the description of the men seen leaving the scene of the crime, were stopped and arrested 16 miles away, while traveling away from the scene of the crime in an automobile which matched the description in every respect except year model, the circumstantial evidence was sufficient to sustain the conviction. (Decided under prior law) Mathis v. Commonwealth, 447 S.W.2d 641, 1969 Ky. LEXIS 102 ( Ky. 1969 ).

Conviction might have been had where there was substantial evidence showing a breaking and entering of a dwelling and a taking of property therefrom, which was supported by proof that the stolen property was found in the defendant’s possession, or in possession of a third person who testified that said property was obtained by him from the defendant. (Decided under prior law) Conover v. Commonwealth, 473 S.W.2d 825, 1971 Ky. LEXIS 167 ( Ky. 1971 ).

Where the defendant was seen returning to his car at the scene of several robberies and various items listed as stolen were found in his residence, there was ample evidence to support the conviction for dwelling housebreaking. (Decided under prior law) Franklin v. Commonwealth, 477 S.W.2d 788, 1972 Ky. LEXIS 364 ( Ky. 1972 ).

Where the car in which the defendant was arrested matched the description of the one seen at the robbery, and the stolen articles were found at the home of the defendant’s stepfather, there was sufficient corroboration for the testimony of a confessed accomplice. (Decided under prior law) Whitaker v. Commonwealth, 479 S.W.2d 592, 1972 Ky. LEXIS 298 ( Ky. 1972 ).

Where the evidence established that the defendants were apprehended near the scene of the crime shortly after it occurred, no other automobiles were in the vicinity, two (2) of the defendants had red clay on their boots, red clay footprints were found on the carpets and floors of the house which was broken into, and plaster casts of footprints in the garden matched the prints of the boots of one of the defendants, such evidence was sufficient to sustain a conviction. (Decided under prior law) Scillion v. Commonwealth, 487 S.W.2d 288, 1972 Ky. LEXIS 65 ( Ky. 1972 ).

Where defendant was observed leaving store through a doorway later found to have been jimmied, placing a tire tool on the ground beside doorway, and briskly walking away, such evidence was sufficient to support a conviction. (Decided under prior law) Carmen v. Commonwealth, 490 S.W.2d 744, 1973 Ky. LEXIS 641 ( Ky. 1973 ), overruled, Commonwealth v. Sawhill, 660 S.W.2d 3, 1983 Ky. LEXIS 303 ( Ky. 1983 ).

Evidence was sufficient to sustain conviction where store owner heard store being broken into and fired a shotgun at the intruder, defendant was treated for gunshot wounds an hour later at hospital, and a spent cartridge at the scene of the crime was same make and type as one found when defendant was searched at jail. (Decided under prior law) Foster v. Commonwealth, 507 S.W.2d 443, 1974 Ky. LEXIS 702 ( Ky. 1974 ).

Evidence that defendant cashed one of a number of checks stolen earlier from a business was sufficient when coupled with defendant’s out-of-court confession for a jury question as to defendant’s guilt in storehouse breaking. (Decided under prior law) Frizzell v. Commonwealth, 511 S.W.2d 200, 1974 Ky. LEXIS 472 ( Ky. 1974 ).

24.Indictment.

An indictment alleging that the defendant feloniously broke into the dwelling house of a named person and took away a gold watch was sufficient to charge an offense under law that provided penalty for breaking into a dwelling house with intent to steal. (Decided under prior law) Hays v. Commonwealth, 33 S.W. 1104, 17 Ky. L. Rptr. 1147 (1896).

Where indictment covered a charge of either burglary or housebreaking and the evidence was not clear as to whether the building involved was an outhouse to a dwelling or a storehouse, the court did not err in holding the indictment was drawn under law that provided penalty for breaking into a storehouse, office or room in boat with intent to steal. (Decided under prior law) Little v. Commonwealth, 151 Ky. 520 , 152 S.W. 569, 1913 Ky. LEXIS 528 ( Ky. 1913 ).

Indictment charging breaking and entering a railroad car with intent to steal, and also with “stealing” described property, does not state two (2) public offenses, averments as to stealing property being surplusage and can be stricken out. (Decided under prior law) Stringer v. Commonwealth, 192 Ky. 318 , 233 S.W. 718, 1921 Ky. LEXIS 51 ( Ky. 1921 ).

Where an indictment alleged intent to steal and also the taking of property of over $20 in value, the averment of the value of the property was mere surplusage. (Decided under prior law) Sorke v. Commonwealth, 271 Ky. 482 , 112 S.W.2d 676, 1938 Ky. LEXIS 10 ( Ky. 1938 ).

Where proof showed building broken into was owned by others jointly with the alleged owner as set out in the indictment, the indictment was sufficient to inform accused of actual offense charged against him. (Decided under prior law) Horn v. Commonwealth, 289 Ky. 600 , 159 S.W.2d 417, 1942 Ky. LEXIS 602 ( Ky. 1942 ).

Where the indictment charged that the defendant broke and entered a storehouse with the intent to steal articles of value, it was not demurrable on the theory that it also charged grand larceny when it stated that the articles intended to be stolen were of the value of $200. (Decided under prior law) Broughton v. Commonwealth, 303 Ky. 18 , 196 S.W.2d 890, 1946 Ky. LEXIS 788 ( Ky. 1946 ).

Indictment charging defendant with feloniously breaking and entering into a storehouse building with the felonious intent to take and steal therefrom property of value was valid and it was not necessary to charge that goods were taken or carried away without owner’s consent. (Decided under prior law) Embrey v. Commonwealth, 240 S.W.2d 534, 1951 Ky. LEXIS 962 ( Ky. 1951 ).

An indictment which charged the defendant with “felonious intent to steal” was not deficient for failing to state that the defendant intended to permanently deprive the owner of his property where the instructions properly covered the question of permanent deprivation of property. (Decided under prior law) Young v. Commonwealth, 313 S.W.2d 580, 1958 Ky. LEXIS 270 ( Ky. 1958 ).

An indictment was not insufficient for failing to state the name of the owner or occupant whose home was allegedly broken into. (Decided under prior law) Dunn v. Commonwealth, 350 S.W.2d 709, 1961 Ky. LEXIS 130 ( Ky. 1961 ).

An indictment which sufficiently described the crime of storehouse breaking was not defective for having cited the number of a different statute. (Decided under prior law) Peck v. Commonwealth, 415 S.W.2d 854, 1967 Ky. LEXIS 343 ( Ky. 1967 ).

25.—Amendment.

Where charges against juvenile for third-degree burglary and second-degree criminal mischief were raised to second-degree and first-degree, respectively, after commencement of the trial, but in both cases complaints clearly stated facts to support the raised charges, and where juvenile proceeding took place under the Unified Juvenile Code which makes no distinctions between felonies and misdemeanors, such defects were not tantamount to an additional or different offense, and did not mislead the defendant or cause him to suffer any prejudice. A.E. v. Commonwealth, 860 S.W.2d 790, 1993 Ky. App. LEXIS 98 (Ky. Ct. App. 1993).

Where defendant was initially charged with third-degree burglary in violation of KRS 511.040 and the indictment was later amended to add complicity to burglary pursuant to KRS 502.020(1), complicity was not a new offense; therefore, complicity was not an additional offense, and RCr 6.16 did not prohibit, on the ground that it was a new offense, the amendment of the indictment to add complicity. McKenzie v. Commonwealth, 2005 Ky. App. LEXIS 54 (Ky. Ct. App. Mar. 4, 2005), rev'd, 214 S.W.3d 306, 2007 Ky. LEXIS 22 ( Ky. 2007 ).

Amendment of the indictment following the presentation of all evidence at trial to include complicity to burglary pursuant to KRS 502.020(1) in addition to third-degree burglary in violation of KRS 511.040 prejudiced defendant’s substantial rights in violation of RCr 6.16; defendant was not given proper notice of the amendment and was not prepared to defend complicity to the crime. McKenzie v. Commonwealth, 2005 Ky. App. LEXIS 54 (Ky. Ct. App. Mar. 4, 2005), rev'd, 214 S.W.3d 306, 2007 Ky. LEXIS 22 ( Ky. 2007 ).

26.—Contents of Building.

An indictment charging the breaking of a storehouse need not allege that there were in the storehouse at time broken, any goods, wares or merchandise; and storehouse described as the property of a named person sufficiently described the house broken. (Decided under prior law) Hale v. Commonwealth, 98 Ky. 353 , 33 S.W. 91, 17 Ky. L. Rptr. 947 , 1895 Ky. LEXIS 65 ( Ky. 1895 ).

An indictment need not describe the type of goods taken. (Decided under prior law) Scalf v. Commonwealth, 228 Ky. 234 , 14 S.W.2d 759, 1929 Ky. LEXIS 511 ( Ky. 1929 ).

27.—Variance.

There was no variance in an indictment which charged breaking into a warehouse of W. where evidence showed that the breaking was into a room occupied by W. and R. in a storehouse belonging to R. because the fact that W. did occupy the room, though with another person, was sufficient. (Decided under prior law) Johnson v. Commonwealth, 57 S.W. 255, 22 Ky. L. Rptr. 282 , 1900 Ky. LEXIS 619 ( Ky. 1900 ).

A retail liquor house wherein a saloon was conducted was a storehouse within the meaning of law that provided penalty for breaking into storehouse, office or room in boat with intent to steal and indictment in accusatory part charging offense of breaking and entering in the “house of another” and in descriptive part breaking and entering into “a retail liquor house wherein a saloon was conducted” was sufficient on demurrer, the other essential allegations being present. (Decided under prior law) Drury v. Commonwealth, 162 Ky. 123 , 172 S.W. 94, 1915 Ky. LEXIS 20 ( Ky. 1915 ).

Evidence that accused, charged with being a principal in offense of storehouse breaking, did not actually enter the store, but merely aided and abetted his accomplices by keeping watch outside, did not constitute a variance between the proof and the charge, since person indicted as a principal may be convicted as an aider and abettor. (Decided under prior law) Broughton v. Commonwealth, 303 Ky. 18 , 196 S.W.2d 890, 1946 Ky. LEXIS 788 ( Ky. 1946 ).

28.—Separate Offenses Charged.

Where the accusatory part of the indictment charged a conspiracy to break and enter a storehouse and the descriptive part alleged a felonious breaking and entering with intent to steal, the indictment was demurrable because the accusatory part charged merely a misdemeanor of trespass while the descriptive part charged a felony. (Decided under prior law) Acree v. Commonwealth, 243 Ky. 216 , 47 S.W.2d 1051, 1932 Ky. LEXIS 71 ( Ky. 1932 ).

29.Instructions.

Allegation of the owner of the property taken in an indictment was mere surplusage, and an instruction authorizing a finding of guilt if defendant took from the house broken into the money of a designated person, or of any other person, was not erroneous. (Decided under prior law) Scott v. Commonwealth, 70 S.W. 281, 24 Ky. L. Rptr. 889 (1902).

Instruction on storehouse breaking and stealing should contain word “permanently” in that part reading “with felonious intention of depriving the owner thereof.” (Decided under prior law) Bowman v. Commonwealth, 309 Ky. 611 , 218 S.W.2d 666, 1949 Ky. LEXIS 779 ( Ky. 1949 ).

Where defendant denied breaking into house and stealing pistol, and claimed that the pistol found in his possession had been purchased by him from another person, he was not entitled to a concrete instruction submitting his claim of purchase from the other person, since such claim was relevant merely as tending to prove his plea of not guilty. (Decided under prior law) Ray v. Commonwealth, 284 S.W.2d 76, 1955 Ky. LEXIS 11 ( Ky. 1955 ).

An instruction which, in effect, told the jury that the defendant was entitled to an acquittal of the charges unless it believed beyond a reasonable doubt that he had been proven guilty of storehouse breaking was an adequate reasonable doubt instruction. (Decided under prior law) Cole v. Commonwealth, 405 S.W.2d 753, 1966 Ky. LEXIS 271 ( Ky. 1966 ).

An indictment charging defendant with “counseling” another in the commission of several third-degree burglaries was sufficient to warn the defendant that the evidence would be introduced to show a conspiracy, and the fact that jury instructions spoke of “conspiring” rather than “counseling” was a nonprejudicial variance. Dick v. Commonwealth, 585 S.W.2d 379, 1979 Ky. LEXIS 270 ( Ky. 1979 ).

In order to require a jury instruction on voluntary intoxication as a defense to burglary, a defendant must show (1) evidence of drunkenness or other intoxication; and (2) evidence that the defendant did not know what he was doing. Callison v. Commonwealth, 706 S.W.2d 434, 1986 Ky. App. LEXIS 1073 (Ky. Ct. App. 1986).

Where the defendant testified that he consumed a quart of whiskey along with a significant amount of other intoxicating drugs, his girlfriend confirmed that he was too intoxicated to dance earlier in the evening and that he had at one point lost consciousness, the police testified that he was taken to the hospital following his arrest to be treated for drug and alcohol overdose, and the defendant testified that he had no memory of his actions on the night in question, there was sufficient evidence to require a jury instruction on the defense of voluntary intoxication. Callison v. Commonwealth, 706 S.W.2d 434, 1986 Ky. App. LEXIS 1073 (Ky. Ct. App. 1986).

Where there was testimony such that the jury could infer that there was unlawful presence in a building with no intent to commit a crime, the criminal-trespass instruction should have been given. Callison v. Commonwealth, 706 S.W.2d 434, 1986 Ky. App. LEXIS 1073 (Ky. Ct. App. 1986).

Protection against burglary instruction tendered by defendant should have been given to the jury because, from the testimony of defendant and his friend, the jury could have reasonably believed that the victim had entered or remained in defendant’s home with the intent to assault him, thereby committing burglary, and that defendant shot the victim, believing it was necessary to prevent the burglary. Mondie v. Commonwealth, 158 S.W.3d 203, 2005 Ky. LEXIS 94 ( Ky. 2005 ).

30.—Improper.

Under an indictment under law that provided penalty for breaking into a dwelling house with intent to steal, it was error to instruct the jury as to grand and petit larceny, neither being a degree of the offense of housebreaking charged in indictment. (Decided under prior law) Thomas v. Commonwealth, 150 Ky. 374 , 150 S.W. 376, 1912 Ky. LEXIS 895 ( Ky. 1912 ).

Where the defendant asserted that the stolen property was found in his home as a result of an illegal search, the failure of the court to instruct the jury on the issue of fact as to whether the accused voluntarily consented to the search entitled the defendant to a new trial. (Decided under prior law) Cline v. Commonwealth, 312 Ky. 645 , 229 S.W.2d 435, 1950 Ky. LEXIS 724 ( Ky. 1950 ).

Where an instruction should inform the jury that this section requires that the breaking be “with intent to steal” or that there be a “felonious taking,” an instruction which otherwise fulfilled this function was not improper for failure to contain the term “permanently” deprive rather than “wholly” deprive. (Decided under prior law) Luster v. Commonwealth, 333 S.W.2d 267, 1960 Ky. LEXIS 185 ( Ky. 1960 ).

Distinction between third degree burglary and complicity to third degree burglary was the sort which prohibited an amendment of the indictment at trial because it involved a modification at trial in the elements of the crime charged and was prejudicial per se; a trial court erred in giving a complicity instruction where defendant had been charged with third degree burglary, but not with complicity to that crime, since such an amendment improperly modified the elements of the crime charged at trial. McKenzie v. Commonwealth, 2004 Ky. App. LEXIS 276 (Ky. Ct. App. Sept. 17, 2004), op. withdrawn, 2005 Ky. App. LEXIS 53 (Ky. Ct. App. Mar. 4, 2005), sub. op., 2005 Ky. App. LEXIS 54 (Ky. Ct. App. Mar. 4, 2005).

31.—Properly Denied.

Larceny is not a degree of the offense charged under law that provided penalty for breaking into a storehouse, office of room in boat with intent to steal and, therefore, a refusal to give an instruction on petit larceny was proper. (Decided under prior law) Young v. Commonwealth, 245 Ky. 117 , 53 S.W.2d 206, 1932 Ky. LEXIS 544 ( Ky. 1932 ); Koonce v. Commonwealth, 452 S.W.2d 822, 1970 Ky. LEXIS 373 ( Ky. 1970 ).

In a prosecution under law that provided penalty for breaking into railroad station or car with intent to steal, instruction on grand larceny is not authorized, as larceny is not a lesser degree of offense charged. (Decided under prior law) Montgomery v. Commonwealth, 266 Ky. 795 , 100 S.W.2d 818, 1937 Ky. LEXIS 7 ( Ky. 1937 ).

Where defendant denied breaking into a store and stated that he merely took gasoline from an outside pump, he was not entitled to a special instruction on his theory of the case. (Decided under prior law) Baker v. Commonwealth, 288 S.W.2d 56, 1956 Ky. LEXIS 246 ( Ky. 1956 ).

Where a police detective testified that the defendant confessed at the time he was arrested and the defendant denied making a confession but the confession of a codefendant was introduced which set out substantially the same story, the defendant’s motion for a peremptory instruction for insufficient evidence to convict was overruled. (Decided under prior law) Arnold v. Commonwealth, 433 S.W.2d 355, 1968 Ky. LEXIS 273 ( Ky. 1968 ).

Where there was not a shred of evidence to indicate that the burglary occurred during the day or other than at night, the trial court properly refused to give the tendered instruction on third-degree burglary. Eversole v. Commonwealth, 575 S.W.2d 457, 1978 Ky. LEXIS 452 ( Ky. 1978 ).

It was not error for the trial court to refuse to give an instruction on criminal trespass, because the only reasonable inference to be drawn from the evidence is that the appellant is either guilty of burglary or nothing, since the defendant never admitted being in the house. Polk v. Commonwealth, 574 S.W.2d 335, 1978 Ky. App. LEXIS 621 (Ky. Ct. App. 1978).

32.Jurisdiction.

The felonious breaking and felonious taking of property of value is a single offense, the jurisdiction to punish which is in the county where the crime is committed, and if culprit carries property into another county and is there arrested for larceny, it does not oust jurisdiction of courts of county where the crime under this section was committed. (Decided under prior law) Runyon v. Morrow, 192 Ky. 785 , 234 S.W. 304, 1921 Ky. LEXIS 141 ( Ky. 1921 ).

Where the defendant charged with storehouse breaking was under 18 and jurisdiction had not been surrendered by the juvenile court, the Circuit Court was without jurisdiction to try him. (Decided under prior law) Koonce v. Commonwealth, 452 S.W.2d 822, 1970 Ky. LEXIS 373 ( Ky. 1970 ).

33.Lesser Included Offenses.

Larceny is not a degree of storehouse breaking and under a trial of an indictment for storehouse breaking accused cannot be convicted of either grand or petit larceny. (Decided under prior law) Hunt v. Commonwealth, 338 S.W.2d 912, 1960 Ky. LEXIS 424 ( Ky. 1960 ).

Criminal trespass in the third degree is not a lesser included offense of burglary since to prove guilt of criminal trespass in the third degree, the Commonwealth is required to prove that the defendant entered upon the victim’s unimproved land and proof of that fact is not necessary to convict of any degree of burglary. Colwell v. Commonwealth, 37 S.W.3d 721, 2000 Ky. LEXIS 202 ( Ky. 2000 ).

34.Separate Offenses.

The offense of housebreaking cannot be joined with that of feloniously receiving stolen goods in an indictment, and an acquittal of the former charge is not bar to a prosecution of the latter. (Decided under prior law) Commonwealth v. Bragg, 104 Ky. 306 , 47 S.W. 212, 20 Ky. L. Rptr. 541 , 1898 Ky. LEXIS 159 ( Ky. 1898 ).

Receiving or possessing stolen property is not a degree of the crime of housebreaking. (Decided under prior law) Ray v. Commonwealth, 284 S.W.2d 76, 1955 Ky. LEXIS 11 ( Ky. 1955 ).

As larceny and housebreaking are separate offenses even though arising from the same transaction, there may be a prosecution of both offenses without a violation of the principles of double jeopardy. (Decided under prior law) Hunt v. Commonwealth, 338 S.W.2d 912, 1960 Ky. LEXIS 424 ( Ky. 1960 ).

Cited in:

Robinson v. Commonwealth, 572 S.W.2d 606, 1978 Ky. App. LEXIS 600 (Ky. Ct. App. 1978), overruled, Royce v. Kentucky, 577 S.W.2d 615 ( Ky. 1979 ); Hubbard v. Commonwealth, 633 S.W.2d 67, 1982 Ky. LEXIS 249 ( Ky. 1982 ); Phillips v. Commonwealth, 679 S.W.2d 235, 1984 Ky. LEXIS 296 ( Ky. 1984 ); Kentucky v. Long, 637 F. Supp. 1150, 1986 U.S. Dist. LEXIS 23269 (W.D. Ky. 1986 ).

Opinions of Attorney General.

Because of the express language in KRS 511.010(1)(a) and (b), coupled with the commentary explanation, the ordinary car or pick-up truck does not fall within the definition of “building,” for purposes of prosecution for third-degree burglary. OAG 78-721 .

Examples of an uninhabited building within this section are the same as second degree, except that a person was not physically present at the time of entry or during the time the offender remained. OAG 78-721 .

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Malone and Malone, Criminal Law, 69 Ky. L.J. 545 (1980-81).

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Damage To or Intrusion Upon Property, Part 2 Burglary and Trespass, §§ 5.07, 5.09.

511.050. Possession of burglar’s tools.

  1. A person is guilty of possession of burglar’s tools when he possesses any tool, instrument or other thing adapted, designed or commonly used for committing or facilitating the commission of an offense involving forcible entry into premises or theft by a physical taking under circumstances which leave no reasonable doubt as to his:
    1. Intention to use the same in the commission of an offense of such character; or
    2. Knowledge that some other person intends to use the same in the commission of an offense of such character.
  2. Possession of burglar’s tools is a Class A misdemeanor.

History. Enact. Acts 1974, ch. 406, § 100, effective January 1, 1975.

NOTES TO DECISIONS

1.Burglary Tools.

Nitroglycerin found on person of defendant was not a tool, implement or other thing used for housebreaking within the meaning of law that provided penalty for possession of burglary tools. (Decided under prior law) Black v. Commonwealth, 171 Ky. 280 , 188 S.W. 362, 1916 Ky. LEXIS 334 ( Ky. 1916 ).

A skeleton key is such a tool or implement as is contemplated by law that provided penalty for possession of burglary tools. (Decided under prior law) Anderson v. Commonwealth, 176 Ky. 373 , 195 S.W. 794, 1917 Ky. LEXIS 59 ( Ky. 1917 ); Johnson v. Commonwealth, 240 Ky. 123 , 41 S.W.2d 913, 1931 Ky. LEXIS 351 ( Ky. 1931 ).

It was not essential to constitute the crime of possession of burglary tools that the tools or instruments found in the possession of accused should be specifically manufactured or designed for use of burglars. It was sufficient if the tools were generally used by burglars, even though they were manufactured for lawful purposes. (Decided under prior law) Commonwealth v. Riley, 192 Ky. 153 , 232 S.W. 630, 1921 Ky. LEXIS 41 ( Ky. 1921 ).

Possession of burglary tools is not a lower degree of crime of burglary of a safe and, therefore, when a defendant is prosecuted for burglarizing a safe, he may not be convicted for possession of burglary tools. (Decided under prior law) Burch v. Commonwealth, 240 Ky. 519 , 42 S.W.2d 714, 1931 Ky. LEXIS 436 ( Ky. 1931 ).

2.— Possession.

In a prosecution for possession of burglary tools, it was permissible to admit evidence of previous burglaries by the defendant in order to show his intent to use the tools in his possession burglariously. (Decided under prior law) Lambert v. Commonwealth, 219 Ky. 806 , 294 S.W. 466, 1927 Ky. LEXIS 431 ( Ky. 1927 ); Fennen v. Commonwealth, 240 Ky. 530 , 42 S.W.2d 744, 1931 Ky. LEXIS 448 ( Ky. 1931 ).

Where burglary tools were used in a joint enterprise, the defendant had “possession” of the tools even though the tools were actually in the hands of his confederate. (Decided under prior law) Commonwealth v. Robinson, 242 Ky. 98 , 45 S.W.2d 844, 1932 Ky. LEXIS 225 ( Ky. 1932 ).

As a matter of law, either actual or constructive possession of burglary tools, accompanied by an intention to burglarize, constitutes the offense of possession of burglary tools. (Decided under prior law) Brown v. Commonwealth, 445 S.W.2d 697, 1969 Ky. LEXIS 175 ( Ky. 1969 ).

Possession of burglary tools by one coconspirator constitutes possession by the other. (Decided under prior law) Franklin v. Commonwealth, 477 S.W.2d 788, 1972 Ky. LEXIS 364 ( Ky. 1972 ).

Even though the car in which the tools were found did not belong to one of the defendants there was sufficient evidence from which the jury, with propriety, could infer there was a concerted effort between the defendant and his codefendant, the owner of the car. (Decided under prior law) Franklin v. Commonwealth, 477 S.W.2d 788, 1972 Ky. LEXIS 364 ( Ky. 1972 ).

3.Evidence.

Evidence that defendants accused of possession of burglary tools were seen crouched near the sidewalk at the back of the store at 2:30 a.m., but disclosed no fingerprints or other evidence which directly connected the tools with the defendants was sufficient to take the case to the jury. (Decided under prior law) Marshall v. Commonwealth, 482 S.W.2d 765, 1972 Ky. LEXIS 203 ( Ky. 1972 ).

The trial court committed prejudicial error in admitting the criminal records of the defendants as substantive evidence of their specific intent to unlawfully possess burglary tools. (Decided under prior law) Marshall v. Commonwealth, 482 S.W.2d 765, 1972 Ky. LEXIS 203 ( Ky. 1972 ).

4.— Intent.

In a prosecution for possession of burglary tools, it was permissible to introduce evidence that defendant had a bottle of nitroglycerine on the premises of a jeweler in order to explain the purposes for which the other burglar’s tools in his possession were intended. (Decided under prior law) Reagan v. Commonwealth, 217 Ky. 81 , 288 S.W. 1025, 1926 Ky. LEXIS 12 ( Ky. 1926 ).

Evidence as to what the defendant had been doing with the tools shortly before his arrest was competent to show his intent in having them in his possession. (Decided under prior law) Johnson v. Commonwealth, 240 Ky. 123 , 41 S.W.2d 913, 1931 Ky. LEXIS 351 ( Ky. 1931 ).

Where the defendants were indicted for possession of burglary tools consisting of wrecking bars, the prosecuting attorney’s references to a pistol and box of stolen tools found in the defendant’s car were proper as evidence of burglarious intent in the possession of the wrecking bars. (Decided under prior law) Fields v. Commonwealth, 408 S.W.2d 638, 1966 Ky. LEXIS 128 ( Ky. 1966 ).

Where the evidence warranted a finding that the defendant had burglarized certain kinds of vending machines, using a key, and he had keys for other kinds of vending machines in his possession, a reasonable inference could be drawn that the latter keys were possessed with a burglarious intent and the evidence was sufficient to sustain the conviction. (Decided under prior law) Humphrey v. Commonwealth, 442 S.W.2d 599, 1969 Ky. LEXIS 283 ( Ky. 1969 ).

The intent to use a tool for burglary may be shown by circumstantial evidence. (Decided under prior law) Franklin v. Commonwealth, 477 S.W.2d 788, 1972 Ky. LEXIS 364 ( Ky. 1972 ).

5.— Sufficient.

Where the defendants were observed in an automobile with a television, guitar and amplifier and later, when arrested for breach of peace, those articles were gone but a large screwdriver and gloves were found, these circumstances, together with the fact that the large screwdriver fit perfectly into grooves on the jimmied doors and frames at the burgled home, were sufficient circumstantial evidence to sustain a conviction. (Decided under prior law) Rogers v. Commonwealth, 432 S.W.2d 405, 1968 Ky. LEXIS 329 ( Ky. 1968 ).

The damaged condition of the doors of the grocery showing an attempted forced entry and the fact that tools often used to burglarize were found near the grocery, coupled with the uncontradicted testimony concerning the defendant’s suspicious and unexplained conduct when confronted by the police, was sufficient to justify the jury’s finding that the defendant had possession of burglary tools and was using them burglariously. (Decided under prior law) Brown v. Commonwealth, 445 S.W.2d 697, 1969 Ky. LEXIS 175 ( Ky. 1969 ).

Where the defendant was identified as having been at the scene of several robberies and, when stopped, various tools described as burglary tools were found in his car trunk, there was sufficient evidence to submit to the jury the question of whether the defendant had burglary tools in his possession. (Decided under prior law) Franklin v. Commonwealth, 477 S.W.2d 788, 1972 Ky. LEXIS 364 ( Ky. 1972 ).

Given that when defendant was apprehended near the bar defendant was in possession of stolen goods, that parts of the bar had been damaged and pried open, and that defendant was in possession of a screwdriver, there was more than a mere scintilla of evidence that defendant had used the screwdriver as a burglar’s tool and the evidence was sufficient to support a conviction for possession of burglary tools. James Darnell Graves v. Commonwealth, 285 S.W.3d 734, 2009 Ky. LEXIS 161 ( Ky. 2009 ).

6.Indictment.

An indictment charging the possession of burglary tools with the intent to use them burglariously to force a lock on a vending machine outside a service station is sufficient to state an offense. (Decided under prior law) Commonwealth v. Marganon, 370 S.W.2d 821, 1963 Ky. LEXIS 80 ( Ky. 1963 ).

Research References and Practice Aids

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Damage To or Intrusion Upon Property, Part 2 Burglary and Trespass, § 5.14.

511.060. Criminal trespass in the first degree.

  1. A person is guilty of criminal trespass in the first degree when he knowingly enters or remains unlawfully in a dwelling.
  2. Criminal trespass in the first degree is a Class A misdemeanor.

History. Enact. Acts 1974, ch. 406, § 101, effective January 1, 1975.

NOTES TO DECISIONS

1.Elements.

The offense of criminal trespass is a lesser crime which is included in the crime of burglary. Martin v. Commonwealth, 571 S.W.2d 613, 1978 Ky. LEXIS 392 ( Ky. 1978 ).

Knowingly entering or remaining unlawfully in a dwelling are the only elements necessary for criminal trespass in the first degree. Polk v. Commonwealth, 574 S.W.2d 335, 1978 Ky. App. LEXIS 621 (Ky. Ct. App. 1978).

2.Instructions.

The trial court’s failure to instruct the jury upon criminal trespass was error, since it is always the duty of a trial court to instruct a jury on lesser included offenses when it is so requested and it is justified by the evidence. Martin v. Commonwealth, 571 S.W.2d 613, 1978 Ky. LEXIS 392 ( Ky. 1978 ).

Where defendant in second-degree burglary prosecution admitted to taking the property belonging to the owner of the burglarized home, the evidence did not justify an instruction on the lesser included offense of criminal trespass. Godsey v. Commonwealth, 661 S.W.2d 2, 1983 Ky. App. LEXIS 399 (Ky. Ct. App. 1983).

Where there was direct evidence of defendant’s commission of burglary, and the defense was alibi, the trial court properly refused to give an instruction on criminal trespass, since there was no evidence or circumstance from which the jury could have inferred that defendant was present in the house with no intent to commit a crime, and evidence showed that items of value were stolen. Commonwealth v. Sanders, 685 S.W.2d 557, 1985 Ky. LEXIS 205 ( Ky. 1985 ).

Where the jury could have believed the defendant’s testimony that he had no intent to commit a crime when he entered the room and thus was guilty of criminal trespass only, but there was no instruction to the jury which would permit it to find that the defendant entered the apartment unlawfully, but without an intent at that time, to commit a crime, the defendant’s conviction of first-degree burglary was reversed. McClellan v. Commonwealth, 715 S.W.2d 464, 1986 Ky. LEXIS 274 ( Ky. 1986 ), cert. denied, 479 U.S. 1057, 107 S. Ct. 935, 93 L. Ed. 2d 986, 1987 U.S. LEXIS 379 (U.S. 1987).

Where defendant went to his mother-in-law’s home where his estranged wife was residing after leaving him and where defendant killed her and was convicted of murder, first-degree burglary, and first-degree wanton endangerment, the trial court did not err in refusing to instruct the jury on criminal trespass as a lesser-included offense of burglary because the evidence was overwhelming that defendant intended to commit a crime; if defendant did not intend to murder the victim, he at least intended to harass, menace, threaten, or wantonly endanger the victim. Hunt v. Commonwealth, 2009 Ky. LEXIS 292 (Ky. Nov. 25, 2009), sub. op., 304 S.W.3d 15, 2009 Ky. LEXIS 346 ( Ky. 2009 ), modified, 2010 Ky. LEXIS 138 (Ky. Mar. 18, 2010).

Opinions of Attorney General.

Where an organization establishes a temporary shelter for individuals and families who have lost their homes or rental properties due to loss of income, condemnation or eviction, so that they can reside in the shelter for seven (7) to ten (10) days without cost until they find new permanent residences, the organization cannot resort to a forcible detainer action pursuant to KRS 383.200 to KRS 383.285 if the families fail to leave at the end of the period, since there is no landlord and tenant relationship sufficient to bring the families under KRS 383.505 to KRS 383.715 , because there is no rental agreement that includes consideration to be paid by the persons using the shelter as required by subsection (10) of KRS 383.545 and because the persons receiving the shelter would not have the exclusive possession of the dwelling unit in order to qualify them as “tenants” under subdivision (15) of KRS 383.545 ; however, the organization could file a complaint for criminal trespass in the first degree pursuant to this section. OAG 81-210 .

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Malone and Malone, Criminal Law, 69 Ky. L.J. 545 (1980-81).

West, Criminal Law, 74 Ky. L.J. 403 (1985-86).

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Damage To or Intrusion Upon Property, Part 2 Burglary and Trespass, § 5.10.

511.070. Criminal trespass in the second degree.

  1. A person is guilty of criminal trespass in the second degree when he knowingly enters or remains unlawfully in a building or upon premises as to which notice against trespass is given by fencing or other enclosure.
  2. Criminal trespass in the second degree is a Class B misdemeanor.

History. Enact. Acts 1974, ch. 406, § 102, effective January 1, 1975.

NOTES TO DECISIONS

1.Premises.

For the purposes of the statute, the term “premises” refers to land, and not to a building. Colwell v. Commonwealth, 37 S.W.3d 721, 2000 Ky. LEXIS 202 ( Ky. 2000 ).

The zoo, as a fenced-in area of land, provides a perfect example of a premises that is not a building. More specifically, it is a premises “as to which notice against trespass is given by fencing” pursuant to KRS 511.070(1). The legislature expressed no intention for these types of premises to be included as buildings. Kiser v. Commonwealth, 289 S.W.3d 589, 2008 Ky. App. LEXIS 367 (Ky. Ct. App. 2008).

Opinions of Attorney General.

Regardless of whether the offense is a violation or a misdemeanor, if the officer arrives before the trespasser has left the owner’s premises, an offense has been committed in the officer’s presence and the officer may issue a citation, or make an arrest if necessary; however, if the trespasser is no longer on the premises, the owner of the property will have to swear out a complaint before a summons (preferably) can be issued or an arrest can be made. OAG 80-643 .

A person who releases dogs cannot be prosecuted for trespass when his dogs run on property where no permission to hunt has been granted, since there is no entry by any “person.” OAG 82-262 .

When a board of education notifies a nonstudent that he may not enter upon school grounds, the “knowing” requirement of KRS 511.070 and KRS 511.080 is satisfied. When the person enters the school building or premises, the remainder of the elements of the offense are satisfied. OAG 90-11 .

Research References and Practice Aids

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Damage To or Intrusion Upon Property, Part 2 Burglary and Trespass, §§ 5.07, 5.11, 5.12.

511.080. Criminal trespass in the third degree.

  1. A person is guilty of criminal trespass in the third degree when he knowingly enters or remains unlawfully in or upon premises.
  2. Criminal trespass in the third degree is a violation.

History. Enact. Acts 1974, ch. 406, § 103, effective January 1, 1975.

NOTES TO DECISIONS

1.Permissible Police Stop.

Given the no trespassing sign in the parking lot, defendant was clearly trespassing and loitering and therefore clearly engaged in minor criminal activity. This alone would have justified officer in believing that the defendant was in violation of this section; therefore, it was permissible for the police to have stopped and questioned defendant. Simpson v. Commonwealth, 834 S.W.2d 686, 1992 Ky. App. LEXIS 148 (Ky. Ct. App. 1992).

Police officer had probable cause to arrest defendant for criminal trespass in the third degree in violation of KRS 511.080 because the officer observed defendant on property owned by the Lexington Housing Authority, defendant did not provide the officer with information on who he was meeting or visiting on the property, and the property was clearly posted with signs that prohibited trespassing, loitering, or congregating. Commonwealth v. Fields, 194 S.W.3d 255, 2006 Ky. LEXIS 155 ( Ky. 2006 ).

2.Premises.

For the purposes of the statute, the term “premises” refers to land, and not to a building. Colwell v. Commonwealth, 37 S.W.3d 721, 2000 Ky. LEXIS 202 ( Ky. 2000 ).

When a truck owner parked the owner’s vehicle on building owners’ property and a third party set fire to the truck, igniting the building, the truck owner was not a trespasser because the truck owner had the building owners’ implied consent to park in that location, as the building owners had never refused permission to anyone to park there. Howard v. Spradlin, 562 S.W.3d 281, 2018 Ky. App. LEXIS 258 (Ky. Ct. App. 2018).

3.Entry Into Premises.

Because defendant threw rocks at a house, but did not enter the premises, there was no evidence of criminal trespass under KRS 511.080(1); therefore, the trial court’s judgment was reversed as to that charge. D.E. v. Commonwealth, 271 S.W.3d 539, 2008 Ky. App. LEXIS 365 (Ky. Ct. App. 2008).

4.Civil Whistleblower Claim.

Summary judgment in favor of the employer on the employee’s claim that she was terminated for reporting that her supervisor committed third degree trespass on her property was subject to reversal because there is no rule that government employees are insulated from employer reprisals under the Whistleblower Act, KRS 61.102 , only when they report items that impact issues of public concern. Rogers v. Pennyrile Allied Cmty. Servs., Inc., 2012 Ky. App. LEXIS 288 (Ky. Ct. App. Dec. 14, 2012).

Cited in:

Smith v. Norton Hosps., Inc., 2016 Ky. App. LEXIS 30 (Mar. 4, 2016).

Opinions of Attorney General.

A peace officer, in whose presence a “violation” is committed, has the option of issuing the violator a citation or making a full custodial arrest. OAG 76-166 .

A violation of this section can take place when the person enters unfenced premises. OAG 80-643 .

No matter how public an area appears, a person entering upon a privately owned parking lot, while the business or other establishment it is meant to serve is not open, is guilty of criminal trespass in the third degree, if they enter the premises knowing they are not permitted there or remain when they are asked to leave. OAG 80-643 .

Regardless of whether the offense is a violation or a misdemeanor, if the officer arrives before the trespasser has left the owner’s premises, an offense has been committed in the officer’s presence and the officer may issue a citation, or make an arrest if necessary; however, if the trespasser is no longer on the premises, the owner of the property will have to swear out a complaint before a summons (preferably) can be issued or an arrest can be made. OAG 80-643 .

Since premises is defined in KRS 511.010 (3) as including buildings and any real property, the parking lots of businesses and other establishments, as well as private residential property would be included in the definition of premises as used in this section and KRS 511.010 , and since there is no differentiation between various types of owners of property, therefore, the ownership of property makes no difference in a prosecution under this section. OAG 80-643 .

A person who releases dogs cannot be prosecuted for trespass when his dogs run on property where no permission to hunt has been granted, since there is no entry by any “person.” OAG 82-262 .

When a board of education notifies a nonstudent that he may not enter upon school grounds, the “knowing” requirement of KRS 511.070 and this section is satisfied. When the person enters the school building or premises, the remainder of the elements of the offense are satisfied. OAG 90-11 .

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Fortune, Criminal Rules, 70 Ky. L.J. 395 (1981-82).

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Damage To or Intrusion Upon Property, Part 2 Burglary and Trespass, §§ 5.07, 5.13, 5.13A.

511.085. Domestic violence shelter trespass.

  1. As used in this section, “domestic violence shelter” means a residential facility providing protective shelter services for domestic violence victims.
  2. A person is guilty of domestic violence shelter trespass when:
    1. The person enters the buildings or premises of a domestic violence shelter that the person knows or should know is a domestic violence shelter or which is clearly marked on the building or premises as being a domestic violence shelter; and
    2. At the time of the entering, the person is the subject of an order of protection as defined in KRS 403.72 and 456.010 .
  3. It shall be a defense to a prosecution under this section that the person entered the shelter with the permission of the operator of the shelter after disclosing to the operator that the person is the subject of an order of protection or a foreign protective order. Authority to enter under this subsection may not be granted by a person taking shelter at the facility.
  4. A person shall not be convicted of a violation of this section and a violation of KRS 511.060 , 511.070 , or 511.080 arising from the same act of trespass.
  5. Domestic violence shelter trespass is a Class A misdemeanor.

HISTORY: Enact. Acts 2010, ch. 170, § 18, effective July 15, 2010; 2015 ch. 102, § 48, effective January 1, 2016.

511.090. General provisions.

  1. A person “enters or remains unlawfully” in or upon premises when he is not privileged or licensed to do so.
  2. A person who, regardless of his intent, enters or remains in or upon premises which are at the time open to the public does so with license or privilege unless he defies a lawful order not to enter or remain personally communicated to him by the owner of such premises or other authorized person.
  3. A license or privilege to enter or remain in or upon premises which are only partly open to the public is not a license or privilege to enter or remain in or upon a part of the premises which is not open to the public.
  4. A person who enters or remains upon unimproved and apparently unused land which is neither fenced nor otherwise enclosed does not commit criminal trespass unless notice against trespass is personally communicated to him by the owner of the land or some other authorized person or unless notice is given by posting in a conspicuous manner.
  5. Private land adjoining a railtrail that is neither fenced nor otherwise enclosed shall be presumed to be land where notice against trespassing has been given by the owner of the land, and a person utilizing the railtrail shall be presumed to lack privilege or license to enter upon that land unless the person has permission from an adjoining landowner to do so.

History. Enact. Acts 1974, ch. 406, § 104, effective January 1, 1975; 2000, ch. 338, § 13, effective July 14, 2000.

NOTES TO DECISIONS

1.Burglary.

Where evidence indicated that defendant entered the apartment with permission and thereafter went into the victim’s bedroom and raped her, but immediately left the premises and removed no property belonging to the victim, the elements required to constitute the offense of burglary in the first degree were not met. Robey v. Commonwealth, 943 S.W.2d 616, 1997 Ky. LEXIS 21 ( Ky. 1997 ).

Postconviction relief should have been granted because appellant received ineffective assistance of counsel based on advice to plead guilty to second-degree burglary under KRS 511.030 by determining, without any research, that the absence of an ownership or rental agreement negated any lawful status on the premises; this rendered the plea not knowingly and voluntarily entered into. There was no dispute that appellant legally resided at the location at issue, and a showing of a tenancy-at-will that was not terminated would have constituted a defense against the burglary charge. Farmer v. Commonwealth, 2012 Ky. App. LEXIS 221 (Ky. Ct. App. Oct. 19, 2012).

2.License or Privilege.

KRS 511.090 did not apply in a case where a defendant allegedly entered a credit union and stole coins as the credit union premises were not open to the public; thus, defendant’s license or privilege, if any, had to derive from some other source. Commonwealth v. Partee, 122 S.W.3d 572, 2003 Ky. LEXIS 257 ( Ky. 2003 ).

Police officer had probable cause to arrest a citizen for trespass where the undisputed evidence established that the citizen had received and had refused several requests to leave a county office before she was arrested. The police officer himself asked the citizen to leave the premises twice, indicating that he did not want to arrest her, but she had refused. Helms v. George Zubaty, 495 F.3d 252, 2007 FED App. 0271P, 2007 U.S. App. LEXIS 17156 (6th Cir. Ky. 2007 ).

Evidence was insufficient to sustain a burglary conviction because the liquor store was open to the walk-in public, defendant entered the store armed with an unloaded revolver, defendant demanded money, the employee fired a gun at defendant, and defendant fled as quickly as possible. The employee’s firing of the gun revoked defendant’s license to remain in the store; defendant did not remain unlawfully, but rather he fled. Wilburn v. Commonwealth, 312 S.W.3d 321, 2010 Ky. LEXIS 52 ( Ky. 2010 ).

Proposition stated in Bowling v. Commonwealth, 942 S.W.2d 293, that a license can be implicitly revoked from acts inconsistent with the purpose of the business, is obiter dictum. Therefore, appellant was entitled to a directed verdict of acquittal because the elements of first-degree burglary under KRS 511.020(1) were not satisfied; appellant entered a pharmacy open to the public, and his license to be there was not explicitly or implicitly revoked. Lewis v. Commonwealth, 392 S.W.3d 917, 2013 Ky. LEXIS 34 ( Ky. 2013 ).

When a truck owner parked the owner’s vehicle on building owners’ property and a third party set fire to the truck, igniting the building, the truck owner was not a trespasser because the truck owner had the building owners’ implied consent to park in that location, as the building owners had never refused permission to anyone to park there. Howard v. Spradlin, 562 S.W.3d 281, 2018 Ky. App. LEXIS 258 (Ky. Ct. App. 2018).

Cited:

Bowling v. Commonwealth, 942 S.W.2d 293, 1997 Ky. LEXIS 54 ( Ky. 1997 ), cert. denied, Bowling v. Kentucky, 522 U.S. 986, 118 S. Ct. 451, 139 L. Ed. 2d 387, 1997 U.S. LEXIS 6977, 66 U.S.L.W. 3355 (1997), overruled in part, McQueen v. Commonwealth, 339 S.W.3d 441, 2011 Ky. LEXIS 75 ( Ky. 2011 ).

Opinions of Attorney General.

The owner of a retail establishment or an authorized representative may not arbitrarily exclude a reporter checking prices within the store unless the proprietor has a reasonable basis for such expulsion. OAG 77-17 .

Research References and Practice Aids

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Damage To or Intrusion Upon Property, Part 2 Burglary and Trespass, §§ 5.07, 5.13A.

511.100. Trespass upon key infrastructure assets.

  1. As used in this section:
    1. “Key infrastructure assets” means:
      1. Any critical node of a system used in the production or generation of electrical energy;
      2. A petroleum refinery;
      3. A rubber or hazardous chemical manufacturing facility;
      4. A petroleum or hazardous chemical storage facility or terminal;
      5. Natural gas processing, fractionation, stabilization, and compressor station facilities, as well as above-ground natural gas or petroleum pipelines and related facilities;
      6. Railroad yards and railroad tunnel portals;
      7. A drinking water collection, treatment, or storage facility;
      8. Grounds or property of a state prison, juvenile justice facility, jail, or other facility for the detention of persons charged with or convicted of crimes;
      9. A facility used for research, development, design, production, delivery, or maintenance of military weapons systems, subsystems, and components or parts to meet military requirements of the United States;
      10. A wireless communications facility, including the tower, antennae, support structures and all associated ground-based equipment, and a telecommunications central switching office; or
      11. A cable television headend; and
    2. “Unmanned aircraft system” means an aircraft that is operated without the possibility of direct human interaction from within or on the aircraft and includes everything that is on board or otherwise attached to the aircraft and all associated elements, including communication links and the components that control the small unmanned aircraft, that are required for the safe and efficient operation of the unmanned aircraft in the national airspace system.
    1. A person commits the offense of trespass upon key infrastructure assets if he or she knowingly enters or remains unlawfully in or upon real property on which key infrastructure assets are located. (2) (a) A person commits the offense of trespass upon key infrastructure assets if he or she knowingly enters or remains unlawfully in or upon real property on which key infrastructure assets are located.
    2. A person commits the offense of trespass upon key infrastructure assets if he or she knowingly uses, or retains or authorizes a person to use, an unmanned aircraft system to fly above real property on which key infrastructure assets are located with the intent to cause harm or damage to or conduct surveillance of the key infrastructure asset without the prior consent of the owner, tenant, or lessee of the real property.
  2. Trespass upon key infrastructure assets is a Class B misdemeanor for the first offense, and a Class A misdemeanor for a second or subsequent offense.
  3. This section does not apply to:
    1. An unmanned aircraft system used by the federal government or by the Commonwealth, or by a person acting pursuant to a contract with the federal government or the Commonwealth;
    2. An unmanned aircraft system used by:
      1. The owner of the real property or key infrastructure asset;
      2. A person under a valid lease, servitude, right-of-way, right of use, permit, license, or other right granted by the owner of the real property or key infrastructure asset; or
      3. A third party who is retained or authorized by a person specified in subparagraph 1. or 2. of this paragraph;
    3. An unmanned aircraft system used by a law enforcement agency, emergency medical service agency, hazardous material response team, disaster management agency, or other emergency management agency for the purpose of incident command, area reconnaissance, personnel and equipment deployment monitoring, training, or a related purpose;
    4. Operation of an unmanned aircraft system by a person or entity for a commercial purpose in compliance with applicable Federal Aviation Administration authorization, regulations, or exemptions;
    5. A satellite orbiting the earth;
    6. An unmanned aircraft system used by an insurance company or a person acting on behalf of an insurance company for purposes of underwriting an insurance risk or investigating damage to insured property; or
    7. An unmanned aircraft system used strictly in accordance with an order of a court of competent jurisdiction.

HISTORY: 2018 ch. 168, § 1, effective July 14, 2018; 2019 ch. 61, § 1, effective June 27, 2019; 2020 ch. 12, § 1, effective July 15, 2020.

CHAPTER 512 Criminal Damage to Property

512.010. Definitions for chapter.

The following definitions apply in this chapter unless the context otherwise requires:

  1. “Lease or rental agreement” means all agreements, written or oral, embodying the terms and conditions concerning the use and occupancy of a dwelling unit or premises;
  2. “Litter” means rubbish, refuse, waste material, offal, paper, glass, cans, bottles, trash, debris or any foreign substance of whatever kind or description and whether or not it is of value;
  3. “Noxious substance” means any substance capable of generating offensive, noxious or suffocating fumes, gases or vapors;
  4. “Property” includes livestock as defined in KRS 150.010 and poultry as defined in KRS 246.010 ;
  5. “Residential rental property” means any residential premises or property contained therein leased or otherwise rented to a tenant solely for residential purposes under a lease or rental agreement to which the tenant is a party; and
  6. “Tenant” means a person entitled under a lease or rental agreement to occupy a residential rental property to the exclusion of others.

History. Enact. Acts 1974, ch. 406, § 105, effective January 1, 1975; 2004, ch. 141, § 3, effective July 13, 2004; 2021 ch. 50, § 1, effective June 29, 2021; 2021 ch. 164, § 1, effective June 29, 2021.

Legislative Research Commission Notes.

(6/29/2021). This statute was amended by 2021 Ky. Acts chs. 50 and 164, which do not appear to be in conflict and have been codified together.

Research References and Practice Aids

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Damage To or Intrusion Upon Property, Part 1 Definitions, § 5.05.

Kentucky Instructions to Juries (Criminal), 5th Ed., Damage To or Intrusion Upon Property, Part 4 Criminal Mischief and Related Offenses, § 5.30.

512.020. Criminal mischief in the first degree.

  1. A person is guilty of criminal mischief in the first degree when, having no right to do so or any reasonable ground to believe that he or she has such right, he or she intentionally or wantonly:
    1. Defaces, destroys, or damages any property causing pecuniary loss of one thousand dollars ($1,000) or more;
    2. Tampers with the operations of a key infrastructure asset, as defined in KRS 511.100 , in a manner that renders the operations harmful or dangerous; or
    3. As a tenant, intentionally or wantonly defaces, destroys, or damages residential rental property causing pecuniary loss of one thousand dollars ($1,000) or more.
  2. Criminal mischief in the first degree is a Class D felony.

History. Enact. Acts 1974, ch. 406, § 106, effective January 1, 1975; 1976, ch. 183, § 3; 2020 ch. 12, § 2, effective July 15, 2020; 2021 ch. 164, § 2, effective June 29, 2021.

NOTES TO DECISIONS

1.Double Jeopardy.

A person convicted of breach of the peace by shooting firearms in a town may not later be indicted for injuring a courthouse when the acts involved in each case were the same. (Decided under prior law) Reddy v. Commonwealth, 97 Ky. 784 , 31 S.W. 730, 17 Ky. L. Rptr. 536 , 1895 Ky. LEXIS 234 ( Ky. 1895 ).

Defendant’s convictions on two (2) counts of criminal mischief, arising out of damage he inflicted on a mausoleum and a casket, did not violate KRS 505.020(1)(c) because the criminal mischief statute was not designed to prevent a continuing course of conduct. Rather, the offense of first-degree criminal mischief was completed once the defendant, without the authority to do so, intentionally or wantonly defaced, destroyed or damaged any property causing pecuniary loss of $1,000 or more. Terry v. Commonwealth, 253 S.W.3d 466, 2007 Ky. LEXIS 268 ( Ky. 2007 ).

Defendant’s convictions for both first-degree criminal mischief and violating a grave did not violate double jeopardy. The crimes required proof of different elements since first-degree criminal mischief required proof of a pecuniary loss of $1,000 or more while the crime of violating a grave did not include a monetary damage requirement. Terry v. Commonwealth, 253 S.W.3d 466, 2007 Ky. LEXIS 268 ( Ky. 2007 ).

For purposes of double jeopardy, the crimes of first-degree criminal mischief and first-degree desecration of venerable objects did not constitute the same offense because there was a $1,000 threshold monetary property damage requirement for criminal mischief in the first degree, but no property damage requirement for desecration of venerated objects. Terry v. Commonwealth, 253 S.W.3d 466, 2007 Ky. LEXIS 268 ( Ky. 2007 ).

Convictions for theft by unlawful taking over $10,000 and first-degree criminal mischief did not violate double jeopardy under U.S. Const. amend. V and Ky. Const. § 13 because they required different elements; theft by unlawful taking over $10,000 required intent to deprive the owner of the property, but first-degree criminal mischief did not. And first-degree criminal mischief requires the property be defaced, destroyed, or damaged, but theft by unlawful taking over $10,000 did not; in addition, the jury instructions required the jury to find different elements for each offense. Fagan v. Commonwealth, 374 S.W.3d 274, 2012 Ky. LEXIS 110 ( Ky. 2012 ).

2.Elements.

The removal of a tree in an alley, ordered by the town authorities, is not embraced in offense of unlawfully taking or damaging property without felonious intent. (Decided under prior law) Bardin v. Commonwealth, 191 Ky. 651 , 231 S.W. 208, 1921 Ky. LEXIS 364 ( Ky. 1921 ).

There was no violation of offense of unlawfully taking or damaging property without felonious intent where a person’s land was cut into by diversion of a creek of an adjoining landowner who had caused the diversion by placing brush and stone in holes on his land. (Decided under prior law) Adams v. Commonwealth, 313 Ky. 654 , 233 S.W.2d 285, 1950 Ky. LEXIS 956 ( Ky. 1950 ).

3.— Pecuniary Loss.

In a prosecution for arson the Commonwealth has the duty to establish the value of the property burned. (Decided under prior law) Parham v. Commonwealth, 520 S.W.2d 327, 1975 Ky. LEXIS 169 ( Ky. 1975 ).

Cost of labor in replacing damaged property represents a proper element of pecuniary loss under KRS 512.020 . Brown v. Commonwealth, 250 S.W.3d 671, 2007 Ky. App. LEXIS 254 (Ky. Ct. App. 2007).

Trial court properly considered the cost of labor in replacing a convertible top defendant damaged for purposes of establishing the amount of pecuniary loss necessary to convict defendant of criminal mischief under KRS 512.020 ; thus, denial of defendant’s motion for directed verdict of acquittal did not violate defendant’s due process rights. Brown v. Commonwealth, 250 S.W.3d 671, 2007 Ky. App. LEXIS 254 (Ky. Ct. App. 2007).

Because the fair market value of the loss defendant caused due to hitting a person’s car while driving while intoxicated was the $6,274 paid by his insurance company for repairs, and it was not relevant that the insurance company paid for the repairs, rather, it mattered only that defendant was the cause of that amount of damage, defendant’s conviction under KRS 512.020 was proper. Crain v. Commonwealth, 257 S.W.3d 924, 2008 Ky. LEXIS 110 ( Ky. 2008 ).

4.Evidence.

Where the defendants were occupants of a jail which they had been charged with injuring, this was not sufficient to sustain a conviction where other prisoners also had an opportunity to commit the offense. (Decided under prior law) Davis v. Commonwealth, 211 Ky. 771 , 278 S.W. 104, 1925 Ky. LEXIS 967 ( Ky. 1925 ).

Evidence that accused had previously threatened damage to the car of another, that the car was subsequently set afire, that the accused was seen near the car immediately preceding the fire and was still in the vicinity after the fire, and later expressed a desire to leave town was sufficient to sustain a conviction for arson. (Decided under prior law) Parham v. Commonwealth, 520 S.W.2d 327, 1975 Ky. LEXIS 169 ( Ky. 1975 ).

Defendant was not entitled to a directed verdict on charges of burglary, criminal mischief, and theft because, after a jury found defendant possessed a stolen item, which defendant did not contest, the jury could believe defendant stole the item, committed burglary to do so, and damaged the property from which the item was stolen. Allen v. Commonwealth, 410 S.W.3d 125, 2013 Ky. LEXIS 395 ( Ky. 2013 ).

5.— Admissibility.

Where defendant was tried and convicted on a charge of maliciously burning an automobile, evidence of a prior conviction for armed robbery was admissible for purposes of impeachment of credibility. (Decided under prior law) Thomas v. Commonwealth, 487 S.W.2d 954, 1972 Ky. LEXIS 103 ( Ky. 1972 ).

6.— Sufficient.

Defendant’s conviction for criminal mischief and disorderly conduct was affirmed as: (1) the police officers had a legal right to be on the premises as they were there in response to a 911 call of domestic violence, (2) there was ample evidence to indicate that the potential for domestic violence existed, (3) after locating defendant, the police acted reasonably in asking him to step out of an abandoned vehicle so that they could determine whether he was a threat, (4) defendant’s repeated refusals to cooperate, his reaching under the seat, and his desire to let loose his dog caused the officers to remove him forcibly from the vehicle, and (5) defendant was handcuffed and placed in the police cruiser because he was prohibiting the officers from carrying out their duty under KRS 403.785 , not because the officers were attempting to place him under arrest. Poe v. Commonwealth, 201 S.W.3d 37, 2006 Ky. App. LEXIS 258 (Ky. Ct. App. 2006).

Defendant’s convictions for murder, DUI, first-degree wanton endangerment, and first-degree criminal mischief were supported by the evidence; before the collision, which killed a child, defendant admitted that defendant had consumed around six beers and was under the influence of alcohol. Baumia v. Commonwealth, 2012 Ky. LEXIS 191 (Ky. Nov. 21, 2012), sub. op., 402 S.W.3d 530, 2012 Ky. LEXIS 503 ( Ky. 2012 ), sub. op., 402 S.W.3d 530, 2013 Ky. LEXIS 247 ( Ky. 2013 ).

6.—Sufficient.

Defendant was not entitled to a directed verdict of acquittal on the charge of first-degree criminal mischief because the Commonwealth of Kentucky presented satisfactory evidence that defendant broke the cell window at a detention center as corrections officers testified that defendant, an inmate at the center, was angry and beating on a door, that the window of the door was broken directly thereafter, that defendant, and no one else, was standing near the door, and that a shower-head that matched the hole in the glass door could be removed. Madden v. Commonwealth, 582 S.W.3d 54, 2019 Ky. App. LEXIS 4 (Ky. Ct. App. 2019).

7.Indictment.

Where an indictment charged the willful and malicious displacing and disturbing of a fixture by displacing and disconnecting the connecting rod of a switch, this was sufficient to describe an offense. (Decided under prior law) Crawford v. Commonwealth, 35 S.W. 114, 18 Ky. L. Rptr. 16 (1896).

Indictment for damaging railroad equipment does not have to contain an allegation that the railroad company was a corporation and authorized to do business in this state. (Decided under prior law) Rooney v. Commonwealth, 102 Ky. 373 , 43 S.W. 689, 19 Ky. L. Rptr. 1390 , 1897 Ky. LEXIS 127 ( Ky. 1897 ).

An indictment charging willful and unlawful destruction of property of another is not invalid for failure to allege that the destruction was without the owner’s consent, for a lack of an owner’s consent is presumed. (Decided under prior law) Commonwealth v. Congleton, 267 Ky. 22 , 101 S.W.2d 210, 1937 Ky. LEXIS 282 ( Ky. 1937 ).

Where charges against juvenile for third-degree burglary and second-degree criminal mischief were raised to second-degree and first-degree, respectively, after commencement of the trial, but in both cases complaints clearly stated facts to support the raised charges, and where juvenile proceeding took place under the Unified Juvenile Code which makes no distinctions between felonies and misdemeanors, such defects were not tantamount to an additional or different offense, and did not mislead the defendant or cause him to suffer any prejudice. A.E. v. Commonwealth, 860 S.W.2d 790, 1993 Ky. App. LEXIS 98 (Ky. Ct. App. 1993).

Defendant’s convictions on two (2) counts of first-degree criminal mischief, which were contained in a superseding indictment, were vacated because defendant was never arraigned on the superseding indictment. (Decided under prior law) Terry v. Commonwealth, 253 S.W.3d 466, 2007 Ky. LEXIS 268 ( Ky. 2007 ).

8.Instructions.

Where there was evidence that the defendant, charged with turning an air cock on a train, did the act innocently without knowing the probable effect of his act, it was error to fail to give an instruction as to intent. (Decided under prior law) Thacker v. Commonwealth, 85 S.W. 1096, 27 Ky. L. Rptr. 620 (1905).

Where the seal on the railroad car door was cut, the door slid back a little, then pushed back in place, defendant walking away, the court should instruct the jury on trespass as defined in law that provided penalty for unlawfully damaging property without felonious intent. (Decided under prior law) Price v. Commonwealth, 129 Ky. 716 , 112 S.W. 855, 1908 Ky. LEXIS 213 ( Ky. 1908 ).

Research References and Practice Aids

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Damage To or Intrusion Upon Property, Part 4 Criminal Mischief and Related Offenses, § 5.25.

512.030. Criminal mischief in the second degree.

  1. A person is guilty of criminal mischief in the second degree when, having no right to do so or any reasonable ground to believe that he or she has such right, he or she:
    1. Intentionally or wantonly defaces, destroys, or damages any property causing pecuniary loss of five hundred dollars ($500) or more but less than one thousand dollars ($1,000); or
    2. As a tenant, intentionally or wantonly defaces, destroys, or damages residential rental property causing pecuniary loss of five hundred dollars ($500) or more but less than one thousand dollars ($1,000).
  2. Criminal mischief in the second degree is a Class A misdemeanor.

History. Enact. Acts 1974, ch. 406, § 107, effective January 1, 1975; 2021 ch. 164, § 3, effective June 29, 2021.

NOTES TO DECISIONS

1.Indictment.

Where charges against juvenile for third-degree burglary and second-degree criminal mischief were raised to second-degree and first-degree, respectively, after commencement of the trial, but in both cases complaints clearly stated facts to support the raised charges, and where juvenile proceeding took place under the Unified Juvenile Code which makes no distinctions between felonies and misdemeanors, such defects were not tantamount to an additional or different offense, and did not mislead the defendant or cause him to suffer any prejudice. A.E. v. Commonwealth, 860 S.W.2d 790, 1993 Ky. App. LEXIS 98 (Ky. Ct. App. 1993).

2.Pecuniary Loss.

Fair market value of the loss defendant caused due to hitting a person’s car while driving while intoxicated was the $6,274 paid by his insurance company for repairs, and it was not relevant that the insurance company paid for the repairs, rather, it mattered only that defendant was the cause of that amount of damage Crain v. Commonwealth, 257 S.W.3d 924, 2008 Ky. LEXIS 110 ( Ky. 2008 ).

3.Complicity.

Sufficient evidence supported adjudicating a juvenile because (1) the juvenile’s specific intent or complicitors’ express pact was not required to show the juvenile’s complicity to the result to commit second-degree criminal mischief, (2) the juvenile admitted active involvement in the group that committed the crime, and (3) the evidence supported the juvenile’s presumed knowledge and disregard of the risk of probable resulting damage. R.S. v. Commonwealth, 423 S.W.3d 178, 2014 Ky. LEXIS 6 ( Ky. 2014 ).

Research References and Practice Aids

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Damage To or Intrusion Upon Property, Part 4 Criminal Mischief and Related Offenses, § 5.26.

512.040. Criminal mischief in the third degree.

  1. A person is guilty of criminal mischief in the third degree when:
    1. Having no right to do so or any reasonable ground to believe that he or she has such right, he or she intentionally or wantonly defaces, destroys, or damages any property causing pecuniary loss of less than five hundred dollars ($500);
    2. He or she tampers with property so as knowingly to endanger the person or property of another; or
    3. He or she as a tenant, and having no right to do so or any reasonable grounds to believe that he or she has such right, intentionally or wantonly defaces, destroys, or damages residential rental property causing pecuniary loss of less than five hundred dollars ($500).
  2. Criminal mischief in the third degree is a Class B misdemeanor.

History. Enact. Acts 1974, ch. 406, § 108, effective January 1, 1975; 1976, ch. 183, § 4; 2021 ch. 164, § 4, effective June 29, 2021.

Research References and Practice Aids

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Damage To or Intrusion Upon Property, Part 4 Criminal Mischief and Related Offenses, § 5.27.

512.050. Criminal use of noxious substance.

  1. A person is guilty of criminal use of a noxious substance when he unlawfully deposits on the land or in the building or vehicle of another any stink bomb, device, or irritant with the intent to interfere with another’s use of the land, building or vehicle.
  2. Criminal use of a noxious substance is a Class B misdemeanor.

History. Enact. Acts 1974, ch. 406, § 109, effective January 1, 1975.

Research References and Practice Aids

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Damage To or Intrusion Upon Property, Part 4 Criminal Mischief and Related Offenses, § 5.28.

512.060. Criminal possession of noxious substance.

  1. A person is guilty of criminal possession of a noxious substance when he possesses such substance under circumstances evincing an intent unlawfully to use or cause it to be used to inflict injury upon or to cause annoyance to a person, or to damage property of another, or to disturb the public peace.
  2. Criminal possession of a noxious substance is a Class B misdemeanor.

History. Enact. Acts 1974, ch. 406, § 110, effective January 1, 1975.

Research References and Practice Aids

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Damage To or Intrusion Upon Property, Part 4 Criminal Mischief and Related Offenses, § 5.29.

512.070. Criminal littering. — Local governments may classify criminal littering as civil offenses.

  1. A person is guilty of criminal littering when he:
    1. Drops or permits to drop on a highway any destructive or injurious material and does not immediately remove it; or
    2. Knowingly places or throws litter on any public or private property or in any public or private water without permission; or
    3. Negligently places or throws glass or other dangerous pointed or edged substances on or adjacent to water to which the public has access for swimming or wading or on or within fifty (50) feet of a public highway; or
    4. Discharges sewage, minerals, oil products, or litter into any public waters or lakes within the state.
  2. Criminal littering is a Class A misdemeanor.
  3. Violators may prepay to the Circuit Court clerk if prepayment is so noted on the citation and if the littering offense is not combined with an offense that is not prepayable.
  4. Notwithstanding any language or provision of this section or KRS 65.8808 (3) to the contrary, the legislative body of a local government may, by ordinance, choose to classify the offenses proscribed in subsection (1) of this section as civil offenses in accordance with KRS 65.8808 .

History. Enact. Acts 1974, ch. 406, § 111, effective January 1, 1975; 1982, ch. 145, § 1, effective July 15, 1982; 2002, ch. 342, § 10, effective July 15, 2002; 2012, ch. 63, § 9, effective January 1, 2013.

NOTES TO DECISIONS

1.Third-Party Liability.

Defendant was improperly convicted of littering under KRS 512.070(1)(a) based on his passenger throwing a bag of trash out of his vehicle because third-party liability only applied if the litter was destructive or injurious material. Frazier v. Commonwealth, 2011 Ky. App. LEXIS 73 (Ky. Ct. App. Apr. 22, 2011, sub. op., 2011 Ky. App. Unpub. LEXIS 957 (Ky. Ct. App. Apr. 22, 2011).

Research References and Practice Aids

Cross-References.

Highway littering, proof, enforcement and rewards, KRS 433.753 .

Littering public waters, proof, enforcement and rewards, KRS 433.757 .

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Damage To or Intrusion Upon Property, Part 4 Criminal Mischief and Related Offenses, §§ 5.30 — 5.33.

512.080. Unlawfully posting advertisements.

  1. A person is guilty of unlawfully posting advertisements when, having no right to do so or any reasonable ground to believe he has such a right, he posts, paints or otherwise affixes to the property of another person or to public property any advertisement, poster, notice or other matter.
  2. Unlawfully posting advertisements is a violation.

History. Enact. Acts 1974, ch. 406, § 112, effective January 1, 1975.

Opinions of Attorney General.

A peace officer, in whose presence a “violation” is committed, has the option of issuing the violator a citation or making a full custodial arrest. OAG 76-166 .

If a public right-of-way, though established by easement, has become “public property,” that portion of this section banning posting upon “public property,” will apply to such right-of-way. OAG 91-151 .

The burden rests with the prosecution to affirmatively prove, as an element of the offense, that property on which signs, etc., were posted, is “public property” within the meaning of this section. OAG 91-151 .

The mere fact that a “public right-of-way” has been established by easement will not render the right-of-way “public property” within the meaning of this section. OAG 91-151 .

Where no boundaries are readily identifiable, as described in KRS 178.025 , to indicate “public property,” this section may still be enforced. OAG 91-151 .

Research References and Practice Aids

Cross-References.

Billboard advertising restrictions, KRS 177.830 to 177.890 .

512.090. Unlawful acts relating to acquiring metals.

  1. A person is guilty of unlawful acts relating to acquiring metals when the person intentionally and without permission cuts, mutilates, defaces, or otherwise injures any personal or real property of another, including any fixtures or improvements, for the purpose of obtaining any restricted metal, nonferrous metal, or ferrous metal as defined in KRS 433.900 , in any amount.
  2. Unlawful acts relating to acquiring metals is:
    1. A Class B misdemeanor with a fine of not more than two hundred fifty dollars ($250) or imprisonment in the county jail for less than ninety (90) days, or both, if the direct injury to the property, the amount of loss in value to the property, the amount of repairs necessary to return the property to its condition before the act, or the property loss, including fixtures or improvements, is less than three thousand dollars ($3,000); or
    2. A Class D felony with a fine of not less than one thousand dollars ($1,000) and not more than ten thousand dollars ($10,000) or double his or her gain from commission of the offense, whichever is the greater, or imprisonment for not less than one (1) year but not more than five (5) years, or both, if the direct injury to the property, the amount of loss in value to the property, the amount of repairs necessary to return the property to its condition before the act, or the property loss, including fixtures or improvements, is three thousand dollars ($3,000) or more.

History. Enact. Acts 2012, ch. 91, § 5, effective July 12, 2012.

CHAPTER 513 Arson and Related Offenses

513.010. Definition of “building.”

The following definition applies in this chapter unless the context otherwise requires:

“Building,” in addition to its ordinary meaning, specifically includes any dwelling, hotel, commercial structure, automobile, truck, watercraft, aircraft, trailer, sleeping car, railroad car, or other structure or vehicle, or any structure with a valid certificate of occupancy.

History. Enact. Acts 1974, ch. 406, § 113, effective January 1, 1975; 1982, ch. 56, § 1, effective July 15, 1982.

NOTES TO DECISIONS

1.Automobiles.

The legislature has defined “building” clearly to include automobiles for purposes of this chapter. Commonwealth v. Cross, 769 S.W.2d 63, 1988 Ky. App. LEXIS 202 (Ky. Ct. App. 1988).

2.Vehicles.

Lower courts’ interpretations of the word “vehicle” were in error since KRS 513.010 did not limit the purpose for which the vehicle was used; therefore, a bulldozer was a vehicle for purposes of the arson statutes. Commonwealth v. Plowman, 2001 Ky. App. LEXIS 63 (Ky. Ct. App. May 18, 2001); Commonwealth v. Plowman, 86 S.W.3d 47, 2002 Ky. LEXIS 186 ( Ky. 2002 ).

Cited:

Commonwealth v. Plowman, — S.W.3d —, 2001 Ky. App. LEXIS 63 (Ky. Ct. App. 2001), rev’d, 86 S.W.3d 47, 2002 Ky. LEXIS 186 ( Ky. 2002 ).

Opinions of Attorney General.

The courts have not ruled upon whether or not a school bus is within the classification of structures whose destruction by fire constitutes arson. OAG 76-139 .

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Sellars, Criminal Law, 71 Ky. L.J. 355 (1982-83).

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Damage To or Intrusion Upon Property, Part 1 Definitions, § 5.04.

513.020. Arson in the first degree.

  1. A person is guilty of arson in the first degree when, with intent to destroy or damage a building, he starts a fire or causes an explosion, and;
    1. The building is inhabited or occupied or the person has reason to believe the building may be inhabited or occupied; or
    2. Any other person sustains serious physical injury as a result of the fire or explosion or the firefighting as a result thereof.
  2. Arson in the first degree is a Class A felony.

History. Enact. Acts 1974, ch. 406, § 114, effective January 1, 1975; 1982, ch. 56, § 2, effective July 15, 1982.

NOTES TO DECISIONS

1.Evidence.

Evidence was sufficient to support a conviction for arson under KRS 513.020 because the Commonwealth presented evidence that a fire to a trailer home was intentionally set, that defendant was at the trailer home at the time of the fire, had a motive to start the fire (anger at his live-in girlfriend), had the means to start the fire (lighter and lighter fluid), and that the trailer home was occupied by other persons who sustained serious physical injury in the fire. Additionally, there was the evidence of statements made by defendant to police after the fire that could have been viewed as a confession by defendant. Yell v. Commonwealth, 242 S.W.3d 331, 2007 Ky. LEXIS 286 ( Ky. 2007 ), cert. denied, 553 U.S. 1011, 128 S. Ct. 2068, 170 L. Ed. 2d 806, 2008 U.S. LEXIS 3540 (U.S. 2008).

Cited:

Hendley v. Commonwealth, 573 S.W.2d 662, 1978 Ky. LEXIS 416 ( Ky. 1978 ); Gunter v. Commonwealth, 576 S.W.2d 518, 1978 Ky. LEXIS 458 ( Ky. 1978 ).

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Ashdown, Criminal Law, 64 Ky. L.J. 337 (1975-76).

Kentucky Law Survey, Sellars, Criminal Law, 71 Ky. L.J. 355 (1982-83).

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Damage To or Intrusion Upon Property, Part 2 Arson, §§ 5.15, 5.17, 5.18.

513.030. Arson in the second degree.

  1. A person is guilty of arson in the second degree when he starts a fire or causes an explosion with intent to destroy or damage a building:
    1. Of another; or
    2. Of his own or of another, to collect or facilitate the collection of insurance proceeds for such loss.
  2. In any prosecution under this section, it is a defense that:
    1. No person other than the defendant had a possessory or proprietary interest in the building, or, if other persons had such an interest, all of them consented to the defendant’s conduct; and
    2. The defendant’s sole intent was to destroy or damage the building for a lawful purpose.
  3. Arson in the second degree is a Class B felony.

History. Enact. Acts 1974, ch. 406, § 115, effective January 1, 1975; 1982, ch. 56, § 3, effective July 15, 1982.

NOTES TO DECISIONS

1.In General.

A judgment of conviction or acquittal in a criminal action for arson is no bar or estoppel to a civil action based on the same facts and transaction, as there is no identity of cause of action, persons and parties, and other essentials to support a plea of res judicata. (Decided under prior law) Liverpool & London & Globe Ins. Co. v. Wright, 166 Ky. 159 , 179 S.W. 49, 1915 Ky. LEXIS 668 ( Ky. 1915 ), overruled, Wolff v. Employers Fire Ins. Co., 282 Ky. 824 , 140 S.W.2d 640, 1940 Ky. LEXIS 2 68, 130 A.L.R. 682 (1940), overruled in part, Wolff v. Employers Fire Ins. Co., 282 Ky. 824 , 140 S.W.2d 640, 1940 Ky. LEXIS 2 68, 130 A.L.R. 682 (1940), overruled on other grounds, Wolff v. Employers Fire Ins. Co., 282 Ky. 824, 140 S.W.2d 640, 1940 Ky. LEXIS 268 , 130 A.L.R. 682 (1940), criticized, Shatz v. American Surety Co., 295 S.W.2d 809, 1955 Ky. LEXIS 2 ( Ky. 1956 ), questioned, Pike v. Pardue, 45:1998 Ky. App. LEXIS 10 (Ky. Ct. App. 1998).

2.Double Jeopardy.

Where the evidence which supported defendant’s wanton endangerment conviction arose out of his unsuccessful attempt to start a fire, while his arson conviction arose out of the successful effort about three (3) hours later to burn the building, defendant’s convictions for second degree arson and first degree wanton endangerment did not violate defendant’s right against double jeopardy. Crayton v. Commonwealth, 846 S.W.2d 684, 1992 Ky. LEXIS 198 ( Ky. 1992 ), cert. denied, 510 U.S. 856, 114 S. Ct. 165, 126 L. Ed. 2d 125, 1993 U.S. LEXIS 5563 (U.S. 1993).

3.Due Process.

In a prosecution under law that provided a penalty for willfully and maliciously burning a building other than a dwelling house, where the defendant was indicted on one count of arson, it was not a denial of due process for the trial court to instruct the jury that it could find the defendant guilty of setting the fire himself, or aiding, abetting or procuring another to set the fire. (Decided under prior law) Stone v. Wingo, 416 F.2d 857, 1969 U.S. App. LEXIS 10568 (6th Cir. 1969).

4.Elements.

Willfulness is a requisite of the offense of arson. (Decided under prior law) Jillson v. Commonwealth, 461 S.W.2d 542, 1970 Ky. LEXIS 634 ( Ky. 1970 ).

5.— Building.

The legislature has defined “building” clearly to include automobiles for purposes of this chapter. Commonwealth v. Cross, 769 S.W.2d 63, 1988 Ky. App. LEXIS 202 (Ky. Ct. App. 1988).

Since KRS 513.010 did not limit the purpose for which the vehicle was used; a bulldozer was a “building” for purposes of the arson statutes. Commonwealth v. Plowman, 86 S.W.3d 47, 2002 Ky. LEXIS 186 ( Ky. 2002 ).

6.Evidence.

A conviction for arson may be had based on only circumstantial evidence. (Decided under prior law) Wolf v. Commonwealth, 214 Ky. 544 , 283 S.W. 385, 1926 Ky. LEXIS 340 ( Ky. 1926 ).

Ordinarily, opinion evidence as to the question of whether a fire was of incendiary origin is not admissible, as that is a question for the jury. (Decided under prior law) Harris v. Commonwealth, 342 S.W.2d 535, 1960 Ky. LEXIS 98 ( Ky. 1960 ).

Subject to various exceptions, the law is that in an arson prosecution, evidence that the defendant may have set other fires or committed some other unrelated crime is inadmissible. (Decided under prior law) Harris v. Commonwealth, 342 S.W.2d 535, 1960 Ky. LEXIS 98 ( Ky. 1960 ).

Though the indictment was for the burning of a dwelling house, it was not prejudicial error to admit testimony as to the destruction of the contents and the fact that they were insured where the jury was instructed that this evidence was to be considered for no other purpose than as it might affect the credibility of the defendants as witnesses or to establish a motive for the offense with which they were charged. (Decided under prior law) Harris v. Commonwealth, 342 S.W.2d 535, 1960 Ky. LEXIS 98 ( Ky. 1960 ).

Where the defendant went to his wife’s unoccupied house on a flimsy excuse, had an opportunity to start a fire and did not return to investigate or extinguish the fire which was discovered shortly after he left, the evidence was sufficient to sustain the conviction. (Decided under prior law) Hines v. Commonwealth, 390 S.W.2d 152, 1965 Ky. LEXIS 335 ( Ky. 1965 ).

Where there was substantial evidence, though circumstantial, sufficient to incriminate the accused and warrant his conviction, the defendant was not entitled to a directed verdict. (Decided under prior law) Jillson v. Commonwealth, 461 S.W.2d 542, 1970 Ky. LEXIS 634 ( Ky. 1970 ).

It was proper to show that the defendant had fire insurance to prove the criminal intent and malice requisite in law that provided penalty for willful and malicious burning of dwelling house. (Decided under prior law) Jillson v. Commonwealth, 461 S.W.2d 542, 1970 Ky. LEXIS 634 ( Ky. 1970 ).

7.— Intent.

It was not error in a prosecution for burning a dwelling house to admit evidence that defendant had been shooting a gun about the house before it burned and that seven (7) chickens which had been shot were found in the yard after the fire, because this evidence was admissible to show intent, motive or malice on the part of the defendant. (Decided under prior law) Merida v. Commonwealth, 243 S.W.2d 652, 1951 Ky. LEXIS 1146 ( Ky. 1951 ).

Where one instruction used the term “maliciously and feloniously” rather than “maliciously and willfully,” this error was cured by instruction which defined “feloniously” as “proceeding from an evil heart or purpose, done with the deliberate intention to commit a crime.” (Decided under prior law) Turner v. Commonwealth, 328 S.W.2d 536, 1959 Ky. LEXIS 127 ( Ky. 1959 ).

Since arson law requires proof that the act of arson was willful and malicious, it was not error to admit evidence that the defendant had tampered with the gas cutoff valve of the victim’s house some three (3) or four (4) weeks prior to the arson, since such evidence tends to show motive and malice. (Decided under prior law) Jenkins v. Commonwealth, 413 S.W.2d 624, 1966 Ky. LEXIS 16 ( Ky. 1966 ).

8.— Sufficient.

Where there was some evidence of bad feelings between the defendant and the owner of the dynamited house, and the owner testified that the defendant was in the front yard of the owner’s home immediately after the explosion, the evidence was sufficient to sustain a conviction. (Decided under prior law) Riley v. Commonwealth, 269 Ky. 8 , 106 S.W.2d 85, 1937 Ky. LEXIS 550 ( Ky. 1937 ).

In prosecution for willfully exploding dynamite within dwelling house, where the testimony of an accomplice was corroborated in substantially the same details by two (2) other persons, this was sufficient to sustain a conviction. (Decided under prior law) Sizemore v. Commonwealth, 262 S.W.2d 817, 1953 Ky. LEXIS 1131 ( Ky. 1953 ).

In prosecution for willfully exploding dynamite within a building, where there was testimony that the defendant had attempted to obtain false testimony through bribery and had attempted to conceal incriminating evidence, this was sufficient evidence to connect the appellant with the crime and to corroborate testimony of his accomplice. (Decided under prior law) Hughes v. Commonwealth, 342 S.W.2d 251, 1960 Ky. LEXIS 91 ( Ky. 1960 ).

Where defendants admitted to tampering with evidence by attempting to destroy the victim’s body by placing it in the trunk of her car and setting fire to the car, and each testified that the other committed both the murder and arson, their convictions for tampering with physical evidence and second degree arson were supported by sufficient evidence. Caudill v. Commonwealth, 120 S.W.3d 635, 2003 Ky. LEXIS 140 ( Ky. 2003 ).

Defendant was not entitled to a directed verdict on a second-degree arson charge because a jury could conclude from the evidence that defendant intentionally set fire to his estranged wife’s home where the evidence established that a window in his estranged wife’s home had been broken from the outside, that an accelerant had been poured on the floor in near the master bath and near the point of the fire’s origin, that defendant’s wife told defendant a few days earlier that she was filing for divorce, that defendant told her that he was not going to let someone else “lay up in that house,” that defendant smelled of gasoline and his hands were burned when he was confronted by police, and that items missing from the burned residence were found in defendant’s residence. Crossland v. Commonwealth, 291 S.W.3d 223, 2009 Ky. LEXIS 190 ( Ky. 2009 ).

Trial court did not err by denying defendant’s motion for a directed verdict on charges of murder, complicity to second-degree arson, and complicity to tampering with physical evidence because the testimony of two witnesses that defendant had a large amount of cash a few hours after the shooting, that he then appeared blackened by smoke, and that he admitted his role in the murder, as well as the evidence that defendant left town a few days after the shooting and remained in another city while the case was being investigated was sufficient corroboration to permit reliance on the testimony of defendant’s two accomplices. Harris v. Commonwealth, 313 S.W.3d 40, 2010 Ky. LEXIS 110 ( Ky. 2010 ).

9.Indictment.

Arson at common law embraces the malicious burning of another’s barn stored with hay or grain, so an indictment charging defendant with “arson or barn burning” was sufficient, no one being misled as to offense intended to be charged. (Decided under prior law) Sublett v. Commonwealth, 35 S.W. 543, 18 Ky. L. Rptr. 100 (1896); Thacker v. Commonwealth, 219 Ky. 789 , 294 S.W. 491, 1927 Ky. LEXIS 448 ( Ky. 1927 ).

Where the building burned was, in fact, a combination barn and stable, an indictment for barn burning which alleged that the defendant had burned a “barn and stable” stated only one offense. (Decided under prior law) Saylor v. Commonwealth, 57 S.W. 614, 22 Ky. L. Rptr. 472 , 1900 Ky. LEXIS 592 ( Ky. 1900 ); Wright v. Commonwealth, 155 Ky. 750 , 160 S.W. 476, 1913 Ky. LEXIS 338 ( Ky. 1913 ).

An indictment charging that the offense was “willfully, maliciously and unlawfully burning a dwelling house occupied as a residence” was sufficient even though the word “feloniously” was not used. (Decided under prior law) Collier v. Commonwealth, 110 Ky. 516 , 62 S.W. 4, 22 Ky. L. Rptr. 1929 , 1901 Ky. LEXIS 105 ( Ky. 1901 ).

Indictment for unlawfully burning property, alleging ownership in one who has possession and use but not title, if otherwise sufficient to identify the act, is good. (Decided under prior law) Commonwealth v. Napier, 84 S.W. 536, 27 Ky. L. Rptr. 131 (1905).

An indictment for burning a store, which contained unnecessary statements as to the contents and the insurance of the contents, was not demurrable as these statements were merely surplusage. (Decided under prior law) Goodwin v. Commonwealth, 214 Ky. 422 , 283 S.W. 420, 1926 Ky. LEXIS 358 ( Ky. 1926 ); Renaker v. Commonwealth, 172 Ky. 714 , 189 S.W. 928, 1916 Ky. LEXIS 261 ( Ky. 1916 ); Hays v. Commonwealth, 211 Ky. 716 , 277 S.W. 1004, 1925 Ky. LEXIS 954 ( Ky. 1925 ).

An indictment which charged the defendant with the “crime of arson,” cited the statute, and charged that the crime was committed “by setting fire to a dwelling house” was sufficient though it contained no allegation that the act was done “willfully and maliciously.” (Decided under prior law) Hines v. Commonwealth, 390 S.W.2d 152, 1965 Ky. LEXIS 335 ( Ky. 1965 ).

10.— Amendment.

Where the substantial rights of the defendant were not prejudiced, it was not error to allow an amendment stating that defendant had “aided, counseled or procured the burning of a storehouse” to the original indictment charging the burning of a storehouse. (Decided under prior law) Stone v. Commonwealth, 418 S.W.2d 646, 1967 Ky. LEXIS 220 ( Ky. 1967 ), cert. denied, 390 U.S. 1010, 88 S. Ct. 1259, 20 L. Ed. 2d 161, 1968 U.S. LEXIS 2015 (U.S. 1968).

11.— Variance.

In prosecution for arson, variance between indictment and proof in that indictment alleged that occupant of farm was owner while proof showed that occupant’s father was the owner was not fatal. (Decided under prior law) Short v. Commonwealth, 291 Ky. 604 , 165 S.W.2d 177, 1942 Ky. LEXIS 291 ( Ky. 1942 ).

12.Instructions.

It was not prejudicial error for the court to fail to give an affirmative instruction on the defendant’s theory of accidental burning when it had instructed that willfully means intentionally and not accidently or involuntarily, as this instruction incorporated the defense of accidental burning. (Decided under prior law) Merida v. Commonwealth, 243 S.W.2d 652, 1951 Ky. LEXIS 1146 ( Ky. 1951 ).

13.— Lesser Included Offense.

Defendant charged with first-degree arson, under KRS 513.020 , was entitled to a lesser-included offense instruction on second-degree arson because of the possibility that the jury could conclude that the victims found inside the burned building were dead before the building burned, so that the building was not occupied when it was burned. Bray v. Commonwealth, 68 S.W.3d 375, 2002 Ky. LEXIS 19 ( Ky. 2002 ).

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Sellars, Criminal Law, 71 Ky. L.J. 355 (1982-83).

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Damage To or Intrusion Upon Property, Part 2 Arson, §§ 5.16, 5.17, 5.19 — 5.22.

513.040. Arson in the third degree.

  1. A person is guilty of arson in the third degree if he wantonly causes destruction or damage to a building of his own or of another by intentionally starting a fire or causing an explosion.
  2. In any prosecution under this section, it is a defense that no person other than the defendant had a possessory or proprietary interest in the building, or, if other persons had such an interest, all of them consented to defendant’s conduct.
  3. Arson in the third degree is a Class D felony.

History. Enact. Acts 1974, ch. 406, § 116, effective January 1, 1975; 1982, ch. 56, § 4, effective July 15, 1982.

NOTES TO DECISIONS

1.Double Jeopardy.

Where defendant was found to have been involved in the planning and commission of first degree arson, which was committed when the victim’s automobile was intentionally set ablaze, and also murder, which was accomplished by burning the victim in the automobile, there were two (2) distinct acts and impulses involved and compound consequences as a result of violating two (2) distinct statutes, thus convicting defendant of both crimes did not constitute a double jeopardy violation. Perdue v. Commonwealth, 916 S.W.2d 148, 1995 Ky. LEXIS 109 ( Ky. 1995 ), cert. denied, 519 U.S. 855, 117 S. Ct. 151, 136 L. Ed. 2d 96, 1996 U.S. LEXIS 5295 (U.S. 1996).

2.Evidence.

Evidence placing the defendant near the apartment just prior to a fire which was deliberately set and caused two (2) deaths was sufficient, apart from the defendant’s testimony at the trial and apart from his confession, to establish the corpus delicti and sustain the guilty verdicts for arson and manslaughter. Hendley v. Commonwealth, 573 S.W.2d 662, 1978 Ky. LEXIS 416 ( Ky. 1978 ).

3.Sentencing.

Arson under Kentucky law is a crime of violence for purposes of U.S. Sentencing Guidelines Manual § 4B1.1, because it is specifically enumerated as a crime of violence under U.S. Sentencing Guidelines Manual § 4B1.2(a)(2) and also involves conduct posing a serious potential risk of physical injury to another, regardless of whether the fire involves a dwelling because the fire could harm firefighters and onlookers and could spread to occupied structures. United States v. Adams, 51 Fed. Appx. 507, 2002 U.S. App. LEXIS 22114 (6th Cir. Ky. 2002 ).

Cited:

Lawson v. Commonwealth, 53 S.W.3d 534, 2001 Ky. LEXIS 87 ( Ky. 2001 ).

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Sellars, Criminal Law, 71 Ky. L.J. 355 (1982-83).

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Damage To or Intrusion Upon Property, Part 2 Arson, §§ 5.17, 5.20.

513.060. Burning personal property to defraud insurer.

  1. A person is guilty of burning personal property to defraud an insurer when, with intent to defraud or injure an insurer, he:
    1. Sets fire to, burns, or causes to be burned; or
    2. Aids, counsels, or procures the burning of any of the goods, wares, merchandise, or other personal property of himself or another, that is insured at the time against loss or damage by fire.
  2. Burning personal property to defraud an insurer is a Class D felony.

History. Enact. Acts 1980, ch. 49, § 3, effective July 15, 1980.

NOTES TO DECISIONS

1.Elements.

Where the indictment is for the offense of burning property on which there is insurance, legal insurance is contemplated and it is essential for conviction that the property is covered by a policy issued by an insurance company regularly engaged in carrying on the business of fire insurance in this state. (Decided under prior law) Wilhite v. Commonwealth, 203 Ky. 543 , 262 S.W. 949, 1924 Ky. LEXIS 956 ( Ky. 1924 ).

Research References and Practice Aids

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Damage To or Intrusion Upon Property, Part 2 Arson, §§ 5.23, 5.24.

CHAPTER 514 Theft and Related Offenses

514.010. Definitions.

The following definitions apply in this chapter unless the context otherwise requires:

  1. “Deprive” means:
    1. To withhold property of another permanently or for so extended a period as to appropriate a major portion of its economic value or with intent to restore only upon payment of reward or other compensation; or
    2. To dispose of the property so as to make it unlikely that the owner will recover it.
  2. “Financial institution” means a bank, insurance company, credit union, building and loan association, savings and loan association, investment trust or other organization held out to the public as a place of deposit of funds or medium of savings or collective investment.
  3. “Movable property” means property the location of which can be changed, including things growing on, affixed to, or found in land, and documents although the rights represented thereby have no physical location. “Immovable property” is all other property.
  4. “Obtain” means:
    1. In relation to property, to bring about a transfer or purported transfer from another person of a legal interest in the property, whether to the obtainer or another; or
    2. In relation to labor or service, to secure performance thereof.
  5. “Propelled vehicle” means any vehicle, including but not limited to motor vehicles, aircraft, boats, or construction machinery, which is propelled otherwise than by muscle power or which is readily capable of being towed otherwise than by muscle power.
  6. “Property” means anything of value, including real estate, tangible and intangible personal property, contract rights, documents, choses-in-action and other interests in or claims to wealth, admission or transportation tickets, captured or domestic animals, food and drink.
  7. “Property of another” includes property in which any person other than the actor has an interest which the actor is not privileged to infringe, regardless of the fact that the actor also has an interest in the property and regardless of the fact that the other person might be precluded from civil recovery because the property was used in an unlawful transaction or was subject to forfeiture as contraband. Property in possession of the actor shall not be deemed property of another who has only a security interest therein, even if legal title is in the creditor pursuant to a conditional sales contract or other security arrangement.
  8. “Receiving” means acquiring possession, control or title or lending on the security of the property.
  9. “Services” includes labor, professional service, transportation, telephone, electricity, gas, water or other public service, accommodation in hotels, restaurants or elsewhere, admission to exhibitions, use of vehicles or other movable property.
  10. “Tax liability” for purposes of this chapter means the amount of money by which a person understates the total amount of taxes due or collected and not remitted to the Commonwealth, or the amount he fails to pay to the state, or both. Any person whose income is subject to the withholding of income tax and from whose income taxes are withheld shall be considered, for purposes of this chapter, to have paid to the Commonwealth the sum of money withheld, whether or not such sum withheld is paid to the Commonwealth.
  11. “Tax return” means any return, declaration, report or form issued or prescribed by the Department of Revenue and required to be filed with the Department of Revenue as prescribed by law.

History. Enact. Acts 1974, ch. 406, § 117, effective January 1, 1975; 1980, ch. 267, § 2, effective July 15, 1980; 1982, ch. 238, § 7, effective July 15, 1982; 2005, ch. 85, § 698, effective June 20, 2005.

NOTES TO DECISIONS

1.Property.

Money orders are property under this statute. Commonwealth v. Gilbert, 768 S.W.2d 62, 1989 Ky. App. LEXIS 48 (Ky. Ct. App. 1989).

Defendant’s claim that he could not be convicted of theft by unlawful taking of items from a casket because the items interred with the corpse lost their status as “property” upon interment failed. Property was broadly defined as anything of value and it was clear that the items taken from the casket, which included a necklace worn by the corpse, had value. Terry v. Commonwealth, 253 S.W.3d 466, 2007 Ky. LEXIS 268 ( Ky. 2007 ).

In a theft-by-deception case, the Commonwealth sufficiently proved that defendant obtained “property” when she obtained the discharge of a vehicle loan (which she had allegedly co-signed for her boyfriend) by lying to the finance company and saying her name had been forged. The definition of property in KRS 514.010(6) is very expansive, covering anything of value, and includes intangible property and contract rights. Allen v. Commonwealth, 395 S.W.3d 451, 2013 Ky. LEXIS 30 ( Ky. 2013 ).

2.Obtain.

Defendant who lied to a finance company and said her name had been forged on loan documents “obtained” property, as defined in KRS 514.010(4)(a) because the finance company discharged the debt, and relief from the debt was personally valuable to defendant. Allen v. Commonwealth, 395 S.W.3d 451, 2013 Ky. LEXIS 30 ( Ky. 2013 ).

3.Deprive.

Defendant’s motion for directed verdict on the theft by unlawful taking charge was properly denied because, if defendant carried out his plan to kill the victim and then himself, there would be no abandonment or return of the property by defendant; and a reasonable jury could believe that defendant intended to kill only the victim and not himself and that he had never planned to return the murder weapon to its rightful owner. Bowen v. Commonwealth, 605 S.W.3d 316, 2020 Ky. LEXIS 274 ( Ky. 2020 ).

Cited:

Casey v. Commonwealth, — S.W.3d —, 2012 Ky. App. LEXIS 180 (Ky. Ct. App. 2012).

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Malone and Malone, Criminal Law, 69 Ky. L.J. 545 (1980-81).

Northern Kentucky Law Review.

Lotz, A Survey of Criminal Law Statutes Enacted in 1992, 20 N. Ky. L. Rev. 745 (1993).

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Theft and Related Offenses, Part 1 Definitions, §§ 6.04A, 6.04B.

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public and Judicial Administration, Part 1 Definitions, § 7.06A.

514.020. General provisions.

  1. It is a defense to prosecution for theft that the actor:
    1. Was unaware that the property or service was that of another; or
    2. Acted under a claim of right to the property or service involved or a claim that he had a right to acquire or dispose of it as he did; or
    3. Took property exposed for sale, intending to purchase and pay for it promptly, or reasonably believing that the owner, if present, would have consented.
  2. It is no defense that theft was from the actor’s spouse, except that misappropriation of household and personal effects or other property normally accessible to both spouses is theft only if it involves the property of the other spouse and only if it occurs after the parties have ceased living together.
  3. It shall be prima facie evidence of intent to commit theft by deception when one who has leased or rented the personal property of another fails to return the personal property to its owner within ten (10) days after the lease or rental agreement has expired. It shall also be prima facie evidence of intent to commit theft by deception when one presents to the owner identification which is false, fictitious or not current as to name, address, place of employment or other items of identification for the purpose of obtaining the lease or rental agreement. Nothing herein contained shall relieve the owner from making demand for return of property so leased or rented. Notice addressed and mailed to the lessee or renter at the address given at the time of the making of the lease or rental agreement shall constitute proper demand.

History. Enact. Acts 1974, ch. 406, § 118, effective January 1, 1975; 1978, ch. 78, § 3, effective June 17, 1978; 1980, ch. 267, § 3, effective July 15, 1980.

Legislative Research Commission Note.

Although this section is included in Acts 1980, ch. 267, the proposed change was deleted by floor amendment.

NOTES TO DECISIONS

1.In General.

Forgery is an included offense under the theft by deception statute. Hellard v. Commonwealth, 829 S.W.2d 427, 1992 Ky. App. LEXIS 41 (Ky. Ct. App. 1992), overruled, Commonwealth v. Burge, 947 S.W.2d 805, 1996 Ky. LEXIS 82 ( Ky. 1997 ).

The offense of theft by deception was completed when defendant obtained the VCR with the forged rental agreement and that forgery offense was encompassed within the theft by deception. Hellard v. Commonwealth, 829 S.W.2d 427, 1992 Ky. App. LEXIS 41 (Ky. Ct. App. 1992), overruled, Commonwealth v. Burge, 947 S.W.2d 805, 1996 Ky. LEXIS 82 ( Ky. 1997 ).

2.Instructions.

Where, in a prosecution for theft, defendant did not testify, did not admit the acts charged and did not testify that he acted under a claim of right, there was no error in denying an instruction on claim of right, since that is an affirmative defense invoked only when defendant admits the act charged and seeks to justify its commission in order to show a lack of criminal intent. Howard v. Commonwealth, 608 S.W.2d 62, 1980 Ky. App. LEXIS 382 (Ky. Ct. App. 1980).

Where deputy sheriff was tried and convicted for theft by deception under KRS 514.040 for falsely making claims for prisoner transportation expenses and mileage, he was not entitled to jury instructions regarding a “claim of right” defense under this section, since there was no evidence that the deputy had any personal right to claim the proceeds provided by false representations nor any right to dispose of the proceeds received. Hodges v. Commonwealth, 614 S.W.2d 702, 1981 Ky. App. LEXIS 236 (Ky. Ct. App. 1981).

Opinions of Attorney General.

Recognizing the difficulties in certain cases in proving to a jury that a theft has occurred, the legislature enacted subsection (3) of this section; however, with or without such a statutory provision, the prosecutor must prove each and every element of the crime beyond a reasonable doubt. OAG 91-217 .

Research References and Practice Aids

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., General Principles, Part 1 Matters of Substance, § 1.03.

Kentucky Instructions To Juries (Criminal), 5th Ed., Defenses, Part 4 Miscellaneous Defenses, § 11.35.

Kentucky Instructions To Juries (Criminal), 5th Ed., Theft and Related Offenses, Part 2 Robbery, § 6.14.

514.030. Theft by unlawful taking or disposition — Penalties.

  1. Except as otherwise provided in KRS 217.181 , a person is guilty of theft by unlawful taking or disposition when he unlawfully:
    1. Takes or exercises control over movable property of another with intent to deprive him thereof; or
    2. Obtains immovable property of another or any interest therein with intent to benefit himself or another not entitled thereto.
  2. Theft by unlawful taking or disposition is a Class B misdemeanor unless:
    1. The property is a firearm (regardless of the value of the firearm), in which case it is a Class D felony;
    2. The property is anhydrous ammonia (regardless of the value of the ammonia), in which case it is a Class D felony unless it is proven that the person violated this section with the intent to manufacture methamphetamine in violation of KRS 218A.1432 , in which case it is a Class B felony for the first offense and a Class A felony for each subsequent offense;
    3. The property is one (1) or more controlled substances valued collectively at less than ten thousand dollars ($10,000), in which case it is a Class D felony;
    4. The value of the property is five hundred dollars ($500) or more but less than one thousand dollars ($1,000), in which case it is a Class A misdemeanor;
    5. The value of the property is one thousand dollars ($1,000) or more but less than ten thousand dollars ($10,000), in which case it is a Class D felony;
    6. The person has three (3) or more convictions under paragraph (d) of this subsection within the last five (5) years, in which case it is a Class D felony. The five (5) year period shall be measured from the dates on which the offenses occurred for which the judgments of conviction were entered;
    7. The value of the property is ten thousand dollars ($10,000) or more but less than one million dollars ($1,000,000), in which case it is a Class C felony;
    8. The value of the property is one million dollars ($1,000,000) or more but less than ten million dollars ($10,000,000), in which case it is a Class B felony; or
    9. The value of the property is ten million dollars ($10,000,000) or more, in which case it is a Class B felony.
  3. Any person convicted under subsection (2)(i) of this section shall not be released on probation or parole until he or she has served at least fifty percent (50%) of the sentence imposed, any statute to the contrary notwithstanding.
  4. If any person commits two (2) or more separate offenses of theft by unlawful taking or disposition within ninety (90) days, the offenses may be combined and treated as a single offense, and the value of the property in each offense may be aggregated for the purpose of determining the appropriate charge.

History. Enact. Acts 1974, ch. 406, § 119, effective January 1, 1975; 1992, ch. 451, § 1, effective July 14, 1992; 1994, ch. 314, § 2, effective July 15, 1994; 1998, ch. 301, § 9, effective July 15, 1998; 2000, ch. 233, § 8, effective July 14, 2000; 2009, ch. 106, § 6, effective June 25, 2009; 2013, ch. 82, § 1, effective June 25, 2013; 2021 ch. 66, § 8, effective June 29, 2021.

NOTES TO DECISIONS

Analysis

1.In General.

Larceny is a degree of robbery. (Decided under prior law) Montgomery v. Commonwealth, 346 S.W.2d 479, 1961 Ky. LEXIS 308 ( Ky. 1961 ).

Larceny and conversion are not degrees of the same offense but are distinct offenses. (Decided under prior law) Clark v. Commonwealth, 386 S.W.2d 458, 1965 Ky. LEXIS 509 ( Ky. 1965 ).

2.Double Jeopardy.

Although the theft of the vehicle was, in reality, a part of the first degree robbery and not a separate offense as charged in the indictment, defendant’s plea of guilty to theft did not attach double jeopardy so that he could not be convicted, at the same trial, of first degree robbery. Jordan v. Commonwealth, 703 S.W.2d 870, 1985 Ky. LEXIS 269 ( Ky. 1985 ).

Where the defendant took property and aided the others in taking property, her conviction as an accomplice to theft by unlawful taking in addition to her conviction of theft by unlawful taking did not violate the United States constitutional guarantee against double jeopardy, because the proof for each offense was completely different, and none of the facts proving one offense was necessary to prove the other. Linder v. Commonwealth, 714 S.W.2d 154, 1986 Ky. LEXIS 280 ( Ky. 1986 ), overruled, Mayse v. Commonwealth, 422 S.W.3d 223, 2013 Ky. LEXIS 457 ( Ky. 2013 ), abrogated, Mayse v. Commonwealth, 2013 Ky. LEXIS 700 (Ky. Oct. 24, 2013).

Since all of the elements of theft as set forth in this section are incorporated into the robbery statute, KRS 515.020 , the defendant would be subject to double jeopardy if charged with, and convicted of both. McKee v. Commonwealth, 720 S.W.2d 343, 1986 Ky. App. LEXIS 1451 (Ky. Ct. App. 1986).

Convictions of both theft and burglary are not double jeopardy. Campbell v. Commonwealth, 732 S.W.2d 878, 1987 Ky. LEXIS 225 ( Ky. 1987 ).

Where the defendant stole a license plate with a value of less than $100, and corn and a truck with a value of $100 or more, his conviction of three counts of theft by unlawful taking did not violate double jeopardy, and the fact that the Court of Appeals did not apply the single larceny rule to treat these thefts as a single offense was of no constitutional significance, even though the license plate, corn, and truck were stolen from the same location on the same day. Smith v. Sowders, 848 F.2d 735, 1988 U.S. App. LEXIS 7769 (6th Cir. Ky.), cert. denied, 488 U.S. 866, 109 S. Ct. 169, 102 L. Ed. 2d 139, 1988 U.S. LEXIS 3892 (U.S. 1988).

Defendant’s convictions for both desecration of venerable objects and theft by unlawful taking did not violate double jeopardy because the crimes were separate crimes that required proof of different elements. Theft by taking required defendant to actually take control of the objects he took from a grave while the crime of desecration of venerable objects was complete upon his excavation or disinterment of human remains with the intent to exploit commercially the remains themselves or objects buried with them. Terry v. Commonwealth, 253 S.W.3d 466, 2007 Ky. LEXIS 268 ( Ky. 2007 ).

Convictions for theft by unlawful taking over $10,000 and first-degree criminal mischief did not violate double jeopardy under U.S. Const. amend. V and Ky. Const. § 13 because they required different elements; theft by unlawful taking over $10,000 required intent to deprive the owner of the property, but first-degree criminal mischief did not. And first-degree criminal mischief requires the property be defaced, destroyed, or damaged, but theft by unlawful taking over $10,000 did not; in addition, the jury instructions required the jury to find different elements for each offense. Fagan v. Commonwealth, 374 S.W.3d 274, 2012 Ky. LEXIS 110 ( Ky. 2012 ).

3.Due Process.

Where during the defendant’s trial for the offense of theft by unlawful taking, a prosecution witness inadvertently referred to the crime as a robbery, which is a more serious crime, the misstatement did not substantially prejudice the jury since it was immediately corrected, and the trial court did not abuse its discretion in denying the defendant’s motion for a mistrial. Adkins v. Commonwealth, 647 S.W.2d 502, 1982 Ky. App. LEXIS 286 (Ky. Ct. App. 1982).

Where during the opening statement, in prosecution for theft by unlawful taking and accomplice to theft by unlawful taking, the jury was informed that one of the other defendants had previously entered a guilty plea to the theft charge, the defendant’s substantial rights were highly prejudiced, and her convictions were reversed. Linder v. Commonwealth, 714 S.W.2d 154, 1986 Ky. LEXIS 280 ( Ky. 1986 ), overruled, Mayse v. Commonwealth, 422 S.W.3d 223, 2013 Ky. LEXIS 457 ( Ky. 2013 ), abrogated, Mayse v. Commonwealth, 2013 Ky. LEXIS 700 (Ky. Oct. 24, 2013).

4.—Photographic Line-up.

Where all of the males pictured in a photographic line-up loosely fit the description of the thief that the victim gave to the police, and nothing distinguished one photograph from another except the differing facial features of the individuals photographed, the line-up was not made impermissibly suggestive merely because the individuals whose photographs appeared in the line-up did not closely resemble each other. Adkins v. Commonwealth, 647 S.W.2d 502, 1982 Ky. App. LEXIS 286 (Ky. Ct. App. 1982).

5.—Plea Bargain.

Where the defendant never personally accepted the Commonwealth’s plea bargain offer, it remained simply an offer and was revocable by the Commonwealth at any time; accordingly, the trial court did not err in denying the defendant’s motion to compel the Commonwealth to comply with the alleged agreement, where the motion was made after the Commonwealth decided to go to trial on the theft by unlawful taking charge. Adkins v. Commonwealth, 647 S.W.2d 502, 1982 Ky. App. LEXIS 286 (Ky. Ct. App. 1982).

Defendant’s RCr 11.42(10) motion to set aside judgment failed. That possession of anhydrous ammonia was not sufficient to prove defendant manufactured methamphetamine did not mean defense counsel was ineffective for failing to understand the elements of the offense; pursuant to a plea bargain, defendant pled guilty to theft by unlawful taking of anhydrous ammonia with the intent to manufacture methamphetamine (KRS 514.030(2)(b)), not to manufacturing methamphetamine. Buchanan v. Commonwealth, 2008 Ky. App. LEXIS 12 (Ky. Ct. App. Jan. 11, 2008), review denied, ordered not published, 2008 Ky. LEXIS 170 (Ky. Aug. 13, 2008).

6.—Voluntary Confession.

Where defendant, after being advised of his rights, voluntarily confessed his participation in murder, burglary and theft, evidence did not support contention that confession was induced by promises of more lenient sentence coupled with fear of death penalty or that it was taken in violation of Miranda v. Arizona. Walker v. Commonwealth, 561 S.W.2d 656, 1977 Ky. LEXIS 578 ( Ky. 1977 ).

Where after being informed of his Miranda rights, the defendant was asked if he cared to make a statement, and in the same breath with which he declined to make a confession he made other statements which tended to indicate his guilt, the defendant knowingly and intelligently waived his privilege against self-incrimination and his right to counsel. Fair v. Commonwealth, 652 S.W.2d 864, 1983 Ky. LEXIS 260 ( Ky. 1983 ).

7.Elements.

Under law providing that larceny of a bill of exchange shall be a felony, and negotiable instruments act providing that a check is a bill of exchange, a check may be a subject of larceny. Clines v. Commonwealth, 221 Ky. 461 , 298 S.W. 1107, 1927 Ky. LEXIS 753 ( Ky. 1927 ), (decision prior to repeal of negotiable instruments act).

Copper wire attached to posts in a mine may be the subject of larceny. (Decided under prior law) Eaton v. Commonwealth, 235 Ky. 466 , 31 S.W.2d 718, 1930 Ky. LEXIS 392 ( Ky. 1930 ).

The peaceable repossessing himself of property by a lienholder under conditional sale was not larceny. (Decided under prior law) Commonwealth v. Larson, 242 Ky. 317 , 46 S.W.2d 82, 1932 Ky. LEXIS 251 ( Ky. 1932 ).

A person who was joint owner of chickens cannot be guilty of theft of those chickens. (Decided under prior law) Maloney v. Commonwealth, 264 Ky. 783 , 95 S.W.2d 578, 1936 Ky. LEXIS 393 ( Ky. 1936 ).

Moonshine whiskey is the subject of larceny. (Decided under prior law) Commonwealth v. Collins, 291 Ky. 685 , 165 S.W.2d 357, 1942 Ky. LEXIS 305 ( Ky. 1942 ).

Guilt of theft may be inferred from possession of stolen property, but the possession may not also be inferred. (Decided under prior law) Pengleton v. Commonwealth, 294 Ky. 484 , 172 S.W.2d 52, 1943 Ky. LEXIS 474 ( Ky. 1943 ).

When property affixed to realty is severed from the realty, it is converted into a chattel which may be the subject of larceny so that if the property is later removed with felonious intent, that removal is a larceny regardless of the time between the severance and the removal. (Decided under prior law) Stephens v. Commonwealth, 304 Ky. 38 , 199 S.W.2d 719, 1947 Ky. LEXIS 572 ( Ky. 1947 ).

A spouse can commit larceny of the other spouse’s property. (Decided under prior law) Fugate v. Commonwealth, 308 Ky. 815 , 215 S.W.2d 1004, 1948 Ky. LEXIS 1064 ( Ky. 1948 ).

The corpus delicti in a larceny case is the fact that the property in question was actually stolen from the place or persons named in the indictment. (Decided under prior law) Childers v. Commonwealth, 286 S.W.2d 369, 1955 Ky. LEXIS 97 ( Ky. 1955 ).

Partner, as co-owner of partnership property, cannot be guilt of larceny of such property. (Decided under prior law) Stark v. Commonwealth, 295 S.W.2d 337, 1956 Ky. LEXIS 157 ( Ky. 1956 ).

Possession of stolen property must be personal and involve a conscious possession by the accused to warrant an inference of guilt, placing the burden on one found with possession of the stolen property to satisfy the jury as to how he obtained it. (Decided under prior law) Winn v. Commonwealth, 303 S.W.2d 275, 1957 Ky. LEXIS 243 ( Ky. 1957 ).

Where a person in possession of stolen property has the burden of proof as to how the property came into his possession, the exclusive possession required to impose this burden does not mean that such possession be join possession with some other person or persons. (Decided under prior law) Winn v. Commonwealth, 303 S.W.2d 275, 1957 Ky. LEXIS 243 ( Ky. 1957 ).

Larceny is the wrongful taking and carrying away, by trespass, by any person, of the mere personal goods of another from any place, with a felonious intent to convert them to his own use and make them his own property, or to deprive the owner permanently of his property, without the owner’s consent. (Decided under prior law) Wombles v. Commonwealth, 317 S.W.2d 169, 1958 Ky. LEXIS 76 ( Ky. 1958 ); Hunt v. Commonwealth, 338 S.W.2d 912, 1960 Ky. LEXIS 424 ( Ky. 1960 ).

“Larceny” implies taking of property by stealth, with absence of such fear or force as would constitute “robbery.” (Decided under prior law) Montgomery v. Commonwealth, 346 S.W.2d 479, 1961 Ky. LEXIS 308 ( Ky. 1961 ).

A shipping clerk has mere “custody” of merchandise and not “possession,” therefore, the theft of such merchandise constitutes larceny rather than conversion. (Decided under prior law) Clark v. Commonwealth, 386 S.W.2d 458, 1965 Ky. LEXIS 509 ( Ky. 1965 ).

Law that provided penalty for unlawfully taking or damaging property without felonious intent did not apply to negligent acts which were unintentional and accidental in nature. (Decided under prior law) Bybee v. Singer, 404 S.W.2d 14, 1966 Ky. LEXIS 280 ( Ky. 1966 ).

There is an inference of guilt of larceny that arises from possession of stolen property. (Decided under prior law) Knuckles v. Commonwealth, 458 S.W.2d 782, 1970 Ky. LEXIS 191 ( Ky. 1970 ).

The possession of stolen property raises a presumption that the possessor was guilty of having stolen it, but such may be rebutted by a satisfactory explanation of how he obtained the possession. (Decided under prior law) Jones v. Commonwealth, 453 S.W.2d 564, 1970 Ky. LEXIS 318 ( Ky. 1970 ).

The first-degree robbery provision should be viewed as a deterrent to assaulting an individual, while armed, with the intention of unlawfully obtaining his property whether any of that property is actually taken or not. Lamb v. Commonwealth, 599 S.W.2d 462, 1979 Ky. App. LEXIS 531 (Ky. Ct. App. 1979).

This section defines the crime of theft as either unlawfully taking property of another with intent to deprive him of that property or unlawfully exercising control over property of another with intent to deprive him of that property. Commonwealth v. Day, 599 S.W.2d 166, 1980 Ky. LEXIS 216 ( Ky. 1980 ).

Where a person is shown to have exercised control over the property of another with the intent to deprive him of that property, and no statutory defense under KRS 514.020 such as a claim of right to the property or a right to acquire the property creates at least a reasonable doubt in the mind of the jury, that person may be convicted of the crime of theft by unlawful taking. Commonwealth v. Day, 599 S.W.2d 166, 1980 Ky. LEXIS 216 ( Ky. 1980 ).

KRS 514.110 does not require proof of any fact not required by this section, and while this section does require proof of taking, the very act of taking is also a receiving of the property; thus, although a person may be convicted of knowingly receiving stolen property on less proof than is necessary for a conviction for theft, a conviction for theft precludes a separate conviction for knowingly receiving the same property. Jackson v. Commonwealth, 670 S.W.2d 828, 1984 Ky. LEXIS 205 ( Ky. 1984 ), cert. denied, 469 U.S. 1111, 105 S. Ct. 791, 83 L. Ed. 2d 784, 1985 U.S. LEXIS 413 (U.S. 1985).

Under this section, theft by unlawful taking is a completed offense when the taking has occurred, regardless of asportation. Therefore, where the defendant committed theft offenses in another state and brought the stolen property into Kentucky, the defendant should have been charged only with receiving stolen property under KRS 514.110 , because the commonwealth did not have jurisdiction over the theft offenses committed in the other state. Hayes v. Commonwealth, 698 S.W.2d 827, 1985 Ky. LEXIS 277 ( Ky. 1985 ).

If an indictment is valid on its face and conforms to the requirements of RCr 6.10, the Commonwealth is given the burden of proving all the elements of the crime, which would include the “control” element required by this section; thus, it was premature for the trial court to weigh the evidence prior to trial of the accused’s control over the school board funds in question and dismiss the indictment. Commonwealth v. Hamilton, 905 S.W.2d 83, 1995 Ky. App. LEXIS 151 (Ky. Ct. App. 1995).

8.—Asportation.

The crime of grand larceny was committed when the defendant ran his hand into the pocket of another and took money in the pocket amounting to over $20, although the hand was seized before the money was entirely removed from the pocket. (Decided under prior law) Adams v. Commonwealth, 153 Ky. 88 , 154 S.W. 381, 1913 Ky. LEXIS 764 ( Ky. 1913 ).

Asportation need not consist of removal of property from the owner’s premises, for the first act of removal or the least removal of a thing from the place where it was located is sufficient to constitute asportation where the removal is with an intent to steal. (Decided under prior law) Wombles v. Commonwealth, 317 S.W.2d 169, 1958 Ky. LEXIS 76 ( Ky. 1958 ).

A “taking and carrying away” as an element of larceny may be established by merely showing that the thief had control of the stolen property for a second. (Decided under prior law) Smallwood v. Commonwealth, 438 S.W.2d 334, 1969 Ky. LEXIS 394 ( Ky. 1969 ).

A “taking and carrying away” in the sense of the law applicable to larceny consists of removing the goods by trespass from the place were found by the thief. (Decided under prior law) Smallwood v. Commonwealth, 438 S.W.2d 334, 1969 Ky. LEXIS 394 ( Ky. 1969 ).

9.—Intent.

To constitute crime of larceny, intent with which property was taken must be felonious. (Decided under prior law) Hazel v. Commonwealth, 371 S.W.2d 635, 1963 Ky. LEXIS 107 ( Ky. 1963 ).

To take property in absence of intention to steal, that is, intention to wrongfully take property from possession of owner with intent to convert it to use of taker permanently and to deprive owner of benefit of it, is not larceny. (Decided under prior law) Hazel v. Commonwealth, 371 S.W.2d 635, 1963 Ky. LEXIS 107 ( Ky. 1963 ).

10.—Multiple Items.

Where several items of property are stolen at the same time and the same place there is but a single offense, whether the property belonged to one or several persons. Fair v. Commonwealth, 652 S.W.2d 864, 1983 Ky. LEXIS 260 ( Ky. 1983 ).

Where all three stolen items of property were taken from the same building on the same night, the theft constituted a single offense, and the trial court erred when it denied the defendant’s motion to amend the indictment to consolidate the three theft charges into one. Fair v. Commonwealth, 652 S.W.2d 864, 1983 Ky. LEXIS 260 ( Ky. 1983 ).

Where the guns and the radio scanner were stolen from the same residence at the same time, it constituted only one theft; thus, where the defendant had been convicted and sentenced separately for the theft of each, he was entitled to have his conviction for the theft of the scanner reversed. Jackson v. Commonwealth, 670 S.W.2d 828, 1984 Ky. LEXIS 205 ( Ky. 1984 ), cert. denied, 469 U.S. 1111, 105 S. Ct. 791, 83 L. Ed. 2d 784, 1985 U.S. LEXIS 413 (U.S. 1985).

11.—Value.

In a prosecution for grand larceny, the value of the property taken must be alleged and proved. (Decided under prior law) Lovan v. Commonwealth, 261 Ky. 198 , 87 S.W.2d 381, 1935 Ky. LEXIS 627 ( Ky. 1935 ).

The prosecution has the duty to establish the market value of the stolen item at the time and place of the theft. (Decided under prior law) Perkins v. Commonwealth, 409 S.W.2d 294, 1966 Ky. LEXIS 53 ( Ky. 1966 ).

12.Evidence.

Where the person in possession of the land testified as to his ownership and the manner in which title was passed to him and other heirs or his grandfather, there was sufficient proof of title and any error as to the proper admission of such evidence was waived by failure to object. (Decided under prior law) Griffin v. Commonwealth, 221 Ky. 178 , 298 S.W. 390, 1927 Ky. LEXIS 682 ( Ky. 1927 ).

Proof of nonconsent of owner to the taking is necessary to constitute offense. (Decided under prior law) Lanham v. Commonwealth, 250 Ky. 500 , 63 S.W.2d 585, 1933 Ky. LEXIS 720 ( Ky. 1933 ).

A conviction of grand larceny may be had on the basis of circumstantial evidence alone. (Decided under prior law) Cobb v. Commonwealth, 271 Ky. 505 , 112 S.W.2d 663, 1938 Ky. LEXIS 4 ( Ky. 1938 ); Eversole v. Commonwealth, 288 S.W.2d 58, 1956 Ky. LEXIS 247 ( Ky. 1956 ).

In a prosecution for chicken stealing, the credibility of all the witnesses identifying the defendant was for the jury. (Decided under prior law) Dunn v. Commonwealth, 286 Ky. 695 , 151 S.W.2d 763, 1941 Ky. LEXIS 322 ( Ky. 1941 ).

Where the complainants and the defendant both claimed lawful ownership of chickens found in possession of defendant, the sole issue for the jury was the ownership of the chickens. (Decided under prior law) Smallwood v. Commonwealth, 289 Ky. 554 , 159 S.W.2d 401, 1942 Ky. LEXIS 593 ( Ky. 1942 ).

Where the property involved was owned exclusively by the defendant, the lower court should have sustained motion for a directed acquittal. (Decided under prior law) Seale v. Commonwealth, 300 Ky. 324 , 188 S.W.2d 467, 1945 Ky. LEXIS 540 ( Ky. 1945 ).

Where it was undisputed that certain goods were stolen and there was testimony that the goods were found in the defendant’s possession, all of the essential elements of the crime of larceny were established. (Decided under prior law) Smallwood v. Commonwealth, 438 S.W.2d 334, 1969 Ky. LEXIS 394 ( Ky. 1969 ).

Questioning on prior felony convictions was allowable to impeach the credibility of a witness, not to identify him as an habitual violator of the law. (Decided under prior law) Iles v. Commonwealth, 476 S.W.2d 170, 1972 Ky. LEXIS 374 ( Ky. 1972 ).

13.—Admissibility.

It was error to admit the testimony of a farmer, who was not the prosecuting witness, that he found some of his lambs in the defendant’s barn, for such evidence did not establish a plan or design of the defendant to commit a series of crimes. (Decided under prior law) Tinsley v. Commonwealth, 312 Ky. 745 , 229 S.W.2d 761, 1950 Ky. LEXIS 763 ( Ky. 1950 ).

Where the defendant maintained that he had loaned his car to one of the two codefendants and was not aware that there was stolen property in the car at the time the three were arrested in the car, it was proper to admit photographs showing the location of the stolen articles in the car even though the pictures were not taken at the place of and immediately after the arrest. (Decided under prior law) Maritn v. Commonwealth, 260 S.W.2d 663, 1953 Ky. LEXIS 985 ( Ky. 1953 ).

Where a witness made in-court identification of an accused, the fact of a previous identification in a lineup was not prejudicial unless the in-court identification was tainted in some manner by the lineup, and in such a case an objection must be made to the in-court identification to preserve that issue for review. (Decided under prior law) Lewis v. Commonwealth, 463 S.W.2d 137, 1970 Ky. LEXIS 659 ( Ky. 1970 ).

Where one of the defendants charged with cattle stealing admitted he was at an illegal cockfight when he met the alleged seller of the cattle, there was no error in permitting introduction of this evidence of other crimes. (Decided under prior law) Fible v. Commonwealth, 461 S.W.2d 553, 1970 Ky. LEXIS 639 ( Ky. 1970 ).

Where the defendant was arrested for one offense but there was probable cause that he was guilt of a second offense, a search of his person revealing evidence significant to the second charge, could be introduced. (Decided under prior law) Iles v. Commonwealth, 476 S.W.2d 170, 1972 Ky. LEXIS 374 ( Ky. 1972 ).

Where an arrest, based on nothing more than the tip of one or more unidentified informers, lacked probable cause and was invalid, any evidence secured incident to the arrest was inadmissible. (Decided under prior law) Iles v. Commonwealth, 476 S.W.2d 170, 1972 Ky. LEXIS 374 ( Ky. 1972 ).

Where the court held no pre-trial hearing on the admissibility of previous convictions but allowed the defendant to be questioned about convictions without ascertaining whether or not they were felonies, the error in permitting the questioning was prejudicial where the jury imposed the maximum sentence. (Decided under prior law) Iles v. Commonwealth, 476 S.W.2d 170, 1972 Ky. LEXIS 374 ( Ky. 1972 ).

14.—Corroboration.

Where wrappers around oranges stolen from a common carrier were found in defendant’s possession, he could be convicted on the testimony of an accomplice to the effect defendant helped him in commission of crime. (Decided under prior law) Smith v. Commonwealth, 144 Ky. 537 , 139 S.W. 802, 1911 Ky. LEXIS 680 ( Ky. 1911 ).

Introduction of evidence as to the breed and color of the chickens was not sufficient corroboration of the testimony of an accomplice to justify the submission of the case to the jury. (Decided under prior law) Mitchell v. Commonwealth, 240 Ky. 258 , 42 S.W.2d 305, 1931 Ky. LEXIS 381 ( Ky. 1931 ).

Testimony of an accomplice was sufficiently corroborated by the fact that hog meat was found on the defendant’s premises. (Decided under prior law) Fugate v. Commonwealth, 294 Ky. 410 , 171 S.W.2d 1020, 1943 Ky. LEXIS 461 ( Ky. 1943 ), overruled, Hay v. Commonwealth, 432 S.W.2d 641, 1968 Ky. LEXIS 348 ( Ky. 1968 ).

In prosecution for chicken stealing, evidence showing that the defendant was caught in possession of the chickens was sufficient to connect him with the offense and was sufficient corroboration of testimony of accomplice. (Decided under prior law) Anderson v. Commonwealth, 312 Ky. 768 , 229 S.W.2d 756, 1950 Ky. LEXIS 760 ( Ky. 1950 ).

A boy who looked for and joined friends when he knew beforehand that they were planning to steal chickens and who asked to accompany and did accompany them to the scene of the crime, though remaining in the car during the actual theft, was an accomplice whose testimony must be corroborated. (Decided under prior law) Cook v. Commonwealth, 273 S.W.2d 390, 1954 Ky. LEXIS 1173 ( Ky. 1954 ).

Where the testimony of the accomplice was corroborated by his wife, such corroboration was sufficient to submit the case to the jury. (Decided under prior law) Nix v. Commonwealth, 299 S.W.2d 609, 1957 Ky. LEXIS 408 ( Ky. 1957 ).

There was sufficient corroboration of an accomplice’s testimony where the defendant himself admitted being in a car in which his accomplice had stated he had seen the defendant and where the defendant’s girl friend testified that he had told her of plans to divert tobacco to the wrong warehouses. (Decided under prior law) Flora v. Commonwealth, 387 S.W.2d 15, 1964 Ky. LEXIS 546 (Ky. Ct. App. 1964).

The evidence of an accomplice was not ipso facto discredited by failure to admonish or instruct under the accomplice section of the Rules of Criminal Procedure. (Decided under prior law) Fible v. Commonwealth, 461 S.W.2d 553, 1970 Ky. LEXIS 639 ( Ky. 1970 ).

Where the corroborative evidence connecting the defendant to a cattle theft consisted of testimony that his car was observed near the theft, that he was seen on the road near the theft, and that tire tracks at the scene were “similar” to those made by a truck rented by an alleged accomplice witness, such evidence was not sufficiently strong to justify a determination as a matter of law but it sufficiently connected the defendant with the crime and the jury should have been instructed to determine whether the witness was in fact an accomplice under RCr 9.62 and, if so, whether there was sufficient corroborating evidence connecting defendant with the crime. (Decided under prior law) Mouser v. Commonwealth, 491 S.W.2d 821, 1973 Ky. LEXIS 604 ( Ky. 1973 ).

15.—Fingerprints.

While on trial for second-degree burglary and for theft by unlawful taking, the accused waived any objection to the taking of fingerprints during trial when he denied that they were his fingerprints found at the scene of the burglary. Frank v. Commonwealth, 907 S.W.2d 771, 1995 Ky. LEXIS 127 ( Ky. 1995 ).

16.—Identification.

Commonwealth is not required to prove that money found on accused was identical money claimed to have been stolen. (Decided under prior law) Alder v. Commonwealth, 277 Ky. 136 , 125 S.W.2d 986, 1939 Ky. LEXIS 613 ( Ky. 1939 ).

Identification of stolen property by the principal of the school from which it was stolen was sufficient to permit its introduction into evidence. (Decided under prior law) Dawes v. Commonwealth, 281 S.W.2d 901, 1955 Ky. LEXIS 208 ( Ky. 1955 ).

Stolen property found in the possession of a defendant must be identified by testimony as direct and positive as the circumstances of a particular case will permit. (Decided under prior law) Dawes v. Commonwealth, 281 S.W.2d 901, 1955 Ky. LEXIS 208 ( Ky. 1955 ).

The question of what amounts to a valid identification of stolen property is generally for the jury. (Decided under prior law) Dawes v. Commonwealth, 281 S.W.2d 901, 1955 Ky. LEXIS 208 ( Ky. 1955 ).

Identification of stolen property detected in possession of an accused must be established by testimony as direct and positive as particular case permits, and that which is sufficient depends upon nature of thing taken and circumstances connected therewith. (Decided under prior law) Beasley v. Commonwealth, 339 S.W.2d 179, 1960 Ky. LEXIS 440 ( Ky. 1960 ), dismissed, Commonwealth v. Justice, 656 S.W.2d 738, 1983 Ky. LEXIS 262 ( Ky. 1983 ).

It was not necessary to produce either the stolen dress or a photograph; the verbal testimony describing it was alone sufficient. (Decided under prior law) Irvin v. Commonwealth, 446 S.W.2d 570, 1969 Ky. LEXIS 128 ( Ky. 1969 ), cert. denied, 400 U.S. 830, 91 S. Ct. 61, 27 L. Ed. 2d 61, 1970 U.S. LEXIS 976 (U.S. 1970).

17.—Possession of Stolen Property.

Where one is found in the possession of stolen property, it becomes incumbent upon him to show how the property was acquired. If the evidence does not satisfactorily explain his possession, or if his explanation is not believed by the jury, his possession not only justifies that the case be submitted to the jury but is sufficient to sustain a verdict of conviction for larceny. (Decided under prior law) Abshire v. Commonwealth, 281 Ky. 470 , 136 S.W.2d 567, 1940 Ky. LEXIS 56 ( Ky. 1940 ).

Evidence that a coconspirator or codefendant was in possession of fruits of crime or of incriminating articles was admissible even though accused was not present at the time. (Decided under prior law) Strunk v. Commonwealth, 285 Ky. 783 , 149 S.W.2d 528, 1941 Ky. LEXIS 471 ( Ky. 1941 ).

The mere fact that defendant and her daughter were present with man who stole chickens at time chickens were sold, and that daughter was carrying some of the chickens, was not sufficient to establish that defendant was in possession of the chickens such as to create prima facie evidence of her guilt, where there was no evidence that she exercised any control over the chickens or received any of the proceeds. (Decided under prior law) Pengleton v. Commonwealth, 294 Ky. 484 , 172 S.W.2d 52, 1943 Ky. LEXIS 474 ( Ky. 1943 ).

Possession of stolen property is prima facie evidence of guilt of larceny, and upon proof of possession the burden shifts to the defendant to explain by clear and satisfactory evidence how he came into possession of the property. (Decided under prior law) Galloway v. Commonwealth, 293 Ky. 766 , 170 S.W.2d 594, 1943 Ky. LEXIS 713 ( Ky. 1943 ). See Johnson v. Commonwealth, 289 S.W.2d 736, 1956 Ky. LEXIS 297 ( Ky. 1956 ); Faughn v. Commonwealth, 453 S.W.2d 743, 1970 Ky. LEXIS 337 ( Ky. 1970 ).

Where defendant had possession of stolen cattle and his actions in selling cattle were irregular, his story that he bought the cattle from some unidentified person was not sufficient to overcome presumption of guilt. (Decided under prior law) Galloway v. Commonwealth, 293 Ky. 766 , 170 S.W.2d 594, 1943 Ky. LEXIS 713 ( Ky. 1943 ).

Possession of stolen property is sufficient to place upon the accused the burden of explaining his possession, and it is for the jury to say whether his explanation shall be accepted or rejected. (Decided under prior law) Buchanan v. Commonwealth, 304 Ky. 225 , 200 S.W.2d 459, 1947 Ky. LEXIS 617 ( Ky. 1947 ).

Possession of stolen property shortly after theft is not only presumptive evidence of guilt, casting on accused burden of showing his innocence by explaining possession to jury’s satisfaction, but is of itself sufficient to sustain conviction for larceny. (Decided under prior law) Crouch v. Commonwealth, 249 S.W.2d 540, 1952 Ky. LEXIS 828 ( Ky. 1952 ). See Gregory v. Commonwealth, 309 Ky. 386 , 217 S.W.2d 958, 1949 Ky. LEXIS 715 ( Ky. 1949 ).

Where the defendant has not satisfactorily explained his possession of stolen property, the mere fact of possession is of itself sufficient to submit the question of guilt to the jury. (Decided under prior law) Davidson v. Commonwealth, 219 Ky. 251 , 292 S.W. 754, 1927 Ky. LEXIS 297 ( Ky. 1927 ). See Tibbs v. Commonwealth, 273 Ky. 356 , 116 S.W.2d 667, 1938 Ky. LEXIS 642 ( Ky. 1938 ); Walker v. Commonwealth, 309 Ky. 217 , 217 S.W.2d 213, 1949 Ky. LEXIS 663 ( Ky. 1949 ).

Possession of recently stolen property constitutes presumptive evidence of guilt, casting upon accused the burden of showing his innocence by explaining such possession to the satisfaction of the jury, and such possession is of itself sufficient to sustain conviction for larceny. (Decided under prior law) Tinsley v. Commonwealth, 283 S.W.2d 362, 1955 Ky. LEXIS 302 ( Ky. 1955 ); Childers v. Commonwealth, 286 S.W.2d 369, 1955 Ky. LEXIS 97 ( Ky. 1955 ); Chaney v. Commonwealth, 307 S.W.2d 770, 1957 Ky. LEXIS 112 ( Ky. 1957 ); Fleming v. Commonwealth, 419 S.W.2d 754, 1967 Ky. LEXIS 188 ( Ky. 1967 ).

Evidence that the defendant had in his possession and sold the stolen tractor was abundantly sufficient to support a guilty verdict on grand larceny charge. (Decided under prior law) Satterly v. Commonwealth, 437 S.W.2d 929, 1968 Ky. LEXIS 170 ( Ky. 1968 ), overruled, Payne v. Commonwealth, 656 S.W.2d 719, 1983 Ky. LEXIS 295 ( Ky. 1983 ).

Possession alone of stolen cattle is sufficient to support a conviction. (Decided under prior law) Fible v. Commonwealth, 461 S.W.2d 553, 1970 Ky. LEXIS 639 ( Ky. 1970 ).

Defendant was not entitled to a directed verdict on charges of burglary, criminal mischief, and theft because, after a jury found defendant possessed a stolen item, which defendant did not contest, the jury could believe defendant stole the item, committed burglary to do so, and damaged the property from which the item was stolen. Allen v. Commonwealth, 410 S.W.3d 125, 2013 Ky. LEXIS 395 ( Ky. 2013 ).

18.—Value.

Where the degree of the offense in larceny depends upon the value of the property stolen, its value is to be arrived at by the jury from a consideration of the facts and circumstances shown in evidence. (Decided under prior law) Allen v. Commonwealth, 148 Ky. 327 , 146 S.W. 762, 1912 Ky. LEXIS 448 ( Ky. 1912 ).

The market value of the chickens alleged to have been stolen and not the price for which they were sold, or their value for a particular purpose, is the correct criterion of value. (Decided under prior law) Fuson v. Commonwealth, 173 Ky. 238 , 190 S.W. 1095, 1917 Ky. LEXIS 448 ( Ky. 1917 ).

Market value at time and place of theft is the proper value, and cutting up wire to reduce its value after theft will not reduce offense to petit larceny. (Decided under prior law) Eaton v. Commonwealth, 235 Ky. 466 , 31 S.W.2d 718, 1930 Ky. LEXIS 392 ( Ky. 1930 ).

The proper criterion of value of wire fencing in cases of larceny is the wire’s value unattached to realty, not wire’s value plus cost of labor to attach it to realty nor the wire’s value in place. (Decided under prior law) Stephens v. Commonwealth, 304 Ky. 38 , 199 S.W.2d 719, 1947 Ky. LEXIS 572 ( Ky. 1947 ).

In grand larceny prosecution, where Commonwealth could have established the amount of stolen wire and value thereof with accuracy, Commonwealth should not be permitted to rely upon speculative estimates in face of testimony of defendant’s witnesses who made exact measurements. Stephens v. Commonwealth, 304 Ky. 38 , 199 S.W.2d 719, 1947 Ky. LEXIS 572 ( Ky. 1947 ).

The opinion of the owner of the stolen goods as to their value is competent and adequate proof to establish a case of grand larceny. (Decided under prior law) Young v. Commonwealth, 286 S.W.2d 893, 1955 Ky. LEXIS 110 ( Ky. 1955 ).

It is proper for jury, in order to ascertain whether defendant committed crime of grand larceny, to include value of all property stolen at same time whether property belonged to one or to several persons. (Decided under prior law) Eversole v. Commonwealth, 288 S.W.2d 58, 1956 Ky. LEXIS 247 ( Ky. 1956 ).

For the purpose of establishing value in grand larceny prosecution, the true criterion is the fair market value of the property at the time and place it was stolen, if there be such a standard market; if not, the value must be arrived at from the facts and circumstances and the uses and purposes which the article was intended to serve. (Decided under prior law) Beasley v. Commonwealth, 339 S.W.2d 179, 1960 Ky. LEXIS 440 ( Ky. 1960 ), dismissed, Commonwealth v. Justice, 656 S.W.2d 738, 1983 Ky. LEXIS 262 ( Ky. 1983 ).

For the purposes of a grand larceny prosecution the value of the stolen property is not the original cost nor the sale price for junk, but evidence of such cost or price is admissible as tending to establish the fair market value. (Decided under prior law) Beasley v. Commonwealth, 339 S.W.2d 179, 1960 Ky. LEXIS 440 ( Ky. 1960 ), dismissed, Commonwealth v. Justice, 656 S.W.2d 738, 1983 Ky. LEXIS 262 ( Ky. 1983 ).

In a prosecution for grand larceny where the copper wire stolen had no practical market value, it was proper to admit evidence of replacement cost and, given the fact that there was no evidence of deterioration and it was common knowledge that such wire had a long period of useful life, the jury’s finding that the stolen wire was worth at least $20 was proper. (Decided under prior law) Beasley v. Commonwealth, 339 S.W.2d 179, 1960 Ky. LEXIS 440 ( Ky. 1960 ), dismissed, Commonwealth v. Justice, 656 S.W.2d 738, 1983 Ky. LEXIS 262 ( Ky. 1983 ).

Evidence that the stolen power saw was purchased for $169 a year before the theft and that it had been used very little and still had its original chain was sufficient to establish that it was worth at least $100 at the time of the theft. (Decided under prior law) Perkins v. Commonwealth, 409 S.W.2d 294, 1966 Ky. LEXIS 53 ( Ky. 1966 ).

Wife of used car dealer was competent to establish that value of stolen car exceeded $100, even though she was uncertain of its exact value until she had checked in the book which dealers use to determine value of cars. (Decided under prior law) Crum v. Commonwealth, 467 S.W.2d 343, 1971 Ky. LEXIS 367 ( Ky. 1971 ).

The owner of a stolen motorcycle can state his opinion as to the value of his property. Brewer v. Commonwealth, 632 S.W.2d 456, 1982 Ky. App. LEXIS 208 (Ky. Ct. App. 1982).

Where stolen motorcycle was only two months old when stolen, had only 3,000 miles on it and was unwrecked, there was sufficient descriptive testimony about the motorcycle which would enable the jury to make an informed conclusion that the cycle was worth more than $100 in value. Brewer v. Commonwealth, 632 S.W.2d 456, 1982 Ky. App. LEXIS 208 (Ky. Ct. App. 1982).

19.—Sufficient.

Circumstantial evidence is sufficient to sustain conviction of chicken stealing under law that provided for penalty for stealing chickens, turkeys, ducks or other fowl. (Decided under prior law) Newton v. Commonwealth, 222 Ky. 817 , 2 S.W.2d 661, 1928 Ky. LEXIS 257 ( Ky. 1928 ). See Drake v. Commonwealth, 264 Ky. 261 , 94 S.W.2d 684, 1936 Ky. LEXIS 322 ( Ky. 1936 ).

The positive identification of the chickens by complainants and their testimony that chickens were owned by them was sufficient evidence to submit issue to jury and to support verdict of guilty. (Decided under prior law) Smallwood v. Commonwealth, 289 Ky. 554 , 159 S.W.2d 401, 1942 Ky. LEXIS 593 ( Ky. 1942 ).

Where the defendant was in the store while the store owner was making out a deposit slip, one check was later found to be missing, and that check was later given by the defendant to a third person in payment for some coal, this evidence was sufficient to sustain a conviction. (Decided under prior law) McKinney v. Commonwealth, 305 Ky. 29 , 202 S.W.2d 743, 1947 Ky. LEXIS 752 ( Ky. 1947 ).

Where evidence indicated lessees knew they were mining near adjoining property, and that they were proceeding directly toward adjoining property, and further indicated that boundary was plainly marked, evidence was sufficient to take the question to the jury to determine if lessee knowingly trespassed on adjoining land so as to authorize recovery of double the market value of coal removed. (Decided under prior law) Sandlin v. Webb, 240 S.W.2d 69, 1951 Ky. LEXIS 945 ( Ky. 1951 ).

Where there was evidence that the victim of the theft had a number of large bills prior to his “passing out” after drinking with the defendant, that the money was later missing, and that the defendant could not account for the source of bills of the same denomination found on his person, this was sufficient to sustain a conviction. (Decided under prior law) McVey v. Commonwealth, 272 S.W.2d 33, 1954 Ky. LEXIS 1072 ( Ky. 1954 ).

Where wire similar to that stolen was found in the defendant’s automobile and the wire was covered with the same sort of grease as that which was stolen and bore hack marks similar to those found on the wire which remained in the mine, this evidence was sufficient to establish the corpus delicti. (Decided under prior law) Childers v. Commonwealth, 286 S.W.2d 369, 1955 Ky. LEXIS 97 ( Ky. 1955 ).

Where evidence showed that the defendant had been with alleged accomplices all day, drove them to the scene of the crime, let one accomplice out of the car some distance from the scene of the crime, and later picked him up, this was sufficient to sustain the defendant’s conviction. (Decided under prior law) Carpenter v. Commonwealth, 323 S.W.2d 838, 1959 Ky. LEXIS 335 ( Ky. 1959 ).

Where the defendant was seen with the codefendants going in and out of the store at least four (4) times in an hour and a half prior to the theft, was seen conferring with the others from time to time and then going into different parts of the store and was waiting outside the store while one codefendant was apprehended with two (2) suits hidden under his coat, this was sufficient to sustain his conviction as an accomplice. (Decided under prior law) Senibaldi v. Commonwealth, 338 S.W.2d 915, 1960 Ky. LEXIS 425 ( Ky. 1960 ).

Where the defendant was seen carrying a covered object toward his home and was the person who returned the stolen item to the sheriff, this evidence was sufficient to sustain a conviction. (Decided under prior law) Perkins v. Commonwealth, 409 S.W.2d 294, 1966 Ky. LEXIS 53 ( Ky. 1966 ).

Where the evidence was amply sufficient to take the case to the jury and support its guilty verdict, there was no reasonable basis for the contention that the defendant was entitled to a directed verdict of acquittal. (Decided under prior law) Faughn v. Commonwealth, 453 S.W.2d 743, 1970 Ky. LEXIS 337 ( Ky. 1970 ).

Where the evidence incriminated the accused, the issue of guilt or innocence was properly submitted to the jury to resolve. (Decided under prior law) Faughn v. Commonwealth, 453 S.W.2d 743, 1970 Ky. LEXIS 337 ( Ky. 1970 ).

Similarity of treads on defendant’s truck tires to those found at the scene of the crime, defendant’s payment of $1,200 to the owner of the stolen property, defendant’s need for building supplies, and the contradiction of defendant’s alibi by his own witness was sufficient for conviction. (Decided under prior law) Shelton v. Commonwealth, 484 S.W.2d 95, 1971 Ky. LEXIS 52 ( Ky. 1971 ).

Trial court did not err in denying a directed verdict to defendant on a charge of theft of a license plate. Although defendant provided an explanation of why he had the plate, the placement of the plate on his truck was prima facie evidence of his guilt and provided the jury with sufficient evidence from which to determine defendant’s guilt on the charge. Casey v. Commonwealth, 2012 Ky. App. Unpub. LEXIS 1054 (Ky. Ct. App. Sept. 21, 2012), review denied, ordered not published, 2013 Ky. LEXIS 495 (Ky. Aug. 21, 2013).

Trial court did in denying defendant's motion for directed verdict as it related to the charge of theft by unlawful taking because direct physical evidence established an inference of his guilt; defendant's blood was found smeared and spattered on multiple interior surfaces of the victim's car, his flight from police supported an inference of consciousness of guilt, and the victim's testimony established a value for the stolen property well above the felony threshold. Culver v. Commonwealth, 2017 Ky. App. LEXIS 534 (Ky. Ct. App. Sept. 22, 2017, sub. op., 2017 Ky. App. Unpub. LEXIS 952 (Ky. Ct. App. Sept. 22, 2017).

Defendant’s motion for directed verdict on the theft by unlawful taking charge was properly denied because, if defendant carried out his plan to kill the victim and then himself, there would be no abandonment or return of the property by defendant; and a reasonable jury could believe that defendant intended to kill only the victim and not himself and that he had never planned to return the murder weapon to its rightful owner. Bowen v. Commonwealth, 605 S.W.3d 316, 2020 Ky. LEXIS 274 ( Ky. 2020 ).

20.—Insufficient.

Where cows were stolen from a farmer and later a truck which had been loaned to the defendant was seen parked and unoccupied along the road with two head of cattle in the truck, this evidence was not sufficient to sustain a conviction. (Decided under prior law) Tibbs v. Commonwealth, 273 Ky. 356 , 116 S.W.2d 667, 1938 Ky. LEXIS 642 ( Ky. 1938 ).

In prosecution for taking timber, the evidence was insufficient to sustain conviction where it showed a bona fide dispute between defendant and adjoining landowner as to location of boundary, and timber was cut from disputed area, since burden was on Commonwealth to show that defendant had no reasonable basis for his claim of title. (Decided under prior law) Hurst v. Commonwealth, 276 Ky. 824 , 125 S.W.2d 772, 1939 Ky. LEXIS 603 ( Ky. 1939 ).

Evidence did not sustain conviction of chicken stealing where prosecuting witness saw two men stealing his chickens, recognized one positively but did not recognize accused positively, and where his chickens were recovered at house of man positively recognized and not at accused’s house. (Decided under prior law) Chambers v. Commonwealth, 287 Ky. 270 , 152 S.W.2d 980, 1941 Ky. LEXIS 540 ( Ky. 1941 ).

Where the only evidence was that the defendant’s truck tire had a mark that could have left the distinguishing tracks leading from the prosecuting witness’s farm to the defendant’s home, and that the truck had red clay on it similar to that found near the prosecuting witness’s farm, this was insufficient to take the case to the jury. (Decided under prior law) Williams v. Commonwealth, 312 Ky. 752 , 229 S.W.2d 765, 1950 Ky. LEXIS 765 ( Ky. 1950 ).

Evidence that the defendants had been in the store on the same afternoon on which the store owner discovered her purse missing was not sufficient to sustain the convictions of the defendants. (Decided under prior law) Matthews v. Commonwealth, 481 S.W.2d 647, 1972 Ky. LEXIS 253 ( Ky. 1972 ).

20.1.—Particular Stolen Property.

In prosecution for grand larceny based on theft of 30 bushels of beans, testimony of owner of bean patch that beans were worth $2.50 per bushel, that the defendants wanted to compromise the case, and that one of the defendants admitted the theft was sufficient, together with confessions of defendants, to establish the corpus delicti and to support a conviction. (Decided under prior law) May v. Commonwealth, 299 Ky. 340 , 185 S.W.2d 415, 1945 Ky. LEXIS 422 ( Ky. 1945 ).

Where the store owner testified as to the types and amount of meat stolen, and identified the merchandise recovered from the defendant, and the market value was more than $20, the evidence sustained a conviction. (Decided under prior law) Gayton v. Commonwealth, 287 S.W.2d 429, 1956 Ky. LEXIS 461 ( Ky. 1956 ).

Evidence that corn of the type stolen was found along the ground from the corn crib from which it was taken to the home of the defendant, that the defendant had such corn in his possession and that the trail of corn was found in close proximity to the time that the defendant had driven over the road was sufficient to sustain a conviction. (Decided under prior law) Saylor v. Commonwealth, 324 S.W.2d 819, 1959 Ky. LEXIS 387 ( Ky. 1959 ).

20.2.—Livestock.

Where three witnesses testified that they saw the defendant leaving a barn with chickens in his arms and that the defendant show at them with a rifle which was later found in the defendant’s car, this evidence was sufficient to sustain a conviction. (Decided under prior law) Dunn v. Commonwealth, 286 Ky. 695 , 151 S.W.2d 763, 1941 Ky. LEXIS 322 ( Ky. 1941 ).

Evidence sustained conviction of chicken stealing where it showed that prosecuting witness traced chicken feathers to accused’s home where the stolen chickens were found a few hours after theft despite accused’s testimony that he had bought them but failed to name former owner. (Decided under prior law) Smith v. Commonwealth, 287 Ky. 716 , 155 S.W.2d 36, 1941 Ky. LEXIS 628 ( Ky. 1941 ).

Evidence of defendant’s possession and sale of stolen cattle was sufficient to support a conviction for grand larceny. (Decided under prior law) Shepherd v. Commonwealth, 308 Ky. 154 , 213 S.W.2d 1009, 1948 Ky. LEXIS 883 ( Ky. 1948 ).

Where there was evidence that a cow matching the description of one stolen was sold by the defendant, this was sufficient to sustain a conviction. (Decided under prior law) Taylor v. Commonwealth, 313 Ky. 671 , 233 S.W.2d 278, 1950 Ky. LEXIS 953 ( Ky. 1950 ).

Where there was evidence that the defendant had expressed an interest in a cow that was later stolen, that his truck was parked in some stockyards a few days after the theft and bore traces of cow manure, and that he had traded cows with another man giving him a cow similar to the one stolen, this chain of circumstances was sufficient to sustain a conviction. (Decided under prior law) Byrd v. Commonwealth, 283 S.W.2d 191, 1955 Ky. LEXIS 290 ( Ky. 1955 ).

Where tire tracks with a peculiar mark led from the scene of the theft to the defendant’s home and a search of the home revealed several chickens being cooked, others cut up for cooking, and a pan full of white feathers hidden under the bed, the evidence was sufficient to sustain a conviction for stealing chickens. (Decided under prior law) Rich v. Commonwealth, 305 S.W.2d 771, 1957 Ky. LEXIS 339 ( Ky. 1957 ).

Where the defendant alleged that he did not sell the stolen cattle but a check for the purchase price was made out in his name and cashed, the evidence was sufficient to sustain the jury’s finding the defendant guilt. (Decided under prior law) Rogers v. Commonwealth, 444 S.W.2d 548, 1969 Ky. LEXIS 214 ( Ky. 1969 ).

The suspicious manner in which the cattle were taken, the fact that the defendants alleged they paid cash for the cattle and the fact that they had told two other inconsistent versions prior to trial all constituted evidence sufficient to support the guilt verdict. (Decided under prior law) Fible v. Commonwealth, 461 S.W.2d 553, 1970 Ky. LEXIS 639 ( Ky. 1970 ).

The evidence was sufficient to convict the defendant of cattle theft where the victim positively identified his cattle on defendant’s farm, and where it was shown that the defendant, on the night of the theft, left her farm in her car and returned two hours later with a “messy” back seat and manure on the floor board of the car. (Decided under prior law) Yates v. Commonwealth, 472 S.W.2d 67, 1971 Ky. LEXIS 175 ( Ky. 1971 ).

20.4.—Tools.

Where there was evidence that the defendant had inquired about a power saw before it was taken, that he told someone after the theft that he had a good idea where the saw was, that he offered to pay the owner of the saw $200 if the owner would drop the charges against him, and the saw was found hidden on property where the defendant lived, this was sufficient to sustain a conviction. (Decided under prior law) Hood v. Commonwealth, 303 Ky. 686 , 198 S.W.2d 793, 1946 Ky. LEXIS 920 ( Ky. 1946 ).

Where certain tools were stolen and were subsequently sold and the buyer identified the defendant as the seller, and the defendant’s fingerprints matched those of the seller, the evidence was sufficient to convict although the tools were not introduced in evidence and there was no testimony of identification of the tools by the owner. (Decided under prior law) Walton v. Commonwealth, 439 S.W.2d 953, 1969 Ky. LEXIS 384 ( Ky. 1969 ).

20.6.—Wire.

Where the defendants were apprehended after having carried some wire some 500 to 1,000 feet from where it had been stored, this was sufficient evidence to sustain a conviction. (Decided under prior law) Wombles v. Commonwealth, 317 S.W.2d 169, 1958 Ky. LEXIS 76 ( Ky. 1958 ).

Where pieces of wire of the type stolen were found in a car which belonged to the defendant at the time of the theft, the defendant left the state on the day of the theft, and an accomplice testified that the defendant had been involved in the theft, this was sufficient evidence to sustain a conviction. (Decided under prior law) Waters v. Commonwealth, 325 S.W.2d 311, 1959 Ky. LEXIS 45 ( Ky. 1959 ).

The case was properly submitted to the jury where the defendant, when arrested, was unable to identify the people from whom he allegedly purchased the stolen wire, and then at trial was able to name these persons, and where all testimony corroborating the defendant’s story was given by close friends or relatives of the defendant. (Decided under prior law) Fleming v. Commonwealth, 419 S.W.2d 754, 1967 Ky. LEXIS 188 ( Ky. 1967 ).

21.Indictment.

An indictment charging defendant with stealing hogs of greater value than $4 belonging to John Perry and others, without charging that the hogs were the joint property of said Perry and others, or were stolen at one time, was bad on demurrer, as charging more than one offense. (Decided under prior law) Stephens v. Commonwealth, 164 Ky. 265 , 175 S.W. 353, 1915 Ky. LEXIS 356 ( Ky. 1915 ).

An indictment for stealing chickens of the value of more than $2 was sufficient although in naming the offense it used the words “grand larceny” in connection with other words properly describing the offense, the whole being sufficient to apprise defendant of crime charged. (Decided under prior law) Fuson v. Commonwealth, 173 Ky. 238 , 190 S.W. 1095, 1917 Ky. LEXIS 448 ( Ky. 1917 ).

Indictment must state the name or title of the carrier from whose possession the property was taken. (Decided under prior law) Jackson v. Commonwealth, 187 Ky. 682 , 220 S.W. 743, 1920 Ky. LEXIS 186 ( Ky. 1920 ).

It is necessary in an indictment for a larceny to charge the act of taking, carrying away and converting the property was without the consent of the owner. (Decided under prior law) Hudspeth v. Commonwealth, 195 Ky. 4 , 241 S.W. 71, 1922 Ky. LEXIS 263 ( Ky. 1922 ); Davidson v. Commonwealth, 219 Ky. 251 , 292 S.W. 754, 1927 Ky. LEXIS 297 ( Ky. 1927 ).

Indictment must charge that the taking of chickens was against the will and without the consent of the owner of the chickens, and failing to do so is demurrable. (Decided under prior law) Gray v. Commonwealth, 195 Ky. 307 , 242 S.W. 8, 1922 Ky. LEXIS 301 ( Ky. 1922 ).

Indictment alleging that chickens stolen were the property of estate of deceased and in possession of administrator with proper allegation as to taking without consent, and converting to own use, was sufficient though words to deprive owner of “his” property were used, an erroneous allegation as to the owner not being material. (Decided under prior law) Bell v. Commonwealth, 222 Ky. 89 , 300 S.W. 365, 1927 Ky. LEXIS 885 ( Ky. 1927 ).

An indictment which failed to charge that the crime was “feloniously” committed was fatally defective. (Decided under prior law) Biggs v. Commonwealth, 245 Ky. 250 , 53 S.W.2d 535, 1932 Ky. LEXIS 579 ( Ky. 1932 ).

An indictment charging the defendant with feloniously taking property of another was not defective for a failure to repeat the term “feloniously” in the next phrase regarding intent to convert the property to the defendant’s own use. (Decided under prior law) Commonwealth v. Estes, 265 Ky. 186 , 96 S.W.2d 578, 1936 Ky. LEXIS 459 ( Ky. 1936 ).

An indictment for grand larceny which does not state that the property was taken against the will or without the consent of the owner is fatally defective. (Decided under prior law) Shewmaker v. Commonwealth, 277 Ky. 401 , 126 S.W.2d 825, 1939 Ky. LEXIS 665 ( Ky. 1939 ).

An indictment charging an unlawful, willful and felonious taking of chickens, the property of a named person, of a value of $2.50 without the consent of the owner and with the intent to convert them to the defendant’s own use and to permanently deprive the owner of his rights was sufficient to state an offense. (Decided under prior law) Johnson v. Commonwealth, 300 Ky. 461 , 189 S.W.2d 684, 1945 Ky. LEXIS 581 ( Ky. 1945 ).

Conviction for stealing chickens was reversed where indictment failed to charge that the taking was against the will or without the consent of the owner, and instruction also failed to incorporate these words. (Decided under prior law) Sale v. Commonwealth, 305 Ky. 485 , 204 S.W.2d 818, 1947 Ky. LEXIS 853 ( Ky. 1947 ).

In prosecution for grand larceny, allegation in indictment that accused committed crime “with force and arms” was mere surplusage and failure to prove use of force or that accused was armed did not constitute ground for reversal of conviction. (Decided under prior law) Bolin v. Kentucky, 311 Ky. 143 , 223 S.W.2d 724, 1949 Ky. LEXIS 1078 (Ky. Ct. App. 1949).

An indictment which charged the defendant with the crime of “grand larceny” and did not mislead him in any way was sufficient, even though it did not conform in details with the requirements of case law on the subject. (Decided under prior law) Raisor v. Commonwealth, 278 S.W.2d 635, 1955 Ky. LEXIS 481 ( Ky. 1955 ).

Indictment that charged that defendants did unlawfully, willfully and feloniously steal certain cattle from the owner in violation of law that provided penalty for obtaining money, property or signature by false pretenses was sufficient, as steal is synonymous with larceny. (Decided under prior law) Fible v. Commonwealth, 461 S.W.2d 553, 1970 Ky. LEXIS 639 ( Ky. 1970 ).

22.—Description of Property.

An indictment which stated that the defendant stole money, lawful United States currency, of the value of $20 or more was not defective for failing to specify the kind or denomination of the money taken. (Decided under prior law) Todd v. Commonwealth, 93 S.W. 631, 29 Ky. L. Rptr. 473 (1906).

An indictment charging the theft of four hogs of the value of more than $4 was not duplicitous as charging more than one offense. (Decided under prior law) Adkins v. Commonwealth, 245 Ky. 503 , 53 S.W.2d 949, 1932 Ky. LEXIS 628 ( Ky. 1932 ).

An indictment which alleged that the defendant stole gasoline of a value of less than $20 which was the property of a named individual was not demurrable for lack of definiteness in describing the stolen property. (Decided under prior law) Lanham v. Commonwealth, 250 Ky. 500 , 63 S.W.2d 585, 1933 Ky. LEXIS 720 ( Ky. 1933 ).

An indictment which stated that the defendant did “take, steal and carry away about $60 in money, the personal property of Phelps Thomas” was sufficient to describe the property taken. (Decided under prior law) Alder v. Commonwealth, 277 Ky. 136 , 125 S.W.2d 986, 1939 Ky. LEXIS 613 ( Ky. 1939 ).

While reference to value of cattle allegedly was unnecessary, it did not invalidate indictment. (Decided under prior law) Roberts v. Commonwealth, 420 S.W.2d 571, 1967 Ky. LEXIS 117 ( Ky. 1967 ).

23.—Variance.

Where the indictment charged a theft of $53 and the evidence indicated that $50 had been taken, this variance was not material where the actual amount stolen was still large enough to constitute grand larceny. (Decided under prior law) Todd v. Commonwealth, 93 S.W. 631, 29 Ky. L. Rptr. 473 (1906).

Where the indictment charged the theft of two turkey hens belonging to a husband and wife and the proof indicated that one hen and one gobbler owned by the wife were taken, this variance was not fatal. (Decided under prior law) Cannon v. Commonwealth, 243 Ky. 302 , 47 S.W.2d 1075, 1932 Ky. LEXIS 81 ( Ky. 1932 ).

Where indictment charged accused and his companions with stealing $60, fact that less than $20 was found on accused was immaterial, where evidence showed that accused could not have taken part of money without taking all. (Decided under prior law) Alder v. Commonwealth, 277 Ky. 136 , 125 S.W.2d 986, 1939 Ky. LEXIS 613 ( Ky. 1939 ).

Where indictment for grand larceny charged accused with stealing “goods, wares, merchandise, and other articles including clothes,” objection, evidence that $1,500 in currency had been taken. (Decided under prior law) Fugate v. Commonwealth, 308 Ky. 815 , 215 S.W.2d 1004, 1948 Ky. LEXIS 1064 ( Ky. 1948 ).

24.Instructions.

Where instruction clearly informed jury that defendant could not be found guilty of chicken stealing unless jury believed beyond reasonable double that he stole chickens or was an aider or abettor, instruction that he could not be convicted if he bought chickens in good faith without knowledge of their having been stolen was not prejudicial, since he could not have been convicted of knowingly receiving stolen property under indictment for stealing. (Decided under prior law) Abshire v. Commonwealth, 281 Ky. 470 , 136 S.W.2d 567, 1940 Ky. LEXIS 56 ( Ky. 1940 ).

Where defendant admitted assisting another in carrying away wire fencing, which he knew belonged to neither, but claimed that he found the fencing along the road and did not take it from prosecuting witness’s farm, as charged, denial of concrete instruction on defendant’s theory of case was not error, since his rights were fully protected by instructions on grand larceny, petit larceny, taking without felonious intent, and reasonable doubt as to degree of offense. (Decided under prior law) Stephens v. Commonwealth, 304 Ky. 38 , 199 S.W.2d 719, 1947 Ky. LEXIS 572 ( Ky. 1947 ).

Where there was a total absence of other evidence tending to connect the defendant with the offense of chicken stealing other than the testimony of an accomplice, the lower court committed reversible error in refusing to instruct the jury to find for the defendant at the conclusion of the Commonwealth’s evidence. (Decided under prior law) Cook v. Commonwealth, 273 S.W.2d 390, 1954 Ky. LEXIS 1173 ( Ky. 1954 ).

In conviction for grand larceny, there was no error where testimony was given as to both the wholesale and retail prices of the stolen dresses and instructions were given on both grand and petit larceny. (Decided under prior law) Irvin v. Commonwealth, 446 S.W.2d 570, 1969 Ky. LEXIS 128 ( Ky. 1969 ), cert. denied, 400 U.S. 830, 91 S. Ct. 61, 27 L. Ed. 2d 61, 1970 U.S. LEXIS 976 (U.S. 1970).

If the prosecution made a submissible case concerning defendant’s guilt, an instruction that the jury must believe that the defendant had committed the offense in Adair County, when that was the proper venue, was not defective. (Decided under prior law) Jones v. Commonwealth, 453 S.W.2d 564, 1970 Ky. LEXIS 318 ( Ky. 1970 ).

In trial for cattle stealing, where the defense was alibi, the instruction on reasonable doubt was sufficient and the defendants were not entitled to a concrete instruction spelling out their defense. (Decided under prior law) Fible v. Commonwealth, 461 S.W.2d 553, 1970 Ky. LEXIS 639 ( Ky. 1970 ).

Where from the evidence presented in the prosecution for theft by unlawful taking, the jury could reasonably infer that the defendant knowingly assisted his colleague in stealing the merchandise from the department store, whereas there was no evidence to justify a finding that the defendant merely provided an opportunity for the theft, the trial court did not err in refusing to instruct the jury on the lesser included offense of criminal facilitation. Adkins v. Commonwealth, 647 S.W.2d 502, 1982 Ky. App. LEXIS 286 (Ky. Ct. App. 1982).

State court did not err in failing to issue a theft jury instruction where no matter that his primary motivation was money, hatred of gas station attendants, or something else, he used physical force and took money from the gas stations’ cash registers. Bowling v. Parker, 2012 U.S. Dist. LEXIS 88222 (E.D. Ky. June 26, 2012).

25.—Aiding and Abetting.

Where defendant was seen with two other men changing a tire on one man’s car which was parked not far from a car from which a tire and wheel were taken, and where the three men refused to allow a search of their car after having been pursued from the scene of the crime, this evidence made an instruction authorizing defendant’s conviction for aiding and abetting proper. (Decided under prior law) Begley v. Commonwealth, 287 S.W.2d 620, 1956 Ky. LEXIS 478 ( Ky. 1956 ).

26.—Corroboration.

It was not reversible error to fail to instruct as to corroboration of an accomplice where there was other evidence connecting the defendant to the crime which alone would have been sufficient to sustain his conviction. (Decided under prior law) Chaney v. Commonwealth, 307 S.W.2d 770, 1957 Ky. LEXIS 112 ( Ky. 1957 ).

27.—Defenses.

Where the defendant stated that he did not take or carry away the articles and had no knowledge as to the theft, this was merely a traverse of the charge and he was not entitled to have a specific instruction as to this defense. (Decided under prior law) Kinder v. Commonwealth, 306 S.W.2d 265, 1957 Ky. LEXIS 27 ( Ky. 1957 ).

It was not error for the court to fail to give an affirmative instruction to the jury to find the defendant not guilty if the jury believed his alibi. (Decided under prior law) Iles v. Commonwealth, 455 S.W.2d 533, 1970 Ky. LEXIS 250 ( Ky. 1970 ).

28.—Intent to Convert.

Instruction that failed to require finding that defendant meant to convert the property to his own use was erroneous. (Decided under prior law) Davidson v. Commonwealth, 219 Ky. 251 , 292 S.W. 754, 1927 Ky. LEXIS 297 ( Ky. 1927 ).

29.—Larceny.

In a prosecution for grand larceny, an instruction on petit larceny must be given unless the evidence shows without contradiction that the value of the property taken was $20 or more. (Decided under prior law) Lovan v. Commonwealth, 261 Ky. 198 , 87 S.W.2d 381, 1935 Ky. LEXIS 627 ( Ky. 1935 ).

Failure to instruct on petit larceny required reversal of conviction of grand larceny where evidence of value of stolen yearling heifer was vague and jury might reasonably infer that it was less than $20. (Decided under prior law) Smith v. Commonwealth, 284 Ky. 169 , 144 S.W.2d 215, 1940 Ky. LEXIS 465 ( Ky. 1940 ).

If uncontradicted evidence shows that value of stolen property is much more than $20, instruction on petit larceny is unnecessary, but where question is close and evidence vague instruction thereon should be given. (Decided under prior law) Smith v. Commonwealth, 284 Ky. 169 , 144 S.W.2d 215, 1940 Ky. LEXIS 465 ( Ky. 1940 ).

Where, following larceny of articles from automobile, some of articles were found in defendant’s home and some in homes of confederates, and the value of all of the articles was far in excess of $20, the fact that there was evidence that the articles found in defendant’s home were worth less than $20 did not entitle defendant to an instruction on petit larceny, since if he was guilty at all, he was guilty of taking all of the articles. (Decided under prior law) Harris v. Commonwealth, 301 Ky. 818 , 193 S.W.2d 466, 1946 Ky. LEXIS 591 ( Ky. 1946 ).

In grand larceny prosecution, where evidence failed to show that value of wire fencing stolen, when based upon its value unattached to realty, was as much as $20, court erred in giving grand larceny instruction. (Decided under prior law) Stephens v. Commonwealth, 304 Ky. 38 , 199 S.W.2d 719, 1947 Ky. LEXIS 572 ( Ky. 1947 ).

Where the evidence was sufficient to establish that the property taken was worth at least $100, it was not error to refuse to give an instruction on petit larceny. (Decided under prior law) Perkins v. Commonwealth, 409 S.W.2d 294, 1966 Ky. LEXIS 53 ( Ky. 1966 ).

30.Sentencing.

State supreme court abandoned the forfeiture of sentence rule and held that the Commonwealth of Kentucky did not forfeit its right to enforce a sentence of four years’ incarceration that was imposed by a state court after defendant was convicted of theft, in violation of KRS 514.030 , even though state agents relinquished custody of defendant to federal authorities before defendant served the sentence. Commonwealth v. Hale, 96 S.W.3d 24, 2003 Ky. LEXIS 15 ( Ky. 2003 ).

31.Lesser Included Offense.

No testimony or evidence was presented that defendant took the victim’s property without the use of force. Thus, an instruction based on theft by unlawful taking, value of $300 or more, as a lesser included offense to the first-degree robbery charge was unsupported by the evidence, and the trial court did not abuse its discretion in rejecting such an instruction. Sanders v. Commonwealth, 2009 Ky. LEXIS 142 (Ky. June 25, 2009).

In a prosecution on a charge of robbery in the first degree, the trial court did not err in refusing to give a jury instruction on theft by unlawful taking as a lesser included offense of robbery as no reasonable juror could have believed that defendant demanded the bank’s money but doubted that her demand was accompanied by a threat of physical force. Defendant’s hand in her pocket demeanor was clearly intended to further the theft by creating the impression that she was armed, and the teller testified that it had its intended effect. Lawless v. Commonwealth, 323 S.W.3d 676, 2010 Ky. LEXIS 179 ( Ky. 2010 ).

Where defendant was charged with second-degree robbery under KRS 515.030(1) after he, while wearing a mask, entered a bank and aggressively demanded money, the trial court did not err in failing to instruct the jury on theft as a lesser-included offense of robbery because the evidence did not support the giving of a theft instruction. Second-degree robbery required a use of or the threat of force upon another person with the intent to accomplish the theft, while theft by unlawful taking under KRS 514.030(1)(a) required only control over the property of another with the intent to deprive him thereof; theft was a property crime, whereas robbery was a crime against a person. Tunstull v. Commonwealth, 337 S.W.3d 576, 2011 Ky. LEXIS 51 ( Ky. 2011 ).

32.Complicity.

Evidence that defendant, who was found in possession of the victim’s stolen jewelry, was the driver of the victim’s car during the kidnapping and parked it in an abandoned area before throwing away the keys was sufficient to support defendant’s conviction for complicity to theft by unlawful taking. McCoy v. Commonwealth, 553 S.W.3d 816, 2018 Ky. LEXIS 281 ( Ky. 2018 ).

Cited in:

Peck v. Conder, 540 S.W.2d 10, 1976 Ky. LEXIS 32 ( Ky. 1976 ); Brown v. Commonwealth, 558 S.W.2d 599, 1977 Ky. LEXIS 539 ( Ky. 1977 ); Eversole v. Commonwealth, 575 S.W.2d 457, 1978 Ky. LEXIS 452 ( Ky. 1978 ); Simmons v. Commonwealth, 576 S.W.2d 253, 1978 Ky. App. LEXIS 660 (Ky. Ct. App. 1978); Watson v. Commonwealth, 579 S.W.2d 103, 1979 Ky. LEXIS 233 ( Ky. 1979 ); Hennemeyer v. Commonwealth, 580 S.W.2d 211, 1979 Ky. LEXIS 243 ( Ky. 1979 ); Tussey v. Commonwealth, 589 S.W.2d 215, 1979 Ky. LEXIS 292 (Ky. 1979); Wiley v. Sowders, 647 F.2d 642, 1981 U.S. App. LEXIS 13929 (6th Cir. 1981); Riley v. Commonwealth, 620 S.W.2d 316, 1981 Ky. LEXIS 264 ( Ky. 1981 ); Tabor v. Commonwealth, 625 S.W.2d 571, 1981 Ky. LEXIS 301 ( Ky. 1981 ); Hubbard v. Commonwealth, 633 S.W.2d 67, 1982 Ky. LEXIS 249 ( Ky. 1982 ); Harston v. Commonwealth, 638 S.W.2d 700, 1982 Ky. LEXIS 292 ( Ky. 1982 ); In re James, 42 B.R. 265, 1984 Bankr. LEXIS 5085 (Bankr. W.D. Ky. 1984 ); Lambert v. Commonwealth, 835 S.W.2d 299, 1992 Ky. App. LEXIS 185 (Ky. Ct. App. 1992); Commonwealth v. Fint, 940 S.W.2d 896, 1997 Ky. LEXIS 28 ( Ky. 1997 ); King v. Grecco, 111 S.W.3d 877, 2002 Ky. App. LEXIS 2026 (Ky. Ct. App. 2002); Best v. West Am. Ins. Co., 270 S.W.3d 398, 2008 Ky. App. LEXIS 300 (Ky. Ct. App. 2008); Blanton v. Commonwealth, 516 S.W.3d 352, 2017 Ky. App. LEXIS 50 (Ky. Ct. App. 2017).

Notes to Unpublished Decisions

1.Lesser Included Offense.

Unpublished decision: First-degree robbery conviction was affirmed because the trial court did not err in refusing to instruct the jury on theft by unlawful taking over $ 300.00 and fourth-degree assault as lesser-included offenses of robbery, as the jury could not have reasonably doubted defendant’s guilt of robbery, and yet believed beyond a reasonable doubt that the defendant was guilty of the two lesser crimes. Mack v. Commonwealth, 136 S.W.3d 434, 2004 Ky. LEXIS 150 ( Ky. 2004 ).

Opinions of Attorney General.

In the case of a borrower refusing to return library materials after notice, the technical crime committed is one of conversion. OAG 79-563 .

This section is applicable to the willful failure to return library materials after request. OAG 79-563 .

Where a pawnbroker is in possession of property acquired without the knowledge, consent, or authority of the true owner and the pawnbroker refuses to return the property to the true owner upon demand, the pawnbroker may be properly charged with theft by unlawful taking or disposition under this section. OAG 81-415 .

There are four statutes which could arguably be used in the prosecution of theft of property following a rental contract agreement: this section, KRS 514.040 , 514.060 , and 514.070 . OAG 91-217 .

Research References and Practice Aids

Cross-References.

Shoplifting, KRS 433.234 .

Theft of credit card, KRS 434.580 .

Kentucky Law Journal.

Kentucky Law Survey, Ashdown, Criminal Law, 64 Ky. L.J. 337 (1975-76).

Kentucky Law Survey, Malone and Malone, Criminal Law, 69 Ky. L.J. 545 (1980-81).

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Theft and Related Offenses, Part 3 Theft, §§ 6.18 — 6.19, 6.20A, 6.20B, 6.55.

Kentucky Instructions To Juries (Civil), 5th Ed., Defamation and Privacy, § 40.02.

Petrilli, Kentucky Family Law, Torts and Crimes, § 18.2.

514.040. Theft by deception.

  1. A person is guilty of theft by deception when the person obtains property or services of another by deception with intent to deprive the person thereof. A person deceives when the person intentionally:
    1. Creates or reinforces a false impression, including false impressions as to law, value, intention, or other state of mind;
    2. Prevents another from acquiring information which would affect judgment of a transaction;
    3. Fails to correct a false impression which the deceiver previously created or reinforced or which the deceiver knows to be influencing another to whom the person stands in a fiduciary or confidential relationship;
    4. Fails to disclose a known lien, adverse claim, or other legal impediment to the enjoyment of property which the person transfers or encumbers in consideration for the property obtained, whether the impediment is or is not valid or is or is not a matter of official record; or
    5. Issues or passes a check or similar sight order for the payment of money, knowing that it will not be honored by the drawee.
  2. The term “deceive” does not, however, include falsity as to matters having no pecuniary significance or puffing by statements unlikely to deceive ordinary persons in the group addressed.
  3. Deception as to a person’s intention to perform a promise shall not be inferred from the fact alone that he or she did not subsequently perform the promise.
  4. For purposes of subsection (1) of this section, a maker of a check or similar sight order for the payment of money is presumed to know that the check or order, other than a postdated check or order, would not be paid, if:
    1. The maker had no account with the drawee at the time the check or order was issued; or
    2. Payment was refused by the drawee for lack of funds, upon presentation within thirty (30) days after issue, and the maker failed to make good within ten (10) days after receiving notice of that refusal. Notice of the refusal may include a citation to this section and a description of this section’s criminal penalties and shall be deemed properly addressed when mailed to the address printed or written on the check or sight order or provided by the drawer or maker upon issuance of the check or sight order. The notice, if mailed, shall be deemed received by the addressee seven (7) days after it is placed in the United States mail. The notice may be sent by first-class mail if supported by an affidavit of service setting out the contents of the notice, the address to which the notice was mailed, that correct postage was applied, and the date the notice was placed in the United States mail. A maker makes good on a check or similar sight order for the payment of money by paying to the holder the face amount of the instrument, together with any merchant’s posted bad check handling fee not to exceed fifty dollars ($50) and any fee imposed pursuant to subsection (5) of this section.
  5. If a county attorney issues notice to a maker that a drawee has refused to honor an instrument due to a lack of funds as described in subsection (4)(b) of this section, the county attorney may charge a fee to the maker of fifty dollars ($50), if the instrument is paid. Money paid to the county attorney pursuant to this section shall be used only for payment of county attorney office operating expenses. Excess fees held by the county attorney on June 30 of each year shall be turned over to the county treasurer before the end of the next fiscal year for use by the fiscal court of the county.
  6. A person is guilty of theft by deception when the person issues a check or similar sight order in payment of all or any part of any tax payable to the Commonwealth knowing that it will not be honored by the drawee.
  7. A person is guilty of theft by deception when the person issues a check or similar sight order in payment of all or any part of a child support obligation knowing that it will not be honored by the drawee.
  8. Theft by deception is a Class B misdemeanor unless:
    1. The value of the property, service, or the amount of the check or sight order referred to in subsection (6) or (7) of this section is five hundred dollars ($500) or more but less than one thousand dollars ($1,000), in which case it is a Class A misdemeanor;
    2. The value of the property, service, or the amount of the check or sight order referred to in subsection (6) or (7) of this section is one thousand dollars ($1,000) or more but less than ten thousand dollars ($10,000), in which case it is a Class D felony;
    3. A person has three (3) or more convictions under paragraph (a) of this subsection within the last five (5) years, in which case it is a Class D felony. The five (5) year period shall be measured from the dates on which the offenses occurred for which the judgments of convictions were entered; or
    4. The value of the property, service, or the amount of the check or sight order referred to in subsection (6) or (7) of this section is ten thousand dollars ($10,000) or more, in which case it is a Class C felony.
  9. If any person commits two (2) or more separate offenses of theft by deception within ninety (90) days, the offenses may be combined and treated as a single offense, and the value of the property in each offense may be aggregated for the purpose of determining the appropriate charge.

History. Enact. Acts 1974, ch. 406, § 120, effective January 1, 1975; 1982, ch. 238, § 8, effective July 15, 1982; 1982, ch. 305, § 1, effective July 15, 1982; 1986, ch. 207, § 1, effective July 15, 1986; 1992, ch. 434, § 5, effective July 14, 1992; 1992, ch. 451, § 2, effective July 14, 1992; 1994, ch. 330, § 21, effective July 15, 1994; 1994, ch. 465, § 1, effective July 15, 1994; 2000, ch. 410, § 1, effective July 14, 2000; 2005, ch. 180, § 1, effective June 20, 2005; 2008, ch. 84, § 1, effective July 15, 2008; 2009, ch. 106, § 7, effective June 25, 2009; 2010, ch. 160, § 17, effective July 15, 2010; 2021 ch. 66, § 9, effective June 29, 2021.

NOTES TO DECISIONS

1.Constitutionality.

The provision concerning worthless checks does not violate Ky. Const., § 18 since it does not punish one for a debt but rather for a fraudulent act, intent to defraud being an essential element of the crime. Patterson v. Commonwealth, 556 S.W.2d 909, 1977 Ky. App. LEXIS 822 (Ky. Ct. App. 1977), cert. denied, 435 U.S. 970, 98 S. Ct. 1609, 56 L. Ed. 2d 61, 1978 U.S. LEXIS 1484 (U.S. 1978).

The statutory inference of intent to deprive from failure to cover a check within ten (10) days after dishonor satisfies the reasonable doubt and “more-likely-than-not” standards and, therefore, does not violate the Due Process Clause of U.S. Const., amend. XIV. Patterson v. Commonwealth, 556 S.W.2d 909, 1977 Ky. App. LEXIS 822 (Ky. Ct. App. 1977), cert. denied, 435 U.S. 970, 98 S. Ct. 1609, 56 L. Ed. 2d 61, 1978 U.S. LEXIS 1484 (U.S. 1978).

2.Construction.

Law that provided penalty for making or delivering a check or draft not backed by sufficient funds covered the indorser and user of a worthless check who passed it by his indorsement and delivery, knowing the maker or drawer had not sufficient funds in banks for payment upon presentation. (Decided under prior law) Siegel v. Commonwealth, 176 Ky. 772 , 197 S.W. 467, 1917 Ky. LEXIS 133 ( Ky. 1917 ).

The only real distinction between theft by deception under this section and theft of services by means of deception under KRS 514.060 is that in the former case property is obtained and in the latter case services are obtained. Butts v. Commonwealth, 581 S.W.2d 565, 1979 Ky. LEXIS 258 ( Ky. 1979 ).

The words “would not be paid”, in subsection (4) connote that the drawer knew when he gave the check that it would not be honored upon its presentation to the bank, as distinguished from a present intention never to make the check good at any time in the future. Owsley v. Commonwealth, 621 S.W.2d 21, 1981 Ky. LEXIS 267 ( Ky. 1981 ).

Employee was able to state a claim for wrongful discharge in violation of public policy and, thus, the employer was not entitled to dismissal of that claim that the employee filed against it. The employee claimed that the employee’s refusal to go along with the employer’s alleged scheme of billing paralegal time as attorney time so that the work could be billed to clients at a higher rate meant that the employee would not violate the theft by deception statute, KRS 514.040 , and led to the employee’s termination. Miller v. Reminger Co., L.P.A., 2012 U.S. Dist. LEXIS 78620 (W.D. Ky. June 4, 2012).

So long as a defendant deprives an owner of property, even if only for a period of time, by deceptive means, the defendant has committed theft by deception. It does not matter whether the victim could get the property back. Allen v. Commonwealth, 395 S.W.3d 451, 2013 Ky. LEXIS 30 ( Ky. 2013 ).

3.Due Process.

There is no authority for the proposition that a state’s difficulty in enforcing its theft by deception statute releases the state from the constraints of the Due Process Clause. Sherrill v. Nicholson, 545 F. Supp. 573, 1982 U.S. Dist. LEXIS 14291 (W.D. Ky. 1982 ).

The activities of the defendants undertaken against the debtor in state court for the admitted purpose of collecting a debt subsequent to the debtor’s filing a petition in bankruptcy were in violation of federal bankruptcy law; the defendants were therefore enjoined from pursuing the criminal charges pending against the debtor regarding the “bad check” debt in question. In re Padgett, 37 B.R. 280, 1983 Bankr. LEXIS 5143 (Bankr. W.D. Ky. 1983 ).

4.Elements.

Value of property obtained under former law that provided penalty for obtaining money, property or signature by false pretenses was not material. (Decided under prior law) Jones v. Commonwealth, 269 Ky. 795 , 108 S.W.2d 1021, 1937 Ky. LEXIS 682 ( Ky. 1937 ).

There was no offense under former law that provided penalty for making or delivering a check or draft not backed by sufficient funds where a bank had previously honored checks drawn on a partnership account and signed by both partners though not in the manner indicated on the bank signature card and then subsequently refused to honor a similar check even though the account contained funds sufficient to cover the check. (Decided under prior law) Mullins v. Commonwealth, 313 Ky. 525 , 233 S.W.2d 97, 1950 Ky. LEXIS 930 ( Ky. 1950 ).

Where the drawer of an instrument promised to pay a sum certain on a future date, the law that provided penalty for making or delivering a check or draft not backed by sufficient funds did not apply if the drawer failed to pay the obligation at maturity. (Decided under prior law) Gibbs v. Commonwealth, 273 S.W.2d 583, 1954 Ky. LEXIS 1193 ( Ky. 1954 ).

Where the defendant was charged with issuing a bad check for property he purchased at an auction title to the auctioned property passed on the day of the sale and, therefore, the receipt of title was simultaneous with the giving of the check even though the articles were not taken away for several days. (Decided under prior law) Stiles v. Commonwealth, 348 S.W.2d 843, 1961 Ky. LEXIS 37 ( Ky. 1961 ).

Under former law that provided penalty for making or delivering a check or draft not backed by sufficient funds, no offense was committed unless a thing of value was obtained simultaneously with the giving of the check. (Decided under prior law) Stiles v. Commonwealth, 348 S.W.2d 843, 1961 Ky. LEXIS 37 ( Ky. 1961 ).

Where the owner’s servant had no authority to deliver the goods or bill of landing to the defendant who feloniously by “trick and fraud” obtained possession of both, the taking by such means constituted larceny. (Decided under prior law) Allee v. Commonwealth, 454 S.W.2d 336, 1970 Ky. LEXIS 272 ( Ky. 1970 ), cert. dismissed, 401 U.S. 950, 91 S. Ct. 1186, 28 L. Ed. 2d 234, 1971 U.S. LEXIS 2792 (U.S. 1971).

Under KRS Chapter 205, unlike this section, it is not necessary that the property be actually obtained before prosecution can be had, for the gravamen of the offense is the making of the fraudulent statement or representation for the purpose of obtaining benefits, and one who knowingly makes such fraudulent statements is guilty if he never obtains anything, thus the penalties are therefore for a different crime and the statutes are not conflicting. Commonwealth v. McKinney, 594 S.W.2d 884, 1979 Ky. App. LEXIS 511 (Ky. Ct. App. 1979).

This section makes no mention of any requirement that the specific items obtained by the defendant by deception be identified, and therefore, where the proof establishes that the recipient of a dishonored check is in the business of selling merchandise on a cash basis and that the check was received by it from the maker in the ordinary course of business, this evidence is sufficient to meet the burden required under this section to show that the maker obtained property, and to submit the case, on that point, to the jury. Commonwealth v. Justice, 656 S.W.2d 738, 1983 Ky. LEXIS 262 ( Ky. 1983 ).

Under both this section and KRS 516.060 , the Commonwealth is required to prove that the accused intended either to deprive the victim of property or to defraud, deceive, or injure the victim. Caudill v. Commonwealth, 723 S.W.2d 881, 1986 Ky. App. LEXIS 1487 (Ky. Ct. App. 1986), cert. denied, 483 U.S. 1021, 107 S. Ct. 3265, 97 L. Ed. 2d 764, 1987 U.S. LEXIS 2958 (U.S. 1987).

There was no error in aggregating the individual amounts of 45 bogus contracts, submitted to service company employing defendant, even though each individual commission was less than $100, in order to charge defendant with a Class D felony under this section, where it could be reasonably concluded that defendant had a single continuous criminal intent and scheme. Smith v. Commonwealth, 818 S.W.2d 620, 1991 Ky. App. LEXIS 128 (Ky. Ct. App. 1991).

There was ample evidence from which it was not unreasonable for the jurors to find that defendants induced false invoices to be prepared and submitted through channels and failed to correct the false impressions those invoices created as to the dates of flights taken by Commissioner-elect of Agriculture and Department of Agriculture employee on leave of absence. Commonwealth v. Burnette, 875 S.W.2d 865, 1994 Ky. LEXIS 21 (Ky.), cert. denied, 513 U.S. 965, 115 S. Ct. 430, 130 L. Ed. 2d 343, 1994 U.S. LEXIS 7615 (U.S. 1994).

5.— Cold Checks.

There was no offense under law that provided penalty for making or delivering a check or draft not backed by sufficient funds where the payee was informed when he received the check that there were no funds on hand to pay the check and he promised to hold it until funds were made available. (Decided under prior law) King v. Commonwealth, 203 Ky. 163 , 261 S.W. 1096, 1924 Ky. LEXIS 865 ( Ky. 1924 ).

It is not necessary to sustain a conviction under law that provided penalty for making or delivering a check or draft not backed by sufficient funds, that the prosecution prove the legal organization of the bank on which the check was drawn. (Decided under prior law) Hatcher v. Commonwealth, 224 Ky. 131 , 5 S.W.2d 882, 1928 Ky. LEXIS 536 ( Ky. 1928 ).

In a case where a check was issued in partial payment of a debt but the payee was told to hold the check until a specified day when funds would be available there was no intent to defraud when the check was issued even though there were no funds available when the check was presented on the specified day. (Decided under prior law) Hughes v. Commonwealth, 230 Ky. 37 , 18 S.W.2d 880, 1929 Ky. LEXIS 20 ( Ky. 1929 ).

Where “cold check” was delivered in one county for property obtained in another county, the Circuit Court of former county had exclusive jurisdiction. (Decided under prior law) Hughes v. Commonwealth, 232 Ky. 232 , 22 S.W.2d 618, 1929 Ky. LEXIS 429 ( Ky. 1929 ).

The mere giving of a check constitutes a representation that it will be paid on presentation to the bank on which it is drawn. (Decided under prior law) Tartar v. Commonwealth, 267 Ky. 502 , 102 S.W.2d 971, 1937 Ky. LEXIS 340 ( Ky. 1937 ).

The net result of the “cold check” provision is that the knowledge required by subdivision (1)(e) is imputed to the issuer of the check if he does not make the check good within 10 days after it has been dishonored and this imputed knowledge meets the requirements of subsection (1) concerning “intent to deprive.” Patterson v. Commonwealth, 556 S.W.2d 909, 1977 Ky. App. LEXIS 822 (Ky. Ct. App. 1977), cert. denied, 435 U.S. 970, 98 S. Ct. 1609, 56 L. Ed. 2d 61, 1978 U.S. LEXIS 1484 (U.S. 1978).

Where a defendant failed to make a check good within 10 days after notice that it had been returned for insufficient funds, but the evidence indicated that the check was the equivalent of a postdated check, there was no deception, actual or presumed, within the meaning of subsection (4)(b) of this section, and, the defendant’s conviction was reversed. Owsley v. Commonwealth, 621 S.W.2d 21, 1981 Ky. LEXIS 267 ( Ky. 1981 ).

The obvious interpretation of this section is that there must be a parting with property or services based upon the deceptive intent to deprive the owner thereof; the mere issuance of a “cold check” in payment for property or services not obtained by deceptive intent is insufficient; it is the fraudulent intent which forms the basis of the crime, and not a mere inability to pay an indebtedness with a check backed by sufficient fund. Martin v. Commonwealth, 821 S.W.2d 95, 1991 Ky. App. LEXIS 147 (Ky. Ct. App. 1991).

6.— Detrimental Reliance.

The victim’s reliance on the false impression created by the defendant is a necessary element under this section. Brown v. Commonwealth, 656 S.W.2d 727, 1983 Ky. LEXIS 298 ( Ky. 1983 ).

Where defendant manager of transmission repair shop created two (2) false impressions, viz., that transmission was defective, which was not relied upon by undercover detective, and that he would repair the transmission, which was relied upon and, in fact, a used transmission of dubious value was substituted, because of the second misrepresentation and detective’s reliance thereon, element of reliance was shown and conviction was affirmed. Brown v. Commonwealth, 656 S.W.2d 727, 1983 Ky. LEXIS 298 ( Ky. 1983 ).

7.— False Claim.

A road engineer who makes a fraudulent and false statement of a claim of a subcontractor, or any other person who makes a claim against the county for improvement of roads with fraudulent intent to enable said subcontractor or other person to obtain money from the county to which he is not entitled, incurs penalty under law that prohibited the making of false claims against the state or political subdivision thereof. (Decided under prior law) Sanders v. Commonwealth, 176 Ky. 228 , 195 S.W. 796, 1917 Ky. LEXIS 60 ( Ky. 1917 ).

Embezzlement and submitting a false claim to a political subdivision are separate offenses so that an acquittal under an indictment for embezzlement would not be a bar to an indictment for submitting a false claim. (Decided under prior law) Runyon v. Commonwealth, 393 S.W.2d 877, 1965 Ky. LEXIS 248 ( Ky. 1965 ), cert. denied, 384 U.S. 906, 86 S. Ct. 1341, 16 L. Ed. 2d 359, 1966 U.S. LEXIS 1852 (U.S. 1966).

8.False Personation.

Former statute governing false personation could not be construed to prohibit a man from representing himself as a member of the sheriff’s department on the grounds that such representation might affect the rights of the sheriff by subjecting him to damage suits, tainting his reputation and undermining his standing as an elected official of the community. (Decided under prior law) Lexington-Fayette Urban County Government v. Middleton, 555 S.W.2d 613, 1977 Ky. App. LEXIS 795 (Ky. Ct. App. 1977).

9.— Forged Documents.

Where teller of bank covered by a banker’s blanket bond, after receiving a phone call from a person who falsely represented himself as a spokesman for another local bank which was in need of extra cash, gave $20,000 to a person who appeared at the bank with a cashier’s check drawn on the other bank in reliance on the validity of the check when in fact the check had been originally drawn for $20 and had been altered, the loss suffered was effected directly or indirectly by forgery, although false representations had been made and relied on and, therefore, the loss fell within the provisions of the blanket bond which excepted from coverage any loss which occurred directly or indirectly by forgery and not within provision providing for coverage for loss which occurred as a result of false pretenses. (Decided under prior law) American Nat'l Bank & Trust Co. v. Hartford Accident & Indem. Co., 442 F.2d 995, 1971 U.S. App. LEXIS 10015 (6th Cir. Ky. 1971 ).

10.— Intent.

The mere giving of a check under former law that provided penalty for making or delivering a check or draft not backed by sufficient funds with intention to defraud completes the offense, and the intent to defraud will be present whenever money, property or other thing of value is parted with by person to whom the check is given. (Decided under prior law) Commonwealth v. McCall, 186 Ky. 301 , 217 S.W. 109, 1919 Ky. LEXIS 215 ( Ky. 1919 ).

An offense under former law that provided penalty for making or delivering a check or draft not backed by sufficient funds was completed with the giving of a worthless check with the intent to defraud. (Decided under prior law) Hatcher v. Commonwealth, 224 Ky. 131 , 5 S.W.2d 882, 1928 Ky. LEXIS 536 ( Ky. 1928 ).

A necessary element of offense under law that provided penalty for making or delivering a check or draft not backed by sufficient funds was an intent to defraud. (Decided under prior law) Maggard v. Commonwealth, 262 S.W.2d 672, 1953 Ky. LEXIS 1111 ( Ky. 1953 ).

11.— Payment of Debt.

There was no offense under former law that provided penalty for making or delivering a check or draft not backed by sufficient funds where a check was issued to repay a loan and no money or property passed to the defendant when he issued the check. (Decided under prior law) Commonwealth v. Hammock, 198 Ky. 785 , 250 S.W. 85, 1923 Ky. LEXIS 554 ( Ky. 1923 ).

Worthless check given for past-due account or obligation did not violate law that provided penalty for making or delivering a check or draft not backed by sufficient funds. (Decided under prior law) Tartar v. Commonwealth, 267 Ky. 502 , 102 S.W.2d 971, 1937 Ky. LEXIS 340 ( Ky. 1937 ).

There was no complete offense under former law that provided penalty for making or delivering a check or draft not backed by sufficient funds when a check was given in payment of a debt without simultaneously obtaining money or property. (Decided under prior law) Maggard v. Commonwealth, 262 S.W.2d 672, 1953 Ky. LEXIS 1111 ( Ky. 1953 ).

Where the defendant issued a worthless check to an employee in payment of wages previously earned by the employee, the issuance of the check was merely in payment of a debt and was not punishable under law that provided penalty for making or delivering a check or draft not backed by sufficient funds. (Decided under prior law) Maggard v. Commonwealth, 262 S.W.2d 672, 1953 Ky. LEXIS 1111 ( Ky. 1953 ).

12.— Postdated Checks.

Where a check given to purchase livestock was postdated and the seller received several payments and applied them toward payment of the check there was no violation of law that provided penalty for making or delivering a check or draft not backed by sufficient funds, because the check was in fact a promissory note and treated by the person receiving it as a deferred debt. (Decided under prior law) Gibbs v. Commonwealth, 273 S.W.2d 583, 1954 Ky. LEXIS 1193 ( Ky. 1954 ).

The mere fact that a check is postdated does not within itself establish its status as a promissory note, since it must be understood by the parties that credit is being extended, so that merely postdating a check does not preclude a prosecution for uttering a worthless check. (Decided under prior law) Mercer v. Commonwealth, 332 S.W.2d 655, 1960 Ky. LEXIS 170 ( Ky. 1960 ).

Where the owner of a seed company issued several postdated checks to sellers of soybeans and all of the checks were dishonored when presented for payment, it was error for the trial court to predicate its jury instructions on the owner’s intent to defraud at the time of the issuance of the checks; since, all of the checks were postdated, the knowledge requirement of subsection (1)(e) of this section could not be imputed or supplied by the use of subsection (4)(b) of this section and the defendant’s intent must be determined as of the time the soybeans were received by him. Rice v. Commonwealth, 621 S.W.2d 911, 1981 Ky. LEXIS 280 ( Ky. 1981 ).

Plaintiff’s claim that defendant check cashing company’s use of the threat of prosecution under the so called “bad check” law, KRS 514.040 , was unfair, false and misleading pursuant to the Kentucky Consumer Protection Act, KRS 367.170, as it applied to the issue of whether the bad check law applied when a check was post-dated was sufficient to state a claim under which relief could be granted and therefore was not subject to dismissal. Miller v. HLT Check Exchange (In re Miller), 215 B.R. 970, 1997 Bankr. LEXIS 2107 (Bankr. E.D. Ky. 1997 ).

13.— Presentation of Check.

Where on two (2) separate occasions payee took defendant’s check to the bank upon which it was drawn and was there informed that the check would not be honored, there was sufficient presentation under the criminal statute, and the rigid requirements of the UCC would not be imposed upon the statute dealing with theft by deception. Luttrell v. Commonwealth, 644 S.W.2d 647, 1982 Ky. LEXIS 329 ( Ky. 1982 ).

14.False Pretense.

It is not indispensable that the false statement should be of a past occurrence or existing fact, but it is sufficient if the false pretense by conduct or conversation, direct or indirect, with intention to commit a fraud, obtains from another person money or property. (Decided under prior law) Commonwealth v. Murphy, 96 Ky. 28 , 27 S.W. 859, 16 Ky. L. Rptr. 224 , 1894 Ky. LEXIS 91 ( Ky. 1894 ).

The inducing of a person to sign a note for merchandise by false representation of an advantageous contract was a false pretense within the meaning of law that provided penalty for obtaining money, property or signature by false pretenses, the defendant obtaining money thereon. (Decided under prior law) Commonwealth v. Scroggin, 60 S.W. 528, 22 Ky. L. Rptr. 1338 (1901).

A $10 Confederate bill paid prosecuting witness in a horse trade involving $7.50 with the remark “Give me $2.50, here is a ten dollar bill,” where prosecutor received same believing it was United States currency, was a “false token” under law that provided penalty for obtaining money, property or signature by false pretenses. (Decided under prior law) Commonwealth v. Beckett, 119 Ky. 817 , 84 S.W. 758, 27 Ky. L. Rptr. 265 , 1905 Ky. LEXIS 41 ( Ky. 1905 ).

Where owner of property parted with possession thereof for a particular purpose, and a person receiving said property avowedly for that purpose had at the time a fraudulent intent to make use of possession as a means of conversion to his own use, and did so convert it, he was guilt of larceny, but where owner parted with possession and also title, the offense was false pretense. (Decided under prior law) Commonwealth v. Schang, 131 Ky. 405 , 115 S.W. 218, 1909 Ky. LEXIS 26 ( Ky. 1909 ).

A statement by a minor that he was of age was a false statement, if made to induce another to enter into a contract that he would not have otherwise entered into, and the one to whom the statement was made was induced to, and did part with his money or property on the faith of it. (Decided under prior law) Commonwealth v. Ferguson, 135 Ky. 32 , 121 S.W. 967, 1909 Ky. LEXIS 258 ( Ky. 1909 ).

A promise of future performance, when coupled with a false statement as to a past or existing fact or facts, which induced another to rely on the false promise, would in connection with the false statement of existing fact or facts, constitute a false pretense. (Decided under prior law) McDowell v. Commonwealth, 136 Ky. 8 , 123 S.W. 313, 1909 Ky. LEXIS 452 ( Ky. 1909 ); Commonwealth v. Tidwell, 162 Ky. 114 , 172 S.W. 102, 1915 Ky. LEXIS 23 ( Ky. 1915 ).

In a horse trade, a misrepresentation that the horse was sound, knowingly made with intent to deceive, was a false pretense. (Decided under prior law) Commonwealth v. Watson, 146 Ky. 83 , 142 S.W. 200 ( Ky. 1912 ).

When by false statements, the signature to any instrument, the false making of which would be a forgery, was secured by fraud, this constituted an offense under law that provided penalty for obtaining money, property or signature by false pretenses, without regard to the value of the instrument or purpose for which fraud was practiced, or any actual or ultimate loss. (Decided under prior law) Commonwealth v. Lacey, 158 Ky. 584 , 165 S.W. 971, 1914 Ky. LEXIS 669 ( Ky. 1914 ).

Under law that provided penalty for obtaining money, property or signature by false pretenses, the offense is committed where the false representation is made to one and the money or property is thereby paid to another. (Decided under prior law) Commonwealth v. Johnson, 167 Ky. 727 , 181 S.W. 368, 1916 Ky. LEXIS 476 ( Ky. 1916 ) ( Ky. 1916 ).

The false representation or pretense need not be made by defendant in person, it being sufficient if made by another at his instigation. (Decided under prior law) Commonwealth v. Harper, 195 Ky. 843 , 243 S.W. 1053, 1922 Ky. LEXIS 428 ( Ky. 1922 ).

Intention to commit a fraud is gist of the offense of obtaining money or property by false pretenses. (Decided under prior law) Caldwell v. Commonwealth, 221 Ky. 232 , 298 S.W. 681, 1927 Ky. LEXIS 692 ( Ky. 1927 ).

A false statement by a property owner that his property which he was seeking to exchange was free from encumbrances constituted a false pretense even though the falsity of the statement would have been apparent had the records been searched. (Decided under prior law) Slaughter v. Commonwealth, 222 Ky. 225 , 300 S.W. 619, 1927 Ky. LEXIS 904 ( Ky. 1927 ).

Expression of a full opinion on a matter about which there may be a difference of opinion, as of value of property, was not a false pretense. (Decided under prior law) Slaughter v. Commonwealth, 222 Ky. 225 , 300 S.W. 619, 1927 Ky. LEXIS 904 ( Ky. 1927 ).

In order to sustain a conviction for obtaining a signature to an instrument under false pretenses it had to be shown that the instrument to which the signature was obtained was one of apparently legal efficacy or a foundation for legal liability and a written offer to convey land which may be turned into a binding contract on acceptance was an instrument of legal efficacy or a foundation of legal liability. (Decided under prior law) Commonwealth v. Mirandi, 243 Ky. 823 , 50 S.W.2d 13, 1932 Ky. LEXIS 203 ( Ky. 1932 ).

The gist of the offense denounced by law that provided penalty for obtaining money, property or signature by false pretenses is the fraud and deception of the perpetrator and the fact that a person was deceived and defrauded; thus, where cases sold as containing cigarettes actually contained sawdust, the fact that the person defrauded might have been willing to engage in traffic in contraband goods, and probably thought that goods were stolen, would not absolve the perpetrator of his guilt. (Decided under prior law) Frazier v. Commonwealth, 291 Ky. 467 , 165 S.W.2d 33, 1942 Ky. LEXIS 270 ( Ky. 1942 ).

In order to make a case under law that provided penalty for obtaining money, property or signature by false pretenses, the prosecution had to show the falsity of the alleged misrepresentation. (Decided under prior law) Lovings v. Commonwealth, 310 Ky. 315 , 220 S.W.2d 868, 1949 Ky. LEXIS 929 ( Ky. 1949 ).

Where a creditor, by false pretense, induced a debtor to knowingly pay a just debt, the creditor had committed no criminal offense because there could have been no intention to injure or cheat the person so deceived. (Decided under prior law) Sanson v. Commonwealth, 313 Ky. 631 , 233 S.W.2d 258, 1950 Ky. LEXIS 943 ( Ky. 1950 ).

The gist of the offense of obtaining property by false pretenses was the fraud and deception of the perpetrator, his motives and the results and fact that a person was deceived and defrauded. (Decided under prior law) Lee v. Commonwealth, 242 S.W.2d 984, 1951 Ky. LEXIS 1091 ( Ky. 1951 ).

Where one intentionally created a belief as to an existing fact which was false and with intent to defraud another of his property and did so, it was immaterial whether the erroneous belief was induced by words or acts or both and mere fact that one of the persons obtaining the property by agreement received no share of the property did not make him less a party to the offense. (Decided under prior law) Lee v. Commonwealth, 242 S.W.2d 984, 1951 Ky. LEXIS 1091 ( Ky. 1951 ).

To constitute crime of obtaining money or property by false pretenses, the following must appear: a false pretense made by defendant or someone whom he induced to make it, knowledge of falsity of the statement by defendant, reliance by person defrauded inducing such person to part with money which is obtained by defendant or someone in his behalf, intent to defraud by defendant, and an actual defrauding. (Decided under prior law) Rowland v. Commonwealth, 355 S.W.2d 292, 1962 Ky. LEXIS 63 ( Ky. 1962 ).

To convict of obtaining property by false pretenses the property need not be obtained by accused for himself, it being sufficient if, as a result of his false representations, it is delivered either for the benefit of the accused or for another’s benefit. (Decided under prior law) Jones v. Commonwealth, 463 S.W.2d 936, 1970 Ky. LEXIS 662 ( Ky. 1970 ).

Where the defendant purposely confused the bank teller into giving him more money than he was entitled, such fleecing of the teller constituted obtaining money under false pretenses. (Decided under prior law) Talbert v. Commonwealth, 486 S.W.2d 702, 1972 Ky. LEXIS 116 ( Ky. 1972 ).

To be convicted of obtaining property by false pretenses it must be shown that something was obtained to which the defendant would not otherwise be entitled. (Decided under prior law) Palmer v. Commonwealth, 479 S.W.2d 613, 1972 Ky. LEXIS 305 ( Ky. 1972 ).

15.Evidence.

In prosecution for selling cases of sawdust on representation that they contained cigarettes, evidence that defendant had offered to sell same articles to others was competent to establish the particular criminal intent or to show a plan or scheme. (Decided under prior law) Frazier v. Commonwealth, 291 Ky. 467 , 165 S.W.2d 33, 1942 Ky. LEXIS 270 ( Ky. 1942 ).

Where defendant was being prosecuted for obtaining by false token the signature of another to a writing, the false making whereof would be a forgery, by obtaining a false and spurious weight ticket purporting to evince receipt by corporation from payee of soybeans, when in fact there had been no such receipt of soybeans, and thereby causing a bank check to be issued to payee for payment of said soybeans, testimony of qualified witness explaining how a false ticket could be obtained from scales, which automatically stamped weight on ticket, by placing a ten-pound weight on balance bar when nothing was being weighed, and photograph, shown to have been accurate, used to explain experiment with scales to produce such result, were not incompetent because defendant was not present when experiment and picture were made. (Decided under prior law) Greenwell v. Commonwealth, 317 S.W.2d 859, 1958 Ky. LEXIS 103 ( Ky. 1958 ).

Where the defendant in a prosecution had been declared bankrupt and that case was pending in federal court and the check involved in the prosecution had not been paid and could have been involved in the bankruptcy proceeding it was prejudicial error to allow the prosecutor to question the defendant about a fee paid to one of the defendant’s attorneys. (Decided under prior law) Harrell v. Commonwealth, 328 S.W.2d 531, 1959 Ky. LEXIS 124 ( Ky. 1959 ).

In a prosecution for obtaining property by false pretenses, the fact that a bank teller who had paid over the money failed to positively identify the defendant as the person to whom he had given the money when questioned by the police goes only to the weight of the evidence where the teller later positively identified the defendant. (Decided under prior law) Bivens v. Commonwealth, 330 S.W.2d 930, 1959 Ky. LEXIS 208 ( Ky. 1959 ).

Where a check was postdated there was sufficient evidence to take the case to the jury on the question of whether the person who accepted the check had been extending credit where such person testified that he had asked the defendant if the check was good and the defendant had said that it was. (Decided under prior law) Mercer v. Commonwealth, 332 S.W.2d 655, 1960 Ky. LEXIS 170 ( Ky. 1960 ).

Where facts established all the elements of the crime under law that provided penalty for obtaining money, property or signature by false pretenses, they would be sufficient notwithstanding such facts would also have established that the defendant had committed forgery as denounced by law that provided penalty for forgery or counterfeiting of writings in order to obtain or deprive another of possession of money or property. (Decided under prior law) Taylor v. Commonwealth, 384 S.W.2d 333, 1964 Ky. LEXIS 100 ( Ky. 1964 ).

Where the defendant called a service station and told the attendant he was sending three (3) boys with credit cards to pick up merchandise, and called back to see if they had gotten it, although the attendant did not specifically so state, it was implicit in his testimony that he did in fact part with the merchandise on the false representation that the purchasers had authority to use the credit cards issued in the names of others. (Decided under prior law) Davidson v. Commonwealth, 436 S.W.2d 495, 1968 Ky. LEXIS 183 ( Ky. 1968 ).

Where a solicitation was made to defray the costs of putting on a beauty pageant and was so understood by the city officials responsible for the donation, there was no evidence that the pageant made any profit, the solicitation gave no basis for an impression that the donation would not be used in its entirety, if necessary, to defray the costs of the pageant and there was no proof that the donation was used in any different manner than intended by the donor, the evidence was insufficient to sustain a conviction for theft by deception. Davis v. Commonwealth, 564 S.W.2d 33, 1978 Ky. App. LEXIS 494 (Ky. Ct. App. 1978).

Where evidence showed that, on prior occasions, payee had accepted checks from defendant knowing that they were drawn on insufficient funds, but payee testified that he believed check on which prosecution was based was drawn on sufficient funds, there was a factual question as to whether payee was deceived and jury was warranted in so finding. Luttrell v. Commonwealth, 644 S.W.2d 647, 1982 Ky. LEXIS 329 ( Ky. 1982 ).

Where in the prosecution of defendant for theft by deception, the evidence showed that undercover police officers marked some dogs at a county animal shelter and then intentionally purchased those specific dogs from the defendant, who was buying them from the shelter and then selling them at a much higher price to the public under the fraudulent representation that they were American Kennel Club (AKC) registered animals, the element of deception was not proven since the the undercover officers were not deceived in any way as to the true value of the dogs, and therefore, the defendant’s conviction could not stand. Sherrill v. Nicholson, 545 F. Supp. 573, 1982 U.S. Dist. LEXIS 14291 (W.D. Ky. 1982 ).

Where there was a discrepancy of nearly $6,000 between the amount of the check and the amount in the account upon which the check was drawn, the size of the discrepancy was sufficient evidence for the jury to have found that defendant knew at the time he delivered the check to payee that it would not be honored. Luttrell v. Commonwealth, 644 S.W.2d 647, 1982 Ky. LEXIS 329 ( Ky. 1982 ).

Where defendant was convicted of theft by deception for paying co-defendant for working when she did not, evidence was sufficient to sustain the conviction where 1) witnesses testified they never saw co-defendant at work during time in question; 2) co-defendant could not produce any work-product during time in question and 3) witnesses testifying they had seen co-defendant during time in question had their credibility undermined. Burnette v. Commonwealth, 799 S.W.2d 821, 1990 Ky. LEXIS 136 ( Ky. 1990 ).

Where defendant was identified as the person cashing checks, but presented an identification card with someone else’s name on it, when coupled with testimony from a bank employee that defendant had not made any further deposits or withdrawals since his last transaction, said evidence supported his convictions for theft by deception. Florence v. Commonwealth, 120 S.W.3d 699, 2003 Ky. LEXIS 182 ( Ky. 2003 ).

In a trial alleging that defendant lied when she said her boyfriend forged her signature on a loan document, defendant should have been permitted to inquire on cross-examination into the conduct underlying the boyfriend’s prior misdemeanor convictions for giving a false name to a peace officer, even though she could not ask about or otherwise show that this conduct led to a conviction. Allen v. Commonwealth, 395 S.W.3d 451, 2013 Ky. LEXIS 30 ( Ky. 2013 ).

16.— Burden of Proof.

In a prosecution under former law that provided penalty for making or delivering a check or draft not backed by sufficient funds, the commonwealth had the burden of proof, throughout the entire proceeding, of proving that the defendant did not have sufficient funds in or credit with the bank to pay the check issued by the defendant. (Decided under prior law) Commonwealth v. Gentry, 261 Ky. 564 , 88 S.W.2d 273, 1935 Ky. LEXIS 692 ( Ky. 1935 ).

Under former law that provided penalty for making or delivering a check or draft not backed by sufficient funds, the Commonwealth had the burden of proving that the defendant issued a check with the intent to defraud and knew that he did not have sufficient funds in the bank to cover the check. (Decided under prior law) Wright v. Commonwealth, 280 Ky. 368 , 133 S.W.2d 525, 1939 Ky. LEXIS 133 ( Ky. 1939 ).

17.— Other Offenses.

In a prosecution under former law that provided penalty for making or delivering a check or draft not backed by sufficient funds, the court properly sustained objections when the prosecutor questioned the defendant about arrests on other bad check charges. (Decided under prior law) Stiles v. Commonwealth, 348 S.W.2d 843, 1961 Ky. LEXIS 37 ( Ky. 1961 ).

The trial court did not substantially prejudice the defendant’s case by admitting evidence of his collateral acts and business dealings where defendant’s white collar crimes in the other state were admitted for the limited purpose of establishing common scheme or plan and the jury was given a limiting instruction. Rosenzweig v. Commonwealth, 705 S.W.2d 956, 1986 Ky. App. LEXIS 1055 (Ky. Ct. App. 1986).

18.— Insufficient.

A person who represented that he was the owner and had possession of personal property and thereby obtained money on faith of said representation, was not guilty of false pretense, if at the time the representation was made he was in fact the owner of and did have possession of said property, although he may not repay the money or deliver the property to person to whom the representation was made. (Decided under prior law) Smith v. Commonwealth, 141 Ky. 534 , 133 S.W. 228, 1911 Ky. LEXIS 38 ( Ky. 1911 ).

One who by false pretense obtains from a livery man the mere use of a horse and buggy is not guilty under former law that provided penalty for obtaining money, property or signature by false pretenses. (Decided under prior law) Commonwealth v. McClain, 153 Ky. 480 , 155 S.W. 1152, 1913 Ky. LEXIS 865 ( Ky. 1913 ).

Where person gave money to defendant upon a promise that defendant would procure for him some whiskey, but instead of doing so, defendant never returned but kept the money, evidence was insufficient to convict under law that provided penalty for obtaining money, property or signature by false pretenses. (Decided under prior law) Steely v. Commonwealth, 171 Ky. 58 , 186 S.W. 883, 1916 Ky. LEXIS 290 ( Ky. 1916 ).

A statement by the defendant that a surety who had signed his note had requested a second party to sign as surety, which the second party did, was not sufficient to hold the defendant liable for obtaining the signature by false pretenses where the second surety was not misled as to the nature of the note or the status of the parties. (Decided under prior law) Sweeton v. Commonwealth, 210 Ky. 340 , 275 S.W. 827, 1925 Ky. LEXIS 670 ( Ky. 1925 ).

There was not sufficient evidence to sustain a conviction under law that provided penalty for making or delivering a check or draft not backed by sufficient funds where there was no evidence of intent to defraud and where the defendant had employed every means reasonably necessary to provide for the payment of the check when he was informed of the condition of his bank account. (Decided under prior law) Wright v. Commonwealth, 280 Ky. 368 , 133 S.W.2d 525, 1939 Ky. LEXIS 133 ( Ky. 1939 ).

Where defendants were indicted for obtaining money by false pretenses, through the cashing of a bogus check, there was not sufficient evidence to sustain a conviction where there was no proof that the check was not in fact signed by the person whom the defendants alleged had signed it and where the person who took the check stated that she was aware of some defects in the check but cashed it out of fear or annoyance. (Decided under prior law) Lovings v. Commonwealth, 310 Ky. 315 , 220 S.W.2d 868, 1949 Ky. LEXIS 929 ( Ky. 1949 ).

In prosecution for obtaining money under false pretenses, evidence that contractor, who was constructing a home for owner of realty, induced the owner of the realty to make payment due under building contract by allegedly falsely representing that he, the contractor, had paid certain bills for building materials, was insufficient to take to jury the question of contractor’s guilt. (Decided under prior law) Sanson v. Commonwealth, 313 Ky. 631 , 233 S.W.2d 258, 1950 Ky. LEXIS 943 ( Ky. 1950 ).

There was not sufficient evidence to sustain a conviction for obtaining property by false pretenses where the person from whom the property was obtained testified that she gave a check to the defendant because she was interested in the advertising he was selling and not because she relied on the fact that the defendant was the person whom he had represented himself to be. (Decided under prior law) Rowland v. Commonwealth, 355 S.W.2d 292, 1962 Ky. LEXIS 63 ( Ky. 1962 ).

Where defendant applied for and received food stamps in one county knowing that her husband had applied for and received them in another, evidence did not clearly show a violation of law that provided penalty for obtaining money, property or signature by false pretenses because the family was entitled to food stamp assistance, the husband had departed taking with him the allowance for the entire family, there was no evidence that the stamps were used for any purpose other than that intended and their allowance for subsequent months could be reduced to bring it within the legal limits. (Decided under prior law) Palmer v. Commonwealth, 479 S.W.2d 613, 1972 Ky. LEXIS 305 ( Ky. 1972 ).

In appellants’ theft trial under KRS 514.040(1), the parties stipulated that appellants were not under any obligation to permit someone to adopt the child, for purposes of KRS 199.500(1), 199.011(14), and no one told appellants they could not accept money for anyone else; the indictment was based on appellants’ failure to disclose to a couple, who had been paying appellants for pregnancy expenses in the hope of adopting the child, that appellants had also accepted money from an adoption agency, but the court found no crime, and the court found that (1) the couple knew money had already exchanged hands between appellants and the agency, and the couple was not guaranteed to be able to adopt appellants’ child, and there was no deception as to the purpose of the funds, (2) nothing required appellants to inform the couple of other adoptive parents they were considering and getting money from, and (3) the couple did not make the money contingent on appellants not contacting other potential adoptive parents or agencies, and there was no theft by deception or otherwise. Young v. Commonwealth, 2013 Ky. App. LEXIS 72 (Ky. Ct. App. May 3, 2013, sub. op., 2013 Ky. App. Unpub. LEXIS 1003 (Ky. Ct. App. May 3, 2013).

19.— Sufficient.

A person, who for the purpose of obtaining goods, falsely represented that he had a contract for upholstering certain articles at a certain price, and on strength of which, the goods were given to him, was guilty of obtaining property under false pretenses. (Decided under prior law) Martin v. Commonwealth, 102 S.W. 273, 31 Ky. L. Rptr. 268 (1907).

A conductor on a railroad who conspired with a timekeeper to make a report to the railroad of more trips than the conductor in fact made, and by reason of which false report, and conspiracy, the conductor was paid more than he in fact earned, was guilty under law that provided penalty for obtaining money, property or signature by false pretenses, being a principal as much so as if he had made the false report himself. (Decided under prior law) Commonwealth v. Barnett, 95 Ky. 302 , 25 S.W. 109, 15 Ky. L. Rptr. 619 , 1894 Ky. LEXIS 19 ( Ky. 1894 ).

Where one defendant with knowledge and concurrence of others made false representations charged, conviction of all was warranted. (Decided under prior law) Lee v. Commonwealth, 242 S.W.2d 984, 1951 Ky. LEXIS 1091 ( Ky. 1951 ).

Evidence that showed a consistent pattern of similar fraudulent operations by defendant to the operation for which he was convicted in trial court was sufficient to sustain conviction for obtaining by false token a signature of another to a writing, the false making whereof would be forgery. (Decided under prior law) Greenwell v. Commonwealth, 317 S.W.2d 859, 1958 Ky. LEXIS 103 ( Ky. 1958 ).

Where the defendant was indicted for obtaining money by false statements that he was an insurance agent, there was sufficient evidence to prove that the defendant knew he had been discharged by the insurance company where the general agent of the company testified that he had discharged the defendant prior to the commission of the offense and had given notice of the discharge to the defendant by letter, and where the defendant had made the check received payable to himself, cashed it immediately and failed to forward the insurance application to the company. Braswell v. Commonwealth, 339 S.W.2d 637, 1960 Ky. LEXIS 479 ( Ky. 1960 ).

In a prosecution for obtaining money under false pretenses there was sufficient evidence to sustain a conviction when it was shown that the defendants engaged in selling furnaces and furnace parts, had sold as a replacement part the same part which they had removed from a furnace as allegedly defective. (Decided under prior law) White v. Commonwealth, 394 S.W.2d 770, 1965 Ky. LEXIS 208 ( Ky. 1965 ).

Where the alleged crime involved the false representation of an arrangement in which one party had agreed to pay $2 per share for certain stock and another party surrendered such stock in reliance on that representation, the evidence was sufficient to supply the necessary elements of obtaining property by false pretenses. (Decided under prior law) Jones v. Commonwealth, 463 S.W.2d 936, 1970 Ky. LEXIS 662 ( Ky. 1970 ).

Where the evidence showed that a check issued by the defendant “bounced” twice and was not covered by the defendant within 10 days after dishonor, there was abundant evidence to sustain the conviction under this section and in light of such evidence the trial court’s error in admitting evidence to the effect that the payee of the check had borrowed money in order to buy some items to sell in turn to the defendant was not prejudicial. Patterson v. Commonwealth, 556 S.W.2d 909, 1977 Ky. App. LEXIS 822 (Ky. Ct. App. 1977), cert. denied, 435 U.S. 970, 98 S. Ct. 1609, 56 L. Ed. 2d 61, 1978 U.S. LEXIS 1484 (U.S. 1978).

Commonwealth sufficiently proved that defendant obtained “property” when a finance company discharged a vehicle loan (which defendant had allegedly co-signed for her boyfriend) based on her claim that her name was forged on the loan documents because she obtained the lender’s contractual right to collect on the debt. The finance company’s partial reliance on its own internal investigation did not negate the element of reliance because defendant’s identity-theft affidavit was also part of the reason for the discharge. Allen v. Commonwealth, 395 S.W.3d 451, 2013 Ky. LEXIS 30 ( Ky. 2013 ).

20.Indictment.

An indictment charging that the defendant deceitfully obtained from the Adams Express Company one jug of whiskey intended to be delivered to the individual personated, and did appropriate to his own use, was a good indictment. (Decided under prior law) Commonwealth v. Vaughn, 140 Ky. 559 , 131 S.W. 396, 1910 Ky. LEXIS 320 ( Ky. 1910 ).

An indictment which failed to allege an intent to defraud or to allege that the defendant knew when he issued the check that there were not sufficient funds to pay the check was insufficient. (Decided under prior law) Hughes v. Commonwealth, 228 Ky. 730 , 15 S.W.2d 421, 1929 Ky. LEXIS 585 ( Ky. 1929 ).

An indictment for obtaining property by false pretenses should negative by special averment the truth of such material pretenses as the prosecution expects to prove false, and such averment should be as direct and specific as is required in indictments for false swearing or perjury, and it is not sufficient to allege that the statement was false and known by defendant to be so. (Decided under prior law) Burnley v. Commonwealth, 274 Ky. 18 , 117 S.W.2d 1008, 1938 Ky. LEXIS 214 ( Ky. 1938 ).

Indictment charging defendant with issuing check knowing at the time that he did not have “sufficient funds” in the bank to pay the check was fatally defective in failing to charge that defendant knew he did not have sufficient “credit” with bank to enable payment of check, since defendant would not be guilty of violating law that provided penalty for making or delivering a check or draft not backed by sufficient funds if he believed that bank would honor his check on credit. (Decided under prior law) Commonwealth v. Bandy, 291 Ky. 721 , 165 S.W.2d 337, 1942 Ky. LEXIS 294 ( Ky. 1942 ).

Where defendant was charged with obtaining money by false pretenses in selling hams to another representing he was owner thereof, indictment was not required to allege offense was committed 12 months prior to the finding of the indictment, and was not required to allege that person to whom false pretense was made sustained any ultimate loss as a result of the transaction. (Decided under prior law) Chapman v. Commonwealth, 239 S.W.2d 974, 1951 Ky. LEXIS 923 ( Ky. 1951 ).

Where indictment charged defendant with obtaining by false token signature of another to a writing, the false making whereof would be forgery, by obtaining the signature of a corporation, with intent to defraud, upon a check drawn upon a named bank in favor of a named payee by presenting to corporation a false and spurious weight ticket purporting to evince receipt by corporation from payee of certain amount of soybeans when in fact there had been no such receipt of soybeans which facts were well known to defendant, indictment contained a definite charge of knowledge of spurious character of the instrument presented. (Decided under prior law) Greenwell v. Commonwealth, 317 S.W.2d 859, 1958 Ky. LEXIS 103 ( Ky. 1958 ).

An indictment charging the uttering of a bad check given in payment for the “purchase of livestock” did not charge a complete offense because it failed to allege that the thing of value obtained by the maker of the check was obtained simultaneously with the giving of the check. (Decided under prior law) Harrell v. Commonwealth, 328 S.W.2d 531, 1959 Ky. LEXIS 124 ( Ky. 1959 ).

It is unnecessary that reliance upon false representation be specifically charged or proven if such reliance is made clear from the language of the indictment and from the testimony. (Decided under prior law) Davidson v. Commonwealth, 436 S.W.2d 495, 1968 Ky. LEXIS 183 ( Ky. 1968 ).

Where the indictment showed clearly that the defendant was being charged with fraudulently obtaining from another 5,000 shares of stock and that this occurred in January 1967, identification of the crime was sufficiently clear. (Decided under prior law) Jones v. Commonwealth, 463 S.W.2d 936, 1970 Ky. LEXIS 662 ( Ky. 1970 ).

Presumably, the indictment alleged a violation of KRS 514.040(1)(a) or (b). Young v. Commonwealth, 2013 Ky. App. LEXIS 72 (Ky. Ct. App. May 3, 2013, sub. op., 2013 Ky. App. Unpub. LEXIS 1003 (Ky. Ct. App. May 3, 2013).

Trial court properly denied the biological parents' motion to dismiss the indictment, as the question of whether the prospective adoptive parents were deceived into paying the biological mother's living expenses during the pregnancy, because they believed they were the only family seeking to adopt the child, was a question for the jury, not one the trial court had any authority to answer on a motion to dismiss. Commonwealth v. Young, 487 S.W.3d 430, 2015 Ky. LEXIS 2007 ( Ky. 2015 ).

21.— Defective.

An indictment under law that provided penalty for obtaining money, property or signature by false pretenses was fatally defective unless it alleged that the party defrauded believed or relied upon the representations alleged to have been made by defendant and would not have parted with his money and property except for the representations by the defendant. (Decided under prior law) Bryant v. Commonwealth, 104 Ky. 593 , 47 S.W. 578, 20 Ky. L. Rptr. 790 , 1898 Ky. LEXIS 193 ( Ky. 1898 ).

Indictment, which failed to aver that the representations were false and known to be false by accused when made, did not charge an offense. (Decided under prior law) Burnley v. Commonwealth, 274 Ky. 18 , 117 S.W.2d 1008, 1938 Ky. LEXIS 214 ( Ky. 1938 ).

Where the indictment did not charge a false pretense or statement of any past or existing material fact and the only false pretense alleged was of a future event, the indictment was insufficient. (Decided under prior law) Rowland v. Commonwealth, 487 S.W.2d 682, 1972 Ky. LEXIS 69 ( Ky. 1972 ).

22.— Variance.

Where a defendant was indicted for obtaining money from a wife there was no material variance with the proof where the evidence indicated that the defendant had received the money from the husband because, should defendant be indicted for defrauding the husband the proof in the instant case along with the indictment and instructions would show beyond a doubt that the two (2) charges involved one and the same criminal act. (Decided under prior law) Braswell v. Commonwealth, 339 S.W.2d 637, 1960 Ky. LEXIS 479 ( Ky. 1960 ).

It was not grounds for dismissal that the accused obtained the stock for a corporation with which he was involved rather than for himself as the indictment alleged. (Decided under prior law) Jones v. Commonwealth, 463 S.W.2d 936, 1970 Ky. LEXIS 662 ( Ky. 1970 ).

23.Instructions.

In prosecution for obtaining money under false pretenses, a showing that a debtor, as a result of false representations on the part of a creditor, has been induced to part with a larger amount than is justly due on unliquidated debt, will create a circumstance from which the jury may reasonably infer that there was an intention on part of creditor to defraud the debtor; thus, a peremptory instruction in favor of defendant creditor should not be given. (Decided under prior law) Sanson v. Commonwealth, 313 Ky. 631 , 233 S.W.2d 258, 1950 Ky. LEXIS 943 ( Ky. 1950 ).

In a prosecution for obtaining money by false pretenses, wherein the defendant was charged with obtaining a load of hay by issuing a worthless check, it was not necessary to give an instruction on the issue of the defendant’s credit with the bank. (Decided under prior law) Daily v. Commonwealth, 248 S.W.2d 425, 1952 Ky. LEXIS 743 ( Ky. 1952 ).

Where the defendant had testified that he knew when he wrote the check that he did not have sufficient funds or credit with the bank he was not entitled to a peremptory instruction when the state failed to offer testimony of a bank officer to show that the defendant did not have sufficient money or credit. (Decided under prior law) Stiles v. Commonwealth, 348 S.W.2d 843, 1961 Ky. LEXIS 37 ( Ky. 1961 ).

Subsection (3) of this section is intended to be a caveat to the trial judge; it prescribes a standard to be followed by him in determining whether there is sufficient evidence to warrant the submission of the deception issue to the jury, and its language should not be included in the instructions to the jury because to do so invades their province to weigh the evidence and draw their own conclusions. Commonwealth v. Miller, 575 S.W.2d 467, 1978 Ky. LEXIS 456 ( Ky. 1978 ).

Where deputy sheriff was tried and convicted for theft by deception under this section for falsely making claims for prisoner transportation expenses and mileage, he was not entitled to jury instructions regarding a “claim of right” defense under KRS 514.020 , since there was no evidence that the deputy had any personal right to claim the proceeds provided by false representatives nor any right to dispose of the proceeds received. Hodges v. Commonwealth, 614 S.W.2d 702, 1981 Ky. App. LEXIS 236 (Ky. Ct. App. 1981).

The court did not err by instructing the jury on both second-degree possession of a forged instrument and theft by deception, since neither is a lesser-included offense of the other, nor do they require identical courses of conduct. Caudill v. Commonwealth, 723 S.W.2d 881, 1986 Ky. App. LEXIS 1487 (Ky. Ct. App. 1986), cert. denied, 483 U.S. 1021, 107 S. Ct. 3265, 97 L. Ed. 2d 764, 1987 U.S. LEXIS 2958 (U.S. 1987).

In a prosecution of theft by deception and second-degree criminal possession of a forged instrument, because defendant was entitled to the lesser-included offense instruction on the offense of facilitation of both charges, and, was not given the option to waive his limitations defense in exchange for the instructions, reversal of his convictions, and an order granting a new trial, were proper. Commonwealth v. Oliver, 253 S.W.3d 520, 2008 Ky. LEXIS 135 ( Ky. 2008 ).

24.Venue.

Evidence indicating that the defendant rented a truck under a false name and failed to return the truck was sufficient to show intention to convert the property at the time of the rental and therefore the venue was properly in the county in which the truck was rented rather than in the county into which the truck had been taken and was later found. (Decided under prior law) Larue v. Commonwealth, 481 S.W.2d 47, 1972 Ky. LEXIS 216 ( Ky. 1972 ).

25.Sentence.

In a case in which defendant pled guilty to possession of a firearm, his argument was meritless that the district court improperly applied a four-level enhancement under U.S. Sentencing Guidelines Manual § 2K2.1(b)(6) after finding that he used or possessed a firearm in connection with another felony offense or with knowledge, intent, or reason to believe that it would be used or possessed in connection with another felony offense because the substance involved in the controlled buy was not actually cocaine. The sale of sham narcotics was felony under Kentucky law as theft by deception, and state-law felonies qualified for the enhancement. United States v. Stewart, 2011 U.S. Dist. LEXIS 10789 (E.D. Ky. Feb. 2, 2011).

26.Amount Taken.

Trial court erred in adding the funds paid by the prospective adoptive parents to those paid by an adoption agency to reach an amount which increased the offense level from a Class D to a Class C felony, as the agency was not a victim in the indictment, and, even if it had been, would have been a separate victim. Commonwealth v. Young, 487 S.W.3d 430, 2015 Ky. LEXIS 2007 ( Ky. 2015 ).

Cited:

Kentucky Bar Asso. v. Clem, 561 S.W.2d 90, 1978 Ky. LEXIS 316 ( Ky. 1978 ); Lovitt v. Commonwealth, 592 S.W.2d 133, 1979 Ky. LEXIS 314 ( Ky. 1979 ); Commonwealth v. Jeter, 590 S.W.2d 346, 1979 Ky. App. LEXIS 487 (Ky. Ct. App. 1979); Evans v. Commonwealth, 645 S.W.2d 346, 1982 Ky. LEXIS 330 ( Ky. 1982 ); Commonwealth v. Evans, 645 S.W.2d 350, 1982 Ky. App. LEXIS 280 (Ky. Ct. App. 1982), aff’d, 645 S.W.2d 346, 1982 Ky. LEXIS 330 ( Ky. 1982 ); Commonwealth v. Phillips, 655 S.W.2d 6, 1983 Ky. LEXIS 286 ( Ky. 1983 ); Goble v. Matthews, 814 F.2d 1104, 1987 U.S. App. LEXIS 3968 (6th Cir. 1987); Hellard v. Commonwealth, 829 S.W.2d 427, 1992 Ky. App. LEXIS 41 (Ky. Ct. App. 1992); Commonwealth v. Lewis, 903 S.W.2d 524, 1995 Ky. LEXIS 65 ( Ky. 1995 ), rehearing denied, 1995 Ky. LEXIS 90 ( Ky. 1995 ); Hearn v. Commonwealth, 80 S.W.3d 432, 2002 Ky. LEXIS 135 ( Ky. 2002 ).

Opinions of Attorney General.

A police judge of a fifth-class city has jurisdiction over writers of bad checks where the amount of the check is less than one hundred dollars and the offense is committed within the city boundary. OAG 75-18 .

One who issues a check, which a bank dishonors because of stopped payment, uncollected funds, unauthorized signature, or closed account, violates this section if the check was issued intentionally, knowing that it would not be honored. OAG 75-132 .

Where a person intentionally issues a check with knowledge that it will be dishonored by a bank for any of the following reasons: (1) stop payment, (2) uncollected funds, (3) unauthorized signature, (4) signature not on file, or (5) account closed, said person violates the provisions of this section. OAG 75-132 .

The practice of the county attorney of notifying persons who have written bad checks, of the statutory law, is really a public service by way of maximizing the payment of civil debts and minimizing criminal prosecutions no duress is involved. OAG 75-420 .

In the case of a dishonored payroll check, the commercial concern issuing the dishonored check and not the last indorser should be charged in a warrant for theft by deception, since knowledge of the status of the drawer’s account is not automatically imputed to a subsequent holder who negotiates or passes the item. OAG 76-42 .

The notice of dishonor for lack of funds that is required before an issuer can be presumed to know that his check would not be paid can be given to the issuer by either his own bank or the payee of the check. OAG 76-42 .

Since the ten (10) day notice is interpreted in its ordinary sense of ten (10) calendar days, a merchant would be advised to wait ten (10) calendar days instead of ten (10) business days before seeking prosecution in case of a dishonored check. OAG 76-42 .

The simultaneous exchange of property or merchandise for a check which is subsequently dishonored is not necessary in order to constitute a theft by deception, since the purpose or intention of the person at the time the property is obtained instead of at the time the dishonored check is given would govern. OAG 76-43 .

Where a person purchases merchandise from a store on a credit account with the intent to pay but later issues a bad check to the store, the person has not committed theft by deception since the store owner was not induced to deliver the merchandise by deception. OAG 76-43 .

A dishonored postdated check may be a criminal offense under this section immediately upon dishonor under circumstances substantiating a deprivation of property through false pretense. OAG 77-456 .

A ten day notice is not mandated by this section before a warrant can be issued for a person who issued a check and had no account with the drawee. OAG 78-292 .

Theft by deception does not apply in the usual stop payment case where the drawer has sufficient funds in his account to pay the check; on the other hand, if there were repeated instances of “stop payment” by an individual, suggesting a scheme, and if there appeared to be no valid reason for stopping payment following the delivery of the merchandise, then perhaps deception could be shown. OAG 79-93 .

Assuming that a worthless check was given with intent to defraud in violation of this section, a prosecution would not be barred by partial restitution since the statute does not provide that restitution is a defense to the action. OAG 79-243 .

If the issuance of AFDC checks were conditioned upon receipt of the child support check from the debtor-parent, a debtor-parent who issued a cold check would be obtaining “property of another by deception with intent to deprive him thereof” if the parent was aware of this procedure and if the AFDC check was issued in reliance on the parent’s check and before it was ascertained that the check was in fact “cold.” OAG 80-509 .

Where AFDC payments were routinely paid to a child regardless of any other factor, a parent who used cold checks to make child support payments to the Cabinet for Human Resources had not obtained property for his child as a result of the cold check, but was only paying a debt and, accordingly, could not be prosecuted for theft by deception. OAG 80-509 .

The passing of a cold check is an illegal act only after the person who issued the check has been convicted of theft by deception; therefore, a county clerk cannot seek to have the Transportation Cabinet revoke the license or registration of a person who has paid the county clerk with a cold check and before a clerk seeks to have someone who has given a cold check prosecuted, he should send that person notice that the bank has refused to honor the check and that if he or she does not make the check good within ten (10) days after receiving the notice, the county clerk will invoke the sanctions of this section and if the person does not pay, and if the person is subsequently convicted of theft by deception on the basis of that check, then the license and registration may be revoked under KRS 186.191 (repealed) by the Transportation Cabinet. OAG 81-45 .

A person who fails to make good a bad check within ten (10) days after receiving notice that the check has been returned by the bank may be charged with theft by deception under this section, and if the accused is under 18 years of age, the charge is under the jurisdiction of the juvenile court. OAG 82-386 .

A sheriff cannot legally provide a service whereby merchants would bring cold checks to his office and he would send out 10-day notices as required by subdivision (4)(b) of this section whereby he would put cold check writers on notice that there would be a fee of $10 payable to the sheriff’s office for services if the checks were not picked up within 10 days by the person writing them; even if he did not collect a fee the sheriff could not provide such a service. OAG 82-605 .

Nothing prohibits a merchant or a bank from charging a reasonable fee on a check returned for insufficient funds provided that the customer has knowledge that they will be liable for this fee in the event the check is returned by the bank; once the customer has knowledge of the fee and then issues a check to the merchant, they have assented to these terms and have agreed to pay the fee. OAG 83-121 .

If an action brought by a merchant on a bad payroll check is criminal, i.e., a prosecution for theft by deception, the issuing business is the proper defendant; however, if the merchant files a civil action, he may, under certain circumstances, attempt to recover from a prior endorser or negotiator of the check. OAG 83-121 .

In cases where payment was refused by the drawee for lack of funds, checks must be presented within 30 days after issue in order to trigger the presumption that the issuer of the check had knowledge that the check would not be paid. OAG 83-121 .

According to subsection (4) of this section, the 10-day period applies only to subdivision (4)(b), where payment is refused by the bank for lack of funds; the merchant may proceed immediately on checks that are returned, under subdivision (4)(a), because the issuer had no account with the drawee bank. OAG 83-121 .

For the retail merchant’s protection, a letter sent by registered or certified mail would be the best method of notifying the customer that his or her check had been returned by the bank. This method would provide clear evidence that the customer actually received notice that his check had been returned; however, it is doubtful that refusal to accept a letter could be considered prima facie evidence of intent to defraud. OAG 83-121 .

A merchant who publicly displays returned checks runs the risk of being sued for invasion of privacy or violation of the customer’s civil rights; also similar conduct might be in violation of the Fair Debt Collection Practices Act, 15 USCS § 1692 et seq. OAG 83-121 .

In cases involving a bad check where the value of property or services is less than $100 the prosecution of an offense must be commenced within one year after it is committed; there is no statute of limitation in cases where the value of property or services is $100 or more. OAG 83-121 .

In instances where the amount of a bad check written by an individual residing in another state is $100 or more, i.e., where a felony is involved, the merchant should contact the local Commonwealth’s Attorney if he or she intends to press charges for theft by deception; where the amount of the check is less than $100, the merchant should consider alternative means of collecting. OAG 83-121 .

If a purchaser writes a check with knowledge that the merchant will impose a specified service charge upon dishonor, the purchaser thereby assents to the service charge term; knowledge can be presumed from the fact that the sign was posted conspicuously, or from evidence that the purchaser was orally told of the condition or signed a check cashing application. Whether or not a customer is bound by a merchant’s policy to charge a service charge would turn on the evidence of the purchaser’s knowledge of and assent to that service charge term. OAG 83-412 .

Where a customer who wrote a check comes back to the merchant within the 10-day period after receiving notice of the refusal by the drawee to pay the check, offers to pay the check but refuses to pay the service charge, it appears that there would be no statutory presumption of intent to deceive. OAG 83-412 .

There are four (4) statutes which could arguably be used in the prosecution of theft of property following a rental contract agreement: KRS 514.030 , this section, KRS 514.060 , and 514.070 . OAG 91-217 .

Research References and Practice Aids

Kentucky Bench & Bar.

Stamm, The Attorney General Goes to Market, Vol. 41, No. 2, April 1977 Ky. Bench & B. 14.

Kentucky Law Journal.

Kentucky Law Survey, Malone and Malone, Criminal Law, 69 Ky. L.J. 545 (1980-81).

Kentucky Law Survey, Sellars, Criminal Law, 71 Ky. L.J. 355 (1982-83).

Kentucky Law Survey, Whiteside, Taxation, 71 Ky. L.J. 479 (1982-83).

Kentucky Law Survey, Fortune and Welling, Criminal Procedure, 72 Ky. L.J. 381 (1983-84).

Gormley and Hartman, The Kentucky Bill of Rights: A Bicentennial Celebration, 80 Ky. L.J. 1 (1990-91).

Underwood, Part-Time Prosecutors and Conflicts of Interest: A Survey and Some Proposals, 81 Ky. L.J. 1 (1993).

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., General Principles, Part 1 Matters of Substance, § 1.07.

Kentucky Instructions To Juries (Criminal), 5th Ed., Theft and Related Offenses, Part 3 Theft, §§ 6.22 — 6.29, 6.32B, 6.34, 6.35, 6.39, 6.50.

Petrilli, Kentucky Family Law, Personal Rights and Privileges Resulting from Marriage, § 12.3.

514.050. Theft of property lost, mislaid, or delivered by mistake.

  1. Except as provided in KRS 365.710, a person is guilty of theft of property lost, mislaid, or delivered by mistake when:
    1. He or she comes into control of the property of another that he or she knows to have been lost, mislaid, or delivered under a mistake as to the nature or amount of the property or the identity of the recipient; and
    2. With intent to deprive the owner thereof, he or she fails to take reasonable measures to restore the property to a person entitled to have it.
  2. Theft of property lost, mislaid, or delivered by mistake is a Class B misdemeanor unless:
    1. The value of the property is five hundred dollars ($500) or more but less than one thousand dollars ($1,000), in which case it is a Class A misdemeanor;
    2. The value of the property is one thousand dollars ($1,000) or more but less than ten thousand dollars ($10,000), in which case it is a Class D felony;
    3. A person has three (3) or more convictions under paragraph (a) of this subsection within the last five (5) years, in which case it is a Class D felony. The five (5) year period shall be measured from the dates on which the offenses occurred for which the judgments of conviction were entered; or
    4. The value of the property is ten thousand dollars ($10,000) or more, in which case it is a Class C felony.
  3. If any person commits two (2) or more separate offenses of theft of property lost, mislaid, or delivered by mistake within ninety (90) days, the offenses may be combined and treated as a single offense, and the value of the property in each offense may be aggregated for the purpose of determining the appropriate charge.

History. Enact. Acts 1974, ch. 406, § 121, effective January 1, 1975; 1992, ch. 451, § 3, effective July 14, 1992; 2009, ch. 106, § 8, effective June 25, 2009; 2021 ch. 66, § 10, effective June 29, 2021.

NOTES TO DECISIONS

Cited:

Gibson v. State, 291 S.W.3d 686, 2009 Ky. LEXIS 155 ( Ky. 2009 ).

Research References and Practice Aids

Cross-References.

Retention of credit card known to be lost, mislaid, or delivered by mistake, KRS 434.590 .

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Theft and Related Offenses, Part 3 Theft, §§ 6.30, 6.31.

514.060. Theft of services.

  1. A person is guilty of theft of services when:
    1. The person intentionally obtains services by deception or threat or by false token or other means to avoid payment for the services which he or she knows are available only for compensation;
    2. The person intentionally obtains wireless communications services or access to services by any of the following means:
      1. Unauthorized interception of any electronic serial number, mobile identification number, personal identification number, or like identifying number;
      2. Unauthorized interception of any cellular service or personal communications service as terms may be defined in 47 C.F.R. parts 22 and 24 respectively;
      3. Unauthorized interception of any similar telephone service; or
      4. Use of deception, threat, or other means to avoid payment for the services which the person knows are available only for charge or compensation; or
    3. Having control over or unauthorized access to the use of the services of others to which the person is not entitled, the person intentionally diverts the services to the person’s own benefit or the benefit of another not entitled thereto.
  2. Where compensation for services is ordinarily paid immediately upon the rendering of the services, as in the case of hotels and restaurants, refusal to pay or absconding without payment or offer to pay shall be prima facie evidence that the services were obtained by deception as to intention to pay.
  3. In any prosecution for theft of gas, water, electricity, or other public service, where the utility supplying the service had installed a meter or other device to record the amount of service supplied, proof that:
    1. The meter or other device has been altered, tampered with, or bypassed in a manner so as to prevent or reduce the recording thereof; or
    2. Service has been, after having been disconnected by the utility supplying service, reconnected without authorization of the utility shall be prima facie evidence of the intent to commit theft of service by the person or persons obligated to pay for service supplied through the meter or other device.
  4. Theft of services is a Class B misdemeanor unless:
    1. The value of the service is five hundred dollars ($500) or more but less than one thousand dollars ($1,000), in which case it is a Class A misdemeanor;
    2. The value of the service is one thousand dollars ($1,000) or more but less than ten thousand dollars ($10,000), in which case it is a Class D felony;
    3. A person has three (3) or more convictions under paragraph (a) of this subsection within the last five (5) years, in which case it is a Class D felony. The five (5) year period shall be measured from the dates on which the offenses occurred for which the judgments of conviction were entered; or
    4. The value of the service is ten thousand dollars ($10,000) or more, in which case it is a Class C felony.
  5. If any person commits two (2) or more separate offenses of theft of services within ninety (90) days, the offenses may be combined and treated as a single offense, and the value of the property in each offense may be aggregated for the purpose of determining the appropriate charge.

History. Enact. Acts 1974, ch. 406, § 122, effective January 1, 1975; 1980, ch. 99, § 1, effective July 15, 1980; 1992, ch. 451, § 4, effective July 14, 1992; 1998, ch. 568, § 1, effective July 15, 1998; 2009, ch. 106, § 9, effective June 25, 2009; 2021 ch. 66, § 11, effective June 29, 2021.

NOTES TO DECISIONS

1.Construction.

The only real distinction between theft by deception under KRS 514.040 and theft of services by means of deception under this section is that in the former case property is obtained and in the latter case services are obtained. Butts v. Commonwealth, 581 S.W.2d 565, 1979 Ky. LEXIS 258 ( Ky. 1979 ).

2.Intent to Deceive.

Where the defendant had been general manager of a business which encountered financial difficulties and was unable to pay at least one of its employees for her services, there was ample evidence for a civil suit, but absent the necessary intent to deceive and acquire the services free, a conviction under this section must be reversed. Butts v. Commonwealth, 581 S.W.2d 565, 1979 Ky. LEXIS 258 ( Ky. 1979 ).

Opinions of Attorney General.

Where rent is paid in advance by a bad check, services (the right to occupy a space) have been obtained by deception and there is a clear violation of this section but, where the rent is paid by a bad check at the end of a rental period, it cannot be said that the services were obtained by means of deception, unless it can be proved that the intent of the renter at the time of the rental was to not pay the rent when due. OAG 75-273 .

Where employees of a coal company were encouraged to continue working until such time as a loan to cover wages was made available to the company, but where the company became insolvent before checks were issued to the employees, the only remedy available to the employees in the absence of proof of deception on the part of the company would be a civil action for enforcement of contractual obligations. OAG 76-248 .

There are four statutes which could arguably be used in the prosecution of theft of property following a rental contract agreement: KRS 514.030 , 514.040 , this section, and KRS 514.070 . OAG 91-217 .

Research References and Practice Aids

Cross-References.

Hotel and boardinghouse keepers, lien on guests’ baggage, KRS 376.340 .

Kentucky Law Journal.

Kentucky Law Survey, Malone and Malone, Criminal Law, 69 Ky. L.J. 545 (1980-81).

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Theft and Related Offenses, Part 3 Theft, §§ 6.32A — 6.35.

514.065. Possession, use, or transfer of device for theft of telecommunications services.

  1. As used in this section, “telecommunications service” means any communication service ordinarily provided for a charge or compensation to facilitate the origination, transmission, emission, or reception of signs, signals, writings, images, sounds, or intelligence of any nature by telephone, including but not limited to cellular and personal communications service, as terms may be defined in 47 C.F.R. parts 22 and 24, respectively, telephones, wire, radio, electromagnetic, photoelectronic, or photooptical systems, but excluding cable television services, even if provided by a telephone utility.
  2. A person is guilty of possession, use, or transfer for use of a device for theft of telecommunications services when the person:
    1. Makes, assembles, or possesses any instrument, apparatus, equipment, or device designed, modified, altered, programmed, reprogrammed, or otherwise adapted for or used for commission of a theft of telecommunications services in violation of KRS 514.060 ; or
    2. Sells, gives, transports, or otherwise transfers to another, or offers or advertises to sell, give, or otherwise transfer any instrument, apparatus, equipment, or device described in paragraph (a) of this subsection, or plans or instructions for making or assembling the same under circumstances evincing an intent to use or employ the instrument, apparatus, equipment, or device, or to allow the same to be used or employed, for a purpose described in paragraph (a) of this subsection, or knowing or having reason to believe that the same is intended to be so used, or that the aforesaid plans or instructions are intended to be used for making or assembling the instrument, apparatus, equipment, or device.
  3. An instrument, apparatus, equipment or device described in paragraph (a) of subsection (2) of this section shall not include any instrument, apparatus, equipment, or device authorized or approved or otherwise permitted by an agency of the federal government or the Commonwealth of Kentucky.
  4. Possession, use, or transfer for use of a device for theft of telecommunications services is a Class A misdemeanor unless the defendant has previously been convicted of violating this section, in which case it is a Class D felony.
  5. Notwithstanding any other provision of this chapter, any instrument, apparatus, equipment, or device designed, modified, altered, programmed, reprogrammed, or otherwise adapted for or used for commission of a theft of telecommunications service in violation of KRS 514.060 , may be seized under warrant or incident to a lawful arrest for the violation of KRS 514.060 , and, upon the conviction of any person for a violation, the court shall order any instrument, apparatus, equipment, device, or plans or instructions for making or assembling them forfeited to the state or destroyed in accordance with KRS 500.090(1)(a), or if requested by the person providing the telecommunications service in the territory in which they were seized, turned over to the telecommunications service provider.

History. Enact. Acts 1980, ch. 330, § 1, effective July 15, 1980; 1998, ch. 568, § 2, effective July 15, 1998.

Research References and Practice Aids

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Theft and Related Offenses, Part 1 Definitions, § 6.05D.

514.070. Theft by failure to make required disposition of property.

  1. A person is guilty of theft by failure to make required disposition of property received when:
    1. He or she obtains property upon agreement or subject to a known legal obligation to make specified payment or other disposition whether from such property or its proceeds or from his or her own property to be reserved in equivalent amount; and
    2. He or she intentionally deals with the property as his or her own and fails to make the required payment or disposition.
  2. The provisions of subsection (1) apply notwithstanding that it may be impossible to identify particular property as belonging to the victim at the time of the actor’s failure to make the required payment or disposition.
  3. An officer or employee of the government or of a financial institution is presumed:
    1. To know any legal obligation relevant to his or her criminal liability under this section; and
    2. To have dealt with the property as his own when:
      1. He or she fails to account or pay upon lawful demand; or
      2. An audit reveals a shortage or falsification of accounts.
  4. Theft by failure to make required disposition of property received is a Class B misdemeanor unless:
    1. The value of the property is five hundred dollars ($500) or more but less than one thousand dollars ($1,000), in which case it is a Class A misdemeanor;
    2. The value of the property is one thousand dollars ($1,000) or more but less than ten thousand dollars ($10,000), in which case it is a Class D felony;
    3. A person has three (3) or more convictions under paragraph (a) of this subsection within the last five (5) years, in which case it is a Class D felony. The five (5) year period shall be measured from the dates on which the offenses occurred for which the judgments of conviction were entered; or
    4. The value of the property is ten thousand dollars ($10,000) or more, in which case it is a Class C felony.
  5. No person shall be convicted of theft by failure to make required disposition of property received when he or she has also been convicted of a violation of KRS 522.050 arising out of the same incident.
  6. If any person commits two (2) or more separate offenses of theft by failure to make a required disposition of property received within ninety (90) days, the offenses may be combined and treated as a single offense, and the value of the property in each offense may be aggregated for the purpose of determining the appropriate charge.

History. Enact. Acts 1974, ch. 406, § 123, effective January 1, 1975; 1992, ch. 451, § 5, effective July 14, 1992; 2003, ch. 76, § 2, effective June 24, 2003; 2009, ch. 106, § 10, effective June 25, 2009; 2021 ch. 66, § 12, effective June 29, 2021.

NOTES TO DECISIONS

Analysis

1.In General.

A municipal corporation is capable of owning property subject to conversion and may enjoy joint ownership with another in such property. (Decided under prior law) Commonwealth v. Bain, 240 Ky. 611 , 42 S.W.2d 876, 1931 Ky. LEXIS 453 ( Ky. 1931 ).

In prosecution for misapplication of public funds by using money in special fund of youth commission for personal purposes, where mayor did not undertake to impose detailed guidelines as to the expenditure of such funds, and did not and could not have lawfully authorized disbursal of them for private purposes, such funds were public funds belonging to the city for the purposes of law that provided penalty for the misapplication of funds or property of the state or a political subdivision. (Decided under prior law) Evans v. Commonwealth, 474 S.W.2d 370, 1971 Ky. LEXIS 106 ( Ky. 1971 ).

A building contractor has a duty to apply amounts received from the owner to the payment of claims for labor and material used on the job since, unless he does so, mechanics’ liens may be asserted against the owner’s property, and the owner may be required to pay twice for his home. Blanton v. Commonwealth, 562 S.W.2d 90, 1978 Ky. App. LEXIS 466 (Ky. Ct. App. 1978).

Attorney violated former SCR 3.130-8.3(b), (c) (now SCR 3.130-8.4(b), (c)) by committing the crime of theft by failure to make the required disposition of property ($300 or more) under KRS 514.070 and by failing to make the required disposition of the funds he took from the victim/client and converting the funds to his own use; he was permanently disbarred. Greene v. Ky. Bar Ass'n, 390 S.W.3d 102, 2012 Ky. LEXIS 99 ( Ky. 2012 ).

2.Applicability.

The drafters of the penal code clearly intended this section to apply to contractors who failed to apply payments received from the owner to claims for labor and material furnished on the job. Blanton v. Commonwealth, 562 S.W.2d 90, 1978 Ky. App. LEXIS 466 (Ky. Ct. App. 1978).

This section does not proscribe the type of transaction whereby a seller accepts money for the purchase of merchandise and then refuses to deliver the property as promised. Commonwealth v. Jeter, 590 S.W.2d 346, 1979 Ky. App. LEXIS 487 (Ky. Ct. App. 1979).

KRS 514.070 was inapplicable because the conciliation agreement was a public record, and as a public record, the office manager had no obligation to make any required payment or disposition to the city employee for the conciliation agreement. Therefore, the city, the mayor, the city officials, and the office manager’s motion to dismiss the employee’s claim under KRS 514.070 was granted. Washington v. City of Georgetown, 2009 U.S. Dist. LEXIS 16394 (E.D. Ky. Mar. 3, 2009).

3.Construction.

Under former law that provided a penalty for embezzlement of property entrusted to a person for delivery there was no requirement that a corporation from which money was embezzled be created under the laws of this state or have permission to do business here. (Decided under prior law) Wilder v. Commonwealth, 89 S.W. 732, 28 Ky. L. Rptr. 619 (1905).

The words, “embezzle” and “fraudulently convert” are synonymous. There must be a criminal intent; but where the money of the principal is knowingly taken by the agent in violation of his duty, it is nonetheless embezzlement because at the time he intended to restore it. (Decided under prior law) Metropolitan Life Ins. Co. v. Miller, 114 Ky. 754 , 71 S.W. 921, 24 Ky. L. Rptr. 1561 , 1903 Ky. LEXIS 42 ( Ky. 1903 ).

Where the defendant, who was president, chairman of the board, on the executive committee and a principal stockholder of two corporations, pledged a note on which he was personally liable payable to one of the corporations as collateral on a note made by the other corporation, without the approval of the board of directors of the payee corporation, such transactions constituted fraudulent conversion and embezzlement. (Decided under prior law) Stafford v. Commonwealth, 490 S.W.2d 738, 1973 Ky. LEXIS 639 ( Ky. 1973 ).

Conviction under the insurance code KRS 304.9-400 , would lie if an agent converts the funds to his own use or illegally withholds them, whereas conviction under the penal code KRS 514.070 , would properly ensue if he intentionally deals with the proceeds as his own and fails to make the required disposition therefore; a defendant could be acquitted of theft and convicted of the lesser offense only if he had withheld the premiums but had not intentionally dealt with them as his own and since no reasonable jury could doubt that by spending the monies defendant intentionally treated them as his own the trial court did not err in refusing to give the requested instruction. Taylor v. Commonwealth, 799 S.W.2d 818, 1990 Ky. LEXIS 134 ( Ky. 1990 ).

Given the constitutional prohibition on public officials personally profiting from their positions and prior cases, allowing the defendants to be tried on three charges under the statute did not represent a construction of the statute that was unexpected and indefensible by reference to the law which had been expressed prior to their conduct where the charges against the defendants, who were the county jailer and his wife, were based on their conduct in installing vending machines in the jail, using county employees to stock and tend the machines, and receiving and retaining all profits from the machines. Commonwealth v. Hay, 987 S.W.2d 792, 1998 Ky. App. LEXIS 11 (Ky. Ct. App. 1998).

4.Due Process.

Where defendant was indicted for knowingly receiving embezzled funds, closing argument of Commonwealth’s attorney that defendant advanced money to principal embezzler each year out of the preceding year’s profits from the embezzlement rather than from his independent estate was valid and proper to show that defendant knew that the funds he was receiving were embezzled funds. (Decided under prior law) Gravett v. Commonwealth, 449 S.W.2d 416, 1969 Ky. LEXIS 35 ( Ky. 1969 ).

5.Elements.

Where money is entrusted to an express company for transportation, an agent of the company to whose hands the money comes while in transit is guilt of embezzlement if he converts it to his own use. (Decided under prior law) Commonwealth v. Clifford, 96 Ky. 4 , 27 S.W. 811, 16 Ky. L. Rptr. 184 , 1894 Ky. LEXIS 82 ( Ky. 1894 ).

A person converting to his own use the money of a corporation in his hands was not guilty of embezzlement where he was entitled to a commission out of the money converted. (Decided under prior law) Stone v. Commonwealth, 104 Ky. 220 , 46 S.W. 721, 20 Ky. L. Rptr. 478 , 1898 Ky. LEXIS 155 ( Ky. 1898 ).

An officer may be guilty though entitled to a commission out of money collected and used by him. (Decided under prior law) Commonwealth v. Fisher, 113 Ky. 491 , 68 S.W. 855, 24 Ky. L. Rptr. 300 , 1902 Ky. LEXIS 91 ( Ky. 1902 ).

An agent with authority to collect money and retain a part for his services, was, on converting to his own use the entire amount collected, guilty of embezzlement, though he was entitled to 15 percent of the amount as his commission. (Decided under prior law) Commonwealth v. Jacobs, 126 Ky. 536 , 104 S.W. 345, 31 Ky. L. Rptr. 921 , 1907 Ky. LEXIS 73 ( Ky. 1907 ).

A partner cannot be guilt of converting partnership property as such property is not “wholly of another” but belongs to all the partners including the converting partner. (Decided under prior law) Pierce v. Commonwealth, 210 Ky. 465 , 276 S.W. 135, 1925 Ky. LEXIS 708 ( Ky. 1925 ).

Where the defendant was actually a debtor of the company from which money was allegedly embezzled and was not an agent he would not be subject to prosecution for embezzlement. (Decided under prior law) Napier v. Commonwealth, 234 Ky. 724 , 29 S.W.2d 24, 1930 Ky. LEXIS 267 ( Ky. 1930 ).

One accused of embezzling funds of corporation of which he was secretary and treasurer and of which he owned one third of the capital stock, was not to be exonerated on ground that corporation was operated as partnership and that one cannot be guilty of embezzlement where he owns part of property taken. (Decided under prior law) Laine v. Commonwealth, 287 Ky. 134 , 151 S.W.2d 1055, 1941 Ky. LEXIS 491 ( Ky. 1941 ).

To constitute embezzlement there must be a showing of ownership of the property by the employer, that it was lawfully in the possession of the accused by virtue of his office or employment, and that he converted it to his own use with the fraudulent intent to deprive the owner of his property. (Decided under prior law) Fortney v. Commonwealth, 290 Ky. 659 , 162 S.W.2d 193, 1942 Ky. LEXIS 459 ( Ky. 1942 ).

Where the defendant sold the property as his own, acted openly in doing so, and his employer knew of his activities, this indicates conclusively that the defendant practiced no fraud or deceit and could not be convicted for embezzlement. (Decided under prior law) Fortney v. Commonwealth, 290 Ky. 659 , 162 S.W.2d 193, 1942 Ky. LEXIS 459 ( Ky. 1942 ).

Embezzlement is a statutory offense, the gravamen of which is the conversion with the fraudulent intent to deprive the owner of his property. (Decided under prior law) Collier v. Commonwealth, 295 Ky. 486 , 174 S.W.2d 773, 1943 Ky. LEXIS 278 ( Ky. 1943 ).

To commit the felony of theft by failure to make required disposition of property under this section, a contractor must not only know that an amount is due and owing for labor and material, but he must also know that he has a legal obligation to make payment out of the proceeds received from the owner and must intentionally deal with proceeds as his own. Blanton v. Commonwealth, 562 S.W.2d 90, 1978 Ky. App. LEXIS 466 (Ky. Ct. App. 1978).

Where a defendant acts in behalf of a corporation in obtaining clients’ property and disposing of it for the corporation he is liable, under this section, to the same extent as if he acted for himself. Butts v. Commonwealth, 581 S.W.2d 565, 1979 Ky. LEXIS 258 ( Ky. 1979 ).

6.— Conversion.

Since the test of conversion is the ownership of the money by the other person, where each time defendant’s company sold insurance to a client they reported it to second company which issued the policy and billed defendant’s company and defendant’s company would pay the bill and there was never any connection between second company and defendant’s company’s clients and second company had no ownership of the premiums and could not have collected the premiums by suit from defendant’s company’s clients, the relationship of the two companies was that of debtor and creditor and there could be no conversion. (Decided under prior law) Commonwealth v. Abele, 160 Ky. 800 , 170 S.W. 191, 1914 Ky. LEXIS 548 ( Ky. 1914 ).

The alleged conversion of a ten dollar bill which the defendant had volunteered to have changed into bills of smaller denominations was a misdemeanor under law that provided penalty for disposal or conversion of property to his own use or the use of another without the owner’s consent but did not fall under the law that provided penalty for embezzlement or fraudulent conversion by officer, agent or employee of corporation. (Decided under prior law) Oliver v. Commonwealth, 251 Ky. 42 , 64 S.W.2d 439, 1933 Ky. LEXIS 806 ( Ky. 1933 ).

Where defendant converted the proceeds of a check payable and given for the purpose of paying the balance of an indebtedness on auto, he was guilty of conversion notwithstanding the prosecuting witness retained a lien on the auto. (Decided under prior law) Dublin v. Commonwealth, 383 S.W.2d 343, 1964 Ky. LEXIS 30 ( Ky. 1964 ).

7.— Intent.

The gravamen of embezzlement offense is criminal intent which must be gathered from the acts of the defendant and the circumstances of the particular case rather than from the statements of the defendant as to his intent. (Decided under prior law) National Life & Acci. Ins. Co. v. Gibson, 101 S.W. 895, 31 Ky. L. Rptr. 101 (1907).

Former law that provided penalty for disposal or conversion of property to his own use or the use of another without the owner’s consent applied only to misappropriations of funds or property held in a fiduciary capacity, and this relation existed where trust or confidence was reposed in a person by delivery to him of property which he voluntarily took for safekeeping. (Decided under prior law) Commonwealth v. Weddle, 176 Ky. 780 , 197 S.W. 446, 1917 Ky. LEXIS 125 ( Ky. 1917 ).

Former law that provided penalty for disposal or conversion of property to his own use or the use of another without the owner’s consent embraced all cases of fraudulent conversion by agents, employees or fiduciaries, which were formerly denominated breaches of trust, and not indictable under embezzlement statutes. (Decided under prior law) Runyon v. Commonwealth, 215 Ky. 689 , 286 S.W. 1076, 1926 Ky. LEXIS 802 ( Ky. 1926 ).

If a defendant wrongfully and fraudulently converted county funds to his own use with intent to deprive the county of the funds he is guilty of misapplication of funds, even if he may have intended to restore the money and did restore it. (Decided under prior law) Sergent v. Commonwealth, 257 Ky. 567 , 78 S.W.2d 795, 1935 Ky. LEXIS 64 ( Ky. 1935 ).

If property is converted without concealment, and under a bona fide claim of right, the conversion is not embezzlement, however unfounded the claim may be. (Decided under prior law) Westerfield v. Prudential Ins. Co., 264 Ky. 448 , 94 S.W.2d 986, 1936 Ky. LEXIS 330 ( Ky. 1936 ).

The gravamen of the offense of embezzlement is the fraudulent intent to deprive the corporation of its property. (Decided under prior law) Fortney v. Commonwealth, 290 Ky. 659 , 162 S.W.2d 193, 1942 Ky. LEXIS 459 ( Ky. 1942 ).

In prosecution for embezzlement, it was immaterial whether employee conceived purpose of appropriating property before or after it came into his possession; the essential element was that it came into his possession by virtue of his agency. (Decided under prior law) McGlothen v. Commonwealth, 310 Ky. 48 , 219 S.W.2d 1003, 1949 Ky. LEXIS 855 ( Ky. 1949 ).

For conviction under former law that provided penalty for disposal or conversion of property to his own use or the use of another without the owner’s consent, allegation and proof of criminal intent was essential. (Decided under prior law) Commonwealth v. Shilladay, 311 Ky. 478 , 224 S.W.2d 685, 1949 Ky. LEXIS 1185 ( Ky. 1949 ).

Criminal intent is an essential element of the offense of converting to own use the property of another without his consent. (Decided under prior law) Robinson v. Commonwealth, 311 Ky. 867 , 226 S.W.2d 29, 1950 Ky. LEXIS 567 ( Ky. 1950 ).

In order to be guilty of the offense of conversion, the accused must have occupied a confidential or trust relationship to owner and have had a criminal intent to deprive him of his money or property. (Decided under prior law) Robinson v. Commonwealth, 311 Ky. 867 , 226 S.W.2d 29, 1950 Ky. LEXIS 567 ( Ky. 1950 ).

The essence of former law that provided penalty for embezzlement or fraudulent conversion by officer, agent or employe of corporation was criminal intention. (Decided under prior law) Pfunder v. Commonwealth, 251 S.W.2d 843, 1952 Ky. LEXIS 932 ( Ky. 1952 ).

To constitute a crime under former law that provided penalty for the misapplication of funds or property of the state or a political subdivision, the act must be done with intent to deprive the owner of his property and intent is an essential element, and failure to instruct on it is prejudicial error. (Decided under prior law) Watkins v. Commonwealth, 298 S.W.2d 306, 1957 Ky. LEXIS 370 ( Ky. 1957 ).

Fact that employee formed the intent to appropriate property before it came into her possession was immaterial in embezzlement case if the property came into her possession by virtue of her agency. (Decided under prior law) Brudndage v. Commonwealth, 416 S.W.2d 728, 1967 Ky. LEXIS 279 ( Ky. 1967 ).

A fiduciary relationship is created when one loans his property to another. (Decided under prior law) Bowman v. Commonwealth, 438 S.W.2d 488, 1968 Ky. LEXIS 152 ( Ky. 1968 ).

Under former law that provided penalty for disposal or conversion of property to his own use or the use of another without the owner’s consent, a fiduciary relationship was simply one of confidence and trust. (Decided under prior law) Bowman v. Commonwealth, 438 S.W.2d 488, 1968 Ky. LEXIS 152 ( Ky. 1968 ).

Where an automobile salesman allowed the defendant to take an automobile for a test drive, he reposed trust and confidence in the defendant to return the automobile within a reasonable time. (Decided under prior law) Bowman v. Commonwealth, 438 S.W.2d 488, 1968 Ky. LEXIS 152 ( Ky. 1968 ).

8.— Possession.

When franchise tax was not certified to sheriff for collection, he was not legally in possession of same as to warrant conviction for embezzlement. (Decided under prior law) Commonwealth v. Brand, 166 Ky. 753 , 179 S.W. 844, 1915 Ky. LEXIS 772 ( Ky. 1915 ).

Where purchasers of property at an execution sale did not post the required bond which would have entitled them to possession of the property the owner of the property did not violate law that provided penalty for disposal or conversion of property to his own use or the use of another without the owner’s consent when he moved the property to another county. (Decided under prior law) Hall v. Commonwealth, 249 Ky. 290 , 60 S.W.2d 625, 1933 Ky. LEXIS 515 ( Ky. 1933 ).

In prosecution for embezzlement, the distinctions between lawful possessions and custody, as regards holding of corporate property by an employee, do not apply. (Decided under prior law) McGlothen v. Commonwealth, 310 Ky. 48 , 219 S.W.2d 1003, 1949 Ky. LEXIS 855 ( Ky. 1949 ).

Where the defendant had custody of property rather than possession he was not guilty of conversion under law that provided penalty for disposal or conversion of property to his own use or the use of another without the owner’s consent. (Decided under prior law) Clark v. Commonwealth, 386 S.W.2d 458, 1965 Ky. LEXIS 509 ( Ky. 1965 ).

9.— Title to Property.

Under former law that provided penalty for embezzlement or fraudulent conversion by officer, agent or employee of corporation, employer must have either actual or special title to property converted, and an agent converting property of employer’s patrons of which employer was bailee, was guilty, the words “use of another” applying to employer. (Decided under prior law) Bass v. Commonwealth, 222 Ky. 310 , 300 S.W. 866, 1927 Ky. LEXIS 917 ( Ky. 1927 ).

For the purposes of criminal prosecution for conversion, milk delivered to a milk wagon for delivery to a dairy became the property of the dairy upon its receipt by the driver notwithstanding that the dairy had a right to reject the milk and was not required to pay for any more milk than it actually received. (Decided under prior law) Underwood v. Commonwealth, 390 S.W.2d 635, 1965 Ky. LEXIS 354 ( Ky. 1965 ).

10.— Tax Collection.

A deputy clerk of the county court, authorized to receive money for licenses and taxes, may be punished for embezzling such money. (Decided under prior law) Commonwealth v. Bodley, 31 S.W. 463, 17 Ky. L. Rptr. 561 (1895).

A sheriff embezzling money collected from taxpayers on property not assessed for taxation, did not violate law that provided penalty for the misapplication of funds or property of the state or a political subdivision, which assumed the officer was legally in possession of the money for the state or county, and then misappropriated it. (Decided under prior law) Commonwealth v. Alexander, 129 Ky. 429 , 112 S.W. 586, 33 Ky. L. Rptr. 971 , 1908 Ky. LEXIS 178 ( Ky. 1908 ); but see Nickens v. Commonwealth, 228 Ky. 477 , 15 S.W.2d 261, 1929 Ky. LEXIS 561 ( Ky. 1929 ).

In prosecution of tax collector for embezzlement, invalidity of assessments and levies was no defense. (Decided under prior law) Nickens v. Commonwealth, 228 Ky. 477 , 15 S.W.2d 261, 1929 Ky. LEXIS 561 ( Ky. 1929 ); Commonwealth v. Alexander, 129 Ky. 429 , 112 S.W. 586, 33 Ky. L. Rptr. 971 , 1908 Ky. LEXIS 178 ( Ky. 1908 ).

In prosecution of tax collector for embezzlement, failure of collector to show that he qualified by taking oath and executing bond is no defense since a de facto officer may be prosecuted. (Decided under prior law) Nickens v. Commonwealth, 228 Ky. 477 , 15 S.W.2d 261, 1929 Ky. LEXIS 561 ( Ky. 1929 ).

11.Evidence.

In prosecution for embezzlement it is unnecessary to introduce evidence showing criminal intent, since that would be presumed from other facts shown. (Decided under prior law) Morse v. Commonwealth, 129 Ky. 294 , 111 S.W. 714, 33 Ky. L. Rptr. 831 , 33 Ky. L. Rptr. 894 , 1908 Ky. LEXIS 169 ( Ky. 1908 ). See Westerfield v. Prudential Ins. Co., 264 Ky. 448 , 94 S.W.2d 986, 1936 Ky. LEXIS 330 ( Ky. 1936 ).

In a prosecution for conversion, failure to record the instrument under which the property was held was not material. (Decided under prior law) Dyer v. Singer Sewing Mach. Co., 164 Ky. 538 , 175 S.W. 1037, 1915 Ky. LEXIS 416 ( Ky. 1915 ).

Where insurer’s agents settled policy for less than its face value, the difference going to the insurer, evidence to that effect did not support conviction for conversion. (Decided under prior law) Rhea v. Commonwealth, 236 Ky. 575 , 33 S.W.2d 606, 1930 Ky. LEXIS 790 ( Ky. 1930 ).

Where all the money lent to a corporation was accounted for as having been spent for the corporation, and several witnesses testified that the lender had been given a note for the money he had invested, there was no evidence to support a conviction. (Decided under prior law) Pfunder v. Commonwealth, 251 S.W.2d 843, 1952 Ky. LEXIS 932 ( Ky. 1952 ).

It was not an abuse of discretion to allow the Commonwealth to prove the value of the converted property after the case was closed. (Decided under prior law) Bowman v. Commonwealth, 438 S.W.2d 488, 1968 Ky. LEXIS 152 ( Ky. 1968 ).

12.— Previous Acts.

In prosecution of a sheriff for embezzlement of a certain franchise tax, other acts of embezzlement committed by him in conduct of his office are competent in evidence, where his defense is want of intent to convert, or that his criminal act was from oversight or mistake, but court should admonish the jury as to purpose of such evidence. (Decided under prior law) Commonwealth v. Brand, 166 Ky. 753 , 179 S.W. 844, 1915 Ky. LEXIS 772 ( Ky. 1915 ).

13.— Sufficient.

Where an automobile was taken in Fayette County for a test drive and there was evidence that it was never returned, the evidence was amply sufficient for a jury to find a conversion in Fayette County and an intent to convert. (Decided under prior law) Bowman v. Commonwealth, 438 S.W.2d 488, 1968 Ky. LEXIS 152 ( Ky. 1968 ).

Where, in a prosecution for theft by failure to make required disposition of property, the defendant was accused of selling property and retaining the monies from said sale, but the prosecution failed to show any evidence that the defendant had sold the property or realized any profit, the trial court properly granted judgment in favor of the defendant. Commonwealth v. Pevely, 759 S.W.2d 822, 1988 Ky. App. LEXIS 162 (Ky. Ct. App. 1988).

Where the victim gave $375 to defendant with the agreement that defendant would purchase an engine from a third party and install it in the victim’s car, and defendant failed to purchase the engine and kept the money, defendant was properly found guilty of theft by failure to make required disposition of property under KRS 514.070 . Commonwealth v. Perry, 219 S.W.3d 720, 2007 Ky. LEXIS 89 ( Ky. 2007 ).

14.— Witnesses.

Bookkeeper for corporation was not competent witness to testify that records received from bank did not show deposit of sum allegedly embezzled, since he was not connected with bank nor keeper of its records. (Decided under prior law) Laine v. Commonwealth, 287 Ky. 134 , 151 S.W.2d 1055, 1941 Ky. LEXIS 491 ( Ky. 1941 ).

15.Indictment.

An indictment charging the president of a corporation with fraudulently declaring and receiving dividends and fraudulently converting them to his own use, was sufficient. (Decided under prior law) Taylor v. Commonwealth, 119 Ky. 731 , 75 S.W. 244, 25 Ky. L. Rptr. 374 , 1903 Ky. LEXIS 269 ( Ky. 1903 ).

An indictment charging that the defendant, an agent of a railroad, wilfully and feloniously converted $86, belonging to the company, to his own use during the time of his employment, and that the money came into his possession by reason of his employment, was sufficient. (Decided under prior law) Schlitzbaum v. Commonwealth, 80 S.W. 784, 26 Ky. L. Rptr. 52 (1904).

In an indictment against a prison clerk for converting money belonging to different convicts it was not necessary to name the convicts whose money had been deposited with him. (Decided under prior law) Roland v. Commonwealth, 134 Ky. 170 , 119 S.W. 760, 1909 Ky. LEXIS 359 ( Ky. 1909 ).

An indictment which charges the essential parts constituting the offense of misapplication of public funds was not demurrable for failing to state the names of those from whom the defendant collected the money or on what account the moneys were received and in what amounts. (Decided under prior law) Smedley v. Commonwealth, 139 Ky. 767 , 127 S.W. 485, 1910 Ky. LEXIS 2 ( Ky. 1910 ).

An indictment under fraudulent conversion law containing language indicating offense also under former law that provided penalty for embezzlement or fraudulent conversion by officer, agent or employe of corporation, was not bad on demurrer as duplicitous, but was good in part. (Decided under prior law) Commonwealth v. Holliday, 166 Ky. 381 , 179 S.W. 235, 1915 Ky. LEXIS 690 ( Ky. 1915 ).

An indictment relating to misappropriation of public funds was not demurrable because it charged “embezzlement” since this term is understood to mean the fraudulent conversion or appropriation of money or property by the person to whom it has been entrusted so that it would sufficiently appraise defendant of the crime charged. (Decided under prior law) Commonwealth v. Bain, 240 Ky. 749 , 43 S.W.2d 8, 1931 Ky. LEXIS 492 ( Ky. 1931 ).

A confidential relationship between the defendant and the owner of the property was sufficiently alleged by the statement that the defendant came into possession of the car under a lease. (Decided under prior law) Vinson v. Commonwealth, 248 S.W.2d 430, 1952 Ky. LEXIS 746 ( Ky. 1952 ).

An indictment, following closely the language of the statute, containing every fact necessary to constitute offense of misapplication of public funds and stating most specifically the manner in which the offense was committed, which adequately appraised a person of common understanding of the offense charged, was sufficient. (Decided under prior law) Commonwealth v. Resing, 305 S.W.2d 773, 1957 Ky. LEXIS 340 ( Ky. 1957 ).

An indictment is ordinarily sufficient if it is drawn in the language of the statute especially when the words of the statute creating the offense are sufficiently descriptive of the offense. (Decided under prior law) Dublin v. Commonwealth, 372 S.W.2d 416, 1963 Ky. LEXIS 138 ( Ky. 1963 ).

In an indictment against an automobile dealer it was unnecessary to charge a confidential relationship between the dealer and the distributor to whom the dealer was to make payments on the cars. (Decided under prior law) Dublin v. Commonwealth, 372 S.W.2d 416, 1963 Ky. LEXIS 138 ( Ky. 1963 ).

Indictment charging that “a justice of the peace . . . . . embezzled $11.65 of said county’s money, same being paid by Tom Black on a fine for Charles Foley Black” constituted a plain, concise, definite statement of the essential facts constituting the specific offense with which the appellant was charged. (Decided under prior law) Botkins v. Commonwealth, 394 S.W.2d 586, 1965 Ky. LEXIS 190 ( Ky. 1965 ).

16.— Aggregation of Charges.

Where county clerk was keeping the fees she collected for renewal and issuance of licenses, a jury could reasonably conclude that she had a single continuous criminal intent and that each theft was part of a general larcenous scheme all for the single criminal purpose of embezzlement and each alleged theft could be aggregated so as to charge her with a felony. Commonwealth v. Caudill, 812 S.W.2d 158, 1991 Ky. App. LEXIS 8 (Ky. Ct. App. 1991).

17.— Control or Ownership.

Indictment under former law that provided penalty for disposal or conversion of property to his own use or the use of another without the owner’s consent would not be defective because it charged ownership of property in two or more different persons. (Decided under prior law) Commonwealth v. Bain, 240 Ky. 611 , 42 S.W.2d 876, 1931 Ky. LEXIS 453 ( Ky. 1931 ).

Where the indictment alleged that the defendant as a state employe had control of funds, this adequately charged the element of control, and was not defective for failing to state facts as to manner of control as the question of control is a matter of proof. (Decided under prior law) Commonwealth v. Resing, 305 S.W.2d 773, 1957 Ky. LEXIS 340 ( Ky. 1957 ).

18.— Description of Property.

In an indictment for embezzlement a description of property embezzled as “goods, wares and merchandise, a more particular description being to the grand jury unknown” is not sufficient on demurrer. (Decided under prior law) Clary v. Commonwealth, 163 Ky. 48 , 173 S.W. 171, 1915 Ky. LEXIS 178 ( Ky. 1915 ).

An indictment under former law that provided penalty for disposal or conversion of property to his own use or the use of another without the owner’s consent, which is general in its allegations as to personal property converted is good on demurrer, but the court may require the Commonwealth to file bill of particulars. (Decided under prior law) Commonwealth v. Holliday, 166 Ky. 381 , 179 S.W. 235, 1915 Ky. LEXIS 690 ( Ky. 1915 ).

Where the indictment charged the embezzlement of $198.90 this was sufficient without specifying that it was legal tender of the United States or giving any more specific description. (Decided under prior law) Bell v. Commonwealth, 202 Ky. 163 , 259 S.W. 29, 1924 Ky. LEXIS 674 ( Ky. 1924 ).

Indictment charging that accused embezzled money from corporation but not specifying coin, number, denomination or kind, was not demurrable as insufficiently describing funds allegedly embezzled. (Decided under prior law) Laine v. Commonwealth, 287 Ky. 134 , 151 S.W.2d 1055, 1941 Ky. LEXIS 491 ( Ky. 1941 ).

19.— Defective.

An indictment under former law that provided penalty for disposal or conversion of property to his own use or the use of another without the owner’s consent, which did not state the owner’s name, nor state that the owner’s name was unknown to the grand jurors, nor describe offense in other respects as to make an erroneous allegation of ownership immaterial, was insufficient on ground of uncertainty. (Decided under prior law) Commonwealth v. Fields, 265 Ky. 409 , 96 S.W.2d 1039, 1936 Ky. LEXIS 495 ( Ky. 1936 ).

An indictment which failed to charge that there was confidential relationship between the alleged converter and the owner of the property was defective. (Decided under prior law) Shackleford v. Commonwealth, 270 Ky. 60 , 109 S.W.2d 13, 1937 Ky. LEXIS 22 ( Ky. 1937 ).

20.— Demand or Settlement.

An indictment against a sheriff for embezzlement, alleged to have been committed by misappropriating the county levy collected by him, need not allege that there had been a settlement with the defendant or any demand upon or direction to him to pay over the money in his hands. (Decided under prior law) Commonwealth v. Fisher, 113 Ky. 491 , 68 S.W. 855, 24 Ky. L. Rptr. 300 , 1902 Ky. LEXIS 91 ( Ky. 1902 ).

The indictment for conversion of property without the owner’s consent need not allege a demand for payment, or refusal on the part of the accused to pay over. (Decided under prior law) Commonwealth v. Kelly, 125 Ky. 245 , 101 S.W. 315, 30 Ky. L. Rptr. 1293 , 1907 Ky. LEXIS 282 ( Ky. 1907 ).

21.— Intent.

An indictment for conversion must charge fraudulent intent, and that defendant occupied some confidential relation to the person whose property or money he fraudulently converted or obtained. (Decided under prior law) Farmer v. Commonwealth, 91 S.W. 1129, 28 Ky. L. Rptr. 1369 (1906).

Evil intent must be charged in the indictment and this was sufficiently expressed by the phrase “fraudulently converted to his own use.” (Decided under prior law) Bell v. Commonwealth, 202 Ky. 163 , 259 S.W. 29, 1924 Ky. LEXIS 674 ( Ky. 1924 ).

22.— Names of Converters.

Indictment charging offense of embezzlement must name the persons to whose use the property was fraudulently converted or so describe them that they may be identified. (Decided under prior law) Bailey v. Commonwealth, 130 Ky. 301 , 113 S.W. 140, 1908 Ky. LEXIS 270 ( Ky. 1908 ).

23.— Variance.

Although the indictment charged conversion of property of a named person, conviction was upheld notwithstanding evidence disclosed money converted belonged to person named in indictment and others jointly. (Decided under prior law) McMillan v. Commonwealth, 258 Ky. 354 , 80 S.W.2d 24, 1935 Ky. LEXIS 168 ( Ky. 1935 ).

24.Instructions.

In prosecution of tax collector for embezzlement, defendant was not entitled to an instruction under law that provided penalty for disposal or conversion of property to his own use or the use of another without the owner’s consent. (Decided under prior law) Nickens v. Commonwealth, 228 Ky. 477 , 15 S.W.2d 261, 1929 Ky. LEXIS 561 ( Ky. 1929 ).

In prosecution of city tax collector for conversion of funds, instruction requiring belief that defendant unlawfully, willfully and feloniously appropriated funds to his own use without city’s consent, was not erroneous for failure to require belief that funds were fraudulently appropriated. (Decided under prior law) Rogers v. Commonwealth, 264 Ky. 187 , 94 S.W.2d 345, 1936 Ky. LEXIS 292 ( Ky. 1936 ).

Instruction to acquit accused, if jury believed that all owners of stock of corporation consented to the taking of money by accused, was reversible error, and court should have submitted sole issue on which case was tried, that is, whether president had consented thereto. (Decided under prior law) Laine v. Commonwealth, 287 Ky. 134 , 151 S.W.2d 1055, 1941 Ky. LEXIS 491 ( Ky. 1941 ).

Where the defendant admitted that he obtained possession of a truck through a lease it was not prejudicial error to fail to include the element of trust or a confidential relationship between the defendant and the truck owner in the instructions. (Decided under prior law) Vinson v. Commonwealth, 248 S.W.2d 430, 1952 Ky. LEXIS 746 ( Ky. 1952 ).

Where the defendant alleged that parts of a truck leased to him had been lost or stolen from him he was entitled to an affirmative instruction as to this defense. (Decided under prior law) Vinson v. Commonwealth, 248 S.W.2d 430, 1952 Ky. LEXIS 746 ( Ky. 1952 ).

Where the defendant was indicted for misapplication of funds it was reversible error to give an instruction which made no reference to intent. (Decided under prior law) Watkins v. Commonwealth, 298 S.W.2d 306, 1957 Ky. LEXIS 370 ( Ky. 1957 ).

It was not error to refuse to give an instruction to the effect that if the jury found that the defendant had purchased the cars on credit then he had a right to dispose of them. (Decided under prior law) Dublin v. Commonwealth, 372 S.W.2d 416, 1963 Ky. LEXIS 138 ( Ky. 1963 ).

Where Commonwealth, in a misapplication of public funds trial, conceded that the offense denounced by law that provided penalty for unlawfully taking or damaging property without felonious intent was a lower degree offense proscribed by law that provided penalty for the misapplication of funds or property of the state or a political subdivision, the failure of the court to instruct the jury as to its duty to convict for the lesser offense if it had reasonable doubt of the degree of the offense was an error. (Decided under prior law) Evans v. Commonwealth, 474 S.W.2d 370, 1971 Ky. LEXIS 106 ( Ky. 1971 ).

25.Malicious Prosecution Claim.

Trial court erred in directing a verdict of dismissal on the business owner’s malicious prosecution claim based on the advice of counsel defense because the customer blatantly concealed material facts in his sworn criminal complaint charging the business owner with the offense of theft by failure to make required disposition, including that the owner attempted to return the customer’s car in working order, that the customer failed to make payment for the work on the car, and that the car was being held as collateral. Garcia v. Whitaker, 400 S.W.3d 270, 2013 Ky. LEXIS 302 ( Ky. 2013 ).

Cited:

Wade v. Bondurant, 625 S.W.2d 847, 1981 Ky. LEXIS 308 ( Ky. 1981 ); United States v. Robinson, 763 F.2d 778, 1985 U.S. App. LEXIS 31315 (6th Cir. 1985); Johnson v. Commonwealth, 709 S.W.2d 838, 1986 Ky. App. LEXIS 1063 (Ky. Ct. App. 1986); Kentucky for benefit of United Pacific Ins. Co. v. Laurel County, 805 F.2d 628, 1986 U.S. App. LEXIS 33647 (6th Cir. 1986); Polk v. Kentucky Bar Ass’n, 885 S.W.2d 691, 1994 Ky. LEXIS 113 ( Ky. 1994 ); Hearn v. Commonwealth, 80 S.W.3d 432, 2002 Ky. LEXIS 135 ( Ky. 2002 ).

Notes to Unpublished Decisions

24.5.Malicious Prosecution Claim.

Unpublished decision: Where an arrestee was charged with theft by failure to make required disposition of property and the charge was dismissed with prejudice upon the arrestee paying restitution, the arrestee's malicious prosecution claim against a deputy failed because the arrestee's payment of restitution in exchange for the dismissal of criminal charges constituted a compromise on the merits which did not qualify as a termination in the arrestee's favor, and the payment of restitution was inconsistent with innocence. Ohnemus v. Thompson, 594 Fed. Appx. 864, 2014 FED App. 0900N, 2014 U.S. App. LEXIS 23015 (6th Cir. 2014), cert. denied, 576 U.S. 1022, 135 S. Ct. 2844, 192 L. Ed. 2d 876, 2015 U.S. LEXIS 3956 (U.S. 2015).

Opinions of Attorney General.

Where a county jailer was convicted of the criminal offense of theft by failure to make required disposition of funds under this section and was sentenced to three months in jail and a fine of $100, he could not be removed from office or be rendered ineligible to hold the office under Ky. Const., § 150; that provision of the Constitution provides for exclusion from office of persons convicted of felonies or high misdemeanors, and the Kentucky legislature has not defined the term “high misdemeanor”, so that the term is meaningless and inoperative and, accordingly, the jailer was guilty of a misdemeanor and not subject to removal or ineligibility. OAG 81-85 .

If a student fails to return library books or other material loaned to him by the school and refuses to pay for the books or material, he may be charged with a misdemeanor, in the juvenile court, of theft by failure to make required disposition of property, pursuant to this section and KRS 208.020 (repealed); the same statutes would apply to a failure to turn in money raised by a club or organization for products checked out to the student. OAG 82-386 .

The presumption as to government employees contained in subsection (3) of this section is only a rebuttable presumption and not a statutory substitute for the mens rea stated in subdivision (1)(b) of this section; in other words, employees of the government are presumed to know the relevant legal obligations as they relate to imposition of criminal liability and, further, a government employee is presumed to have dealt with the property as his own, if upon lawful demand, he fails to account or pay, or if a shortage or falsification of accounts is revealed by an audit. Thus, these rebuttable presumptions do not create strict liability and cannot be used as a statutory substitution for the mens rea requirement in this section. OAG 83-81 .

Where federal supervisory employee, in the normal exercise of his duties, was responsible for the management of an equipment loan operation for use of such equipment by authorized personnel on Fort Knox, the “property accounts” of such equipment loan operation would constitute “accounts” under subdivision (3)(b)(2) of this section. OAG 83-81 .

There are four statutes which could arguably be used in the prosecution of theft of property following a rental contract agreement: KRS 514.030 , 514.040 , 514.060 , and this section. OAG 91-217 .

There is a strong historical presumption in the law against the use of criminal actions as any form of leverage in the collection of a debt. OAG 91-217 .

Research References and Practice Aids

Cross-References.

Abuse of public trust by public servant, conversion, KRS 522.050

County farm bureau, diversion of funds, prohibited, KRS 247.990 .

Gasoline dealer, gasoline tax, failure to remit, embezzlement, KRS 138.990 .

Sheriff, funds collected for particular purpose, misapplication prohibited, KRS 134.170 .

Kentucky Bench & Bar.

Stamm, The Attorney General Goes to Market, Vol. 41, No. 2, April 1977 Ky. Bench & B. 14.

Kentucky Law Journal.

Kentucky Law Survey, Malone and Malone, Criminal Law, 69 Ky. L.J. 545 (1980-81).

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Theft and Related Offenses, Part 3 Theft, §§ 6.25, 6.36 — 6.41.

514.080. Theft by extortion.

  1. A person is guilty of theft by extortion when he or she intentionally obtains property of another by threatening to:
    1. Inflict bodily injury on anyone or commit any other criminal offense; or
    2. Accuse anyone of a criminal offense; or
    3. Expose any secret tending to subject any person to hatred, contempt, or ridicule, or to impair his or her credit or business repute; or
    4. Use wrongfully his or her position as a public officer or servant or employee by performing some act within or related to his or her official duties, either expressed or implied, or by refusing or omitting to perform an official duty, either expressed or implied, in a manner affecting some person adversely; or
    5. Bring about or continue a strike, boycott, or other collective unofficial action, if the property is not demanded or received for the benefit of the group in whose interest the actor purports to act; or
    6. Testify or provide information or withhold testimony or information with respect to another’s legal claim or defense.
  2. It is a defense to prosecution based on subsection (1)(b), (c), or (d) that the property obtained by threat of accusation, exposure, lawsuit, or other invocation of official action was claimed as restitution or indemnification for harm done in the circumstances to which accusation, exposure, lawsuit, or other official action relates, or as compensation for property or lawful services.
  3. Theft by extortion is a Class B misdemeanor unless:
    1. The value of the property obtained is five hundred dollars ($500) or more but less than one thousand dollars ($1,000), in which case it is a Class A misdemeanor;
    2. The value of the property is one thousand dollars ($1,000) or more but less than ten thousand dollars ($10,000), in which case it is a Class D felony;
    3. A person has three (3) or more convictions under paragraph (a) of this subsection within the last five (5) years, in which case it is a Class D felony. The five (5) year period shall be measured from the dates on which the offenses occurred for which the judgments of conviction were entered; or
    4. The value of the property is ten thousand dollars ($10,000) or more, in which case it is a Class C felony.
  4. If any person commits two (2) or more separate offenses of theft by extortion within ninety (90) days, the offenses may be combined and treated as a single offense, and the value of the property in each offense may be aggregated for the purpose of determining the appropriate charge.

History. Enact. Acts 1974, ch. 406, § 124, effective January 1, 1975; 1992, ch. 451, § 6, effective July 14, 1992; 2009, ch. 106, § 11, effective June 25, 2009; 2021 ch. 66, § 13, effective June 29, 2021.

NOTES TO DECISIONS

1.Instructions.

If defendant thought himself prejudiced by action of court in instructing jury under both the armed robbery law and offense of demand of thing of value by menace or threat, covering a lesser degree of armed robbery, the remedy was by appeal in the original case and not by habeas corpus proceeding. (Decided under prior law) Jones v. Clerk of Oldham Circuit Court, 312 Ky. 818 , 229 S.W.2d 982, 1950 Ky. LEXIS 782 ( Ky. 1950 ).

Where defendant was indicted and instruction given for violation of the armed robbery law, it was not error for the court to give a further instruction under offense of demand of thing of value by menace or threat, a lesser degree of armed robbery. (Decided under prior law) Jones v. Clerk of Oldham Circuit Court, 312 Ky. 818 , 229 S.W.2d 982, 1950 Ky. LEXIS 782 ( Ky. 1950 ).

Research References and Practice Aids

Cross-References.

Criminal coercion, KRS 509.080 .

Soliciting unlawful compensation by public servant, KRS 521.030 .

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Assaults and Restraints of Persons, Part 5 Kidnapping and Related Offenses, § 3.83.

Kentucky Instructions to Juries (Criminal), 5th Ed., Complicity and Inchoate Offenses, Part 1 Definitions, § 10.04.

Kentucky Instructions to Juries (Criminal), 5th Ed., Offenses Against Public and Judicial Administration, Part 4 Bribery and Related Offenses, § 7.40.

Kentucky Instructions to Juries (Criminal), 5th Ed., Theft and Related Offenses, Part 3 Theft, §§ 6.43 — 6.48.

514.090. Theft of labor already rendered.

  1. A person is guilty of theft of labor already rendered when, in payment of labor already rendered by another, he or she intentionally issues or passes a check or similar sight order for the payment of money, knowing that it will not be honored by the drawee.
  2. For purposes of subsection (1) of this section, an issuer of a check or similar sight order for the payment of money is presumed to know that the check or order, other than a postdated check or order, would not be paid, if:
    1. The issuer had no account with the drawee at the time the check or order was issued; or
    2. Payment was refused by the drawee for lack of funds, upon presentation within thirty days (30) after issue, and the issuer failed to make good within ten (10) days after receiving notice of that refusal.
  3. Theft of labor already rendered is a Class B misdemeanor unless:
    1. The value of the labor rendered is five hundred dollars ($500) or more but less than one thousand dollars ($1,000), in which case it is a Class A misdemeanor;
    2. The value of the labor rendered is one thousand dollars ($1,000) or more but less than ten thousand dollars ($10,000), in which case it is a Class D felony;
    3. A person has three (3) or more convictions under paragraph (a) of this subsection within the last five (5) years, in which case it is a Class D felony. The five (5) year period shall be measured from the dates on which the offenses occurred for which the judgments of conviction were entered; or
    4. The value of the labor rendered is ten thousand dollars ($10,000) or more, in which case it is a Class C felony.
  4. If any person commits two (2) or more separate offenses of theft of labor already rendered within ninety (90) days, the offenses may be combined and treated as a single offense, and the value of the property in each offense may be aggregated for the purpose of determining the appropriate charge.

History. Enact. Acts 1974, ch. 406, § 125, effective January 1, 1975; 1992, ch. 451, § 7, effective July 14, 1992; 2009, ch. 106, § 12, effective June 25, 2009; 2021 ch. 66, § 14, effective June 29, 2021.

NOTES TO DECISIONS

Cited:

Butts v. Commonwealth, 581 S.W.2d 565, 1979 Ky. LEXIS 258 ( Ky. 1979 ).

Research References and Practice Aids

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Theft and Related Offenses, Part 3 Theft, §§ 6.49, 6.50.

514.100. Unauthorized use of automobile or other propelled vehicle.

  1. A person is guilty of the unauthorized use of an automobile or other propelled vehicle when he knowingly operates, exercises control over, or otherwise uses such vehicle without consent of the owner or person having legal possession thereof.
  2. Unauthorized use of an automobile or other propelled vehicle is a Class A misdemeanor unless the defendant has previously been convicted of this offense, or of violation of KRS 514.030 for having stolen an automobile or other propelled vehicle in which case it shall be a Class D felony.

History. Enact. Acts 1974, ch. 406, § 126, effective January 1, 1975; 1980, ch. 267, § 4, effective July 15, 1980.

NOTES TO DECISIONS

Analysis

1.In General.

The offense of vehicle taking is complete in itself and a violation does not depend on the value of the vehicle taken. (Decided under prior law) Clark v. Commonwealth, 209 Ky. 184 , 272 S.W. 430, 1925 Ky. LEXIS 458 ( Ky. 1925 ).

The offense of taking a vehicle without the consent of the owner is a statutory form of larceny. (Decided under prior law) Taulbee v. Commonwealth, 304 Ky. 551 , 201 S.W.2d 723, 1947 Ky. LEXIS 680 ( Ky. 1947 ).

Value is not a necessary element of the crime of taking a vehicle without the consent of the owner. (Decided under prior law) Spencer v. Commonwealth, 467 S.W.2d 128, 1971 Ky. LEXIS 354 ( Ky. 1971 ); Pelfrey v. Commonwealth, 481 S.W.2d 55, 1972 Ky. LEXIS 219 ( Ky. 1972 ).

Fact that defendant had previously been convicted of stripping parts from an automobile did not make his prosecution for grand larceny of the automobile constitute double jeopardy. (Decided under prior law) Crum v. Commonwealth, 467 S.W.2d 343, 1971 Ky. LEXIS 367 ( Ky. 1971 ).

2.Due Process.

It was proper on voir dire for the Commonwealth to inform the prospective jurors of the permissible penalties prescribed by law that provided penalty for taking of a vehicle without the consent of the owner and inquire whether any of them had conscientious scruples against imposing a penitentiary sentence for auto theft, or believed that the prescribed statutory range of punishment was too severe. (Decided under prior law) Iles v. Commonwealth, 455 S.W.2d 533, 1970 Ky. LEXIS 250 ( Ky. 1970 ).

3.Elements.

It is not necessary to charge that the taking of the vehicle was done feloniously. (Decided under prior law) Mullins v. Commonwealth, 285 Ky. 282 , 147 S.W.2d 704, 1941 Ky. LEXIS 376 ( Ky. 1941 ).

Although descriptive part of indictment charging unlawful taking of motor vehicle without owner’s consent contained allegation that the taking was with the felonious intent to convert to defendant’s use and to permanently deprive the owner of his property therein, it was not necessary for the court to instruct on felonious intent, because felonious intent is not a necessary element of the crime of vehicle taking, and the offense of taking vehicle without owner’s consent was included as a degree of the general offense of grand larceny charged in the indictment. (Decided under prior law) Taulbee v. Commonwealth, 304 Ky. 551 , 201 S.W.2d 723, 1947 Ky. LEXIS 680 ( Ky. 1947 ).

Since wife lawfully came into possession of husband’s automobile, which was licensed in her name, her subsequent absconding with the automobile did not constitute larceny because a person lawfully in possession of an article cannot be guilty of larceny unless he had the intent to steal at the time it was placed in his possession. (Decided under prior law) Fugate v. Commonwealth, 308 Ky. 815 , 215 S.W.2d 1004, 1948 Ky. LEXIS 1064 ( Ky. 1948 ).

Defendant’s proposed jury instruction on unauthorized use of an automobile, under KRS 514.100 , as a lesser included offense of the receiving stolen property offense he was charged with, under KRS 514.110 , was properly refused because no reasonable jury could find that defendant intended to return the vehicle he stole to its owner. Lawson v. Commonwealth, 85 S.W.3d 571, 2002 Ky. LEXIS 175 ( Ky. 2002 ).

4.Evidence.

In a prosecution for car theft, it was proper to admit evidence that the purpose of the trip, made on the night of the theft, was to “ditch” one car in order to collect insurance and to steal another car, because such evidence was to identify the participants in the two occurrences as the same and to prove that the car was stolen with felonious intent. (Decided under prior law) Sutton v. Commonwealth, 207 Ky. 597 , 269 S.W. 754, 1925 Ky. LEXIS 143 ( Ky. 1925 ).

Where the record did not show that a garageman who testified that an automobile to be repaired was missing from the garage ever connected the missing automobile with one found abandoned by the police, in a trial for operating a motor vehicle without the knowledge and consent of the owner, the defendant’s motion for an acquittal should have been sustained. (Decided under prior law) Lynch v. Commonwealth, 472 S.W.2d 263, 1971 Ky. LEXIS 188 ( Ky. 1971 ).

Where the basis of the search of the defendant’s automobile was not his arrest but the police report that the license plates and car were both stolen, evidence produced by the search was admissible. (Decided under prior law) Iles v. Commonwealth, 476 S.W.2d 170, 1972 Ky. LEXIS 374 ( Ky. 1972 ).

Value of the vehicle possessed is irrelevant to the offense of unauthorized use of an automobile. Lawson v. Commonwealth, 85 S.W.3d 571, 2002 Ky. LEXIS 175 ( Ky. 2002 ).

5.— Corroboration.

In prosecution for theft of automobile, evidence of accomplice that he had been paid by accused to steal automobile was sufficiently corroborated to sustain conviction, where owner identified his allegedly stolen gray car, and other evidence strongly indicated that accused bought black automobile, took engine from it and placed it in allegedly stolen gray car, and junked black automobile. (Decided under prior law) Quillen v. Commonwealth, 284 Ky. 792 , 145 S.W.2d 1048, 1940 Ky. LEXIS 568 ( Ky. 1940 ).

6.— Harmless Error.

Evidence of co-conspirator’s presence when defendant reclaimed his car had no probative value and should not have been admitted, but such error was harmless, since whatever it may have tended to prove was merely cumulative and of far less effect than the evidence of statements made by the various parties immediately following their arrest. (Decided under prior law) Senibaldi v. Commonwealth, 338 S.W.2d 915, 1960 Ky. LEXIS 425 ( Ky. 1960 ).

Admission of evidence that a wallet belonging to another was found on the defendant’s person when he was found in possession of a stolen car, if error, was not prejudicial in view of other evidence. (Decided under prior law) Bach v. Commonwealth, 406 S.W.2d 727, 1966 Ky. LEXIS 212 ( Ky. 1966 ).

7.— Identification of Vehicle.

In prosecution for theft of automobile, evidence tending to identify car by paint number was competent, where witness testified as to his knowledge of paint numbers after stating his experience and that he obtained his knowledge from book published by manufacturer of car in question, and accused did not request that book be produced. (Decided under prior law) Quillen v. Commonwealth, 284 Ky. 792 , 145 S.W.2d 1048, 1940 Ky. LEXIS 568 ( Ky. 1940 ).

In prosecution for theft of automobile, testimony from witness’s memory or knowledge, as to number of license plate on allegedly stolen car, without producing plate, was competent, particularly where number was not in issue. (Decided under prior law) Quillen v. Commonwealth, 284 Ky. 792 , 145 S.W.2d 1048, 1940 Ky. LEXIS 568 ( Ky. 1940 ).

8.— Prior Offenses.

Where defendant was convicted on an indictment charging him with operating an automobile without the owner’s consent, evidence of a prior conviction for armed robbery was admissible for impeachment of credibility. (Decided under prior law) Thomas v. Commonwealth, 487 S.W.2d 954, 1972 Ky. LEXIS 103 ( Ky. 1972 ).

9.— Sufficient.

Where a coat belonging to the defendant was found in a stolen automobile after it had been abandoned, this was sufficient circumstantial evidence to send the case to the jury and sustain a conviction. (Decided under prior law) Cobb v. Commonwealth, 271 Ky. 505 , 112 S.W.2d 663, 1938 Ky. LEXIS 4 ( Ky. 1938 ).

Where accuseds had driven automobile a few feet, they had taken the car into their possession and were driving or operating it within the meaning of law that provided penalty for taking of vehicle without the owner’s consent. (Decided under prior law) Mullins v. Commonwealth, 285 Ky. 282 , 147 S.W.2d 704, 1941 Ky. LEXIS 376 ( Ky. 1941 ).

There was sufficient evidence to support a guilty verdict in a prosecution for the taking of a vehicle without the consent of the owner where defendant participated with others in the taking and knew that the taking was without consent, even though he did not actually drive the vehicle. (Decided under prior law) Lunce v. Commonwealth, 289 Ky. 706 , 160 S.W.2d 3, 1942 Ky. LEXIS 622 ( Ky. 1942 ); Christian v. Commonwealth, 314 Ky. 365 , 235 S.W.2d 774, 1951 Ky. LEXIS 652 ( Ky. 1951 ).

Evidence that defendant was driving stolen automobile, and fled at rapid speed when pursued by officers, was sufficient to sustain conviction. (Decided under prior law) Walker v. Commonwealth, 309 Ky. 217 , 217 S.W.2d 213, 1949 Ky. LEXIS 663 ( Ky. 1949 ).

Conviction for larceny was sustained where owner, at night, looked out of window and saw his car moving down incline from in front of house, ran out and saw accused jump out of car under a street light, and, keeping accused in sight all the while, pursued and caught him. (Decided under prior law) Gregory v. Commonwealth, 309 Ky. 386 , 217 S.W.2d 958, 1949 Ky. LEXIS 715 ( Ky. 1949 ).

Where the owner of the car parked it and returned a few minutes later to find it gone, the car was found later with some accessories removed, and some of these accessories were found hidden on property where the defendant was staying, this was sufficient evidence that the car was taken without the consent and against the will of the owner. (Decided under prior law) Roberts v. Commonwealth, 317 S.W.2d 181, 1958 Ky. LEXIS 84 ( Ky. 1958 ).

Evidence that the police officer found the car in question in the defendant’s possession, and that the confidential serial number matched that of the vehicle listed as stolen, was sufficient to sustain a conviction. (Decided under prior law) Bower v. Commonwealth, 357 S.W.2d 333, 1962 Ky. LEXIS 124 ( Ky. 1962 ).

The unexplained presence of the defendant in a car that had unquestionably been taken without the owner’s consent and the fact that when the car was found the ignition wires were disconnected and there was no key was sufficient evidence to take the case to the jury. (Decided under prior law) Bach v. Commonwealth, 406 S.W.2d 727, 1966 Ky. LEXIS 212 ( Ky. 1966 ).

Where the defendant claimed he bought the stolen automobile after it was burned for its motor but the motor had not been in a fire, his explanation of possession was not sufficient to overcome the presumption of guilt from possession of stolen property. (Decided under prior law) Knuckles v. Commonwealth, 458 S.W.2d 782, 1970 Ky. LEXIS 191 ( Ky. 1970 ).

The evidence of the police officer that the defendant was the person he had observed driving the stolen car was sufficient to create a submissible jury issue where the owner of the car had testified that the car had been taken without his consent. (Decided under prior law) Iles v. Commonwealth, 455 S.W.2d 533, 1970 Ky. LEXIS 250 ( Ky. 1970 ).

Once the offense of grand larceny for automobile theft was established, the defendant’s confession alone was sufficient proof that he committed the crime. (Decided under prior law) Wilson v. Commonwealth, 476 S.W.2d 622, 1971 Ky. LEXIS 63 ( Ky. 1971 ).

Trial court did not err in submitting the issue respecting offense of vehicle taking to the jury where there was sufficient evidence as to unlawful operation of vehicle without consent of owner. (Decided under prior law) Williams v. Commonwealth, 474 S.W.2d 381, 1971 Ky. LEXIS 110 ( Ky. 1971 ).

In spite of the fact that the exculpatory testimony of defendant accused of grand larceny was uncontradicted, evidence that parts of the stolen car were found in possession of him and his companions and that he had obtained possession of the keys to the car the day it was stolen was sufficient to justify overruling of his motion for a directed verdict. (Decided under prior law) Crum v. Commonwealth, 467 S.W.2d 343, 1971 Ky. LEXIS 367 ( Ky. 1971 ).

Evidence was sufficient to find that defendant committed robbery and unauthorized use of a motor vehicle because he was seen driving the vehicle at issue toward the store that was robbed, the clerk testified that a man driving that same vehicle and wearing bandanas pointed a gun at his face and demanded all the money from the register, and another witness saw defendant drive by after the robbery with his face uncovered. Thus, his motion for directed verdict was properly denied. Smith v. Commonwealth, 361 S.W.3d 908, 2012 Ky. LEXIS 29 ( Ky. 2012 ).

10.Indictment.

The fact that indictment charged unlawful taking of automobile of a named person, whereas proof showed that the automobile actually was owned by the named person’s employer, did not create a fatal variance between pleading and proof, where indictment identified the automobile involved and the time and place of the taking. (Decided under prior law) Taulbee v. Commonwealth, 304 Ky. 551 , 201 S.W.2d 723, 1947 Ky. LEXIS 680 ( Ky. 1947 ).

11.Instructions.

Where there was no dispute as to the fact that a car was taken without the owner’s knowledge, the failure to give an instruction as to the owner’s lack of knowledge was not prejudicial error. (Decided under prior law) Clark v. Commonwealth, 209 Ky. 184 , 272 S.W. 430, 1925 Ky. LEXIS 458 ( Ky. 1925 ).

12.— Defenses.

Where the defendant asserted that he was merely a passenger in an automobile and did not know that it was stolen, the failure to give a specific instruction on this defense constituted reversible error. (Decided under prior law) Christian v. Commonwealth, 314 Ky. 365 , 235 S.W.2d 774, 1951 Ky. LEXIS 652 ( Ky. 1951 ).

Cited:

Luttrell v. Commonwealth, 554 S.W.2d 75, 1977 Ky. LEXIS 482 ( Ky. 1977 ); Logan v. Commonwealth, 785 S.W.2d 497, 1989 Ky. App. LEXIS 103 (Ky. Ct. App. 1989).

Notes to Unpublished Decisions

1.Instructions.

Unpublished decision: Trial court did not err in refusing to instruct the jury on unauthorized use of a motor vehicle under KRS § 514.100 because there was no credible evidence that defendant intended to return a vehicle to the victim or the victim’s residence. Caldwell v. Commonwealth, 133 S.W.3d 445, 2004 Ky. LEXIS 77 ( Ky. 2004 ).

Research References and Practice Aids

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Theft and Related Offenses, Part 3 Theft, § 6.55.

Petrilli, Kentucky Family Law, Torts and Crimes, § 18.2.

514.110. Receiving stolen property.

  1. A person is guilty of receiving stolen property when he or she receives, retains, or disposes of movable property of another knowing that it has been stolen, or having reason to believe that it has been stolen, unless the property is received, retained, or disposed of with intent to restore it to the owner.
  2. The possession by any person of any recently stolen movable property shall be prima facie evidence that such person knew such property was stolen.
  3. Receiving stolen property is a Class B misdemeanor unless:
    1. The value of the property is five hundred dollars ($500) or more but less than one thousand dollars ($1,000), in which case it is a Class A misdemeanor;
    2. The value of the property is one thousand dollars ($1,000) or more but less than ten thousand dollars ($10,000), in which case it is a Class D felony;
    3. A person has three (3) or more convictions under paragraph (a) of this subsection within the last five (5) years, in which case it is a Class D felony. The five (5) year period shall be measured from the dates on which the offenses occurred for which the judgments of conviction were entered;
    4. The value of the property is ten thousand dollars ($10,000) or more, in which case it is a Class C felony;
    5. The property is a firearm, regardless of the value of the firearm, in which case it is a Class D felony; or
    6. The property is anhydrous ammonia, regardless of the value of the ammonia, in which case it is a Class D felony unless it is proven that the person violated this section with the intent to manufacture methamphetamine in violation of KRS 218A.1432 , in which case it is a Class B felony for the first offense and a Class A felony for each subsequent offense.
  4. If any person commits two (2) or more separate offenses of receiving stolen property within ninety (90) days, the offenses may be combined and treated as a single offense, and the value of the property in each offense may be aggregated for the purpose of determining the appropriate charge.

History. Enact. Acts 1974, ch. 406, § 127, effective January 1, 1975 1994, ch. 314, § 1, effective July 15, 1994; 1994, ch. 396, § 9, effective July 15, 1994; 2000, ch. 233, § 9, effective July 14, 2000; 2000, ch. 490, § 2, effective July 14, 2000; 2009, ch. 106, § 13, effective June 25, 2009; 2021 ch. 66, § 15, effective June 29, 2021.

NOTES TO DECISIONS

1.Constitutionality.

For the court to instruct the jury on the rebuttable presumption of knowledge that arises from the possession of recently stolen movable property was prejudicially erroneous and invaded the province of the jury. Wells v. Commonwealth, 561 S.W.2d 85, 1978 Ky. LEXIS 314 ( Ky. 1978 ).

The rule in Kentucky which allows possession of stolen property to create a prima facie case of guilt of the theft thereof is not unconstitutional because it is not unreasonable for a juror to believe that one found in possession of stolen property is guilty of the theft, and the jury is not instructed to find such a person guilty unless he proves that his possession is innocent, and no burden of proof is ever placed upon the accused; the burden of proof remains with the Commonwealth throughout the trial. Jackson v. Commonwealth, 670 S.W.2d 828, 1984 Ky. LEXIS 205 ( Ky. 1984 ), cert. denied, 469 U.S. 1111, 105 S. Ct. 791, 83 L. Ed. 2d 784, 1985 U.S. LEXIS 413 (U.S. 1985).

2.Construction.

Larceny and knowingly receiving stolen property are not degrees of the same offense though they may be joined in the same indictment. (Decided under prior law) Goodin v. Commonwealth, 235 Ky. 349 , 31 S.W.2d 380, 1930 Ky. LEXIS 356 ( Ky. 1930 ).

This section, by use of the words “another” and “owner,” clearly indicates that it is designed for the protection of an owner; it is not directed as a course of conduct, such as a general fencing operation, but prohibits the act of receiving, retaining or disposing of the property of another. Hensley v. Commonwealth, 655 S.W.2d 471, 1983 Ky. LEXIS 287 ( Ky. 1983 ).

3.Double Jeopardy.

An acquittal for storehouse breaking is not a bar to prosecution for receiving stolen goods. (Decided under prior law) Commonwealth v. Bragg, 104 Ky. 306 , 47 S.W. 212, 20 Ky. L. Rptr. 541 , 1898 Ky. LEXIS 159 ( Ky. 1898 ).

Offense of feloniously breaking in a storehouse with intent to steal and feloniously taking goods therefrom cannot be joined with that of feloniously receiving stolen goods. (Decided under prior law) Commonwealth v. Bragg, 104 Ky. 306 , 47 S.W. 212, 20 Ky. L. Rptr. 541 , 1898 Ky. LEXIS 159 ( Ky. 1898 ).

A thief cannot be held guilty of receiving property which he has stolen, since they are distinct offenses, and a necessary ingredient of the latter crime is that the accused knowingly received property stolen by another person. (Decided under prior law) Mercer v. Commonwealth, 330 S.W.2d 734, 1959 Ky. LEXIS 206 ( Ky. 1959 ).

No double jeopardy where defendant’s possession of the stolen firearm violated both statutes and each statute requires proof of a unique fact to establish guilt that the other statute does not require; this section requires proof that the firearm was stolen by any person and not just a felon, whereas, a violation of KRS 527.040 occurs merely when a convicted felon possesses any firearm. Crowder v. Commonwealth, 23 S.W.3d 225, 1999 Ky. App. LEXIS 150 (Ky. Ct. App. 1999).

4.Due Process.

Where on appeal the Commonwealth in its brief admitted that the search warrant was defective, the defendant’s conviction for possession of stolen property was reversed. (Decided under prior law) White v. Commonwealth, 469 S.W.2d 776, 1971 Ky. LEXIS 313 ( Ky. 1971 ).

Where the Commonwealth denied the existence of any “deals” or promises of immunity made to prosecution witnesses and the defendant offered no evidence to the contrary, the trial court did not err in denying a pretrial motion for disclosure of any such “deal.” Poteet v. Commonwealth, 556 S.W.2d 893, 1977 Ky. LEXIS 530 ( Ky. 1977 ).

Subsection (2) of this section is not a violation of the Fifth Amendment right to remain silent, since the presumption is rebuttable, since the burden in no way shifts to the defense, and since the jury remains free to disbelieve the evidence creating the presumption. Robinson v. Commonwealth, 572 S.W.2d 606, 1978 Ky. App. LEXIS 600 (Ky. Ct. App. 1978), overruled, Royce v. Kentucky, 577 S.W.2d 615 ( Ky. 1979 ).

5.Elements.

One who knowingly receives stolen goods is subject to same punishment as that of the thief. (Decided under prior law) Commonwealth v. Johnson, 181 Ky. 643 , 205 S.W. 689, 1918 Ky. LEXIS 589 ( Ky. 1918 ).

The finding by defendant of goods of which he took possession does not acquit him if, at the time of taking them, he knew they had been stolen. (Decided under prior law) Shaw v. Commonwealth, 229 Ky. 412 , 17 S.W.2d 267, 1929 Ky. LEXIS 773 ( Ky. 1929 ).

Except under special circumstances, the thief and the receiver of stolen property are not accomplices. (Decided under prior law) Cole v. Commonwealth, 246 Ky. 149 , 54 S.W.2d 674, 1932 Ky. LEXIS 732 ( Ky. 1932 ); Caudill v. Commonwealth, 293 Ky. 674 , 170 S.W.2d 9, 1943 Ky. LEXIS 686 ( Ky. 1943 ).

Where defendant received stolen goods in separate deliveries, the court must require the prosecution to elect one particular transaction and rely on it for conviction, and value of articles received at separate times cannot be added to increase penalty. (Decided under prior law) Ball v. Commonwealth, 278 Ky. 52 , 128 S.W.2d 176, 1939 Ky. LEXIS 373 ( Ky. 1939 ).

Ordinarily one who steals goods is not an accomplice of the person who knowingly receives them. (Decided under prior law) Hamm v. Commonwealth, 311 Ky. 214 , 223 S.W.2d 884, 1949 Ky. LEXIS 1101 ( Ky. 1949 ); Russell v. Commonwealth, 403 S.W.2d 694, 1966 Ky. LEXIS 341 ( Ky. 1966 ).

The gravamen of the offense is knowledge that the goods were stolen. (Decided under prior law) Martin v. Commonwealth, 276 S.W.2d 19, 1955 Ky. LEXIS 408 ( Ky. 1955 ); Logan v. Commonwealth, 319 S.W.2d 465, 1958 Ky. LEXIS 170 ( Ky. 1958 ); Grider v. Commonwealth, 479 S.W.2d 11, 1972 Ky. LEXIS 285 ( Ky. 1972 ).

Receiving stolen property, knowing it to be stolen, is itself a complete offense, and it is not necessary, to convict of that offense, that the guilt of the person who stole the property shall be first established, nor his name be known or even stated in the indictment, or to prove the accused to be in any way connected with the larceny. (Decided under prior law) Logan v. Commonwealth, 319 S.W.2d 465, 1958 Ky. LEXIS 170 ( Ky. 1958 ).

Gravamen of the offense of receiving stolen property is knowingly receiving stolen goods and is a separate and distinct offense from the larceny itself; hence the defendant was not entitled to a lesser degree instruction on offense of taking property without felonious intent wherein gravamen of offense is the unlawful taking. (Decided under prior law) Dawes v. Commonwealth, 349 S.W.2d 191, 1960 Ky. LEXIS 2 ( Ky. 1960 ).

The receipt in this state of property stolen in another state is punishable the same as if it had been stolen in this State. (Decided under prior law) Commonwealth v. Lewis, 548 S.W.2d 509, 1977 Ky. LEXIS 400 ( Ky. 1977 ).

Property need not have been stolen by another to support a conviction of receiving stolen property as the gravamen of the offense is the receipt or retention of the stolen goods. Lee v. Commonwealth, 547 S.W.2d 792, 1977 Ky. App. LEXIS 639 (Ky. Ct. App. 1977).

Under KRS 514.030 , theft by unlawful taking is a completed offense when the taking has occurred, regardless of asportation. Therefore, where the defendant committed theft offenses in another state and brought the stolen property into Kentucky, the defendant should have been charged only with receiving stolen property under this section, because the Commonwealth did not have jurisdiction over the theft offenses committed in the other state. Hayes v. Commonwealth, 698 S.W.2d 827, 1985 Ky. LEXIS 277 ( Ky. 1985 ).

6.— Retention of Property.

A defendant can be convicted both of burglary and of retaining possession of property stolen by him in the burglary pursuant to this section, since this section includes the retention or disposition of stolen property, even though the section bears the heading “Receiving stolen property.” Sebastian v. Commonwealth, 623 S.W.2d 880, 1981 Ky. LEXIS 288 ( Ky. 1981 ).

This section does not require proof of any fact not required by KRS 514.030 , and while KRS 514.030 does require proof of taking, the very act of taking is also a receiving of the property; thus, although a person may be convicted of knowingly receiving stolen property on less proof than is necessary for a conviction for theft, a conviction for theft precludes a separate conviction for knowingly receiving the same property. Jackson v. Commonwealth, 670 S.W.2d 828, 1984 Ky. LEXIS 205 ( Ky. 1984 ), cert. denied, 469 U.S. 1111, 105 S. Ct. 791, 83 L. Ed. 2d 784, 1985 U.S. LEXIS 413 (U.S. 1985).

A thief may be convicted of receiving stolen property any place where he is found with the stolen property in his possession, because the offense of receiving stolen property, under this section, is now expanded to include a person who “retains” such property. Hayes v. Commonwealth, 698 S.W.2d 827, 1985 Ky. LEXIS 277 ( Ky. 1985 ).

7.Evidence.

Guilty knowledge in prosecution for receiving stolen property can be shown by circumstantial evidence. (Decided under prior law) Ellison v. Commonwealth, 190 Ky. 305 , 227 S.W. 458, 1921 Ky. LEXIS 437 ( Ky. 1921 ); Blusinsky v. Commonwealth, 284 Ky. 395 , 144 S.W.2d 1038, 1940 Ky. LEXIS 506 ( Ky. 1940 ); Clatos v. Commonwealth, 298 Ky. 851 , 184 S.W.2d 125, 1944 Ky. LEXIS 1008 ( Ky. 1944 ); Caudill v. Commonwealth, 256 S.W.2d 8, 1953 Ky. LEXIS 704 ( Ky. 1953 ).

In a prosecution for receiving stolen property, defendant should be allowed to prove conclusively that he relied, and had the right to depend, on the good reputation of him who tendered the articles for sale and from whom he purchased them. (Decided under prior law) Franklin v. Commonwealth, 201 Ky. 324 , 256 S.W. 714, 1923 Ky. LEXIS 290 ( Ky. 1923 ).

The question of the accused’s guilt of the crime of knowingly receiving stolen property is for the jury, there being probative testimony to such effect. (Decided under prior law) Clatos v. Commonwealth, 298 Ky. 851 , 184 S.W.2d 125, 1944 Ky. LEXIS 1008 ( Ky. 1944 ).

A defendant’s guilty knowledge may be proved by circumstantial evidence as to the character of the property involved, its quality and kind and the common knowledge of its market value as measured by the prevailing economic conditions at any particular time. (Decided under prior law) Teague v. Commonwealth, 308 Ky. 554 , 215 S.W.2d 130, 1948 Ky. LEXIS 990 ( Ky. 1948 ).

In a prosecution for knowingly receiving stolen property, testimony of accomplices is not sufficient to sustain conviction of accused unless corroborated by other evidence tending to connect him with the commission of the crime. (Decided under prior law) Hamm v. Commonwealth, 311 Ky. 214 , 223 S.W.2d 884, 1949 Ky. LEXIS 1101 ( Ky. 1949 ).

Where stolen goods were hidden under the defendant’s porch by the thieves, this was not sufficient corroboration of the testimony of these accomplices, which had implicated the defendant in the theft, to take the case to the jury. (Decided under prior law) Hamm v. Commonwealth, 311 Ky. 214 , 223 S.W.2d 884, 1949 Ky. LEXIS 1101 ( Ky. 1949 ).

8.— Admissibility.

Property found in defendant’s possession which was stolen at the same time as the property mentioned in the indictment was properly admitted into evidence to establish guilty knowledge and as part of the res gestae. (Decided under prior law) Duke v. Commonwealth, 255 Ky. 403 , 74 S.W.2d 471, 1934 Ky. LEXIS 249 ( Ky. 1934 ).

Where the defendants knew that the thief was not employed or in business, waited for him to go into the woods to get the cigarettes, and purchased these cigarettes for one fifth of their value, this evidence was sufficient to submit the question of guilty knowledge to the jury. (Decided under prior law) Tucker v. Commonwealth, 255 Ky. 635 , 75 S.W.2d 220, 1934 Ky. LEXIS 307 ( Ky. 1934 ).

As regards accused’s guilty knowledge that property had been stolen, evidence concerning prosecution several years before for receiving stolen property and accused’s defense that seller told him he had found property on dump was inadmissible either to affect his credibility, since it did not appear that he had been convicted, or to show motive or intent, since offenses, if any, had been committed four or five years prior to offense on trial. (Decided under prior law) Blusinsky v. Commonwealth, 284 Ky. 395 , 144 S.W.2d 1038, 1940 Ky. LEXIS 506 ( Ky. 1940 ).

Where tapes of conversations between the defendant and an undercover agent were sent to Washington, D.C., for reproduction, the agent’s testimony as to the accuracy of the recordings established their integrity and, as there was no broken link in the chain of evidence, the tapes were properly admitted into evidence. Poteet v. Commonwealth, 556 S.W.2d 893, 1977 Ky. LEXIS 530 ( Ky. 1977 ).

Although defendant was advised of his rights before testifying to a grand jury under Ky. Const. § 11, there was no evidence that he voluntarily waived those rights. Thus, the admission of defendant’s grand jury testimony at trial for receiving stolen property under KRS 514.110(1) was improper because the testimony provided the only evidence of defendant’s intent and opened the door to challenge his credibility. Johnson v. Commonwealth, 2007 Ky. App. LEXIS 10 (Ky. Ct. App. Jan. 12, 2007, sub. op., 2007 Ky. App. Unpub. LEXIS 1217 (Ky. Ct. App. Jan. 12, 2007), review denied, ordered not published, 2007 Ky. LEXIS 157 (Ky. Aug. 15, 2007).

9.— Other Offenses.

In prosecution for receiving stolen property, evidence of other unlawful receipts is admissible only for the purpose of showing defendant’s knowledge, intent and general course of dealing, and it is the duty of the court to admonish the jury as to the purpose for which such evidence is admitted. (Decided under prior law) Ball v. Commonwealth, 278 Ky. 52 , 128 S.W.2d 176, 1939 Ky. LEXIS 373 ( Ky. 1939 ); Martin v. Commonwealth, 276 S.W.2d 19, 1955 Ky. LEXIS 408 ( Ky. 1955 ).

It was prejudicial error to admit evidence of other violations of a similar nature by the defendant without admonishing the jury as to the purpose for which such evidence was admitted. (Decided under prior law) Alexander v. Commonwealth, 369 S.W.2d 110, 1963 Ky. LEXIS 59 ( Ky. 1963 ).

10.— Possession of Property.

Proof that stolen chickens were found in defendant’s possession casts burden on him to show his lack of guilty knowledge. (Decided under prior law) Conley v. Commonwealth, 230 Ky. 391 , 20 S.W.2d 75, 1929 Ky. LEXIS 109 ( Ky. 1929 ); Blankenship v. Commonwealth, 256 Ky. 768 , 77 S.W.2d 40, 1934 Ky. LEXIS 494 ( Ky. 1934 ).

The presumption that possession of stolen goods is prima facie evidence of guilt was overcome where the evidence showed that the defendant was not aware that his clerk had purchased the goods until the goods were claimed by the rightful owner. (Decided under prior law) Mansbach v. Commonwealth, 230 Ky. 604 , 20 S.W.2d 468, 1929 Ky. LEXIS 145 ( Ky. 1929 ).

The possessor of stolen property has the burden of proving that his possession was honestly acquired. (Decided under prior law) Louisville & N. R. Co. v. Sharp, 282 Ky. 758 , 140 S.W.2d 383, 1940 Ky. LEXIS 254 ( Ky. 1940 ).

Possession of stolen property placed burden of proving rightful ownership upon possessor. (Decided under prior law) Gossett v. Commonwealth, 284 Ky. 766 , 145 S.W.2d 1063, 1940 Ky. LEXIS 575 ( Ky. 1940 ).

While possession of stolen property shifts burden to person having possession to make satisfactory explanation, such possession creates only a rebuttable presumption of guilt rather than a conclusive one. (Decided under prior law) Rogers v. Commonwealth, 289 Ky. 83 , 158 S.W.2d 144, 1942 Ky. LEXIS 507 ( Ky. 1942 ); Clatos v. Commonwealth, 298 Ky. 851 , 184 S.W.2d 125, 1944 Ky. LEXIS 1008 ( Ky. 1944 ).

It is, and always has been, the rule that the possession of stolen property raises a presumption that the possessor was guilty of having stolen it, but which may be rebutted by a satisfactory explanation of how he obtained the possession. (Decided under prior law) Wheeler v. Commonwealth, 295 Ky. 28 , 173 S.W.2d 817, 1943 Ky. LEXIS 197 ( Ky. 1943 ).

When stolen property is found in the possession of a person, the burden is cast upon him to show his lack of guilty knowledge or that he legally acquired the property, and if there is any evidence of a probative nature, either direct or circumstantial, tending to combat the claim of legal acquisition, it is an issue for the jury. (Decided under prior law) Clatos v. Commonwealth, 298 Ky. 851 , 184 S.W.2d 125, 1944 Ky. LEXIS 1008 ( Ky. 1944 ).

Where there is conflicting evidence, it is a jury question as to whether the defendant has explained satisfactorily his possession of stolen property. (Decided under prior law) Caudill v. Commonwealth, 256 S.W.2d 8, 1953 Ky. LEXIS 704 ( Ky. 1953 ).

The usual rule that one found in possession of stolen property has the burden of satisfying the jury as to how he acquired the property does not apply in this case where the stolen winch was found in defendant’s truck when the truck was out of defendant’s possession, stuck in a creek, and where the defendant asserted that his truck had been stolen and there was some evidence of this. (Decided under prior law) Little v. Commonwealth, 261 S.W.2d 620, 1953 Ky. LEXIS 1027 ( Ky. 1953 ).

The question of the character of the defendant’s possession of the stolen property and the inference to be drawn therefrom under all the attendant circumstances, including such explanations as the defendant could offer, were questions of fact for the jury. (Decided under prior law) Little v. Commonwealth, 261 S.W.2d 620, 1953 Ky. LEXIS 1027 ( Ky. 1953 ).

Unexplained possession of stolen goods, or a part of them, a short time after they were stolen is presumptive evidence of guilt, and such possession at that time shifts to accused the burden of explaining his possession of goods and, if accused fails to account satisfactorily for his possession, presumption of guilt arising therefrom will warrant conviction without necessity of further proof. (Decided under prior law) Dawes v. Commonwealth, 281 S.W.2d 901, 1955 Ky. LEXIS 208 ( Ky. 1955 ).

Mere possession of stolen goods is prima facie evidence of guilt. (Decided under prior law) Martin v. Commonwealth, 276 S.W.2d 19, 1955 Ky. LEXIS 408 ( Ky. 1955 ).

In prosecution for knowingly receiving stolen property, defendant is presumed to know the property is stolen and, without sufficient explanation, his possession of the property establishes the knowledge required for conviction. (Decided under prior law) Dawes v. Commonwealth, 349 S.W.2d 191, 1960 Ky. LEXIS 2 ( Ky. 1960 ).

Where tires, identified as having been stolen, were found under the floor of defendant’s premises, this was prima facie evidence of guilt. (Decided under prior law) Combs v. Commonwealth, 341 S.W.2d 774, 1960 Ky. LEXIS 83 ( Ky. 1960 ).

What is sufficient identification of stolen property depends on the nature of the thing taken and the circumstances connected therewith and is usually a question for the jury. (Decided under prior law) Alexander v. Commonwealth, 457 S.W.2d 472, 1970 Ky. LEXIS 200 ( Ky. 1970 ).

Where there was positive identification of plastic coin tubes and positive identification of a peculiarly marked coin and the other coins recovered had the general appearance of those stolen from a collection, whether there was a sufficient identity of the coins as those which were stolen was a matter for the jury to determine. (Decided under prior law) Alexander v. Commonwealth, 457 S.W.2d 472, 1970 Ky. LEXIS 200 ( Ky. 1970 ).

Although conflicting evidence was presented on the charge that defendant knowingly received stolen property, the jury could have believed she had knowledge that the property was stolen as she had property in her possession and was involved in its sale. (Decided under prior law) Franklin v. Commonwealth, 490 S.W.2d 148, 1972 Ky. LEXIS 13 ( Ky. 1972 ), cert. denied, 414 U.S. 858, 94 S. Ct. 66, 38 L. Ed. 2d 108, 1973 U.S. LEXIS 720 (U.S. 1973).

Where the Commonwealth established beyond reasonable doubt that the defendant had possession of the stolen property, the burden was on the defendant to explain that he purchased the tractor in good faith and was without knowledge of its stolen character. (Decided under prior law) Deskins v. Commonwealth, 488 S.W.2d 697, 1972 Ky. LEXIS 53 ( Ky. 1972 ).

Where the stolen premium stamps were discovered on the defendant’s property and where the defendant had no legally conclusive explanation of his possession, the prima facie case was established against defendant and the issue of guilt was properly submitted to the jury. (Decided under prior law) Lindsay v. Commonwealth, 500 S.W.2d 786, 1973 Ky. LEXIS 261 ( Ky. 1973 ).

11.— Statements by Defendant.

Where the defendant gave three different versions of how he had acquired the stolen property in his possession within a relatively short period of time, this evidence was sufficient to support a conviction. (Decided under prior law) Hollowell v. Commonwealth, 233 Ky. 84 , 25 S.W.2d 73, 1930 Ky. LEXIS 518 ( Ky. 1930 ).

The fact that the defendant had first stated that he had no dealings with the confessed thief and then later admitted purchasing stolen air hammers from the thief was sufficient evidence to sustain a conviction even without the testimony of accomplices who stole the hammers. (Decided under prior law) Magruder v. Commonwealth, 281 S.W.2d 716, 1955 Ky. LEXIS 203 ( Ky. 1955 ).

12.— Value of Property.

The alleged failure of the prosecution to adequately establish the value of the stolen property found in the defendant’s home did not exonerate him since such a determination only affected the extent of punishment that could be inflicted and was not necessary to the actual determination of guilt. (Decided under prior law) Embry v. Commonwealth, 492 S.W.2d 929, 1973 Ky. LEXIS 542 ( Ky. 1973 ).

Where the record contained testimony of the owner estimating the value of his stolen property, which was found in the defendant’s possession, at approximately $184, there was competent evidence as to such value. Poteet v. Commonwealth, 556 S.W.2d 893, 1977 Ky. LEXIS 530 ( Ky. 1977 ).

Where Commonwealth failed to offer direct proof or sufficient descriptive testimony to enable the jury to make an informed conclusion as to value of stolen television sets in a prosecution for receipt of stolen property worth more than $100, the conviction was insupportable. Lee v. Commonwealth, 547 S.W.2d 792, 1977 Ky. App. LEXIS 639 (Ky. Ct. App. 1977).

The value of the stolen property on the date the offender receives it is the proper date for determining the severity of the violation. Tussey v. Commonwealth, 589 S.W.2d 215, 1979 Ky. LEXIS 292 ( Ky. 1979 ).

A person who receives stolen property worth less than $100 has committed a misdemeanor; more than $100, a felony. Tussey v. Commonwealth, 589 S.W.2d 215, 1979 Ky. LEXIS 292 ( Ky. 1979 ).

This section would permit the totalling of value of property received in order to exceed the $100 requirement if the aggregate value of property stolen from one owner, on one occasion, exceeded $100. Hensley v. Commonwealth, 655 S.W.2d 471, 1983 Ky. LEXIS 287 ( Ky. 1983 ).

Subsection (3) of this section as it existed prior to its 1994 amendment in providing that the demarcation between misdemeanor and amendment in providing that the demarcation between misdemeanor and felony for receiving stolen property was “$100 or more” in light of the 1992 amendments to KRS Chapter 514 which increased the felony threshold for other theft and theft-related crimes to “$300 or more” was not unconstitutional since there is a presumption that the legislature is cognizant of preexisting statutes at the time it enacts later statutes and the possibility that the legislature considered receiving stolen property to be a more serious offense was not absurd on its face. Bybee v. Commonwealth, 904 S.W.2d 244, 1994 Ky. App. LEXIS 150 (Ky. Ct. App. 1994).

The 1992 amendments to KRS Chapter 514 which increased the demarcation between the misdemeanor and felony threshold of some theft and theft-related crimes from “$100 or more” to “$300 or more” did not impliedly amend this section, since before a statute may be considered amended by implication by a later statute the two must be repugnant to each other and be irreconcilable, or the later act must cover the entire subject of the earlier act and this was the case in this situation. Bybee v. Commonwealth, 904 S.W.2d 244, 1994 Ky. App. LEXIS 150 (Ky. Ct. App. 1994).

Defendant’s claim that he was entitled to a jury instruction on the lesser included offense of receiving stolen property valued at less than $300 was without merit where, of the $842 in cash, defendant claimed that only $335 was his own, leaving $507 in cash unaccounted for. Savage v. Commonwealth, 920 S.W.2d 512, 1995 Ky. LEXIS 116 ( Ky. 1995 ).

13.— Sufficient.

Where the defendant confessed that he had taken the goods to his father’s home, and his father also testified to this, and the stolen goods were found in the father’s home, this evidence was sufficient to sustain a conviction. (Decided under prior law) Shaw v. Commonwealth, 229 Ky. 412 , 17 S.W.2d 267, 1929 Ky. LEXIS 773 ( Ky. 1929 ).

Where the defendant had purchased cartons of cigarettes, stamped with the name of a store, at half their value from a man who brought them to the defendant after midnight, and where the cigarettes were found concealed in the ceiling of the defendant’s store, this evidence was sufficient to sustain a conviction. (Decided under prior law) Terrell v. Commonwealth, 255 Ky. 480 , 74 S.W.2d 948, 1934 Ky. LEXIS 271 ( Ky. 1934 ).

Possession alone of stolen property is sufficient to sustain a conviction. (Decided under prior law) Louisville & N. R. Co. v. Sharp, 282 Ky. 758 , 140 S.W.2d 383, 1940 Ky. LEXIS 254 ( Ky. 1940 ).

Evidence sustained verdict where witness for prosecution identified the stolen fencing wire which accused was moving from place where, as he testified, he had bought it from man on truck but where he did not produce such man as witness and alleged sales bill showed signs of having received special treatment. (Decided under prior law) Gossett v. Commonwealth, 284 Ky. 766 , 145 S.W.2d 1063, 1940 Ky. LEXIS 575 ( Ky. 1940 ).

Testimony of boys who had stolen bronze plaque from school building that they told defendant junk dealer that it was stolen, coupled with evidence that plaque had inscription on it showing that it was school property and that defendant had plaque cut into small pieces after buying it, was sufficient to support conviction of defendant. (Decided under prior law) Caudill v. Commonwealth, 293 Ky. 674 , 170 S.W.2d 9, 1943 Ky. LEXIS 686 ( Ky. 1943 ).

Even in absence of rebuttable presumption of guilt provided by this section, evidence that defendant was told by the thief that cow was stolen, coupled with the fact that delivery of the cow to the defendant took place around daylight and the defendant hurriedly caused the cow to be butchered, would have been sufficient to take case to jury. (Decided under prior law) Clatos v. Commonwealth, 298 Ky. 851 , 184 S.W.2d 125, 1944 Ky. LEXIS 1008 ( Ky. 1944 ).

Where there was evidence that the defendant’s son brought a stolen car and tools to the defendant’s house, that the defendant sold the tools and bought black paint, and that the car was later painted this color, hidden by the defendant, and that the defendant later tried to sell the car, this was sufficient proof that the stolen property had come under the defendant’s partial control and possession. (Decided under prior law) Niece v. Commonwealth, 307 Ky. 760 , 212 S.W.2d 291, 1948 Ky. LEXIS 827 ( Ky. 1948 ).

Where the thief and his wife both testified that stolen clothing had been sold to the defendant and the goods were purchased for much less than market value, this was sufficient evidence to sustain a conviction. (Decided under prior law) Teague v. Commonwealth, 308 Ky. 554 , 215 S.W.2d 130, 1948 Ky. LEXIS 990 ( Ky. 1948 ).

Where goods were found in the defendant’s possession after tracks leading from the store from which the goods were taken were followed to the defendant’s house, the evidence was sufficient to sustain a conviction. (Decided under prior law) Kilburn v. Commonwealth, 261 S.W.2d 288, 1953 Ky. LEXIS 998 ( Ky. 1953 ).

Where the defendant was in possession of a stolen adding machine which he had purchased from a boy for one tenth of its value, this was sufficient to take the case to the jury. (Decided under prior law) Martin v. Commonwealth, 276 S.W.2d 19, 1955 Ky. LEXIS 408 ( Ky. 1955 ).

Where a number of electrical appliances were taken and one such appliance, used by the defendant as a down payment on a car, had had a net cost to the owners of $94.50, and the defendant had used it as a down payment in lieu of $50 in cash, this was sufficient evidence to submit to the jury the question of whether defendant had knowingly received stolen goods of a value of $20 or more. (Decided under prior law) Mercer v. Commonwealth, 330 S.W.2d 734, 1959 Ky. LEXIS 206 ( Ky. 1959 ).

Where the defendant purchased ten new shotguns from two men he had never seen before for $130 and the guns had a retail value of more than $700 and the guns were buried on the defendant’s premises, this evidence was sufficient to sustain a conviction. (Decided under prior law) Lother v. Commonwealth, 411 S.W.2d 685, 1967 Ky. LEXIS 486 ( Ky. 1967 ).

Where certain tools were stolen and were subsequently sold, and the buyer identified the defendant as the seller, and the defendant’s fingerprints matched those of the seller, the evidence was sufficient to convict although the tools were not introduced in evidence and there was no testimony of identification of the tools by the owner. (Decided under prior law) Walton v. Commonwealth, 439 S.W.2d 953, 1969 Ky. LEXIS 384 ( Ky. 1969 ).

Where the evidence showed that the defendant was found in possession of a quantity of stolen silver and a stolen stereo, which he claimed to be moving at the request of a friend, such evidence was sufficiently substantial to support a conviction for the felony of receiving stolen goods. Wylie v. Commonwealth, 556 S.W.2d 1, 1977 Ky. LEXIS 513 ( Ky. 1977 ).

Where cattle were stolen from four (4) separate owners, on different dates or occasions, and the evidence disclosed that defendant purchased cattle on at least four (4) separate dates, it was not unreasonable for the jury to convict defendant of four (4) counts of receiving or retaining stolen property. Hensley v. Commonwealth, 655 S.W.2d 471, 1983 Ky. LEXIS 287 ( Ky. 1983 ).

Less culpable of two (2) codefendants had convictions vacated because of insufficient evidence of manufacturing methamphetamine under KRS 218A.1432 , which was firearm enhanced under KRS 218A.992 , possession of anhydrous ammonia in an unapproved container with intent to manufacture methamphetamine under KRS 250.489(1), 250.991(2), and receiving stolen property valued at $300 or more, KRS 514.110(1), (3). That defendant, however, was to be retried for possession of drug paraphernalia, subsequent offense, under KRS 218A.500(2),(5). Hayes v. Commonwealth, 175 S.W.3d 574, 2005 Ky. LEXIS 332 ( Ky. 2005 ).

14.Indictment.

An indictment charging generally that the goods had been stolen before received by defendant, without naming the thief and with only a general description of the goods stolen, was sufficient. (Decided under prior law) Newton v. Commonwealth, 158 Ky. 4 , 164 S.W. 108, 1914 Ky. LEXIS 556 ( Ky. 1914 ); Shuttles v. Commonwealth, 190 Ky. 176 , 227 S.W. 154, 1921 Ky. LEXIS 413 ( Ky. 1921 ).

Guilty knowledge was sufficiently alleged where the indictment stated that the defendant unlawfully and feloniously received stolen property knowing it to have been stolen. (Decided under prior law) Cole v. Commonwealth, 246 Ky. 149 , 54 S.W.2d 674, 1932 Ky. LEXIS 732 ( Ky. 1932 ).

Indictment for receiving stolen property which did not charge that the allegedly stolen property had been taken against the will or without the consent of the owner was not fatally defective, since previous crime need not be described with same technical particularity as would have been required upon indictment charging original crime. (Decided under prior law) Blusinsky v. Commonwealth, 284 Ky. 395 , 144 S.W.2d 1038, 1940 Ky. LEXIS 506 ( Ky. 1940 ).

Indictment was not fatally defective where it charged that the property received had been stolen from another, but did not state that such taking was “without the consent, or against the will, of the owner.” (Decided under prior law) Gossett v. Commonwealth, 284 Ky. 766 , 145 S.W.2d 1063, 1940 Ky. LEXIS 575 ( Ky. 1940 ).

It is not necessary to name the person from whom the property was taken or to name the thief in the indictment, as neither is an essential element to be proved in prosecution. (Decided under prior law) Niece v. Commonwealth, 307 Ky. 760 , 212 S.W.2d 291, 1948 Ky. LEXIS 827 ( Ky. 1948 ).

Where the indictment charged that the defendant had received a described adding machine knowing it to be stolen, it was not demurrable for failing to state that the receipt was unlawful and felonious or with intent to permanently deprive the owner of the use of the goods. (Decided under prior law) Martin v. Commonwealth, 276 S.W.2d 19, 1955 Ky. LEXIS 408 ( Ky. 1955 ).

An indictment charging two instances of receiving stolen property was not invalid as an improper joinder of offenses. (Decided under prior law) Russell v. Commonwealth, 403 S.W.2d 694, 1966 Ky. LEXIS 341 ( Ky. 1966 ).

Where the evidence was sufficient to prove the crime of knowingly receiving stolen property, but trial court directed a verdict of acquittal on the belief that the defendant was tried under the wrong indictment, the trial court erred. (Decided under prior law) Commonwealth v. Wallace, 486 S.W.2d 61, 1972 Ky. LEXIS 109 ( Ky. 1972 ), overruled in part, Sutton v. Commonwealth, 623 S.W.2d 879, 1981 Ky. LEXIS 287 ( Ky. 1981 ).

An indictment charging the defendant with receiving a large quantity of silver and a stereo was sufficient to notify the defendant of the charge and the failure to specify that the value of the goods exceeded $100 did not preclude prosecution for a felony, rather than a misdemeanor, since the description of the property in itself would have put any reasonable person on notice that the value exceeded $100 and the defendant could easily have requested a bill of particulars to resolve any doubts. Wylie v. Commonwealth, 556 S.W.2d 1, 1977 Ky. LEXIS 513 ( Ky. 1977 ).

15.— Variance.

Where defendant’s only part in crime was to receive stolen goods into his car and haul them away, evidence that he knew in advance that goods were to be stolen and went to scene of burglary to receive goods did not constitute a departure from indictment charging him with receiving stolen goods or limit his guilt to conspiracy to steal. (Decided under prior law) Lassiter v. Commonwealth, 280 Ky. 502 , 133 S.W.2d 728, 1939 Ky. LEXIS 155 ( Ky. 1939 ).

Where the owner of the stolen goods and the thief are named in the indictment, any variance in the evidence with respect to these persons is immaterial if the property was sufficiently described and identified. (Decided under prior law) Niece v. Commonwealth, 307 Ky. 760 , 212 S.W.2d 291, 1948 Ky. LEXIS 827 ( Ky. 1948 ).

16.Instructions.

It was error to give an instruction that possession of stolen goods should be of itself prima facie evidence of guilt, even though law that provided penalty for receiving stolen property so provides, as it has never been deemed proper in this state to instruct on the weight of evidence. (Decided under prior law) Botnick v. Commonwealth, 266 Ky. 419 , 99 S.W.2d 188, 1936 Ky. LEXIS 674 ( Ky. 1936 ); Jones v. Commonwealth, 291 Ky. 719 , 165 S.W.2d 566, 1942 Ky. LEXIS 320 ( Ky. 1942 ).

In prosecution for receiving stolen goods, it was error to instruct that defendant may be convicted of a felony if the property “or any part thereof” had been stolen before being delivered to defendant, since part stolen might be of less value than $20. (Decided under prior law) Ball v. Commonwealth, 278 Ky. 52 , 128 S.W.2d 176, 1939 Ky. LEXIS 373 ( Ky. 1939 ).

Instruction that if the value of all stolen property received by defendant from time to time aggregated $20 or more, defendant could be convicted of a felony is reversible error, since each receipt of stolen goods is a separate offense. (Decided under prior law) Ball v. Commonwealth, 278 Ky. 52 , 128 S.W.2d 176, 1939 Ky. LEXIS 373 ( Ky. 1939 ).

In prosecution for receiving stolen property, instruction which failed to inform jury that property must be of the value of $20 or more in order to justify conviction of felony was prejudicially erroneous, notwithstanding that instruction on another count charging grand larceny properly informed jury as to necessity of finding that value was $20 or more. (Decided under prior law) Jones v. Commonwealth, 291 Ky. 719 , 165 S.W.2d 566, 1942 Ky. LEXIS 320 ( Ky. 1942 ).

In prosecution for receiving stolen goods, where original instruction authorized conviction if jury believed defendant knew goods were stolen “from Samuel Block,” it was not error for court, after jury returned from jury room with request for information, to strike from the instruction the words “from Samuel Block,” since mere knowledge that goods were stolen goods was the controlling element essential to conviction. (Decided under prior law) Decker v. Commonwealth, 303 Ky. 511 , 198 S.W.2d 212, 1946 Ky. LEXIS 889 ( Ky. 1946 ).

An instruction to find the defendant had knowingly received stolen goods of a value of over $100 before it could convict him obviated the need of giving an affirmative instruction for acquittal if it found that stolen property had not been knowingly received. (Decided under prior law) Russell v. Commonwealth, 403 S.W.2d 694, 1966 Ky. LEXIS 341 ( Ky. 1966 ).

Where defendant’s theory was that he had purchased certain property with the intention of communicating with the sheriff before disposing of it, an instruction simply charging that he willfully received the goods, knowing that they had been stolen, was not clear enough to constitute a presentation of the defendant’s theory. (Decided under prior law) Ward v. Commonwealth, 399 S.W.2d 463, 1966 Ky. LEXIS 461 ( Ky. 1966 ).

In a prosecution for receiving stolen property, it is ordinarily unnecessary to give an affirmative instruction authorizing acquittal if the jury finds that the defendant was without guilty knowledge. (Decided under prior law) Lother v. Commonwealth, 411 S.W.2d 685, 1967 Ky. LEXIS 486 ( Ky. 1967 ).

An instruction authorizing the jury to find the defendant guilty of theft of a tractor or receiving the tractor knowing it was stolen or both was in error, since the defendant could not be guilty of both offenses. (Decided under prior law) Hardin v. Commonwealth, 437 S.W.2d 931, 1968 Ky. LEXIS 171 ( Ky. 1968 ).

Where there was no evidence whatever that the defendant did anything in Jefferson County unless it was inferable from his subsequent actions elsewhere that he took part in the larceny itself, there was no basis in the evidence for an instruction on receiving stolen property in Jefferson County. (Decided under prior law) Hardin v. Commonwealth, 437 S.W.2d 931, 1968 Ky. LEXIS 171 ( Ky. 1968 ).

Where the defendant was charged with receiving stolen property but in the court’s instructions it was not recited that the defendant must know that the property was stolen, the instruction was fatally defective. (Decided under prior law) Grider v. Commonwealth, 479 S.W.2d 11, 1972 Ky. LEXIS 285 ( Ky. 1972 ).

It was error for the trial court to refuse to instruct the jury on the offense of knowingly receiving stolen property of a value of less than $100 in defendant’s trial for first degree robbery. Conklin v. Commonwealth, 799 S.W.2d 582, 1990 Ky. LEXIS 135 ( Ky. 1990 ).

17.— Lesser Offenses.

One charged with knowingly receiving goods stolen from a railroad company in course of transportation is not entitled to an instruction on petit larceny. (Decided under prior law) Commonwealth v. Johnson, 181 Ky. 643 , 205 S.W. 689, 1918 Ky. LEXIS 589 ( Ky. 1918 ).

Where there was no evidence as to the value of the stolen goods, the failure to give a misdemeanor instruction was erroneous. (Decided under prior law) Coomer v. Commonwealth, 228 Ky. 98 , 14 S.W.2d 386, 1929 Ky. LEXIS 486 ( Ky. 1929 ); Lester v. Commonwealth, 252 Ky. 358 , 67 S.W.2d 485, 1934 Ky. LEXIS 788 ( Ky. 1934 ).

Where the proof indicated that property of much more than $20 in value was received, it was not error to give a misdemeanor instruction where value of the property exhibited to the jury was less than $20. (Decided under prior law) Hollowell v. Commonwealth, 233 Ky. 84 , 25 S.W.2d 73, 1930 Ky. LEXIS 518 ( Ky. 1930 ).

Reversible error occurred where there was a reasonable doubt presented as to the value of the stolen property and the trial court failed to instruct the jury that if a reasonable doubt existed as to the degree of the offense, the defendant should be convicted of the lesser degree. (Decided under prior law) Smith v. Commonwealth, 495 S.W.2d 770, 1973 Ky. LEXIS 405 ( Ky. 1973 ).

18.Jurisdiction.

Where stolen goods were received by agent in one county by orders of principal and conveyed to principal in another county, principal was guilty of knowingly receiving stolen goods in the county where received by his agent. (Decided under prior law) Newton v. Commonwealth, 158 Ky. 4 , 164 S.W. 108, 1914 Ky. LEXIS 556 ( Ky. 1914 ).

The court of the county in which the goods are received and not the county where the larceny is committed has jurisdiction. (Decided under prior law) Ellison v. Commonwealth, 190 Ky. 305 , 227 S.W. 458, 1921 Ky. LEXIS 437 ( Ky. 1921 ).

19.Lesser Included Offenses.

Because theft is a lesser included offense of robbery, a conviction for receiving stolen property also is a lesser included offense of robbery and is barred by the constitutional double jeopardy principle and by the limitations on prosecution for multiple offenses. Jones v. Commonwealth, 756 S.W.2d 462, 1988 Ky. LEXIS 49 ( Ky. 1988 ), limited, Moser v. Commonwealth, 799 S.W.2d 21, 1990 Ky. LEXIS 101 ( Ky. 1990 ), limited, Mhoney v. Kentucky (Ky. Ct. App. 1992), overruled, Commonwealth v. Burge, 947 S.W.2d 805, 1996 Ky. LEXIS 82 ( Ky. 1997 ).

Defendant’s proposed jury instruction on unauthorized use of an automobile, under KRS 514.100 , as a lesser included offense of the receiving stolen property offense he was charged with, under KRS 514.110 , was properly refused because no reasonable jury could find that defendant intended to return the vehicle he stole to its owner. Lawson v. Commonwealth, 85 S.W.3d 571, 2002 Ky. LEXIS 175 ( Ky. 2002 ).

20.Amendment.

KRS 514.110 was retroactively applied in a receiving stolen property case because the amended version of KRS 514.110 was an example of an amendment to a penalty provision that mitigated punishment within the meaning of KRS 446.110 , and there was consent to the application. Blake v. Commonwealth, 2012 Ky. App. LEXIS 26 (Ky. Ct. App. Feb. 10, 2012).

Cited:

Murphy v. Commonwealth, 551 S.W.2d 838, 1977 Ky. App. LEXIS 714 (Ky. Ct. App. 1977); Reed v. Commonwealth, 641 S.W.2d 748, 1982 Ky. LEXIS 313 ( Ky. 1982 ); James v. Commonwealth, 647 S.W.2d 794, 1983 Ky. LEXIS 230 ( Ky. 1983 ); Tuggle v. Seabold, 806 F.2d 87, 1986 U.S. App. LEXIS 33929 (6th Cir. 1986); Corbett v. Commonwealth, 717 S.W.2d 831, 1986 Ky. LEXIS 288 ( Ky. 1986 ); Roark v. Commonwealth, 90 S.W.3d 24, 2002 Ky. LEXIS 189 ( Ky. 2002 ), rehearing denied, 2002 Ky. LEXIS 251 ( Ky. 2002 ), rehearing denied, 2002 Ky. LEXIS 255 (Ky. 2002).

Research References and Practice Aids

Cross-References.

Stolen credit card, receipt, KRS 434.580 .

Kentucky Law Journal.

Kentucky Law Survey, Malone and Malone, Criminal Law, 69 Ky. L.J. 545 (1980-81).

Kentucky Law Survey, Fortune, Criminal Procedure, 73 Ky. L.J. 347 (1984-85).

Northern Kentucky Law Review.

Lotz, A Survey of Criminal Law Statutes Enacted in 1992, 20 N. Ky. L. Rev. 745 (1993).

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., General Principles, Part 1 Matters of Substance, §§ 1.07, 1.16.

Kentucky Instructions to Juries (Criminal), 5th Ed., Theft and Related Offenses, Part 3 Theft, § 6.54C.

Petrilli, Kentucky Family Law, Torts and Crimes, § 18.2.

514.120. Obscuring identity of machine or other property.

  1. A person is guilty of obscuring the identity of a machine or other property when he or she:
    1. Removes, defaces, covers, alters, destroys, or otherwise obscures the manufacturer’s serial number or any other distinguishing identification number or mark, including property marked with a Social Security number or motor vehicle operator’s license number for identification purposes, upon any automobile or other propelled vehicle, machine, or electrical or mechanical device, or other property, including any part thereof, with intent to render it or other property unidentifiable; or
    2. Possesses any automobile or other propelled vehicle, machine, or electrical or mechanical device, or other property, including any part thereof, knowing that the serial number or other identification number or mark, including property marked with a Social Security number for identification purposes, has been removed, defaced, covered, altered, destroyed, or otherwise obscured.
  2. Possession of any automobile or other propelled vehicle, machine, or electrical or mechanical device, or other property, including any part thereof, on which the serial number or any other distinguishing identification number or mark, including property marked with a Social Security number or motor vehicle operator’s license number for identification purposes, has been removed, defaced, covered, altered, destroyed, or otherwise obscured is prima facie evidence of knowledge of that fact.
  3. A person in possession of any property which is otherwise in violation of this section may apply in writing to the Department of Kentucky State Police, through any law enforcement agency in the county of his or her residence, for assignment of a number for the property providing he or she can show that he or she is the lawful owner of the property pursuant to the provisions of this section and KRS 16.200 and 500.090 . If a number is issued in conformity with the provisions of this section and KRS 16.200 and 500.090 , then the person to whom it was issued and any person to whom the property is lawfully disposed of shall not be in violation of these sections. A person lawfully holding a certification issued pursuant to KRS 500.090 shall also be deemed in compliance with this section. This section shall apply only when the application has been filed by the defendant prior to arrest or authorization of a warrant of arrest for the defendant by a court.
  4. Obscuring the identity of a machine or other property is a Class A misdemeanor unless the value of the property is:
    1. Five hundred dollars ($500) or more but less than ten thousand dollars ($10,000), in which case it is a Class D felony; or
    2. Ten thousand dollars ($10,000) or more, in which case it is a Class C felony.

History. Enact. Acts 1974, ch. 406, § 128, effective January 1, 1975; 1978, ch. 78, § 4, effective June 17, 1978; 1980, ch. 267, § 5, effective July 15, 1980; 1992, ch. 451, § 8, effective July 14, 1992; 2007, ch. 85, § 327, effective June 26, 2007; 2009, ch. 106, § 14, effective June 25, 2009.

NOTES TO DECISIONS

1.Instructions.

Where defendant was indicted on the charge of alone committing the offense of altering the motor serial number of a motor vehicle, court erred in instructing jury to find defendant guilty if he aided and abetted others in committing such offense, though he was not taken by surprise by such instruction, but was not so charged in the indictment. (Decided under prior law) Bailey v. Commonwealth, 295 Ky. 441 , 174 S.W.2d 719, 1943 Ky. LEXIS 264 ( Ky. 1943 ).

Opinions of Attorney General.

This section, regarding obscuring the identity of a machine, while not specific to National Firearms Act weapons, would apply to National Firearms Act weapons. OAG 91-153 .

Research References and Practice Aids

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., General Principles, Part 1 Matters of Substance, § 1.07.

Kentucky Instructions to Juries (Criminal), 5th Ed., Offenses Against Public Order, Safety and Morals, Part 4 Offenses Related to Firearms and Destructive Devices, §§ 8.61, 8.62.

Kentucky Instructions to Juries (Criminal), 5th Ed., Theft and Related Offenses, Part 3 Theft, §§ 6.56 — 6.59.

Petrilli, Kentucky Family Law, Torts and Crimes, § 18.2.

514.130. Seizure and forfeiture of certain property.

  1. Upon the conviction of any person for the violation of any offense in this chapter all property held in violation of this chapter, and any personal property, including but not limited to vehicles or aircraft, used in the commission or furtherance of an offense under this chapter or in the transportation of stolen property shall be forfeited as provided in KRS 500.090 by court order and sold, destroyed or otherwise disposed of in accordance with KRS 500.090 .
  2. Possession of a vehicle with a stolen major part or parts installed thereon shall be deemed to bring the entire vehicle within the provisions of subsection (1) of this section.
  3. For the purposes of this section a major part of an automobile or other propelled vehicle shall mean:
    1. The engine;
    2. The frame;
    3. The transmission;
    4. The front cap (“dog house”);
    5. The front clip;
    6. The rear clip;
    7. The top clip;
    8. The cowl clip;
    9. A door;
    10. A truck bed;
    11. A truck cab; or
    12. A vehicle body shell.
  4. It shall be the duty of every peace officer to seize any property which is subject to forfeiture under this section.

History. Enact. Acts 1980, ch. 267, § 6, effective July 15, 1980.

NOTES TO DECISIONS

1.Discretion of Court.

Since the use of the word “shall” is mandatory, when a statute mandates forfeiture of property used in a criminal offense as does subsection (1) of this section, the forfeiture amounts to an additional penalty for the offense and the trial court has no discretion whether to order forfeiture; therefore, upon finding that defendant’s vehicle had been used in the furtherance of the offense for which he was convicted, or in the transportation of stolen property, the trial court had no discretion whether to order forfeiture of the vehicle. Commonwealth v. Fint, 940 S.W.2d 896, 1997 Ky. LEXIS 28 ( Ky. 1997 ).

2.Excessive Fines Violation.

In prosecution for four counts of felony theft, forfeiture of truck valued at $1,874, which was used in commission or furtherance of the offenses, was not greatly disproportionate to the offense of theft of property valued at $18,000, nor more punitive than penalties imposed up other convicted criminals in Kentucky, more more punitive that penalties imposed for the commission of similar offenses in other jurisdictions, and thus such forfeiture did not violate the “excessive fines” clause of Ky. Const., § 17 nor the 8th Amendment of the U.S. Constitution.Commonwealth v. Fint, 940 S.W.2d 896, 1997 Ky. LEXIS 28 ( Ky. 1997 ).

When faced with a KRS 514.130(1) issue, a finding of fact must first be made as to whether the property in question was used in commission of the offense or in the transportation of stolen property, if so, and if the owner raises a constitutional defense to the forfeiture, then additional finding must be made using the guidelines set out in Solem v. Helm, 463 U.S. 277, 103 S. Ct. 3001, 77 L. Ed. 2d 637, 1983 U.S. LEXIS 93 (1983) in order to conclude whether application of the forfeiture statute would violated the “excessive fines” clauses of Ky. Const., § 17 and the 8th. Amendment of the U.S. Constitution and such findings will not be set aside on appeal unless clearly erroneous. Commonwealth v. Fint, 940 S.W.2d 896, 1997 Ky. LEXIS 28 ( Ky. 1997 ).

3.Forfeiture Upheld.

Where stolen property and a large amount of cash were being transported in a van when the defendant was stopped and arrested for driving under the influence, and he was later charged with knowingly receiving stolen property, the Commonwealth was entitled to retain control over the van and the cash until proceedings against the defendant had been completed. Commonwealth v. Batchelor, 714 S.W.2d 158, 1986 Ky. App. LEXIS 1201 (Ky. Ct. App. 1986).

4.Plea Agreement.

In prosecution for felony theft where plea agreement was silent on the issue of forfeiture and, at the sentencing hearing defense counsel admitted that the forfeiture was not discussed in the plea agreement, Commonwealth was not precluded from pursing forfeiture. Commonwealth v. Fint, 940 S.W.2d 896, 1997 Ky. LEXIS 28 ( Ky. 1997 ).

514.140. Theft of mail matter.

  1. A person is guilty of theft of mail matter when with intent to deprive the owner thereof he:
    1. Steals;
    2. By fraud or deception obtains;
    3. Embezzles;
    4. Conceals;
    5. Damages; or
    6. Destroys;

      any mail matter of another (including but not limited to any letter, postal card, package, bag, or other item) from any letterbox, mail receptacle, or other authorized depository for mail matter, or from a letter carrier, postal vehicle, or private mail box or which has been left for collection or delivery adjacent thereto by the United States Postal Service.

  2. Theft of mail matter is a Class D felony.

History. Enact. Acts 1982, ch. 425, § 1, effective July 15, 1982.

NOTES TO DECISIONS

Cited:

Commonwealth v. Griffin, 759 S.W.2d 68, 1988 Ky. LEXIS 65 ( Ky. 1988 ).

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Sellars, Criminal Law, 71 Ky. L.J. 355 (1982-83).

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Theft and Related Offenses, Part 3 Theft, § 6.51.

514.150. Possession of stolen mail matter.

  1. A person is guilty of possession of stolen mail matter when he knowingly or having reason to believe that it has been the subject of theft in violation of KRS 514.140 :
    1. Possesses;
    2. Buys;
    3. Receives;
    4. Conceals;
    5. Deals in; or
    6. Sells; any mail matter (as defined in KRS 514.140 ).
  2. Possession of stolen mail matter is a Class D felony.

History. Enact. Acts 1982, ch. 425, § 2, effective July 15, 1982.

NOTES TO DECISIONS

1.Instructions.

In prosecution for possession of stolen mail, the use of the language “knew or had reason to believe” in the jury instruction was proper since the phrase “or had reason to believe” is within the meaning of the term “knowingly” as used in KRS 501.030 and this section. Commonwealth v. Griffin, 759 S.W.2d 68, 1988 Ky. LEXIS 65 ( Ky. 1988 ).

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Sellars, Criminal Law, 71 Ky. L.J. 355 (1982-83).

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Assaults and Restraints of Persons, Part 1 Definitions, § 3.02.

Kentucky Instructions to Juries (Criminal), 5th Ed., Controlled Substances, Part 4 Miscellaneous KRS 218A Offenses, § 9.34C.

Kentucky Instructions to Juries (Criminal), 5th Ed., Offenses Related to Sex and Pornography, Part 7 Prostitution, § 4.74.

Kentucky Instructions to Juries (Criminal), 5th Ed., Theft and Related Offenses, Part 3 Theft, § 6.52.

Kentucky Instructions to Juries (Criminal), 5th Ed., Theft and Related Offenses, Part 5 Business and Commercial Frauds, § 6.93B.

514.160. Theft of identity.

  1. A person is guilty of the theft of the identity of another when he or she knowingly possesses or uses any current or former identifying information of the other person or family member or ancestor of the other person, such as that person’s or family member’s or ancestor’s name, address, telephone number, electronic mail address, Social Security number, driver’s license number, birth date, personal identification number or code, and any other information which could be used to identify the person, including unique biometric data, with the intent to represent that he or she is the other person for the purpose of:
    1. Depriving the other person of property;
    2. Obtaining benefits or property to which he or she would otherwise not be entitled;
    3. Making financial or credit transactions using the other person’s identity;
    4. Avoiding detection; or
    5. Commercial or political benefit.
  2. Theft of identity is a Class D felony. If the person violating this section is a business that has violated this section on more than one (1) occasion, then that person also violates the Consumer Protection Act, KRS 367.110 to 367.300.
  3. This section shall not apply when a person obtains the identity of another to misrepresent his or her age for the purpose of obtaining alcoholic beverages, tobacco, or another privilege denied to minors.
  4. This section does not apply to credit or debit card fraud under KRS 434.550 to 434.730 .
  5. Where the offense consists of theft by obtaining or trafficking in the personal identity of another person, the venue of the prosecution may be in either the county where the offense was committed or the county where the other person resides.
  6. A person found guilty of violating any provisions of this section shall forfeit any lawful claim to the identifying information, property, or other realized benefit of the other person as a result of such violation.

History. Enact. Acts 2000, ch. 174, § 1, effective July 14, 2000; 2002, ch. 175, § 8, effective July 15, 2002.

NOTES TO DECISIONS

1.Restitution.

Defendant’s argument that ordering him to pay an auto sales company restitution would allow a retail business to seek restitution under KRS 532.034 when one purchased goods at the business using a credit card obtained with another’s identifying information was unfounded because KRS 514.160(4) provided that the identity theft statute did not apply to credit or debit card fraud. Russell v. Commonwealth, 239 S.W.3d 578, 2007 Ky. App. LEXIS 417 (Ky. Ct. App. 2007).

2.Elements.

Defendant’s actions in using another individual’s name and Social Security number when he was stopped for speeding fit the plain language of the identity theft statute, KRS 514.160(1)(d), as he admitted that he used the other identity as an alias to avoid detection. Crouch v. Commonwealth, 2009 Ky. App. LEXIS 13 (Ky. Ct. App. Feb. 6, 2009), aff'd, 323 S.W.3d 668, 2010 Ky. LEXIS 161 ( Ky. 2010 ).

Although identity theft is stated as a “theft” offense, the statute does not require that there be some sort of pecuniary benefit that arises from the use of another individual’s identity; thus, the fact that defendant did not receive any pecuniary benefit when he used the name and Social Security number of another individual as an alias to avoid detection did not preclude his conviction on a charge of identity theft. Crouch v. Commonwealth, 2009 Ky. App. LEXIS 13 (Ky. Ct. App. Feb. 6, 2009), aff'd, 323 S.W.3d 668, 2010 Ky. LEXIS 161 ( Ky. 2010 ).

Defendant was properly convicted of felony theft of identity under KRS 514.160(1) despite defendant’s claim that defendant should have been prosecuted for the misdemeanor offense of giving a false name to a police officer under KRS 523.110(1); defendant gave another person’s name and social security number to police, each of which was specifically mentioned as being identifying information sufficient to subject someone to a theft of identity charge. Crouch v. Commonwealth, 323 S.W.3d 668, 2010 Ky. LEXIS 161 ( Ky. 2010 ).

3.Jury instruction.

Trial court erred in denying defendant's request for an instruction on giving a false name to a peace officer because the false-name charge was a lesser-included offense to the charge against defendant of theft of identity and the evidence supported an instruction on both charges. When a police officer asked defendant for defendant's identity during a traffic stop, defendant gave the officer the name of defendant's sibling and a false date of birth before eventually giving the officer defendant's true identity. Stephenson v. Commonwealth, 2017 Ky. App. LEXIS 750 (Ky. Ct. App. Dec. 1, 2017, sub. op., 2017 Ky. App. Unpub. LEXIS 943 (Ky. Ct. App. Dec. 1, 2017).

Cited:

Hyshaw v. State, 893 So. 2d 1239, 2003 Ala. Crim. App. LEXIS 194 (Ala. Crim. App. 2003), rehearing denied, 2003 Ala. Crim. App. LEXIS 2906 (Ala. Crim. App. Oct. 24, 2003).

Research References and Practice Aids

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Theft and Related Offenses, Part 3 Theft, § 6.53A.

514.170. Trafficking in stolen identities.

  1. A person is guilty of trafficking in stolen identities when he or she manufactures, sells, transfers, or purchases, or possesses with the intent to manufacture, sell, transfer, or purchase the personal identity of another person or persons for any purpose listed in KRS 514.160(1). The personal identity of an individual includes any of the identifying information described in KRS 514.160(1).
  2. Possession of five (5) or more separate identities shall be prima facie evidence that the identities are possessed for the purpose of trafficking.
  3. Trafficking in stolen identities is a Class C felony. If the person violating this section is a business that has violated this section on more than one (1) occasion, then that person also violates the Consumer Protection Act, KRS 367.110 to 367.300.

History. Enact. Acts 2000, ch. 174, § 2, effective July 14, 2000; 2002, ch. 175, § 9, effective July 15, 2002.

Research References and Practice Aids

Treatises

Kentucky Instructions to Juries (Criminal), 5th Ed., Theft and Related Offenses, Part 3 Theft, § 6.53B.

CHAPTER 515 Robbery

515.010. Definition.

The following definition applies in this chapter, unless the context otherwise requires:

“Physical force” means force used upon or directed toward the body of another person.

History. Enact. Acts 1974, ch. 406, § 129, effective January 1, 1975.

NOTES TO DECISIONS

1.Sentencing.

District court properly classified defendant as armed career criminal because his Kentucky first-degree robbery convictions qualified as violent felonies under Armed Career Criminal Act. United States v. Ingram, 733 Fed. Appx. 812, 2018 FED App. 0244N, 2018 U.S. App. LEXIS 12549 (6th Cir. Ky. 2018 ); United States v. Ingram, 733 Fed. Appx. 812, 2018 FED App. 0244N, 2018 U.S. App. LEXIS 12549 (6th Cir. Ky. 2018 ).

Research References and Practice Aids

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Theft and Related Offenses, Part 1 Defintions, § 6.01.

515.020. Robbery in the first degree.

  1. A person is guilty of robbery in the first degree when, in the course of committing theft, he uses or threatens the immediate use of physical force upon another person with intent to accomplish the theft and when he:
    1. Causes physical injury to any person who is not a participant in the crime; or
    2. Is armed with a deadly weapon; or
    3. Uses or threatens the immediate use of a dangerous instrument upon any person who is not a participant in the crime.
  2. Robbery in the first degree is a Class B felony.

History. Enact. Acts 1974, ch. 406, § 130, effective January 1, 1975.

NOTES TO DECISIONS

Analysis

1.In General.

Offense of armed assault with intent to rob charges one offense that may be committed in two ways, that is, by assaulting another with offensive weapon with intent to rob, or commit robbery of such person, or by demanding money or property in a forcible, or violent manner with like intent from any other person. (Decided under prior law) Terrill v. Commonwealth, 248 Ky. 613 , 59 S.W.2d 564, 1933 Ky. LEXIS 289 ( Ky. 1933 ); Knuckles v. Commonwealth, 261 S.W.2d 667, 1953 Ky. LEXIS 1046 ( Ky. 1953 ); Maise v. Commonwealth, 380 S.W.2d 230, 1964 Ky. LEXIS 290 ( Ky. 1964 ); Robards v. Commonwealth, 419 S.W.2d 570, 1967 Ky. LEXIS 168 ( Ky. 1967 ); Bailey v. Commonwealth, 483 S.W.2d 112, 1972 Ky. LEXIS 166 ( Ky. 1972 ).

Taking property from another by stealth, trick, artifice or fraud is not robbery in the absence of force or circumstances calculated to produce fear. (Decided under prior law) Correll v. Commonwealth, 317 S.W.2d 886, 1958 Ky. LEXIS 112 ( Ky. 1958 ).

The first-degree robbery provision should be viewed as a deterrent to assaulting an individual, while armed, with the intention of unlawfully obtaining his property whether any of that property is actually taken or not. Lamb v. Commonwealth, 599 S.W.2d 462, 1979 Ky. App. LEXIS 531 (Ky. Ct. App. 1979).

Robbery has always been an offense against a person and required force or threat of force against a person in order to constitute a crime. Ross v. Commonwealth, 710 S.W.2d 229, 1986 Ky. LEXIS 270 ( Ky. 1986 ), overruled, Morgan v. Commonwealth, 730 S.W.2d 935, 1987 Ky. LEXIS 209 ( Ky. 1987 ).

That which separates first and second-degree robbery is physical injury or the involvement of either a weapon which by its very nature is deadly or an instrument which can be so employed. Williams v. Commonwealth, 721 S.W.2d 710, 1986 Ky. LEXIS 308 ( Ky. 1986 ).

2.Construction.

The fair import of the term “in the course of committing theft” is construed to include the time, place and circumstances surrounding a theft or attempted theft and this encompasses the escape stage. The fair import of the meaning of “escape stage” is all steps or events in the process of escape which would fall within the active or continuous pursuit of the criminal actor. Williams v. Commonwealth, 639 S.W.2d 786, 1982 Ky. App. LEXIS 255 (Ky. Ct. App. 1982).

A person is “in the course of committing a theft” when he holds a gun on the victim and threatens him while a coperpetrator searches the victim’s person for cash. Commonwealth v. Smith, 5 S.W.3d 126, 1999 Ky. LEXIS 154 ( Ky. 1999 ), overruled in part, Fischer v. Fischer, 348 S.W.3d 582, 2011 Ky. LEXIS 37 ( Ky. 2011 ).

3.Double Jeopardy.

Armed robbery and murder are not identical offenses although each is a part of one general transaction and, therefore, defendants convicted of armed robbery may later be tried for the subsequent death of the robbery victim. (Decided under prior law) Centers v. Commonwealth, 318 S.W.2d 57, 1958 Ky. LEXIS 129 ( Ky. 1958 ).

Amendment of the indictment at the close of the evidence in a trial for robbery and assault so as to change the name of robbery victim, did not prejudice the defendant or expose him to double jeopardy. Watkins v. Commonwealth, 565 S.W.2d 630, 1978 Ky. LEXIS 356 ( Ky. 1978 ).

No aspect of the double jeopardy doctrine precluded defendant’s retrial on lesser included offenses of first and second degree assault, where defendant was first tried on a charge of first-degree robbery, that trial ending in a mistrial because the jury could not agree on a verdict, since he could have been retried on the greater crime of robbery in the first degree. Commonwealth v. Varney, 690 S.W.2d 758, 1985 Ky. LEXIS 211 ( Ky. 1985 ), overruled, Goodman v. Commonwealth, 2015 Ky. Unpub. LEXIS 19 (Ky. Feb. 19, 2015).

Convictions for both conspiracy to commit first degree robbery and accomplice to second degree assault did not violate defendants’ constitutional and statutory right against double jeopardy. Wilson v. Commonwealth, 695 S.W.2d 854 ( Ky. 1985 ).

Although the theft of the vehicle was, in reality, a part of the first degree robbery and not a separate offense as charged in the indictment, defendant’s plea of guilty to theft did not attach double jeopardy so that he could not be convicted, at the same trial, of first degree robbery. Jordan v. Commonwealth, 703 S.W.2d 870, 1985 Ky. LEXIS 269 ( Ky. 1985 ).

Burglary is basically an offense against property inasmuch as it mandates unlawful entry into a building to obtain a conviction; however, such entry is not a part of the evidence necessary to convict of first degree robbery which is an offense against persons. Therefore, robbery and burglary are separate offenses and prosecution for both is not double jeopardy. Jordan v. Commonwealth, 703 S.W.2d 870, 1985 Ky. LEXIS 269 ( Ky. 1985 ).

Since all of the elements of theft as set forth in KRS 514.030 are incorporated into the robbery statute, the defendant would be subject to double jeopardy if charged with, and convicted of both. McKee v. Commonwealth, 720 S.W.2d 343, 1986 Ky. App. LEXIS 1451 (Ky. Ct. App. 1986).

Actual infliction of physical injury to the victim by a dangerous instrument was not required to convict defendant of complicity to robbery in the first degree under KRS 515.020 , nor was the theft required for conviction of complicity to second degree assault under KRS 508.020 ; both of the statutes had different elements that had to be proved in finding guilt under the respective instructions. Thus, the double jeopardy rule was not violated. Fields v. Commonwealth, 219 S.W.3d 742, 2007 Ky. LEXIS 92 ( Ky. 2007 ).

Defendant’s convictions for first-degree robbery under KRS 515.020 and first-degree unlawful access to a computer under KRS 434.845 did not violate the double jeopardy clause under either Ky. Const. § 13 or the Double Jeopardy Clause of the Fifth Amendment, U.S. Const. amend. V. Each offense had at least one element that the other offense did not and, indeed, the two offenses did not even share a common element, nor did the legislature indicate that it did not intend convictions could be obtained for both offenses in the same case. Day v. Commonwealth, 367 S.W.3d 616, 2012 Ky. App. LEXIS 74 (Ky. Ct. App. 2012).

4.Due Process.

Refusal of the court to permit jury to visit the scene of the crime was a matter within its discretion, and where the purpose of such visit involved the clarification of immaterial testimony such refusal was justified. (Decided under prior law) MacOm v. Commonwealth, 302 Ky. 136 , 194 S.W.2d 169, 1946 Ky. LEXIS 623 ( Ky. 1946 ).

On a plea of guilty it was proper to allow the jury to consider evidence as to the flight and pursuit, the killing of police officer and the attempted escape from custody as well as the defendant’s confession in order to set a punishment though an admonition as to the purpose for which this evidence could be considered should be given. (Decided under prior law) Commonwealth v. Howard, 287 S.W.2d 926, 1955 Ky. LEXIS 125 ( Ky. 1955 ).

Where there was nothing in the evidence adduced either for or against the other defendants that would not have been admissible in a separate trial of the appellant, the appellant was not entitled to a separate trial. (Decided under prior law) Abernathy v. Commonwealth, 439 S.W.2d 949, 1969 Ky. LEXIS 383 ( Ky. 1969 ), overruled in part, Blake v. Commonwealth, 646 S.W.2d 718, 1983 Ky. LEXIS 223 ( Ky. 1983 ).

A fair trial was not denied to the accused where he was tried jointly for armed robbery and violation of the habitual criminal statute. (Decided under prior law) Murray v. Commonwealth, 474 S.W.2d 359, 1971 Ky. LEXIS 102 ( Ky. 1971 ).

Where the police were given a description of suspects and their automobile, sufficiently specific to enable the police to identify the automobile and its occupants, the police had probable cause after a robbery to stop the vehicle and detain its occupants and thus were justified in searching the automobile without a warrant for firearms and fruits of the robbery. (Decided under prior law) Wydman v. Commonwealth, 512 S.W.2d 507, 1974 Ky. LEXIS 399 ( Ky. 1974 ).

Where the prosecuting attorney, in seeking to impeach testimony which attempted to exonerate the defendant in a robbery prosecution, inquired whether the witness and the defendant were cell mates or were “intimate friends,” such question was not improper. Cane v. Commonwealth, 556 S.W.2d 902, 1977 Ky. App. LEXIS 821 (Ky. Ct. App. 1977), cert. denied, 437 U.S. 906, 98 S. Ct. 3094, 57 L. Ed. 2d 1136, 1978 U.S. LEXIS 2299 (U.S. 1978).

5.—Joinder of Charges.

The joinder of a charge of escape with three charges of armed robbery was error, but, in light of the overwhelming evidence of guilt the error was nonprejudicial and therefore harmless. Sears v. Commonwealth, 561 S.W.2d 672, 1979 Ky. LEXIS 217 ( Ky. 1979 ).

Although the guilty plea to the theft of the car did not attach jeopardy to the further prosecution for first degree robbery, the theft should have been included in the prosecution for robbery; therefore, an affirmance by the supreme court would constitute impermissible enhancement of the penalty, and it must be set aside. Jordan v. Commonwealth, 703 S.W.2d 870, 1985 Ky. LEXIS 269 ( Ky. 1985 ).

6.—Probable Cause for Arrest.

Where a reliable informant told police that the perpetrator of a robbery was at a certain location and surveillance was being conducted at that location, there was probable cause for defendant’s arrest on charges of armed robbery. Mann v. Commonwealth, 561 S.W.2d 335, 1978 Ky. App. LEXIS 463 (Ky. Ct. App. 1978).

Where it was inferable that police had been led to defendant by information from the man from whom the defendant allegedly obtained the gun he used in his armed robbery, and where, in any event, three victims had supplied to the police a description fitting the defendant, there was probable cause for the defendant’s arrest. Roberts v. Commonwealth, 572 S.W.2d 598, 1978 Ky. LEXIS 403 ( Ky. 1978 ).

7.—Prosecutor’s Comments.

In a robbery prosecution, the Commonwealth attorney’s conduct, in closing speech, in referring to a previous conviction of other parties, in misquoting the defendant and referring to a crowd that “defied everybody and machine gunned the officers” was prejudicial, and the trial court erred in failing to protect the defendant’s rights. (Decided under prior law) Bowling v. Commonwealth, 279 S.W.2d 23, 1955 Ky. LEXIS 508 ( Ky. 1955 ).

It was not prejudicial error for the prosecution to state in its closing argument that the facts did not warrant the imprisonment of the death penalty and that if such were given, the verdict would probably be overruled by the Court of Appeals. (Decided under prior law) Goings v. Commonwealth, 476 S.W.2d 825, 1972 Ky. LEXIS 393 ( Ky. 1972 ).

Where the trial court permitted the prosecutor to comment on the prior conviction of a defendant in a robbery prosecution but the prosecutor limited his remarks to the question of whether or not such conviction tended to lessen the defendant’s credibility, there was no prejudicial error. Risinger v. Commonwealth, 556 S.W.2d 177, 1977 Ky. App. LEXIS 815 (Ky. Ct. App. 1977).

Where, in closing argument, the Commonwealth’s attorney directed the jury’s attention to the boots worn by defendant which were similar to those stolen during a robbery but were different in color, the comment did not deny the constitutional right of confrontation, the right to present a defense or the right to a fair trial, but was simply an expression of the prosecutor’s opinion of the defendant’s guilt and was based on the evidence of record, and was proper. Sears v. Commonwealth, 561 S.W.2d 672, 1979 Ky. LEXIS 217 ( Ky. 1979 ).

Where, in his summation to the jury, the Commonwealth’s attorney said “ . . . . . They almost beat him to death and left his eye laying out on his cheek and left him laying there handcuffed, bleeding all over. Suppose that you run a store and somebody comes in on you and does that to you. What’s it worth?” the trial judge should have sustained the objection and should have admonished the jury not to consider the statement for any purpose. Lycans v. Commonwealth, 562 S.W.2d 303, 1978 Ky. LEXIS 321 ( Ky. 1978 ).

Remarks in the prosecutor’s closing argument to the effect that punishment would serve to deter other criminals and that armed robbery could easily escalate into murder under some circumstances did not constitute the giving of material testimony so as to violate the right to confrontation nor were they an appeal to prejudice. Lynem v. Commonwealth, 565 S.W.2d 141, 1978 Ky. LEXIS 349 ( Ky. 1978 ).

Where the defendant, upon arrest, first stated he could not remember where he was at the time of the robberies, then gave conflicting answers as alibis, prosecutor’s comments on defendant’s silence at time of arrest were not reversible error since the defendant was not, in fact, silent and since defense counsel raised no objection. Hockenbury v. Commonwealth, 565 S.W.2d 448, 1978 Ky. LEXIS 354 ( Ky. 1978 ).

8.—Speedy Trial.

An 11 and one-half month delay from the date of the defendant’s arrest to the date of his trial, during which time the prosecution obtained five continuances over the speedy trial objections of the defendant, was presumptively prejudicial in light of the fact that it was a “mundane garden variety” type robbery case in which the prosecution had no serious problem of marshalling evidence or setting trial strategy. Cain v. Smith, 686 F.2d 374, 1982 U.S. App. LEXIS 17651 (6th Cir. Ky. 1982 ).

9.—Venue.

Where a defendant indicted for armed robbery commenced the crime in one county and continued it in a second county, he could be indicted for the crime in both counties. (Decided under prior law) Tipton v. Commonwealth, 456 S.W.2d 681, 1970 Ky. LEXIS 225 ( Ky. 1970 ).

9.Separate Offenses.

Where defendant approached a co-worker whom he believed had stolen drugs and money from him, where the co-worker gave defendant money and a cellular phone, where defendant kept the money, which he claimed to rightfully be his, and because he believed that the co-worker still had the drugs, kicked the co-worker between the legs and in the face while wearing steel toe shoes, and where defendant was charged with first-degree robbery, the trial court erred in instructing the jury that second-degree assault under KRS 508.020(1)(b) was a lesser-included offense of first-degree robbery under KRS 515.020(1)(a) because (1) the existence of the use of a deadly a deadly weapon had to be established by proof of more of the facts required to establish the commission of robbery; (2) the offense of assault was not the offense of attempted robbery; and (3) assault, under the circumstances of the case, required the completely separate element of the use of a deadly weapon; thus, it did not differ from robbery only in the respect that a lesser kind of culpability suffices to establish its commission, or in the respect that a less serious injury or risk of injury to the same person, property, or public interest suffices to establish its commission. Howell v. Commonwealth, 296 S.W.3d 430, 2009 Ky. App. LEXIS 149 (Ky. Ct. App. 2009).

10.Elements.

In prosecutions for assault with intent to rob, gravamen of offense is felonious intent and not the taking, and as against the robber, person robbed is regarded as the owner of property whereof he was robbed. (Decided under prior law) Lamb v. Commonwealth, 266 Ky. 561 , 99 S.W.2d 441, 1936 Ky. LEXIS 686 ( Ky. 1936 ).

Where evidence in prosecution for robbery was that defendant and companion, after spending night in jail cell with another prisoner who had “passed out,” were found to have hidden on their persons money which their cellmate had when he was placed in the cell, and both defendant and his companion denied having taken the money, defendant, if guilty at all, was guilty as a principal and could not claim to be an accessory after the fact on the theory that companion took the money and later divided it with defendant. (Decided under prior law) White v. Commonwealth, 301 Ky. 228 , 191 S.W.2d 244, 1945 Ky. LEXIS 722 ( Ky. 1945 ).

The gravamen of the statutory crime of assault with intent to rob is the assault with the intent. (Decided under prior law) Gapoian v. Commonwealth, 302 Ky. 867 , 196 S.W.2d 744, 1946 Ky. LEXIS 776 ( Ky. 1946 ).

The statutory offense of assault with offensive weapon with intent to rob may be a degree of armed robbery if the purpose of the assault was not consummated, as where the culprit failed to take the property because he was frightened away after the assault. (Decided under prior law) Gapoian v. Commonwealth, 302 Ky. 867 , 196 S.W.2d 744, 1946 Ky. LEXIS 776 ( Ky. 1946 ).

Persons who associate together to commit robbery and who assist or are present and ready to aid or do aid in its commission are all guilty of the crime. (Decided under prior law) Tinsley v. Commonwealth, 273 S.W.2d 364, 1954 Ky. LEXIS 1162 ( Ky. 1954 ).

Robbery has been consistently defined as “the act of feloniously and forcibly taking from the person of another goods or money by violence or by putting him in fear.” (Decided under prior law) Correll v. Commonwealth, 317 S.W.2d 886, 1958 Ky. LEXIS 112 ( Ky. 1958 ).

Taking another’s property with the consent of the owner rather than by use of force or intimidation is not robbery. (Decided under prior law) Correll v. Commonwealth, 317 S.W.2d 886, 1958 Ky. LEXIS 112 ( Ky. 1958 ).

Where the defendant threatened the victim with a knife in the same period of time that the defendant’s companion took a box of money the crime was armed robbery and not larceny. (Decided under prior law) Montgomery v. Commonwealth, 346 S.W.2d 479, 1961 Ky. LEXIS 308 ( Ky. 1961 ).

The distinguishing characteristics of “robbery” are that taking of property is from person or in immediate presence of one in possession thereof and accomplished either by force or violence or by intimidation, actual or constructive, of such nature as to put person in fear or cause reasonable apprehension of danger. (Decided under prior law) Montgomery v. Commonwealth, 346 S.W.2d 479, 1961 Ky. LEXIS 308 ( Ky. 1961 ).

The gravamen of an assault with an offensive weapon with intent to rob is the assault and the offense may be consummated without a robbery or taking of property so long as there is an intent to rob. (Decided under prior law) Bailey v. Commonwealth, 483 S.W.2d 112, 1972 Ky. LEXIS 166 ( Ky. 1972 ).

The nonexistence of a claim of right is not an element of theft, but rather the existence of such a claim is a defense to a charge of theft; however the legislature has chosen to provide no such defense to a theft which constitutes a robbery. Smith v. Commonwealth, 587 S.W.2d 266, 1979 Ky. App. LEXIS 466 (Ky. Ct. App. 1979).

The number of counts for which a defendant may be convicted of robbery is dependent upon the number of persons subjected to the provisions of this section, not upon the ownership of the property taken. Ross v. Commonwealth, 710 S.W.2d 229, 1986 Ky. LEXIS 270 ( Ky. 1986 ), overruled, Morgan v. Commonwealth, 730 S.W.2d 935, 1987 Ky. LEXIS 209 ( Ky. 1987 ), overruled in part, Morgan v. Commonwealth, 730 S.W.2d 935, 1987 Ky. LEXIS 209 ( Ky. 1987 ); overruled on other grounds, Morgan v. Commonwealth, 730 S.W.2d 935, 1987 Ky. LEXIS 209 (Ky. 1987), overruled, Hobson v. Commonwealth, 306 S.W.3d 478, 2010 Ky. LEXIS 67 ( Ky. 2010 ).

This section requires proof of the use, or the threat of use, of immediate physical force against another person during the course of the commission of theft, plus proof that the perpetrator of the crime was armed with a deadly weapon, used or threatened the use of a dangerous instrument upon a person who was not a participant in the crime, or caused physical injury to any person who was not a participant in the crime; it does not require proof that the theft of property be from the person against whom the force was used or threatened. Morgan v. Commonwealth, 730 S.W.2d 935, 1987 Ky. LEXIS 209 ( Ky. 1987 ), overruled, Hobson v. Commonwealth, 306 S.W.3d 478, 2010 Ky. LEXIS 67 ( Ky. 2010 ).

Whereas theft has always been considered to be a crime against property, the distinguishing element between theft and robbery is the additional element of the use, or the threat of immediate use, of physical force against a person. Morgan v. Commonwealth, 730 S.W.2d 935, 1987 Ky. LEXIS 209 ( Ky. 1987 ), overruled, Hobson v. Commonwealth, 306 S.W.3d 478, 2010 Ky. LEXIS 67 ( Ky. 2010 ).

In Williams v. Commonwealth, 730 S.W.2d 935, 1987 Ky. LEXIS 209 (Ky. App. 1987), and consequently in Bumphis v. Commonwealth, 235 S.W.3d 562, 2007 Ky. App. LEXIS 144 (Ky. App. 2007), the Kentucky Court of Appeals misconstrued the penal code commentary and misinterpreted the language of the robbery statute, and the cases were overruled; the cases were correct to the extent that they held that physical force used or threatened in a getaway, or escape, phase is still in the course of committing theft, but the cases erred in disconnecting the physical force element from the requirement that the use or threat of force be done with the intent to accomplish the theft. Hobson v. Commonwealth, 306 S.W.3d 478, 2010 Ky. LEXIS 67 ( Ky. 2010 ).

The number of counts for which defendant may be convicted of robbery is dependent upon the number of persons subjected to the provisions of this section. Stark v. Commonwealth, 828 S.W.2d 603, 1991 Ky. LEXIS 177 ( Ky. 1991 ), overruled, Thomas v. Commonwealth, 931 S.W.2d 446, 1996 Ky. LEXIS 89 ( Ky. 1996 ).

Defendant’s conviction for first-degree robbery could not be sustained because (1) defendant neither used, nor threatened to use, force against another until his struggle with a police officer in the parking lot after he fled the store; (2) his attempted theft had ended before the altercation; (3) when defendant fought with the officer, he had no intention to accomplish the theft, but, rather, was attempting to avoid arrest and prosecution; and (4) the altercation could not satisfy the physical force element of KRS 515.020 as his use of force against the officer was not with intent to accomplish the theft. Hobson v. Commonwealth, 306 S.W.3d 478, 2010 Ky. LEXIS 67 ( Ky. 2010 ).

11.—Deadly Weapon or Dangerous Instrument.

“Offensive weapon or instrument” as defined in law that provided penalty for armed assault with intent to rob did not have same meaning as “deadly weapon,” since first mentioned law did not require striking, wounding, injuring or battery of the person intended to be robbed. (Decided under prior law) Murphy v. Commonwealth, 255 Ky. 676 , 75 S.W.2d 341, 1934 Ky. LEXIS 313 ( Ky. 1934 ).

If the defendant who attacked a jailer with a chain and robbed him of money and keys used the chain in such a manner as to constitute a deadly weapon he could be indicted for armed robbery. (Decided under prior law) Jones v. Commonwealth, 303 Ky. 106 , 196 S.W.2d 972, 1946 Ky. LEXIS 795 ( Ky. 1946 ).

Evidence that the defendant merely twirled a pistol around and made no threat to use it did not preclude a conviction for armed robbery as the mere display of a weapon to create fear is sufficient. (Decided under prior law) Howard v. Commonwealth, 313 Ky. 667 , 233 S.W.2d 282, 1950 Ky. LEXIS 954 ( Ky. 1950 ).

Pocket knife with three (3) inch blade was deadly weapon as a matter of law. (Decided under prior law) Mason v. Commonwealth, 396 S.W.2d 797, 1965 Ky. LEXIS 130 ( Ky. 1965 ).

Under law that provided penalty for armed robbery any object that was intended by its user to convince the victim that it was a deadly weapon and did so convince the victim, was a deadly weapon, and so an instruction on simple robbery when such a weapon was used was not required. (Decided under prior law) Merritt v. Commonwealth, 386 S.W.2d 727, 1965 Ky. LEXIS 52 2 ( Ky. 1965 ), overruled, Wilburn v. Commonwealth, 312 S.W.3d 321, 2010 Ky. LEXIS 52 ( Ky. 2010 ).

Rule that “any object” intended by its user to convince the victim that it is a pistol or other deadly weapon, and does so convince him, under Merritt v. Commonwealth, 386 S.W.2d 727, 1965 Ky. LEXIS 52 2 ( Ky. 1965 ), is overruled as being inapplicable to KRS 500.080 . To the extent that they apply Merritt over the statutes currently defining robbery committed with the use of a deadly weapon, Kennedy v. Commonwealth, 544 S.W.2d 219, 1976 Ky. LEXIS 18 ( Ky. 1977 ) and Helpenstine v. Commonwealth, 566 S.W.2d 415, 416, 1978 Ky. LEXIS 361 ( Ky. 1978 ), are overruled. Wilburn v. Commonwealth, 312 S.W.3d 321, 2010 Ky. LEXIS 52 ( Ky. 2010 ).

Any object can be a deadly weapon if it is intended by its user to convince a victim that it is deadly and if the victim was in fact convinced. Kennedy v. Commonwealth, 544 S.W.2d 219, 1976 Ky. LEXIS 18 ( Ky. 1976 ), overruled in part, Wilburn v. Commonwealth, 312 S.W.3d 321, 2010 Ky. LEXIS 52 ( Ky. 2010 ).

Whether an instrument used in the course of a robbery is or is not a deadly weapon is a matter to be determined by the court as a matter of law. Little v. Commonwealth, 550 S.W.2d 492, 1977 Ky. LEXIS 423 ( Ky. 1977 ).

A pistol is a “deadly weapon” while other objects may or may not be “dangerous instruments” depending upon the circumstances of use, and an indictment for robbery need only refer to a pistol, not to a “dangerous instrument” though the use of the latter term would not put the Commonwealth to any further proof with regard to the pistol. Mishler v. Commonwealth, 556 S.W.2d 676, 1977 Ky. LEXIS 525 ( Ky. 1977 ).

Lack of evidence showing a pistol was loaded or capable of firing did not constitute a failure to prove use of a deadly weapon in a robbery. Mishler v. Commonwealth, 556 S.W.2d 676, 1977 Ky. LEXIS 525 ( Ky. 1977 ).

Where the person using a sawed-off shotgun in a robbery of a store clearly intended to convince the employees that it was capable of causing death or other serious physical injury, and the store employees were in fact so convinced, the sawed-off shotgun would be a deadly weapon even if it were inoperable. Bishop v. Commonwealth, 549 S.W.2d 519, 1977 Ky. App. LEXIS 667 (Ky. Ct. App. 1977).

While the crime of armed robbery is committed if the robber is merely armed with a deadly weapon, he must actually use or threaten to use a dangerous instrument in order to commit armed robbery. Meadows v. Commonwealth, 551 S.W.2d 253, 1977 Ky. App. LEXIS 719 (Ky. Ct. App. 1977).

Where the trial court instructed the jury that the defendants could be found guilty of robbery in the first degree if, among other things, they “threatened the immediate use of physical force upon Jack Snodgrass by pointing a pistol at him,” such instruction was correct since a pistol is a deadly weapon. Helpenstine v. Commonwealth, 566 S.W.2d 415, 1978 Ky. LEXIS 361 ( Ky. 1978 ), overruled in part, Wilburn v. Commonwealth, 312 S.W.3d 321, 2010 Ky. LEXIS 52 ( Ky. 2010 ).

Although not every “dangerous instrument” is a “deadly weapon,” a “deadly weapon” ordinarily is a “dangerous instrument” as well. Whorton v. Commonwealth, 570 S.W.2d 627, 1978 Ky. LEXIS 391 ( Ky. 1978 ), rev'd, 441 U.S. 786, 99 S. Ct. 2088, 60 L. Ed. 2d 640, 1979 U.S. LEXIS 105 (U.S. 1979), overruled, Polk v. Commonwealth, 679 S.W.2d 231, 1984 Ky. LEXIS 295 ( Ky. 1984 ).

Defendant’s use of a pistol in firing a shot into the ceiling of a restaurant did not constitute an offense separate from the first-degree robbery charge for which he was being tried and was convicted and he could have been found guilty of first-degree robbery either on the basis of his having been armed with a deadly weapon or on the basis of his having used or threatened to use that weapon. Whorton v. Commonwealth, 570 S.W.2d 627, 1978 Ky. LEXIS 391 ( Ky. 1978 ), rev'd, 441 U.S. 786, 99 S. Ct. 2088, 60 L. Ed. 2d 640, 1979 U.S. LEXIS 105 (U.S. 1979), overruled, Polk v. Commonwealth, 679 S.W.2d 231, 1984 Ky. LEXIS 295 ( Ky. 1984 ).

A person is guilty of first-degree robbery when he is armed with a deadly weapon and threatens the use of deadly force upon another person while in the course of committing theft. Douglas v. Commonwealth, 586 S.W.2d 16, 1979 Ky. LEXIS 277 ( Ky. 1979 ), overruled, Ross v. Commonwealth, 710 S.W.2d 229, 1986 Ky. LEXIS 270 ( Ky. 1986 ).

Where defendant displayed knife to prevent pursuit after theft of clothes was completed, robbery in the first degree was committed and the fact that force was used sometime after and some distance from the taking was only incidental. The force used was in the course of committing the theft because it happened during the escape stage. Williams v. Commonwealth, 639 S.W.2d 786, 1982 Ky. App. LEXIS 255 (Ky. Ct. App. 1982).

The defendant was not entitled to the attempted second-degree robbery instruction because the gun was inoperable; an inoperable weapon is a deadly weapon if defendant intends to convince the victim it is deadly. Prather v. Rees, 822 F.2d 1418, 1987 U.S. App. LEXIS 8485 (6th Cir. Ky. 1987 ).

The trial court properly submitted first-degree robbery to the jury even though the pistol used in the robbery by the defendant was not capable of being fired, where the defendant believed that the pistol was capable of firing. Commonwealth v. Sanders, 736 S.W.2d 338, 1987 Ky. LEXIS 241 ( Ky. 1987 ).

To support a conviction for first-degree robbery, the entire object need not be observed. Bank teller testified that she saw what she believed to be the butt of a handgun. Bank teller’s testimony was not that she merely observed an unidentified bulge; instead, bank teller testified that she visually observed a portion of the object and this was sufficient to constitute a deadly weapon or dangerous instrument. Lambert v. Commonwealth, 835 S.W.2d 299, 1992 Ky. App. LEXIS 185 (Ky. Ct. App. 1992).

Acts of referring to a gun and demanding money satisfy this section’s standard for first degree robbery as they fall within the reasoning of Merritt v. Commonwealth, 386 S.W.2d 727, 1965 Ky. LEXIS 522 ( Ky. 1965 ), which held “any object intended by its user to convince the victim that it is a pistol or other deadly weapon and does so convince him is one.” Swain v. Commonwealth, 887 S.W.2d 346, 1994 Ky. LEXIS 97 ( Ky. 1994 ), limited, Tunstull v. Commonwealth, 337 S.W.3d 576, 2011 Ky. LEXIS 51 ( Ky. 2011 ).

Trial court erred in withholding from the jury the legal determination of whether a revolver defendant brandished during a robbery was a “deadly weapon” under KRS 515.020 , because the jury was entitled to decide the entire essential element of the offense, including the application of law to fact. Thacker v. Commonwealth, 194 S.W.3d 287, 2006 Ky. LEXIS 174 ( Ky. 2006 ).

Although defendant only pointed a glove at a cashier while robbing a store, because a cashier believed that defendant had a weapon, defendant was not entitled to an acquittal. Whalen v. Commonwealth, 205 S.W.3d 238, 2006 Ky. App. LEXIS 171 (Ky. Ct. App. 2006).

Trial court erred in ruling that defendant, who admitted to robbing a bank, could be found guilty of first-degree robbery because, although defendant kept her hand in her pocket during the robbery, no one saw a gun, a part of a gun, or any other deadly weapon as required by KRS 515.020 (b). Moreover, defendant never mentioned a gun or other weapon and thus did not threaten the immediate use of a dangerous instrument, thereby rendering KRS 515.020 (c) inapplicable. Lawless v. Commonwealth, 323 S.W.3d 676, 2010 Ky. LEXIS 179 ( Ky. 2010 ).

Testimony of three witnesses describing defendant’s possession of a “real” silver or black, semi-automatic handgun, provided sufficient evidence for the jury to decide whether defendant was armed with a deadly weapon when defendant robbed a bank. Wiley v. Commonwealth, 348 S.W.3d 570, 2010 Ky. LEXIS 265 ( Ky. 2010 ).

Use of the word “knife” did not comport with the statutory language of this section and therefore the trial court erred by instructing the jury in accordance with the statutory language of “deadly weapon” and /or “dangerous instrument. Mitchell v. Commonwealth, 423 S.W.3d 152, 2014 Ky. LEXIS 16 ( Ky. 2014 ).

12.—Physical Injury.

Physical injury to employe of robbed premises need not be intentional to sustain conviction of first-degree robbery since physical injury is not an element of the crime of robbery, but only an aggravating circumstance increasing the degree. Ray v. Commonwealth, 550 S.W.2d 482, 1977 Ky. LEXIS 420 ( Ky. 1977 ).

Because it is well established that expert testimony is not required to prove physical injury and victims of crime are competent to testify as to any injury sustained as a result of the crime, victim’s testimony as to the pain in her left hip both immediately following the robbery and thereafter was sufficient to establish that she suffered a physical injury as a result of defendant’s act. Hubbard v. Commonwealth, 932 S.W.2d 381, 1996 Ky. App. LEXIS 90 (Ky. Ct. App. 1996).

Although assault in the first degree is also a class B felony and requires proof of “serious physical injury,” it is not a violation of equal protection rights to convict on the class B felony of robbery on a showing of physical injury alone as opposed to serious physical injury; assault in the first degree only requires injury to the victim, robbery in the first degree requires both a theft and a physical injury, with the injury being an aggravating factor. Hubbard v. Commonwealth, 932 S.W.2d 381, 1996 Ky. App. LEXIS 90 (Ky. Ct. App. 1996).

Trial court did not err by refusing to give jury instructions on second-degree burglary under KRS 511.030(1) and second-degree robbery under KRS 515.030(1) during defendant’s trial on charges of first-degree robbery and first-degree burglary because they were not warranted by the evidence, particularly the overwhelming and uncontradicted evidence that the intruder caused the victim physical injury. The victim testified that the intruder hit him with a gun and that he suffered a sprained ankle fleeing from the intruder, a man who helped the victim testified that he was bleeding from his face and feet, and a detective testified that the victim appeared to be in shock and was obviously beaten. Johnson v. Commonwealth, 327 S.W.3d 501, 2010 Ky. LEXIS 300 ( Ky. 2010 ).

13.—Threat.

The fear into which a victim of a robbery is put need not necessarily be fear of bodily harm but may be induced by threats of injury to his property or reputation. (Decided under prior law) Lanford v. Commonwealth, 209 Ky. 693 , 273 S.W. 492, 1925 Ky. LEXIS 580 ( Ky. 1925 ).

It is not necessary to provide strict proof that the victim of a robbery was put in actual fear, for the law will presume fear where there appears to be just ground for it. (Decided under prior law) Haley v. Commonwealth, 210 Ky. 554 , 276 S.W. 519, 1925 Ky. LEXIS 727 ( Ky. 1925 ).

Where the defendant entered the house creating fear in the victim it was of no consequence that he entered with a purpose other than robbery as he took the victim’s purse while the fear he had created was still operating on the mind of the victim and it is sufficient to convict the defendant where he took advantage of the state of fright to commit a robbery. (Decided under prior law) Howard v. Commonwealth, 313 Ky. 667 , 233 S.W.2d 282, 1950 Ky. LEXIS 954 ( Ky. 1950 ).

To pick one’s pocket without use of some force or violence, or putting in fear, is not robbery. (Decided under prior law) Bowling v. Commonwealth, 253 S.W.2d 21, 1952 Ky. LEXIS 1060 ( Ky. 1952 ).

To constitute robbery, taking must be by violence or by putting owner in fear, but both of these circumstances need not be alleged. (Decided under prior law) Watkins v. Commonwealth, 287 S.W.2d 416, 1956 Ky. LEXIS 454 ( Ky. 1956 ).

Generally, the requisite element of force or putting in fear must either precede or be contemporaneous or concurrent with taking of property. (Decided under prior law) Montgomery v. Commonwealth, 346 S.W.2d 479, 1961 Ky. LEXIS 308 ( Ky. 1961 ).

Threats made by defendant at time of armed assault with intent to rob were essential part of offense. (Decided under prior law) Goehring v. Commonwealth, 370 S.W.2d 822, 1963 Ky. LEXIS 81 ( Ky. 1963 ).

Where store clerk stated she was afraid to give her home address or place of employment due to her fear of defendant, no due process violation existed as a conviction of robbery requires proof of a threat under this section, and witness testimony that defendant threatened her while in store, during robbery, supported assumption that victim feared retribution. Davis v. Commonwealth, 899 S.W.2d 487, 1995 Ky. LEXIS 47 ( Ky. 1995 ), overruled in part, Merriweather v. Commonwealth, 99 S.W.3d 448, 2003 Ky. LEXIS 39 ( Ky. 2003 ).

Trial court properly denied defendant’s motion for a directed verdict because the evidence was sufficient to permit the jury to conclude that he committed first-degree robbery under KRS 515.020(1)(c) by threatening use of a dangerous instrument where he robbed a bank and told the teller that he was armed with a gun. Gamble v. Commonwealth, 319 S.W.3d 375, 2010 Ky. LEXIS 212 ( Ky. 2010 ).

First-degree robbery does not require proof of a threat, but a threat is just one of many ways one may be convicted, of this offense; a conviction for first-degree robbery does not require proof of a threat to obtain a conviction, and so, third-degree terroristic threatening is a lesser, uncharged offense rather than a lesser-included offense. Sasser v. Commonwealth, 485 S.W.3d 290, 2016 Ky. LEXIS 105 ( Ky. 2016 ).

14.—Unlawful Taking.

Where a defendant took a pocketbook from the hands of the owner so quickly that there was no opportunity for active resistance, such a taking must be construed as a taking by force or violence so as to allow a conviction for robbery. (Decided under prior law) Jones v. Commonwealth, 112 Ky. 689 , 66 S.W. 633, 23 Ky. L. Rptr. 2081 , 1902 Ky. LEXIS 211 ( Ky. 1902 ).

The offense of robbery is not committed unless the defendant’s conduct involves either an unlawful taking or attempted taking of property. Tipton v. Commonwealth, 640 S.W.2d 818, 1982 Ky. LEXIS 307 ( Ky. 1982 ).

This section does not require a completed theft. Wade v. Commonwealth, 724 S.W.2d 207, 1986 Ky. LEXIS 315 ( Ky. 1986 ).

15.Evidence.
16.—Admissibility.

Admission of evidence that the defendant and his accomplices murdered the victim after stealing his car was proper as proof of motive and guilty knowledge and because the murder was part of the same transaction as the theft of the car. (Decided under prior law) McPeak v. Commonwealth, 308 Ky. 29 , 213 S.W.2d 447, 1948 Ky. LEXIS 860 ( Ky. 1948 ).

Where the defendant was prosecuted for theft of a car and the prosecutor could not be reasonably assured that the defense would not claim that the car belonged to the defendant or one of his accomplices it was proper to admit a photograph of the real owner, who was dead at the time of the trial, to show the jury that the owner was not the defendant or one of his accomplices. (Decided under prior law) McPeak v. Commonwealth, 308 Ky. 29 , 213 S.W.2d 447, 1948 Ky. LEXIS 860 ( Ky. 1948 ).

Trial court committed prejudicial error in admitting gruesome photograph of victim in prosecution under law that provided penalty for armed robbery, since evidence of the identity of the victim and all the facts necessary to convict the defendant was within the possession of the Commonwealth and was introduced following the filing of the photograph, and the only real question was the degree of punishment, and because the introduction of the irrelevant and unnecessary picture was to accentuate and magnify the murder, for which the defendant was not being tried. (Decided under prior law) Craft v. Commonwealth, 312 Ky. 700 , 229 S.W.2d 465, 1950 Ky. LEXIS 740 ( Ky. 1950 ); Shelkels v. Commonwealth, 312 Ky. 713 , 229 S.W.2d 470, 1950 Ky. LEXIS 744 ( Ky. 1950 ).

Where contradictory statements were introduced to impeach an alibi witness who had stated that she was the defendant’s mother-in-law, these statements were properly admitted where the jury was told that they were used solely for impeachment, and, therefore, they were not prejudicial though they tended to show that the defendant was living in adultery with the witness’ daughter. (Decided under prior law) Alsip v. Commonwealth, 310 S.W.2d 283, 1958 Ky. LEXIS 387 ( Ky. 1958 ).

Where the defendant did not object to the admission of his pretrial statement denying ownership of a gun, both the statement and testimony impeaching it were relevant and admissible in a prosecution for armed robbery and murder. Davis v. Commonwealth, 555 S.W.2d 575, 1977 Ky. LEXIS 509 ( Ky. 1977 ).

Where a witness in a prosecution for murder and robbery testified that she heard one of three men make a statement indicating that criminal activity was planned, such evidence was properly admitted as a verbal act and did not deprive the defendants of their right to confrontation and cross-examination even though the witness could not identify the speaker and merely heard one of the men referred to by his first name. Darnell v. Commonwealth, 558 S.W.2d 590, 1977 Ky. LEXIS 537 ( Ky. 1977 ).

“Marked money” stolen from a bank and confiscated from the defendants was property introduced into evidence in a robbery prosecution. (Decided under prior law) Hall v. Commonwealth, 557 S.W.2d 420, 1977 Ky. LEXIS 583 ( Ky. 1977 ).

Where photographs of the defendant were obtained while he was being illegally detained, they should not have been admitted into evidence in a robbery prosecution. Jones v. Commonwealth, 556 S.W.2d 918, 1977 Ky. App. LEXIS 824 (Ky. Ct. App. 1977).

Where the testimony relating to other offenses was activity unrelated to the defendant but was that of other individuals not on trial, admission of such evidence was not error. Watkins v. Commonwealth, 565 S.W.2d 630, 1978 Ky. LEXIS 356 ( Ky. 1978 ).

Statement of one defendant exculpating other defendant of robbery was properly excluded where there were no corroborating circumstances clearly indicating the trustworthiness of the statement, and where such defendant was present in the courtroom, but due to his assertion of the privilege not to take the witness stand, was not available for cross-examination. Crawley v. Commonwealth, 568 S.W.2d 927, 1978 Ky. LEXIS 374 ( Ky. 1978 ), cert. denied, 439 U.S. 1119, 99 S. Ct. 1028, 59 L. Ed. 2d 79, 1979 U.S. LEXIS 531 (U.S. 1979), limited, Martin v. Commonwealth, 13 S.W.3d 232, 1999 Ky. LEXIS 143 ( Ky. 1999 ).

Where a medical doctor who specialized in obstetrics and gynecology treated the rape victim in the emergency room of a hospital within a few hours following her rape, robbery and assault, the doctor, by reason of his special skills and special training, was properly permitted to testify that it was his opinion that the victim had undergone forcible intercourse. Pevlor v. Commonwealth, 638 S.W.2d 272, 1982 Ky. LEXIS 291 ( Ky. 1982 ), cert. denied, 459 U.S. 1149, 103 S. Ct. 794, 74 L. Ed. 2d 998, 1983 U.S. LEXIS 3136 (U.S. 1983).

In an appeal from a conviction of first-degree robbery, where the defendant was involuntarily taken to the police station for questioning prior to arrest, palm prints obtained during such detention could not be admitted at trial, and a motion to suppress such evidence should have been granted. Greer v. Commonwealth, 679 S.W.2d 839, 1984 Ky. App. LEXIS 624 (Ky. Ct. App. 1984).

In prosecution for first-degree robbery, the defendant’s resistance of arrest was properly admitted into trial to show evidence of a guilty conscience. Bush v. Commonwealth, 726 S.W.2d 716, 1987 Ky. App. LEXIS 460 (Ky. Ct. App. 1987).

In a prosecution for robbery and murder involving a conspiracy, while the trial court had a sufficient basis to find that a conspiracy existed between defendant and her son, only three (3) of the thirteen (13) statements had other grounds of admissibility: (1) the son’s statement seeking help to make a silencer; (2) the son’s statement to another that he bought the gun to kill the victim; and (3) a statement that the mother wanted the son to find somebody to kill the victim. But, because the other ten (10) statements at issue were nothing more than the son confiding in his friends or casual comments, admission of these statements was clear error. Monroe v. Commonwealth, 244 S.W.3d 69, 2008 Ky. LEXIS 10 ( Ky. 2008 ).

17.—Confession.

A confession may become evidence of the facts stated therein but it has no relation to the offense charged, so that a confession taken from a person initially charged under the law that provided penalty for armed assault with intent to rob which admits all the elements of an armed robbery may be admitted in evidence in a subsequent trial under law that provided penalty for armed robbery. (Decided under prior law) Walker v. Commonwealth, 377 S.W.2d 91, 1964 Ky. LEXIS 487 (Ky.), cert. denied, 379 U.S. 857, 85 S. Ct. 112, 13 L. Ed. 2d 60, 1964 U.S. LEXIS 694 (U.S. 1964).

18.—Corroboration of Accomplice.

Evidence that defendant, accused of aiding and abetting another in assault with intent to rob, was in place where robbery was committed immediately before the robbery, and appeared nervous, and was seen in vacant house with accomplice immediately after robbery, and could give no valid reason for being there, was sufficient corroboration of accomplice’s testimony implicating defendant. (Decided under prior law) Fife v. Commonwealth, 279 Ky. 14 , 129 S.W.2d 983, 1939 Ky. LEXIS 224 ( Ky. 1939 ).

Evidence showing only that defendant owned an automobile of same make and model as one seen at the place where an armed robbery was committed, was insufficient to corroborate the testimony of defendant’s alleged accomplices and connect defendant with the crime. (Decided under prior law) Kitchens v. Commonwealth, 279 Ky. 785 , 132 S.W.2d 327, 1939 Ky. LEXIS 361 ( Ky. 1939 ).

Where a valid confession by the defendant was introduced this constituted sufficient corroboration of the testimony of the defendant’s accomplice. (Decided under prior law) Goff v. Commonwealth, 245 S.W.2d 446, 1952 Ky. LEXIS 588 ( Ky. 1952 ).

There was sufficient corroboration of accomplices’ testimony where the victims stated that they knew the defendants well, where the defendants were seen with their alleged accomplices during the day of the robbery by several persons and where the defendants themselves admitted being with the alleged accomplices during the day of the robbery. (Decided under prior law) Underhill v. Commonwealth, 289 S.W.2d 509, 1956 Ky. LEXIS 287 ( Ky. 1956 ).

Where there is conflicting evidence as to whether one is an accomplice the question should be submitted to the jury for determination with an appropriate instruction as to the corroboration required and the weight of the testimony of the alleged accomplice. (Decided under prior law) Head v. Commonwealth, 310 S.W.2d 285, 1958 Ky. LEXIS 388 ( Ky. 1958 ).

Uncorroborated testimony of two accomplices was not sufficient evidence to convict the defendant as an accessory before the fact of an armed assault with intent to rob. (Decided under prior law) Creech v. Commonwealth, 412 S.W.2d 245, 1967 Ky. LEXIS 416 ( Ky. 1967 ).

19.—Identification of Defendant.

Where the defendant was identified as the robber by the victim who was well acquainted with the defendant, the evidence was sufficient to sustain a conviction even though the defendant was partially masked at the time of the robbery. (Decided under prior law) Solomon v. Commonwealth, 277 Ky. 828 , 127 S.W.2d 868, 1939 Ky. LEXIS 741 ( Ky. 1939 ).

The accused was not entitled to a directed verdict even if he had never been positively identified as one of those who had committed the crime where the circumstantial evidence against him was sufficient to submit the question of his guilt to the jury. (Decided under prior law) MacOm v. Commonwealth, 302 Ky. 136 , 194 S.W.2d 169, 1946 Ky. LEXIS 623 ( Ky. 1946 ).

Where the victim of an armed robbery gave the police the description and license number of the robber’s car and the defendant owner of the car tried to run away when stopped by the police and the defendant was later identified by the victim in a police lineup, there was probable cause for an arrest. (Decided under prior law) Bradley v. Commonwealth, 439 S.W.2d 61, 1969 Ky. LEXIS 354 ( Ky. 1969 ), cert. denied, 397 U.S. 974, 90 S. Ct. 1091, 25 L. Ed. 2d 268, 1970 U.S. LEXIS 2635 (U.S. 1970).

Inconsistencies in the testimony of two witnesses in robbery prosecution with respect to such things as failure to see a tattoo on the arm, wearing of a hat and carrying of a gun by the accused did not render the evidence incredible and insufficient where each of these witnesses positively and unequivocally identified the accused who committed the robbery. (Decided under prior law) Robinson v. Commonwealth, 474 S.W.2d 107, 1971 Ky. LEXIS 94 ( Ky. 1971 ).

The testimony of the two witnesses to a robbery was sufficient for the jury to find that the defendant was the person who committed the crime. (Decided under prior law) Bradley v. Commonwealth, 465 S.W.2d 266, 1971 Ky. LEXIS 445 ( Ky. 1971 ).

Where there was nothing in a witness’ testimony to indicate that her in-court identification of the defendant was in any way affected by a prior photographic identification, the occurrence of which was only briefly discussed, the witness’ identification of the defendant in the jury’s presence was not reversible error. Harris v. Commonwealth, 556 S.W.2d 669, 1977 Ky. LEXIS 523 ( Ky. 1977 ).

Where a witness in a robbery prosecution testified as an eyewitness and identified the defendant, he was not presented as one specially qualified to make identifications despite the mention of his training in identification procedures, and the defendant was not denied his right to confrontation due to his inability to examine the witness about such training. Kendricks v. Commonwealth, 557 S.W.2d 417, 1977 Ky. LEXIS 582 ( Ky. 1977 ), overruled, Hon v. Commonwealth, 670 S.W.2d 851, 1984 Ky. LEXIS 227 ( Ky. 1984 ).

Where a mug-shot of the defendant taken at the time of his arrest was introduced into evidence not to show past criminality but solely for identification purposes since the defendant was disguised as a woman both at the time of the robbery and time of his arrest, the photograph was properly admissible for purposes of identification. Cane v. Commonwealth, 556 S.W.2d 902, 1977 Ky. App. LEXIS 821 (Ky. Ct. App. 1977), cert. denied, 437 U.S. 906, 98 S. Ct. 3094, 57 L. Ed. 2d 1136, 1978 U.S. LEXIS 2299 (U.S. 1978).

A robbery was committed by men disguised as women and the witnesses believed at the time of the crime that the robbers were in fact women, it was not unduly suggestive to ask the witnesses to identify the robbers by selecting photographs from a book of female mug-shots which included photographs of the defendants dressed in feminine attire. Cane v. Commonwealth, 556 S.W.2d 902, 1977 Ky. App. LEXIS 821 (Ky. Ct. App. 1977), cert. denied, 437 U.S. 906, 98 S. Ct. 3094, 57 L. Ed. 2d 1136, 1978 U.S. LEXIS 2299 (U.S. 1978).

Seven photographs (including defendant’s) were of sufficient likeness so as to constitute a fair and proper identification so that the testimony of all the persons who identified him could not be excluded in first-degree robbery trial. Spanski v. Commonwealth, 610 S.W.2d 290, 1980 Ky. LEXIS 277 ( Ky. 1980 ).

Where the trial court in a first-degree robbery trial required the defendant to put on a black silk scarf as a mask, hold a .38 caliber revolver in his hand, stand close to the robbery victim and make the same or similar statement to her that the robber had made, but the state had not asked any witness to identify the defendant as one of the robbers prior to this demonstration, the demonstration was so unnecessarily suggestive and conducive to irreparable mistaken identity that the defendant was denied due process, and the conviction was reversed. Riley v. Commonwealth, 620 S.W.2d 316, 1981 Ky. LEXIS 264 ( Ky. 1981 ).

Where the victim made a pretrial identification of the defendant which was based on a photograph of him which was dated on the next day after the robbery and bore the notation “ROB” and was one of only two photographs in which the individuals were wearing caps, the photographs were impermissibly suggestive. Jones v. Commonwealth, 556 S.W.2d 918, 1977 Ky. App. LEXIS 824 (Ky. Ct. App. 1977).

Where the identification legends on the photographs of defendants were unnecessarily and unduly suggestive, and the identification of the photographs was made by witnesses many months after the robbery, the pretrial identification was no more reliable than the witnesses’ in-court identification and the trial court should have sustained the motion to suppress evidence of the out-of-court identification. Brown v. Commonwealth, 564 S.W.2d 24, 1978 Ky. App. LEXIS 492 (Ky. Ct. App. 1978).

Where police officers, prior to a “show-up” identification which took place only 45 minutes after the robbery, told witnesses that they thought they had the two robbers and defendants were shown handcuffed, and where one of the witnesses was extremely nervous, the identification was not so impermissibly suggestive as to deny the defendants due process of law. Brown v. Commonwealth, 564 S.W.2d 24, 1978 Ky. App. LEXIS 492 (Ky. Ct. App. 1978).

Where witnesses both observed the defendant at length during the robberies and positively identified him in a lineup and photographs display, the in-court identifications were based upon independent recollections and were not tainted by the prior identifications. Hockenbury v. Commonwealth, 565 S.W.2d 448, 1978 Ky. LEXIS 354 ( Ky. 1978 ).

Where the identification evidence in a prosecution for robbery and assault was not impermissibly suggestive, denial of a pretrial motion for a suppression hearing on such evidence was not prejudicial and did not deny defendant a fair trial. Watkins v. Commonwealth, 565 S.W.2d 630, 1978 Ky. LEXIS 356 ( Ky. 1978 ).

Whether or not defendant’s arrest was illegal, where robbery victim had ample time to observe defendant during robbery and knew him by sight prior to robbery, and where the victim made a spontaneous identification in an unplanned confrontation at the police station, both the spontaneous identification and subsequent in-court identification were admissible. Hebert v. Commonwealth, 566 S.W.2d 798, 1978 Ky. App. LEXIS 534 (Ky. Ct. App.), cert. denied, 439 U.S. 968, 99 S. Ct. 460, 58 L. Ed. 2d 428, 1978 U.S. LEXIS 3859 (U.S. 1978).

Trial court in a robbery prosecution did not err in admitting evidence of a lineup for the reason that the lineup “may have been tainted” by the witnesses having seen the defendant in court prior to the lineup, where such assertion was based on the fact the victims were in the vicinity of the courtroom on the same day defendant was in court and that the defendant testified that he saw a detective point to him while accompanied by three people, and where there was testimony from both of the two identifying witnesses that they had never seen defendant other than at the robbery and in the lineup. Shanks v. Commonwealth, 575 S.W.2d 163, 1978 Ky. App. LEXIS 645 (Ky. Ct. App. 1978).

20.—Intent.

Intent may be proved by direct or indirect evidence or it may be inferred from the circumstances of the case and the conduct of the accused at the time of and subsequent to the commission of the act. (Decided under prior law) Baker v. Commonwealth, 307 S.W.2d 773, 1957 Ky. LEXIS 113 ( Ky. 1957 ).

Where the victim testified to being struck by the defendant with a piece of steel or tire tool and the defendant was apprehended fleeting from the scene and the victim’s pistol was found in the defendant’s possession, the total circumstances disclosed by this and other evidence was sufficient to find an intent to rob. (Decided under prior law) Bailey v. Commonwealth, 483 S.W.2d 112, 1972 Ky. LEXIS 166 ( Ky. 1972 ).

Testimony that the defendant had talked of committing armed robbery was admissible in a prosecution for armed robbery and murder to show the defendant’s motive, intent and design. Davis v. Commonwealth, 555 S.W.2d 575, 1977 Ky. LEXIS 509 ( Ky. 1977 ).

Defendant was not entitled to a directed verdict for first-degree robbery because it was reasonable for a jury to find that his subjective criminal intent, combined with the threat of deadly force, amounted to an attempted theft; defendant admitted that he approached the victim's home intending to commit a theft, he pointed his firearm at the victim, and he demanded entry into the victim's home with the simultaneous subjective intent to take any money he could obtain and flee with it. Sasser v. Commonwealth, 485 S.W.3d 290, 2016 Ky. LEXIS 105 ( Ky. 2016 ).

21.—Other Offenses.

It was not error to permit testimony concerning another robbery committed by accused on day following robbery for which he was being tried, where on direct examination accused testified about that crime. (Decided under prior law) Voice v. Commonwealth, 284 Ky. 416 , 145 S.W.2d 45, 1940 Ky. LEXIS 515 ( Ky. 1940 ).

Where the trial judge conducted a hearing prior to the admission of evidence of a defendant’s previous conviction and permitted the introduction of such evidence for impeachment purposes only, there was no prejudicial error. Risinger v. Commonwealth, 556 S.W.2d 177, 1977 Ky. App. LEXIS 815 (Ky. Ct. App. 1977).

22.—Police Report.

The failure of the Commonwealth to introduce into evidence the initial police report on a robbery was not error where the existence of such a report was doubtful. Kendricks v. Commonwealth, 557 S.W.2d 417, 1977 Ky. LEXIS 582 ( Ky. 1977 ), overruled, Hon v. Commonwealth, 670 S.W.2d 851, 1984 Ky. LEXIS 227 ( Ky. 1984 ).

23.—Witnesses.

Statement of nonexpert witness that wounds “looked like they were made with a blunt instrument” was competent, where no other conclusion could be drawn from facts and circumstances of character and severity of wounds as detailed to jury. (Decided under prior law) Shoemaker v. Commonwealth, 300 Ky. 607 , 189 S.W.2d 957, 1945 Ky. LEXIS 615 ( Ky. 1945 ).

A confession may become evidence of the facts stated therein but it has no relation to the offense charged, so that a confession taken from a person initially charged under the law that provided penalty for armed assault with intent to rob which admits all the elements of an armed robbery may be admitted in evidence in a subsequent trial under law that provided penalty for armed robbery. (Decided under prior law) Walker v. Commonwealth, 377 S.W.2d 91, 1964 Ky. LEXIS 487 (Ky.), cert. denied, 379 U.S. 857, 85 S. Ct. 112, 13 L. Ed. 2d 60, 1964 U.S. LEXIS 694 (U.S. 1964).

No error was committed by the trial court in allowing the prosecution to ask leading questions of one of its witnesses who had prior to trial identified the defendant and then later denied any knowledge of the alleged robbery. (Decided under prior law) Askew v. Commonwealth, 437 S.W.2d 205, 1969 Ky. LEXIS 434 ( Ky. 1969 ).

Even though it would have been better if the trial court had held a preliminary examination, it was not error to allow the victim of a robbery to testify although he took medication which could affect his ability to relate facts as they occurred. (Decided under prior law) Travis v. Commonwealth, 457 S.W.2d 481, 1970 Ky. LEXIS 205 ( Ky. 1970 ).

Where a man gave no information of a violation of law but merely stated to policemen that there were two men in a certain room, he was not a witness whom the defendants were entitled to confront because his information was not evidence against them. (Decided under prior law) Jones v. Commonwealth, 457 S.W.2d 627, 1970 Ky. LEXIS 214 ( Ky. 1970 ), cert. denied, 401 U.S. 946, 91 S. Ct. 964, 28 L. Ed. 2d 229, 1971 U.S. LEXIS 3048 (U.S. 1971).

Where prosecution offered one eyewitness identification while defendant offered seven alibi witnesses, defendant was not entitled to a directed verdict of acquittal because the probative value of the evidence in support of defendant’s alibi was not so conclusive and not of such quality that no reasonable person could conclude that defendant was guilty beyond a reasonable doubt. (Decided under prior law) Stephens v. Commonwealth, 489 S.W.2d 249, 1972 Ky. LEXIS 27 ( Ky. 1972 ).

Where a witness made a positive identification of defendant as armed robber both in direct testimony and on cross-examination, there was sufficient evidence to warrant submission to a jury and the jury’s verdict cannot be regarded as contrary to the evidence. (Decided under prior law) Blakemore v. Commonwealth, 497 S.W.2d 231, 1973 Ky. LEXIS 307 ( Ky. 1973 ).

It was not error per se for a trial court to select a close relative of a witness to serve as his interpreter. Kotas v. Commonwealth, 565 S.W.2d 445, 1978 Ky. LEXIS 353 ( Ky. 1978 ).

Where there was a reasonable likelihood that a witness’ testimony, and hence his reliability, may have been determinative of defendant’s guilt at trial, the failure by the prosecution to disclose evidence affecting his reliability required that defendant be given a new trial on charges of armed robbery and murder. (Decided under prior law) Williams v. Commonwealth, 569 S.W.2d 139, 1978 Ky. LEXIS 380 ( Ky. 1978 ).

24.—Sufficient.

Where the defendant was in a car outside the store in which the robbery took place and then drove away those who had perpetrated the robbery he could nevertheless be convicted as a principal where the evidence indicated that he knew that the crime was being committed and added and assisted in the act. (Decided under prior law) Jackson v. Commonwealth, 265 Ky. 458 , 97 S.W.2d 21, 1936 Ky. LEXIS 515 ( Ky. 1936 ).

Testimony of victim alone that accused took money from him warranted submission of case to jury where there was no dispute that parties were together at time and place of alleged crime. (Decided under prior law) Blakemore v. Commonwealth, 284 Ky. 112 , 143 S.W.2d 1055, 1940 Ky. LEXIS 449 ( Ky. 1940 ).

Evidence that defendant held gun on plaintiff while a confederate drove plaintiff’s car and later after ordering him out of car remained therein as driver, while confederates held gun and robbed plaintiff of $30, was sufficient to sustain a conviction under indictment charging defendant with robbing victim of money, though defendant introduced evidence that he and confederates intended only to take plaintiff’s car and that he took no part in looting the money. (Decided under prior law) Gapoian v. Commonwealth, 302 Ky. 867 , 196 S.W.2d 744, 1946 Ky. LEXIS 776 ( Ky. 1946 ).

Evidence that the defendant had conversed with the man who stole another’s money, sat next to the person whose money was taken, knocked out a light in the room, and stood next to the person as he was taking the money from the victim was sufficient to sustain a conviction of robbery. (Decided under prior law) Travis v. Commonwealth, 313 Ky. 672 , 313 Ky. 872 , 233 S.W.2d 282, 1950 Ky. LEXIS 955 (Ky. Ct. App. 1950).

Where victim testified that defendant and his codefendant robbed him of $20 in cash and his watch and testimony showed that officer shortly thereafter took about $15 from defendant and watch from codefendant, testimony was sufficient to warrant submission to jury. (Decided under prior law) Witcher v. Commonwealth, 339 S.W.2d 188, 1960 Ky. LEXIS 442 ( Ky. 1960 ).

The uncorroborated testimony of the victim that the defendant had committed the robbery was sufficient to sustain a conviction. (Decided under prior law) La Vigne v. Commonwealth, 353 S.W.2d 376, 1962 Ky. LEXIS 16 ( Ky. 1962 ).

Where the defendant was identified by the victim and his footprints were found leading to and from the victim’s home and for several hundred feet to the place where his automobile had been parked, which left tire marks which were also identified, evidence was sufficient to sustain a conviction. (Decided under prior law) Smith v. Commonwealth, 375 S.W.2d 819, 1964 Ky. LEXIS 436 ( Ky. 1964 ).

Evidence that the defendant had told a witness that he drove through a police roadblock with two men concealed in his car, had registered in a motel under a fictitious name the night before the robbery, that a search of his car revealed a large sum of money and a knotted stocking and such a stocking had been used by one of the men who actually committed the robbery was sufficient to convict the defendant as an aider and abettor. (Decided under prior law) Taylor v. Commonwealth, 386 S.W.2d 716, 1965 Ky. LEXIS 516 ( Ky. 1965 ).

Where the defendants were arrested at the scene of the robbery in the presence of the victims, the evidence was sufficient to authorize a conviction. (Decided under prior law) Abernathy v. Commonwealth, 439 S.W.2d 949, 1969 Ky. LEXIS 383 ( Ky. 1969 ), overruled in part, Blake v. Commonwealth, 646 S.W.2d 718, 1983 Ky. LEXIS 223 ( Ky. 1983 ).

Where the defendant was gambling with his alleged robbery victim, it was sufficient to convict the defendant under law that provided penalty for armed robbery to show that more than the money which passed in gambling was taken by the defendant from the victim. (Decided under prior law) Marcum v. Commonwealth, 473 S.W.2d 122, 1971 Ky. LEXIS 144 ( Ky. 1971 ).

Where one victim testified defendant took money from victims’ pockets, another victim testified $2 was taken from him, and a third victim in reply to a question concerning what had happened, if anything, after his money was taken stated that defendant ran out the door, such evidence was sufficient to justify inference that something of value had been taken from each victim. (Decided under prior law) Malone v. Commonwealth, 506 S.W.2d 505, 1974 Ky. LEXIS 750 ( Ky. 1974 ).

Evidence placing the defendant in a stolen car and near the scene of the robbery, beating and possible rape of an 87 year-old woman was sufficient to support convictions for first-degree robbery and attempted rape. Sherley v. Commonwealth, 558 S.W.2d 615, 1977 Ky. LEXIS 545 ( Ky. 1977 ), cert. denied, 435 U.S. 999, 98 S. Ct. 1655, 56 L. Ed. 2d 89, 1978 U.S. LEXIS 1656 (U.S. 1978), overruled, Dixon v. Commonwealth, 263 S.W.3d 583, 2008 Ky. LEXIS 138 ( Ky. 2008 ).

Where the Commonwealth introduced sufficient evidence to prove beyond a reasonable doubt that the appellants were armed with a pistol, whether the handgun was operable was not relevant. Helpenstine v. Commonwealth, 566 S.W.2d 415, 1978 Ky. LEXIS 361 ( Ky. 1978 ), overruled in part, Wilburn v. Commonwealth, 312 S.W.3d 321, 2010 Ky. LEXIS 52 ( Ky. 2010 ).

Where after a robbery had been committed the defendant and his colleague were chased by a policeman, were apprehended together, and the stolen money was found on the codefendant eight feet away from defendant, and defendant’s weapon was identified by two witnesses, and the stocking the robber wore was found three (3) feet from the defendant, the evidence was so clear and convincing that the defendant was guilty of violating this section that to entertain doubt was pure folly. Veach v. Commonwealth, 572 S.W.2d 417, 1978 Ky. LEXIS 396 ( Ky. 1978 ).

Where the victims were held captive for approximately two and one-half hours until they escaped and, during this time, their clothes and shoes were taken from them and not returned, demands were made for money under the threat of death, and victims were forced to practice sexual abuse upon each other, there was sufficient evidence of defendant’s intent to rob to submit to the jury and conviction would be sustained. Rowe v. Commonwealth, 601 S.W.2d 1, 1980 Ky. App. LEXIS 333 (Ky. Ct. App. 1980).

Where defendant, who was armed, waited by his car, while his accomplice entered a grocery store and pointed a gun at the clerk but left without saying or taking anything, defendant had attempted a theft and was thwarted only because his accomplice lost his nerve; accordingly, there was sufficient evidence to support defendant’s conviction of robbery in the first degree. Tipton v. Commonwealth, 640 S.W.2d 818, 1982 Ky. LEXIS 307 ( Ky. 1982 ).

Where the victim’s wife testified that a gold watch, a wedding band, Masonic rings, and a wallet containing $100 were in her husband’s possession when he left for his walk the day he was killed, none of those items were located when the victim’s body was recovered, the defendant’s statements inculpating a third party, whom he later exonerated, contained a description of robbing the victim of those items, and the defendant’s brother testified that on the afternoon of the crime an accomplice gave him two 50 dollar bills and requested that he buy a car for the accomplice and the defendant, the evidence was sufficient to sustain a conviction of first-degree robbery, even though the defendant was not in possession of any of the stolen items at his arrest. Marlowe v. Commonwealth, 709 S.W.2d 424, 1986 Ky. LEXIS 253 (Ky.), cert. denied, 479 U.S. 946, 107 S. Ct. 427, 93 L. Ed. 2d 378, 1986 U.S. LEXIS 4620 (U.S. 1986).

The fact that the defendant entered the premises with the accomplice, held the victim at gunpoint in the living room, and later assisted the accomplice in removing property from the home was sufficient evidence to justify an inference that the defendant’s use of the weapon against the victim was with the intent to accomplish a theft. Morgan v. Commonwealth, 730 S.W.2d 935, 1987 Ky. LEXIS 209 ( Ky. 1987 ), overruled, Hobson v. Commonwealth, 306 S.W.3d 478, 2010 Ky. LEXIS 67 ( Ky. 2010 ).

In prosecution for murder and first-degree robbery, there was sufficient corroborative evidence, other than the defendant’s confessions, to sustain the convictions, where the victim, the owner and operator of the store, was killed by various blows and by multiple stab wounds, the defendant was in the store, armed with a gun and a knife, and his previous scouting of the store, the attempt to open the cash register, the opening of the drawer, and the opening of the purse clearly were evidence of such a nature as to show a clear intent to commit a theft. Slaughter v. Commonwealth, 744 S.W.2d 407, 1987 Ky. LEXIS 257 ( Ky. 1987 ), cert. denied, 490 U.S. 1113, 109 S. Ct. 3174, 104 L. Ed. 2d 1036, 1989 U.S. LEXIS 2908 (U.S. 1989).

In prosecution for murder and first degree robbery where evidence consclusively established that cash money was taken from the service station and that the two victims were killed in conjunction of the taking of the money, such evidence was ample; it is irrelevant whether the money is taken and victim killed or the victim killed and the money taken as this section does not require that the property be taken directly from the body of the person threatened or injured by the robber. Bowling v. Commonwealth, 942 S.W.2d 293, 1997 Ky. LEXIS 54 ( Ky. 1997 ), cert. denied, 522 U.S. 986, 118 S. Ct. 451, 139 L. Ed. 2d 387, 1997 U.S. LEXIS 6977 (U.S. 1997), overruled in part, McQueen v. Commonwealth, 339 S.W.3d 441, 2011 Ky. LEXIS 75 ( Ky. 2011 ).

Because defendant provided transportation for a robbery where a murder occurred, the evidence was sufficient to find defendant guilty of complicity to commit both first-degree robbery and wanton murder under KRS 502.020(1), 515.020 , and 507.020 ; evidence of defendant’s child-support arrearage was relevant under KRE 404(b) to show defendant’s motive for the robbery. Meredith v. Commonwealth, 164 S.W.3d 500, 2003 Ky. LEXIS 303 ( Ky. 2005 ).

Defendant’s convictions of first-degree robbery, KRS 515.020 , and being a first-degree persistent felony offender, KRS 532.080 was affirmed, as the trial court properly refused to suppress, pursuant to RCr 9.78, identification testimony which indicated that defendant was the perpetrator, as defendant failed to show that the identification was based solely on a vanity license plate on the get-away vehicle, and also properly refused to suppress still photos taken from a surveillance tape, as defendant failed to show that the police acted in bad faith when they accidentally recorded a soap opera over the surveillance film; the trial court also properly denied defendant’s motion for a directed verdict of acquittal pursuant to RCr 10.24, as the State presented sufficient evidence that defendant was the perpetrator and that he threatened to use a gun during the commission of the robbery; it was not palpable error under RCr 10.26 for the trial court to decline to enter a mistrial when it was discovered that a potential witness was a member of the jury pool. Shegog v. Commonwealth, 142 S.W.3d 101, 2004 Ky. LEXIS 178 ( Ky. 2004 ).

Evidence was sufficient to support defendant’s robbery conviction based on a victim’s testimony that defendant was the person who entered her home and robbed her. Gerlaugh v. Commonwealth, 156 S.W.3d 747, 2005 Ky. LEXIS 46 ( Ky. 2005 ).

In a murder and first degree robbery prosecution, defendant was not entitled to a directed verdict in view of evidence that: (1) his nephew left him at the victim’s home, heard a fight, and promptly left; (2) defendant later told him to deny leaving defendant at the victim’s home; and (3) the victim’s friend discovered his body about an hour after defendant had been dropped off, with his pockets turned inside out. Davenport v. Commonwealth, 177 S.W.3d 763, 2005 Ky. LEXIS 324 ( Ky. 2005 ), cert. denied, 549 U.S. 827, 127 S. Ct. 40, 166 L. Ed. 2d 46, 2006 U.S. LEXIS 5924 (U.S. 2006).

Because a co-conspirator in a robbery testified that defendant entered the residence, armed with a nine millimeter handgun, there was sufficient evidence to convict defendant of first degree robbery and first degree burglary as the testimony represented more than a mere scintilla of evidence from which jurors could find guilt beyond a reasonable doubt. Rice v. Commonwealth, 199 S.W.3d 732, 2006 Ky. LEXIS 190 ( Ky. 2006 ) sub. nom.Hester v. Commonwealth, 2006 Ky. Unpub. LEXIS 149 (Ky. Sept. 21, 2006).

Defendant’s conviction for robbery in the first degree was not clearly unreasonable where he walked into a bank, gave a bank teller a note that demanded money and indicated that he had a gun, and the bank teller testified that she believed him because both of his hands were not visible at all times; the evidence was adequate to overcome the directed verdict motions that defendant made pursuant to CR 50.01, and there was no palpable error under RCr 10.26 where the jury was properly instructed that proof that defendant actually possessed the gun was not required under KRS 515.020(1)(c). Mitchell v. Commonwealth, 231 S.W.3d 809, 2007 Ky. App. LEXIS 280 (Ky. Ct. App. 2007).

Defendant was not entitled to a directed verdict on the two robbery charges because there was substantial circumstantial evidence that defendant and another person robbed the deceased victim and the witness as (1) moments before the shooting of the victim, the witness heard defendant and the other person demanding that the victim give them everything he had; (2) when the victim attempted to get away with his money and his life, he was killed; (3) the witness’s money and cell phone were taken while he was unconscious from the serious physical injury inflicted by defendant and the other person; and (4) the evidence of the shooting and the beating allowed for a reasonable inference that the purpose of the use of such force was to accomplish a theft. Rogers v. Commonwealth, 315 S.W.3d 303, 2010 Ky. LEXIS 141 ( Ky. 2010 ).

Commonwealth presented evidence that satisfied all elements of robbery in the first degree, KRS 515.020 (b), as a store cashier and a bank teller testified that defendant entered each respective establishment, pointed a gun at each of them, demanded money, and that both victims complied by handing over the currency; furthermore, both victims positively identified defendant as the robber due to their close proximity to defendant during the robberies. Wiley v. Commonwealth, 348 S.W.3d 570, 2010 Ky. LEXIS 265 ( Ky. 2010 ).

Evidence was sufficient to find that defendant committed robbery and unauthorized use of a motor vehicle because he was seen driving the vehicle at issue toward the store that was robbed, the clerk testified that a man driving that same vehicle and wearing bandanas pointed a gun at his face and demanded all the money from the register, and another witness saw defendant drive by after the robbery with his face uncovered. Thus, his motion for directed verdict was properly denied. Smith v. Commonwealth, 361 S.W.3d 908, 2012 Ky. LEXIS 29 ( Ky. 2012 ).

Directed verdict was not warranted in a first-degree robbery case because there was sufficient evidence presented to support the conviction; a store clerk identified defendant as the assailant, other witnesses testified that defendant appeared to be the man on surveillance video, items consistent with those worn by the perpetrator were found in defendant’s residence, and defendant’s ex-girlfriend testified about incriminating statements that defendant made. Morgan v. Commonwealth, 421 S.W.3d 388, 2014 Ky. LEXIS 10 ( Ky. 2014 ).

Evidence was sufficient to support defendant’s conviction of first-degree robbery where the victims testified that defendant held each of them at knife point at different points as defendant ransacked their apartments for valuables. Mitchell v. Commonwealth, 423 S.W.3d 152, 2014 Ky. LEXIS 16 ( Ky. 2014 ).

Directed verdict of acquittal was properly denied as to the counts of first-degree robbery and first-degree burglary because an accomplice testified that he and defendant took a bag of marijuana from the victim's apartment; the chain of custody was sufficiently proven to overcome a directed verdict motion and to allow the evidence to be presented to the jury for its consideration; it was irrelevant whether the marijuana in the bag was real or not as the jury only had to believe that defendant was one of the assailants who went into the victim's apartment and stole his property; and the accomplice testified that he saw a gun and a cell phone in a bag used to carry the stolen items away that had not been there before. Forte v. Commonwealth, 2016 Ky. App. LEXIS 182 (Ky. Ct. App. Nov. 4, 2016).

Trial court did not err by denying defendant’s motion for a directed verdict on the charge of first-degree robbery where the evidence showed that defendant’s theft of his wife’s purse was part of the same criminal episode as the attempted murder and it was irrelevant that it was after he attacked her. Ray v. Commonwealth, 611 S.W.3d 250, 2020 Ky. LEXIS 403 ( Ky. 2020 ).

25.—Insufficient.

Evidence that defendants attacked and struck prosecuting witness, and ran their hands in his pockets, was not sufficient to support a conviction under law that provided penalty for armed assault with intent to rob, where there was no evidence that defendants used any “offensive weapon or instrument,” or that they demanded or endeavored to take from witness anything of value. (Decided under prior law) Hatfield v. Commonwealth, 301 Ky. 501 , 192 S.W.2d 385, 1946 Ky. LEXIS 506 ( Ky. 1946 ).

Evidence that defendant took pistol from police officer was not sufficient to sustain conviction for robbery where undisputed proof showed that defendant voluntarily returned pistol to another officer a short time later. (Decided under prior law) Gadd v. Commonwealth, 309 Ky. 242 , 217 S.W.2d 308, 1949 Ky. LEXIS 675 ( Ky. 1949 ).

Where the only evidence connecting the defendant with the robbery was the testimony of an accomplice, a conviction cannot be sustained. (Decided under prior law) Bryant v. Commonwealth, 277 S.W.2d 55, 1955 Ky. LEXIS 465 ( Ky. 1955 ).

Although the victim’s wallet was taken from the body by scavengers at the scene after the defendant shot him, rather than by the defendant, and the defendant aborted the theft attempt before robbing the body, there was sufficient evidence to prove that the defendant was engaged in the act of committing a theft when he shot the victim to submit the first-degree robbery charge to the jury. Wade v. Commonwealth, 724 S.W.2d 207, 1986 Ky. LEXIS 315 ( Ky. 1986 ).

Where, in prosecution for robbery, no object was either seen or felt, and at most there was an unidentifiable bulge in the defendant’s hip pocket which the prosecuting witness felt “maybe” was “a weapon or something,” the defendant’s conviction under this section was reversed and remanded for retrial on a charge no greater than second-degree robbery. Williams v. Commonwealth, 721 S.W.2d 710, 1986 Ky. LEXIS 308 ( Ky. 1986 ).

Without an instrument’s ever being seen, an intimidating threat, albeit coupled with a menacing gesture, cannot suffice to meet the standard necessary for a first-degree robbery conviction. Williams v. Commonwealth, 721 S.W.2d 710, 1986 Ky. LEXIS 308 ( Ky. 1986 ).

Trial court erred in denying defendant’s motion for a directed verdict on the first-degree robbery charge where the evidence demonstrated that he approached a bank teller, passed a note demanding money, made one gesture suggesting that he had a gun, but a simple gesture, without more, was insufficient to warrant a conviction under Ky. Rev. Stat. Ann. § 515.020(1)(c). Lang v. Commonwealth, 556 S.W.3d 584, 2018 Ky. LEXIS 355 ( Ky. 2018 ).

26.—Nonprejudicial.

In prosecution for robbery, evidence that two persons jointly indicted with appellant had some money in their possession after the time of the robbery was incompetent but not prejudicial, since it had no evidentiary value. (Decided under prior law) Gum v. Commonwealth, 291 Ky. 450 , 165 S.W.2d 21, 1942 Ky. LEXIS 265 ( Ky. 1942 ).

When defendant was charged with armed robbery, the testimony that the defendant carried a sawed-off shotgun did not necessarily constitute error and if it was error it was harmless as the testimony only distinguished the gun by its length and the fact that possession of such a gun was a violation of federal law was neither stated nor emphasized. (Decided under prior law) Blakemore v. Commonwealth, 497 S.W.2d 231, 1973 Ky. LEXIS 307 ( Ky. 1973 ).

The failure of the Commonwealth to furnish defendant with two of the cartridges found at the scene of the shooting and robbery was not prejudicial where neither cartridge was admitted as evidence. Brewster v. Commonwealth, 568 S.W.2d 232, 1978 Ky. LEXIS 371 ( Ky. 1978 ).

The trial court in a first-degree robbery prosecution did not err when it refused to grant defendant’s motion for a mistrial after a codefendant entered a plea of guilty, where the guilty plea was taken outside the presence of the jury, and the only information conveyed to the jury regarding the codefendant’s guilty plea was that brought out on cross-examination by the defendant. Taylor v. Commonwealth, 652 S.W.2d 863, 1983 Ky. LEXIS 259 ( Ky. 1983 ).

Because the victim’s testimony was sufficient to establish defendant’s guilt for the offense of first-degree robbery under KRS 515.020 , the introduction of evidence pursuant to KRE. 608 via a witness concerning defendant’s drug use as a motive for committing the robbery was not prejudicial and did not constitute palpable error under RCr P. 10.26. McElroy v. Commonwealth, 389 S.W.3d 130, 2012 Ky. App. LEXIS 292 (Ky. Ct. App. 2012).

27.Included Offenses.

“Larceny” is a degree of the offense of robbery. (Decided under prior law) Southerland v. Commonwealth, 217 Ky. 94 , 288 S.W. 1051, 1926 Ky. LEXIS 28 ( Ky. 1926 ); Montgomery v. Commonwealth, 346 S.W.2d 479, 1961 Ky. LEXIS 308 ( Ky. 1961 ).

Where a defendant pointed a pistol at a person during the course of a robbery, the act of wanton endangerment merged with the act of robbery of which it is an included offense under KRS 505.020 ; accordingly, convictions for both first-degree robbery and first-degree wanton endangerment arising out of the same robbery violated the constitutional and statutory prohibitions against double jeopardy and the wanton endangerment charge must be dismissed. Marshall v. Commonwealth, 625 S.W.2d 581, 1981 Ky. LEXIS 306 ( Ky. 1981 ).

The possession and use of the pistol did not constitute an offense separate from the first-degree robbery charge for which the defendant was being tried and was convicted. One of the elements elevating robbery to the highest degree, being armed with a deadly weapon, cannot be separated and also used to convict on a separate offense such as wanton endangerment. Gilbert v. Commonwealth, 637 S.W.2d 632, 1982 Ky. LEXIS 282 ( Ky. 1982 ), cert. denied, 459 U.S. 1149, 103 S. Ct. 794, 74 L. Ed. 2d 998, 1983 U.S. LEXIS 3135 (U.S. 1983).

As a general rule, assault in the first degree is a lesser included offense of robbery in the first degree. Commonwealth v. Varney, 690 S.W.2d 758, 1985 Ky. LEXIS 211 ( Ky. 1985 ), overruled, Goodman v. Commonwealth, 2015 Ky. Unpub. LEXIS 19 (Ky. Feb. 19, 2015).

Theft and assault are lesser included offenses within the charge of robbery, and a person cannot be convicted of both robbery and assault. Commonwealth v. Varney, 690 S.W.2d 758, 1985 Ky. LEXIS 211 ( Ky. 1985 ), overruled, Goodman v. Commonwealth, 2015 Ky. Unpub. LEXIS 19 (Ky. Feb. 19, 2015).

An assault committed by the defendants upon a robbery victim, merged into the offense of first-degree robbery. O'Hara v. Commonwealth, 781 S.W.2d 514, 1989 Ky. LEXIS 110 ( Ky. 1989 ), overruled in part, McNeil v. Commonwealth, 468 S.W.3d 858, 2015 Ky. LEXIS 1764 ( Ky. 2015 ).

It was error for the trial court to refuse to instruct the jury on the offense of knowingly receiving stolen property of a value of less than $100 in defendant’s trial for first degree robbery. Conklin v. Commonwealth, 799 S.W.2d 582, 1990 Ky. LEXIS 135 ( Ky. 1990 ).

Supreme Court of Kentucky overrules its decision in Davis v. Commonwealth, Ky., 899 S.W.2d 487, 1995 Ky. LEXIS 47 (1995), to the extent that it would prohibit retrial of a prior felony offender charge where there is sufficient evidence, albeit improperly admitted, to sustain the verdict. Merriweather v. Commonwealth, 99 S.W.3d 448, 2003 Ky. LEXIS 39 ( Ky. 2003 ).

No testimony or evidence was presented that defendant took the victim’s property without the use of force. Thus, an instruction based on theft by unlawful taking, value of $300 or more, as a lesser included offense to the first-degree robbery charge was unsupported by the evidence, and the trial court did not abuse its discretion in rejecting such an instruction. Sanders v. Commonwealth, 2009 Ky. LEXIS 142 (Ky. June 25, 2009).

Definition of second-degree robbery contained in KRS 515.030(1) was identical to the language of KRS 515.020(1), except without the aggravating factors contained in KRS 515.020(1)(a)-(c); thus, a conviction under second-degree robbery statute as a the lesser included offense could not be sustained where defendant’s use of force against a police officer was not with intent to accomplish a theft. Hobson v. Commonwealth, 306 S.W.3d 478, 2010 Ky. LEXIS 67 ( Ky. 2010 ).

28.Indictment.

The words “feloniously and with intent to rob” used in an indictment have the same meaning as the words “with a felonious intent to rob” contained in law that provided penalty for armed assault with intent to rob. (Decided under prior law) Barnett v. Commonwealth, 195 Ky. 699 , 243 S.W. 937, 1922 Ky. LEXIS 399 ( Ky. 1922 ).

An indictment alleging that the defendant had used a pistol, a deadly weapon, in the commission of a robbery was sufficient even though it did not allege that the pistol was loaded or allege any other facts indicating that the pistol was a deadly weapon. (Decided under prior law) Moore v. Commonwealth, 260 Ky. 437 , 86 S.W.2d 145, 1935 Ky. LEXIS 496 ( Ky. 1935 ).

Where the accusatory part of the indictment followed the language of law that provided penalty for armed assault with intent to rob and the descriptive part used the term “feloniously” the indictment was proper and it was not necessary to use the term “feloniously” in the accusatory part. (Decided under prior law) Robertson v. Commonwealth, 269 Ky. 317 , 107 S.W.2d 292, 1937 Ky. LEXIS 615 ( Ky. 1937 ).

Indictment charging that defendant confederated and banded together for purpose of intimidating, alarming, and disturbing or injuring and robbing a named person, and that defendants “actually did assault and rob the said John Riddle with an offensive weapon,” was fatally defective because it charged two separate offenses, one a violation of law that provided penalty for armed assault with intent to rob and the other a violation of law providing penalty of banding together for an unlawful purpose. (Decided under prior law) Jones v. Commonwealth, 303 Ky. 106 , 196 S.W.2d 972, 1946 Ky. LEXIS 795 ( Ky. 1946 ).

Prisoners who attacked deputy jailer with a chain and took from him money and jail keys should have been indicted for armed assault with intent to rob, rather than under conspiracy law, but in descriptive part of indictment it would be proper to describe all of the acts constituting the offense, including acts showing a conspiracy. (Decided under prior law) Jones v. Commonwealth, 303 Ky. 106 , 196 S.W.2d 972, 1946 Ky. LEXIS 795 ( Ky. 1946 ).

As a date is not a material ingredient of the crime of armed robbery it was harmless error to allow the prosecuting attorney with the consent of defense counsel and approval of the court to amend the indictment to correct an error in the date of the commission of the crime. (Decided under prior law) Kinmon v. Commonwealth, 255 S.W.2d 987, 1953 Ky. LEXIS 689 ( Ky. 1953 ).

Where the accusatory part of an indictment for the crime of assault with intent to rob by the use of an offensive weapon did not employ the statutory language, “unlawfully and maliciously,” but the descriptive part did, so that the indictment read as a whole met the requisites of the statute and fairly and reasonably apprised the accused of the offenses, it was valid. (Decided under prior law) Knuckles v. Commonwealth, 261 S.W.2d 667, 1953 Ky. LEXIS 1046 ( Ky. 1953 ).

An indictment which alleged that the defendants had unlawfully and feloniously committed robbery with force and violence and against the will of the party robbed was sufficient even though it did not allege that the person robbed was put in fear. (Decided under prior law) Watkins v. Commonwealth, 287 S.W.2d 416, 1956 Ky. LEXIS 454 ( Ky. 1956 ).

An indictment which stated that the defendant had robbed a store “with force and arms” and “by force and violence” was not sufficient to state a cause of action under law that provided penalty for armed robbery which required the use of a pistol, gun or other firearm or deadly weapon. (Decided under prior law) Foster v. Commonwealth, 331 S.W.2d 277, 1960 Ky. LEXIS 117 ( Ky. 1960 ).

An indictment was not invalid where it charged unlawful, malicious use of force and arms, or an offensive weapon or instrument and also used the words “in a violent and forceful manner” as even though the evidence supported only the second part of the charges, the first part was merely surplusage. (Decided under prior law) Roberts v. Commonwealth, 339 S.W.2d 640, 1960 Ky. LEXIS 480 ( Ky. 1960 ).

Motion of defendant, convicted of first-degree robbery, to vacate sentence under RCr 11.42 was properly denied as indictment specified the use of force or threat upon a person and not a business entity and thus properly stated the offense of first-degree robbery as required by Stark v. Com., 828 S.W.2d 603, 1991 Ky. LEXIS 177 (1992).Reardon v. Commonwealth, 906 S.W.2d 360, 1995 Ky. App. LEXIS 93 (Ky. Ct. App. 1995).

Although defendant’s indictment for robbery was incomplete because it failed to state that he used or threatened force against a person and failed to name that person, that defect did not mean the indictment failed to “charge an offense” or was insufficient to support a conviction. Thomas v. Commonwealth, 931 S.W.2d 446, 1996 Ky. LEXIS 89 ( Ky. 1996 ).

29.—Variance.

There was no fatal variance between indictment charging assault with offensive weapon with intent to rob and evidence of compelling prosecuting witness at point of gun to sign check. (Decided under prior law) Reed v. Commonwealth, 281 Ky. 189 , 135 S.W.2d 867, 1940 Ky. LEXIS 9 ( Ky. 1940 ).

There was no fatal variance between indictment charging commission of crime with a pistol and evidence showing commission of crime with shotgun. (Decided under prior law) Reed v. Commonwealth, 281 Ky. 189 , 135 S.W.2d 867, 1940 Ky. LEXIS 9 ( Ky. 1940 ).

There was no material variance between accusatory part of indictment charging offense was committed with “an offensive weapon,” and descriptive part of indictment charging offense was committed with a “pistol, a deadly weapon,” since a “deadly weapon” was an “offensive weapon” as used in law that provided penalty for armed assault with intent to rob. (Decided under prior law) Reed v. Commonwealth, 281 Ky. 189 , 135 S.W.2d 867, 1940 Ky. LEXIS 9 ( Ky. 1940 ).

Where indictment charged that assault with intent to rob was made upon a hotel desk clerk and the evidence showed that the property taken was the property of the hotel company, there is no fatal variance for the reason that an assault with attempt to rob is a different crime than robbery. (Decided under prior law) Wheeler v. Commonwealth, 395 S.W.2d 565, 1964 Ky. LEXIS 533 (Ky. Ct. App. 1964), cert. denied, 385 U.S. 826, 87 S. Ct. 58, 17 L. Ed. 2d 62, 1966 U.S. LEXIS 673 (U.S. 1966).

30.Instructions.

A defendant on trial for robbery is not entitled to an instruction on larceny where he does not admit that he took the property from the possession of the victim but denies the taking entirely. (Decided under prior law) Gum v. Commonwealth, 291 Ky. 450 , 165 S.W.2d 21, 1942 Ky. LEXIS 265 ( Ky. 1942 ).

In a prosecution of one indicted with two others jointly for robbing plaintiff of his money only, an instruction, permitting conviction of defendant for taking plaintiff’s money, goods, or chattels, was erroneous, though not sufficiently prejudicial to require a reversal of judgment. (Decided under prior law) Gapoian v. Commonwealth, 302 Ky. 867 , 196 S.W.2d 744, 1946 Ky. LEXIS 776 ( Ky. 1946 ).

Where the defendant alone was indicted as a principal in the commission of an armed robbery it was error to give an instruction allowing the jury to find the defendant guilty as an accessory. (Decided under prior law) Watts v. Commonwealth, 272 S.W.2d 475, 1954 Ky. LEXIS 1112 ( Ky. 1954 ).

Where the defendant was indicted for the armed assault with intent to rob ten different persons and the instruction used the word “or” and listed the victims alternatively and not collectively as in the indictment the instruction was erroneous but there was not prejudicial error where the defendant was given only the minimum sentence. (Decided under prior law) Mahan v. Commonwealth, 286 S.W.2d 93, 1955 Ky. LEXIS 95 ( Ky. 1955 ).

Where there was no evidence of defendant’s guilt, other than an identification of the defendant by the victim and testimony of an alleged accomplice, it was prejudicial error to fail to give a cautionary instruction on the weight of an accomplice’s testimony. (Decided under prior law) Rue v. Commonwealth, 347 S.W.2d 74, 1961 Ky. LEXIS 344 ( Ky. 1961 ).

Where the evidence showed that the actual robbery was perpetrated by only one man but that the defendant and another person went to the scene of the robbery with the actual perpetrator and stationed themselves nearby to watch and facilitate the escape, an instruction that the defendant could be convicted as an accomplice was improper but an instruction that the defendant could have been convicted as an aider and abettor should have been given. (Decided under prior law) Hammershoy v. Commonwealth, 408 S.W.2d 624, 1966 Ky. LEXIS 125 ( Ky. 1966 ).

An erroneous instruction regarding the fixing of the sentence is waived if not objected to at trial and not raised in motion and grounds for a new trial. (Decided under prior law) Parrish v. Commonwealth, 472 S.W.2d 69, 1971 Ky. LEXIS 176 ( Ky. 1971 ).

Where the instruction to fix punishment for armed robbery only authorized the jury to fix punishment at death or confinement in the penitentiary for life or confinement in the penitentiary for ten years instead of authorizing the fixing of years from ten to life as well, the instruction was erroneous. (Decided under prior law) Parrish v. Commonwealth, 472 S.W.2d 69, 1971 Ky. LEXIS 176 ( Ky. 1971 ).

Where the trial court in a robbery prosecution failed to instruct the jury as to the element of force, or placing the subject of the crime in fear, a conviction for robbery could not stand. (Decided under prior law) Shelton v. Commonwealth, 471 S.W.2d 716, 1971 Ky. LEXIS 253 ( Ky. 1971 ).

Where instruction called for conviction if there was a conspiracy carried out by commission of armed robbery, it was not error to allow conviction of armed robbery rather than conspiracy. (Decided under prior law) Cripple v. Commonwealth, 506 S.W.2d 506, 1974 Ky. LEXIS 751 ( Ky. 1974 ).

Defendant’s failure to object to the giving of an instruction based on armed robbery in the first degree on the ground if sufficient evidence of physical force or intent to use a dangerous weapon at the close of all the evidence waives the right to complain on appeal. Queen v. Commonwealth, 551 S.W.2d 239, 1977 Ky. LEXIS 464 ( Ky. 1977 ), overruled in part, Ray v. Commonwealth, 611 S.W.3d 250, 2020 Ky. LEXIS 403 ( Ky. 2020 ).

By giving only one robbery instruction, the trial court did not direct a verdict of guilt, placing the jury in a position of either convicting the defendant of the higher degree of robbery or completely freeing him. Johnson v. Commonwealth, 721 S.W.2d 721, 1986 Ky. App. LEXIS 1409 (Ky. Ct. App. 1986).

Where, in prosecution for attempted first-degree robbery, the defendant neither testified nor called any witnesses in his behalf, and the only evidence in the record indicated that the defendant was standing with the bumper jack raised in the air over the victim’s head, demanding money, the instruction that the defendant threatened the immediate use of force upon the victim with a bumper jack and that said bumper jack was a dangerous instrument was proper. Johnson v. Commonwealth, 721 S.W.2d 721, 1986 Ky. App. LEXIS 1409 (Ky. Ct. App. 1986).

The whole purpose of the trial court including a definition for “gun” in the jury instructions was to allow the jury to make a factual finding as to whether or not during robbery defendant “threatened the immediate use of physical force upon bank teller with a gun,” with “gun” being defined as including “any object intended by its user to convince a victim that it is a gun and the victim is in fact so convinced.” The jury concluded that the object appellant used met the definition of “gun” as given by the trial court and the trial court’s instructions as to the law of the case were proper. Lambert v. Commonwealth, 835 S.W.2d 299, 1992 Ky. App. LEXIS 185 (Ky. Ct. App. 1992).

Where defendant, who was tried for, inter alia, first-degree robbery, claimed that defendant merely went to the victim’s home to look for someone and that defendant’s friend, who was with defendant, decided to rob the victim without defendant’s prior knowledge, the trial court erred in (1) omitting from the jury instructions any definition for “accomplice” and any explanation that defendant had to act in complicity with the friend regarding the theft in order to be guilty of robbery, and (2) reinforcing the omissions in its response to the jury’s questions; the error was not harmless, especially since the jury’s questions to the court indicated a lack of understanding of the terms “accomplice” and “complicity” and required reversal. Bennett v. Commonwealth, 2003 Ky. App. Unpub. LEXIS 433 (Ky. Ct. App. Apr. 11, 2003).

Although the trial court added the words “while asserting” to its jury instruction on first-degree robbery, the error was harmless because the instruction conveyed the meaning of KRS 515.020 . Whalen v. Commonwealth, 205 S.W.3d 238, 2006 Ky. App. LEXIS 171 (Ky. Ct. App. 2006).

Defendant's right to an unanimous verdict was not violated because the evidence consisted of only one criminal act on which liability could be found for robbery and one criminal act on which liability could be found for burglary as the Commonwealth presented evidence that defendant assisted in the planning and execution of the robbery; the Commonwealth clearly supported alternative theories that defendant acted as either a principle or an accomplice as to both the robbery and burglary charges; and the instructions were not so confusing or misleading as to lead the jury to believe that more than one criminal act was committed and that it could find guilt based on either one. Forte v. Commonwealth, 2016 Ky. App. LEXIS 182 (Ky. Ct. App. Nov. 4, 2016).

31.—Deadly Weapon.

Where the victim testified that she was robbed at the point of a pistol the defendants were not entitled to an instruction on simple robbery. (Decided under prior law) Mitchell v. Commonwealth, 280 S.W.2d 189, 1955 Ky. LEXIS 142 ( Ky. 1955 ).

An instruction which permitted a conviction for armed robbery if the defendant had used an “offensive weapon” was improper as law that provided a penalty for armed robbery proscribed the use of a “deadly weapon.” (Decided under prior law) Napier v. Commonwealth, 356 S.W.2d 755, 1962 Ky. LEXIS 99 ( Ky. 1962 ).

Where the defendant used a club 12 inches long and two (2) inches in diameter an instruction should have been given conditioning a conviction on a finding that the club was a “deadly weapon” and also that if it were found that the club was not such a deadly weapon that the defendant could be found guilty of common-law robbery. (Decided under prior law) Napier v. Commonwealth, 356 S.W.2d 755, 1962 Ky. LEXIS 99 ( Ky. 1962 ).

Where the gun was pointed at officer until he was handcuffed to post but no gun was used when his property was thereafter taken, instruction on robbery (as distinguished from armed robbery) was properly refused. (Decided under prior law) Lem v. Commonwealth, 419 S.W.2d 759, 1967 Ky. LEXIS 191 ( Ky. 1967 ).

Court did not err in failing to give an instruction on simple robbery where the witness who testified that a knife had been held at his neck, admitted that he had not seen it but only felt it, since such instrument was used as a threat and was intended to and did convince witness that it was a knife. (Decided under prior law) Travis v. Commonwealth, 457 S.W.2d 481, 1970 Ky. LEXIS 205 ( Ky. 1970 ).

In a robbery prosecution where the trial court concludes that a jury issue is generated as to whether a “deadly weapon” was used, the court will submit that issue to the jury along with an instruction affording basis for a conviction for simple robbery if the jury finds that a robbery was committed without the use of a deadly weapon. (Decided under prior law) Terry v. Commonwealth, 471 S.W.2d 730, 1971 Ky. LEXIS 260 ( Ky. 1971 ).

If the trial court in an armed robbery prosecution finds as a matter of law that a deadly weapon was used, it shall instruct the jury under law providing penalty for armed robbery without submitting to the jury any issue as to the character of the weapon used. (Decided under prior law) Terry v. Commonwealth, 471 S.W.2d 730, 1971 Ky. LEXIS 260 ( Ky. 1971 ).

While instructions given to a jury improperly presupposed that the pistol defendant used in the course of a robbery was a deadly weapon, the error was harmless because there was no doubt that the jury itself would have found that the pistol was a deadly weapon. Wright v. Commonwealth, 239 S.W.3d 63, 2007 Ky. LEXIS 246 ( Ky. 2007 ).

Trial court correctly convicted defendant of first-degree robbery because, while defendant testified that he did not plan to injure the victim, it was uncontested that he participated in the planned robbery of the victim, defense counsel did not object to the combining of the elements of first- and second-degree robbery where the jury instruction defined “dangerous instrument,” and the combining of the instructions did not fail to accurately state the law for the jury. Stine v. Commonwealth, 2018 Ky. App. LEXIS 312 (Ky. Ct. App. Dec. 21, 2018), review denied, ordered not published, 2019 Ky. LEXIS 132 (Ky. Apr. 11, 2019).

32.—Defenses.

Where defendant admitted taking gun from prosecuting witness but claimed that gun was taken for sole purpose of preventing prosecuting witness from shooting him and with no intent to convert it to his own use, it was error for court not to give special instruction covering defendant’s theory of the case. (Decided under prior law) McIntosh v. Commonwealth, 291 Ky. 476 , 165 S.W.2d 25, 1942 Ky. LEXIS 267 ( Ky. 1942 ).

In prosecution for robbery based on taking of pistol from police officer, defendant was entitled to instruction presenting his defense that he took pistol to prevent officer from striking him with the pistol in an unjustified altercation. (Decided under prior law) Gadd v. Commonwealth, 309 Ky. 242 , 217 S.W.2d 308, 1949 Ky. LEXIS 675 ( Ky. 1949 ).

Where there was no proof that a defendant jointly indicted with two others was actually present at the scene of a robbery, it was proper to give instructions on aiding and abetting. (Decided under prior law) Hartman v. Commonwealth, 282 S.W.2d 48, 1955 Ky. LEXIS 219 ( Ky. 1955 ).

Where the defense was that the defendants admitted their presence when the assault took place but showed a reason for the assault other than robbery as the motive, they were entitled to an assault and battery instruction. (Decided under prior law) Egan v. Commonwealth, 438 S.W.2d 333, 1969 Ky. LEXIS 393 ( Ky. 1969 ).

33.—Intent.

If a person “steals,” either personally or through a confederate, he is guilty of theft, and intentional taking without permission; thus, in a prosecution for first-degree robbery, instructions need not be couched in terms of specific intention on the part of defendant as an aider and abettor. Ray v. Commonwealth, 550 S.W.2d 482, 1977 Ky. LEXIS 420 ( Ky. 1977 ).

Jury instructions failed to provide that defendant, charged as an accomplice under KRS 502.020(1)(a) and (b) to robbery under KRS 515.020(1)(c), had to have intended that the principal commit the robbery; a more accurate instruction would have stated that a person is guilty of an offense committed by another person when, with the intention of promoting or facilitating the commission of the offense, he solicits, commands, or engages in a conspiracy with such other person to commit the offense, or aids, counsels, or attempts to aid such person in planning or committing the offense. Crawley v. Commonwealth, 107 S.W.3d 197, 2003 Ky. LEXIS 148 ( Ky. 2003 ).

34.—Lesser Offenses.

Where the defendant is indicted for robbery, it is permissible to instruct as to grand or petit larceny if warranted by the evidence, as these are lesser degrees of the crime of robbery. (Decided under prior law) Lewis v. Commonwealth, 270 Ky. 72 , 109 S.W.2d 25, 1937 Ky. LEXIS 27 ( Ky. 1937 ).

Under indictment charging defendant with robbery it was error to give instruction on assault with intent to rob, since the latter offense was not charged. (Decided under prior law) Riley v. Commonwealth, 278 Ky. 732 , 129 S.W.2d 581, 1939 Ky. LEXIS 505 ( Ky. 1939 ).

In trial for armed robbery, failure to instruct on larceny and assault was not prejudicial error where defendants denied taking anything from prosecuting witness. (Decided under prior law) Rowe v. Commonwealth, 283 Ky. 367 , 141 S.W.2d 284, 1940 Ky. LEXIS 331 ( Ky. 1940 ).

Fact that the deadly weapon was not pointed at or pressed against victim at moment of taking money from him does not warrant an instruction on a lesser offense, it being sufficient that a weapon was displayed or referred to in a threatening manner. (Decided under prior law) Peck v. Commonwealth, 286 Ky. 347 , 150 S.W.2d 919, 1941 Ky. LEXIS 267 ( Ky. 1941 ).

Where the robbery consisted of some five (5) or six (6) hours of consecutive continuous acts, defendant was not entitled to an instruction on accessory after the fact based on his claim that he didn’t join accomplices until some 20 minutes after beginning of robbery. (Decided under prior law) McPeak v. Commonwealth, 308 Ky. 29 , 213 S.W.2d 447, 1948 Ky. LEXIS 860 ( Ky. 1948 ).

An instruction on assault and battery was proper when the defendant stated that the assault was unpremeditated and that he had no intent and made no attempt to rob the victim. (Decided under prior law) Davidson v. Commonwealth, 280 S.W.2d 216, 1955 Ky. LEXIS 153 ( Ky. 1955 ).

Where the evidence indicated that the defendant could be found guilty only for assault with intent to rob or not at all it was not error to fail to give an instruction on assault and battery. (Decided under prior law) Tackett v. Commonweatlh, 275 S.W.2d 433, 1955 Ky. LEXIS 360 ( Ky. 1955 ); Ringstaff v. Commonwealth, 275 S.W.2d 946, 1955 Ky. LEXIS 404 ( Ky. 1955 ).

It is proper to give an instruction on assault and battery where there is evidence that there was a reason for the assault other than robbery or where the defendant admits taking property but denies any felonious intent. (Decided under prior law) Watkins v. Commonwealth, 287 S.W.2d 416, 1956 Ky. LEXIS 454 ( Ky. 1956 ).

Where the evidence clearly showed that the defendant committed a robbery while armed with a pistol, he was not entitled to an instruction on robbery in the second degree. Mishler v. Commonwealth, 556 S.W.2d 676, 1977 Ky. LEXIS 525 ( Ky. 1977 ).

In prosecution for first-degree robbery, the evidence that defendant’s accomplice in planned robbery backed down supported the finding of attempted theft (an element of robbery), not renunciation by the defendant, and the trial court did not err in refusing to instruct on menacing and terroristic threatening. Tipton v. Commonwealth, 640 S.W.2d 818, 1982 Ky. LEXIS 307 ( Ky. 1982 ).

In prosecution for first-degree robbery, the defendant’s evidence did not justify giving an instruction on terroristic threatening as a lesser included offense of robbery, where the defendant claimed that he told the victim that “me and you are going to fight, if you don’t give me my money,” and then left the scene, returning with a gun which he concealed beneath his clothes; however, he claimed that before he could remove the gun from his clothing or make any threats, the victim suddenly appeared and shot him. Blankenship v. Commonwealth, 740 S.W.2d 164, 1987 Ky. App. LEXIS 587 (Ky. Ct. App. 1987).

Trial court did not abuse its discretion in refusing to instruct the jury on third-degree terroristic threatening as a lesser-included offense to first-degree robbery because third-degree terroristic threatening was a lesser, uncharged offense rather than a lesser-included offense. Sasser v. Commonwealth, 485 S.W.3d 290, 2016 Ky. LEXIS 105 ( Ky. 2016 ).

Trial court did not err in denying a jury instruction on facilitation as a lesser-included offense to the complicity charges for robbery, burglary, and assault because, although the jury might choose to disbelieve part of the testimony of the two accomplices, that did not constitute evidence of the lesser mental state required for a facilitation instruction; and because defendant presented no evidence demonstrating that he was wholly indifferent to the completion of the crime. Forte v. Commonwealth, 2016 Ky. App. LEXIS 182 (Ky. Ct. App. Nov. 4, 2016).

35.—Missing Witness.

Where the Commonwealth failed to call the investigating police officer to the stand, there was no authority for a “missing witness” presumption or an instruction thereon. Kendricks v. Commonwealth, 557 S.W.2d 417, 1977 Ky. LEXIS 582 ( Ky. 1977 ), overruled, Hon v. Commonwealth, 670 S.W.2d 851, 1984 Ky. LEXIS 227 ( Ky. 1984 ).

36.—Previous Convictions.

Where the trial court admonished the jury, immediately after the introduction of evidence of a prior conviction of forgery, that such conviction must be considered only for the purpose of judging the defendant’s credibility, the trial court did not err in refusing to submit to the jury precautionary instructions on the subject. Harris v. Commonwealth, 556 S.W.2d 669, 1977 Ky. LEXIS 523 ( Ky. 1977 ).

37.Sentencing.

Where the defendants convicted of robbery were sentenced for more than the maximum statutory term, the sentence was voidable only as to the excess where the defendants did not avail themselves of the right to appeal after their conviction. (Decided under prior law) Department of Public Welfare v. Polsgrove, 245 Ky. 159 , 53 S.W.2d 341, 1932 Ky. LEXIS 556 ( Ky. 1932 ).

Robbery by the use of firearms is recognized as a more serious offense than robbery without and warrants a more severe penalty. (Decided under prior law) Sharp v. Commonwealth, 266 Ky. 850 , 100 S.W.2d 817, 1937 Ky. LEXIS 6 ( Ky. 1937 ).

Where the defendant was indicted for robbery, it was error to give an instruction which set the possible sentence at that established for assault with intent to rob, which was a more severe sentence than the one prescribed for robbery. (Decided under prior law) Riley v. Commonwealth, 278 Ky. 732 , 129 S.W.2d 581, 1939 Ky. LEXIS 505 ( Ky. 1939 ); Shepherd v. Commonwealth, 316 S.W.2d 367, 1958 Ky. LEXIS 45 ( Ky. 1958 ).

Where indictment charged defendant with robbery and jury evidently found defendant guilty of robbery but fixed wrong penalty because court had erroneously instructed as to penalties for robbery and assault with intent to commit robbery, defendant was entitled to new trial. (Decided under prior law) Riley v. Commonwealth, 278 Ky. 732 , 129 S.W.2d 581, 1939 Ky. LEXIS 505 ( Ky. 1939 ).

In prosecution for armed assault with intent to rob, verdict fixing punishment at ten years’ imprisonment was erroneous, since it was not authorized by law that provided penalty for armed assault with intent to rob, and defendants were entitled to complain of such verdict, even though it purported to fix a punishment lower than the minimum fixed by the law. (Decided under prior law) Hatfield v. Commonwealth, 301 Ky. 501 , 192 S.W.2d 385, 1946 Ky. LEXIS 506 ( Ky. 1946 ).

Where the jury “recommended” the minimum sentence of 21 years and no objection was made to the form of the verdict the verdict was not defective. (Decided under prior law) Underhill v. Commonwealth, 289 S.W.2d 509, 1956 Ky. LEXIS 287 ( Ky. 1956 ).

Imposition of a sentence without the intervention of a jury after a plea of guilty was erroneous but did not render the judgment void so as to allow a release from imprisonment on habeas corpus. (Decided under prior law) Thomas v. Maggard, 313 S.W.2d 271, 1958 Ky. LEXIS 248 ( Ky. 1958 ); Hicks v. Commonwealth, 388 S.W.2d 568, 1965 Ky. LEXIS 429 ( Ky. 1965 ).

It was prejudicial error for a judge to tell a jury that on a life sentence the defendant would be eligible for parole in eight (8) years, and this error was not corrected by a later statement that the judge was not allowed to give such information and that such matters were in the hands of the parole board, because such statements could conceivably have influenced the conviction and sentence. (Decided under prior law) Ringo v. Commonwealth, 346 S.W.2d 21, 1961 Ky. LEXIS 282 ( Ky. 1961 ).

Where the trial court failed to instruct the jury that they could fix a penalty of from ten years to life for armed robbery as well as years or life in the penitentiary or death, the defendant was not prejudiced where he received the minimum sentence of ten years. (Decided under prior law) Parrish v. Commonwealth, 472 S.W.2d 69, 1971 Ky. LEXIS 176 ( Ky. 1971 ).

Where defendant was convinced of aiding and abetting armed robbery and of being an habitual offender, the trial court erred in imposing sentence for the principal conviction in addition to the penalty prescribed by the habitual criminal statute could be imposed. (Decided under prior law) Newcomb v. Commonwealth, 531 S.W.2d 489, 1975 Ky. LEXIS 34 ( Ky. 1975 ).

Where sentence was fixed by a jury, it became the prerogative of the prosecuting attorney to present to the jury such evidence as would enable it to fully understand and envision the manner in which the robbery was carried out, the identity of the persons charged with the offenses, the motive for the robbery, and any and all other facts pertinent to a full understanding of the circumstances surrounding the commission of the offenses. Lycans v. Commonwealth, 562 S.W.2d 303, 1978 Ky. LEXIS 321 ( Ky. 1978 ).

District court properly classified defendant as armed career criminal because his Kentucky first-degree robbery convictions qualified as violent felonies under Armed Career Criminal Act. United States v. Ingram, 733 Fed. Appx. 812, 2018 FED App. 0244N, 2018 U.S. App. LEXIS 12549 (6th Cir. Ky. 2018 ).

38.—Aggravating Circumstances.

Defendant argued that he was denied due process of law because the prosecution used the same facts to prove two separate aggravating circumstances, murder committed during the commission of a robbery and murder committed for profit. The aggravating circumstance of robbery related to the taking of the victim’s property in the course of committing theft while the murder for profit aggravating circumstance went beyond the time when victim’s property was physically taken from her in the course of committing a theft. The credit cards of the victim were used the day after her death when co-defendants purchased a number of items for themselves with the cards. Clearly, they obtained something of monetary value which profited them. Use of the credit cards was not the same act as the robbery of the victim. The two aggravating circumstances were not the same as to either time or place and the jury properly found the existence of two distinct aggravating factors. Wilson v. Commonwealth, 836 S.W.2d 872, 1992 Ky. LEXIS 84 ( Ky. 1992 ), cert. denied, 507 U.S. 1034, 113 S. Ct. 1857, 123 L. Ed. 2d 479, 1993 U.S. LEXIS 2856 (U.S. 1993), overruled in part, St. Clair v. Roark, 10 S.W.3d 482, 1999 Ky. LEXIS 148 ( Ky. 1999 ).

Cited in:

Brown v. Commonwealth, 551 S.W.2d 557, 1977 Ky. LEXIS 450 ( Ky. 1977 ); Newton v. Commonwealth, 558 S.W.2d 167, 1977 Ky. LEXIS 550 ( Ky. 1977 ); Brown v. Commonwealth, 558 S.W.2d 599, 1977 Ky. LEXIS 539 (Ky. 1977); Newman v. Commonwealth, 559 S.W.2d 162, 1977 Ky. LEXIS 547 (Ky. 1977); Phillips v. Commonwealth, 559 S.W.2d 724, 1977 Ky. LEXIS 557 (Ky. 1977); Johnson v. Commonwealth, 563 S.W.2d 486, 1978 Ky. App. LEXIS 482 (Ky. Ct. App. 1978); Hayden v. Commonwealth, 563 S.W.2d 720, 1978 Ky. LEXIS 343 ( Ky. 1978 ); Cleaver v. Commonwealth, 569 S.W.2d 166, 1978 Ky. LEXIS 385 ( Ky. 1978 ); Hibbs v. Commonwealth, 570 S.W.2d 642, 1978 Ky. App. LEXIS 576 (Ky. Ct. App. 1978); Royce v. Commonwealth, 577 S.W.2d 615, 1979 Ky. LEXIS 221 ( Ky. 1979 ); Reed v. Commonwealth, 579 S.W.2d 109, 1979 Ky. LEXIS 236 ( Ky. 1979 ); Rutland v. Commonwealth, 590 S.W.2d 682, 1979 Ky. LEXIS 303 (Ky. 1979); Hockenbury v. Sowders, 620 F.2d 111, 1980 U.S. App. LEXIS 18556 (6th Cir. 1980), rehearing denied, 633 F.2d 443, 1980 U.S. App. LEXIS 13596 (6th Cir. 1980); Caise v. Commonwealth, 610 S.W.2d 605, 1980 Ky. LEXIS 285 ( Ky. 1980 ); Hayes v. Commonwealth, 625 S.W.2d 575, 1981 Ky. LEXIS 303 ( Ky. 1981 ); Commonwealth v. Key, 633 S.W.2d 55, 1982 Ky. LEXIS 244 ( Ky. 1982 ); Moore v. Commonwealth, 634 S.W.2d 426, 1982 Ky. LEXIS 264 ( Ky. 1982 ); Hopewell v. Commonwealth, 641 S.W.2d 744, 1982 Ky. LEXIS 312 (Ky. 1982); Williams v. Commonwealth, 644 S.W.2d 335, 1982 Ky. LEXIS 328 (Ky. 1982); Skaggs v. Commonwealth, 1985 Ky. LEXIS 304 ( Ky. 1985 ); Kordenbrock v. Commonwealth, 700 S.W.2d 384, 1985 Ky. LEXIS 263 ( Ky. 1985 ), cert. denied, Kordenbrock v. Kentucky, 476 U.S. 1153, 106 S. Ct. 2260, 90 L. Ed. 2d 704, 1986 U.S. LEXIS 1712 (1986); Bray v. Commonwealth, 703 S.W.2d 478, 1985 Ky. LEXIS 270 (Ky. 1985); Bagby v. Sowders, 853 F.2d 1340, 1988 U.S. App. LEXIS 10845 (6th Cir. 1988); Dale v. Haeberlin, 878 F.2d 930, 1989 U.S. App. LEXIS 9500 (6th Cir. 1989); Thompson v. Commonwealth, 862 S.W.2d 871, 1993 Ky. LEXIS 126 ( Ky. 1993 ), overruled in part, St. Clair v. Commonwealth, 140 S.W.3d 510, 2004 Ky. LEXIS 44 ( Ky. 2004 ).

Notes to Unpublished Decisions

Analysis

1.Double Jeopardy.

Unpublished decision: There was no double jeopardy violation of the Fifth Amendment in habeas petitioner’s convictions, because each of the two statutes under which he was convicted, KRS 515.020 (first-degree robbery) and KRS 508.060 (first-degree wanton endangerment) required proof of an element that the other did not. Groves v. Meko, 2013 FED App. 0213N, 2013 U.S. App. LEXIS 4327 (6th Cir. Ky. Feb. 28, 2013), amended, 516 Fed. Appx. 507, 2013 FED App. 0298N, 2013 U.S. App. LEXIS 6324 (6th Cir. Ky. 2013 ).

Unpublished decision: In a case in which a state inmate appealed a district court’s denial of his petition for a writ of habeas corpus, his convictions for first-degree robbery, in violation of KRS 515.020 , and first-degree wanton endangerment, in violation of KRS 508.060 , did not, as he argued, violate his constitutional right not to be subjected to double jeopardy. He had unsuccessfully argued that the first-degree wanton endangerment charges were based on the same conduct that gave rise to the first-degree robbery charge—pointing a gun at restaurant employees—and thus, the wanton endangerment charges should have merged into the robbery charge. Groves v. Meko, 516 Fed. Appx. 507, 2013 FED App. 0298N, 2013 U.S. App. LEXIS 6324 (6th Cir. Ky. 2013 ).

2.Instructions.
3.— Lesser Offenses.

Unpublished decision: First-degree robbery conviction was affirmed because the trial court did not err in refusing to instruct the jury on theft by unlawful taking over $ 300.00 and fourth-degree assault as lesser-included offenses of robbery, as the jury could not have reasonably doubted defendant’s guilt of robbery, and yet believed beyond a reasonable doubt that the defendant was guilty of the two lesser crimes. Mack v. Commonwealth, 136 S.W.3d 434, 2004 Ky. LEXIS 150 ( Ky. 2004 ).

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Ashdown, Criminal Law, 64 Ky. L.J. 337 (1975-76).

Kentucky Law Survey, Brice and Taylor, Criminal Law, 67 Ky. L.J. 569 (1978-1979).

Kentucky Law Survey, Malone and Malone, Criminal Law, 69 Ky. L.J. 545 (1980-81).

Northern Kentucky Law Review.

Comments, Constitutional Law — Harmless Constitutional Error — Post-Arrest Silence of Accused Used by Prosecutor for Impeachment Purposes, 5 N. Ky. L. Rev. 287 (1978).

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Assaults and Restraints of Persons, Part 1 Definitions, § 3.12.

Kentucky Instructions To Juries (Criminal), 5th Ed., Complicity and Inchoate Offenses, Part 2 Complicity, §§ 10.09 — 10.13.

Kentucky Instructions To Juries (Criminal), 5th Ed., Theft and Related Offenses, Part 2 Robbery, §§ 6.14 — 6.16.

515.030. Robbery in the second degree.

  1. A person is guilty of robbery in the second degree when, in the course of committing theft, he uses or threatens the immediate use of physical force upon another person with intent to accomplish the theft.
  2. Robbery in the second degree is a Class C felony.

History. Enact. Acts 1974, ch. 406, § 131, effective January 1, 1975.

NOTES TO DECISIONS

Analysis

1.In General.

The first-degree robbery provision should be viewed as a deterrent to assaulting an individual, while armed, with the intention of unlawfully obtaining his property whether any of that property is actually taken or not. Lamb v. Commonwealth, 599 S.W.2d 462, 1979 Ky. App. LEXIS 531 (Ky. Ct. App. 1979).

That which separates first and second-degree robbery is physical injury or the involvement of either a weapon which by its very nature is deadly or an instrument which can be so employed. Williams v. Commonwealth, 721 S.W.2d 710, 1986 Ky. LEXIS 308 ( Ky. 1986 ).

2.Evidence.

Where the victim of a robbery testified that a defendant was one of his assailants while such defendant, along with seven other witnesses, testified as to an alibi, the jury could believe the victim’s testimony and such testimony was sufficient to support a conviction. Adams v. Commonwealth, 560 S.W.2d 825, 1977 Ky. App. LEXIS 885 (Ky. Ct. App. 1977).

Where, in prosecution for robbery, no object was either seen or felt, and at most there was an unidentifiable bulge in the defendant’s hip pocket which the prosecuting witness felt “maybe” was “a weapon or something,” the defendant’s conviction under KRS 515.020 was reversed and remanded for retrial on a charge no greater than second-degree robbery. Williams v. Commonwealth, 721 S.W.2d 710, 1986 Ky. LEXIS 308 ( Ky. 1986 ).

Robbery conviction was supported by sufficient evidence because defendant’s physical confrontation with the victim, while defendant was trying to escape after the victim discovered defendant in the act of stealing, occurred in the course of committing a theft, regardless of whether the confrontation was instigated by the victim. Bumphis v. Commonwealth, 235 S.W.3d 562, 2007 Ky. App. LEXIS 144 (Ky. Ct. App. 2007), overruled, Hobson v. Commonwealth, 306 S.W.3d 478, 2010 Ky. LEXIS 67 ( Ky. 2010 ).

Where defendant was charged with second-degree robbery under KRS 515.030(1) after he, while wearing a mask, entered a bank and aggressively demanded money, the trial court did not err in denying defendant’s motion for a judgment of acquittal on the robbery charge because, while defendant contended that the evidence was insufficient to establish that he used or threatened to use physical force, defendant’s actions clearly implied that, if the bank’s employees and customers did not comply with his demands, physical force would follow. Tunstull v. Commonwealth, 337 S.W.3d 576, 2011 Ky. LEXIS 51 ( Ky. 2011 ).

Victim’s perception of whether the conduct of defendant in robbing a bank personally threatened the victim did not control, but a jury could consider it in determining whether the KRS 515.030 Robbery, Second Degree element of the use or threatened use of physical force on another person was met. As a result, the explicit threat of bodily injury did not have to be shown and defendant’s conviction for that offense could be upheld based on defendant’s bank robbery conduct in bursting through a gate, pulling a printer off of a shelf, and knocking over a computer monitor. Birdsong v. Commonwealth, 347 S.W.3d 47, 2011 Ky. LEXIS 56 ( Ky. 2011 ).

Because appellant’s act of propping his concealed hand on a counter implied that he had a gun and would discharge it if the store employee did not give him the money and the employee feared for his life, under KRS 515.030 , appellant threatened the immediate use of physical force, and his motion for a directed verdict on the robbery charge was properly denied. Lewis v. Commonwealth, 399 S.W.3d 795, 2013 Ky. App. LEXIS 68 (Ky. Ct. App. 2013).

3.Instructions.

An instruction on second-degree robbery was erroneous where it did not contain the phrase “with to accomplish the theft.” Adams v. Commonwealth, 560 S.W.2d 825, 1977 Ky. App. LEXIS 885 (Ky. Ct. App. 1977).

The defendant was not entitled to the attempted second-degree robbery instruction because the gun was inoperable; an inoperable weapon is a deadly weapon if defendant intends to convince the victim it is deadly. Prather v. Rees, 822 F.2d 1418, 1987 U.S. App. LEXIS 8485 (6th Cir. Ky. 1987 ).

Where defendant was charged with second-degree robbery under KRS 515.030(1) after he, while wearing a mask, entered a bank and aggressively demanded money, the trial court did not err in failing to instruct the jury on theft as a lesser-included offense of robbery because the evidence did not support the giving of a theft instruction. Second-degree robbery required a use of or the threat of force upon another person with the intent to accomplish the theft, while theft by unlawful taking under KRS 514.030(1)(a) required only control over the property of another with the intent to deprive him thereof; theft was a property crime, whereas robbery was a crime against a person. Tunstull v. Commonwealth, 337 S.W.3d 576, 2011 Ky. LEXIS 51 ( Ky. 2011 ).

Where defendant was charged with second-degree robbery under KRS 515.030(1), the trial court did not err in refusing to instruct the jury on facilitation under KRS 506.080(1) because the record established that defendant was either a masked robber who actively participated in the bank robbery or the driver of the getaway car; defendant thus could not be found to have been indifferent to the actual completion of the crime. This was true even if defendant merely served as the getaway driver because the driver could not be found to have been indifferent in that he dropped off and waited for the individual who robbed the bank. Tunstull v. Commonwealth, 337 S.W.3d 576, 2011 Ky. LEXIS 51 ( Ky. 2011 ).

4.Sentencing.

Where defendant was convicted of second-degree robbery under this section and sentenced to enhanced term of 20 years as persistent felony offender, his sentence of 10 years for theft of property under KRS 532.110 could not be made to run consecutively since the aggregate consecutive terms allowed by subdivision (1)(c) of KRS 532.110 is limited to the longest term authorized by KRS 532.080 , which in this case would be 20 years for the second-degree robbery. Tabor v. Commonwealth, 613 S.W.2d 133, 1981 Ky. LEXIS 221 ( Ky. 1981 ).

Defendant, age 17, was properly sentenced for second degree robbery as an adult pursuant to KRS 635.020(4); because a gun was used in the commission of the crimes and because defendant pled guilty in the Circuit Court, she fell within the purview of KRS 635.020(4) and not KRS 635.020(2). Chipman v. Commonwealth, 2008 Ky. App. LEXIS 349 (Ky. Ct. App. Nov. 7, 2008), review granted, transferred, 2009 Ky. LEXIS 135 (Ky. Feb. 11, 2009).

Because second-degree robbery under KRS 515.030 was the highest class of crime for which defendant was convicted, the aggregate of the sentences to be imposed upon defendant for convictions of one count of second-degree robbery, four counts of third-degree burglary, and one count of theft over $300 could not lawfully exceed 20 years; KRS 532.110(1)(c) did not give the trial court leeway to impose a greater sentence, and explicitly stated, through its incorporation of KRS 532.080(6)(b), that the sentence “shall not exceed” 20 years. Thus, defendant’s 35-year sentence was not within the statutorily prescribed range of punishment and the plea agreement authorizing that sentence should have been rejected pursuant to RCr P. 8.10. McClanahan v. Commonwealth, 308 S.W.3d 694, 2010 Ky. LEXIS 98 ( Ky. 2010 ).

5.Included Offenses.

Because theft is a lesser included offense of robbery, a conviction for receiving stolen property also is a lesser included offense of robbery and is barred by the constitutional double jeopardy principle, Ky. Const., § 13, and by the limitations on prosecution for multiple offenses detailed in KRS 505.020 . Jones v. Commonwealth, 756 S.W.2d 462, 1988 Ky. LEXIS 49 ( Ky. 1988 ), limited, Moser v. Commonwealth, 799 S.W.2d 21, 1990 Ky. LEXIS 101 ( Ky. 1990 ), limited, Mhoney v. Kentucky (Ky. Ct. App. 1992), overruled, Commonwealth v. Burge, 947 S.W.2d 805, 1996 Ky. LEXIS 82 ( Ky. 1997 ).

Definition of second-degree robbery contained in KRS 515.030(1) was identical to the language of KRS 515.020(1), except without the aggravating factors contained in KRS 515.020(1)(a)-(c); thus, a conviction under second-degree robbery statute as a the lesser included offense could not be sustained where defendant’s use of force against a police officer was not with intent to accomplish a theft. Hobson v. Commonwealth, 306 S.W.3d 478, 2010 Ky. LEXIS 67 ( Ky. 2010 ).

Trial court did not err by refusing to give jury instructions on second-degree burglary under KRS 511.030(1) and second-degree robbery under KRS 515.030(1) during defendant’s trial on charges of first-degree robbery and first-degree burglary because they were not warranted by the evidence, particularly the overwhelming and uncontradicted evidence that the intruder caused the victim physical injury. The victim testified that the intruder hit him with a gun and that he suffered a sprained ankle fleeing from the intruder, a man who helped the victim testified that he was bleeding from his face and feet, and a detective testified that the victim appeared to be in shock and was obviously beaten. Johnson v. Commonwealth, 327 S.W.3d 501, 2010 Ky. LEXIS 300 ( Ky. 2010 ).

Cited:

Taylor v. Commonwealth, 551 S.W.2d 813, 1977 Ky. App. LEXIS 703 (Ky. Ct. App. 1977), rev’d, Taylor v. Kentucky, 436 U.S. 478, 98 S. Ct. 1930, 56 L. Ed. 2d 468, 1978 U.S. LEXIS 95 (1978); Cooper v. Commonwealth, 569 S.W.2d 668, 1978 Ky. LEXIS 386 ( Ky. 1978 ); Sebastian v. Commonwealth, 623 S.W.2d 880, 1981 Ky. LEXIS 288 ( Ky. 1981 ); Morgan v. Commonwealth, 730 S.W.2d 935, 1987 Ky. LEXIS 209 ( Ky. 1987 ); Webster v. Allstate Ins. Co., 689 F. Supp. 689, 1986 U.S. Dist. LEXIS 16342 (W.D. Ky. 1986 ); Lambert v. Commonwealth, 835 S.W.2d 299, 1992 Ky. App. LEXIS 185 (Ky. Ct. App. 1992); Parke v. Raley, 506 U.S. 20, 113 S. Ct. 517, 121 L. Ed. 2d 391, 1992 U.S. LEXIS 7661 (1992); Roark v. Commonwealth, 90 S.W.3d 24, 2002 Ky. LEXIS 189 ( Ky. 2002 ); Lawless v. Commonwealth, 323 S.W.3d 676, 2010 Ky. LEXIS 179 ( Ky. 2010 ); Gamble v. Commonwealth, 319 S.W.3d 375, 2010 Ky. LEXIS 212 ( Ky. 2010 ).

Notes to Unpublished Decisions

1.Instructions.

Unpublished decision: First-degree robbery conviction was affirmed because the trial court, which instructed the jury on both first and second-degree robbery, did not err in refusing to instruct the jury on theft by unlawful taking over $ 300.00 and fourth-degree assault as lesser-included offenses of robbery, as the jury could not have reasonably doubted defendant’s guilt of robbery, and yet believed beyond a reasonable doubt that the defendant was guilty of the two lesser crimes. Mack v. Commonwealth, 136 S.W.3d 434, 2004 Ky. LEXIS 150 ( Ky. 2004 ).

Research References and Practice Aids

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Theft and Related Offenses, Part 2 Robbery, § 6.17.

CHAPTER 516 Forgery and Related Offenses

516.010. Definitions.

The following definitions apply in this chapter unless the context otherwise requires:

  1. “Coin machine” means a coin box, turnstile, vending machine, or other mechanical or electronic device or receptacle designed:
    1. To receive a coin or bill or token made for the purpose; and
    2. In return for the insertion or deposit thereof, automatically to offer, provide, assist in providing, or permit the acquisition of property or service;
  2. “Complete written instrument” means a written instrument which purports to be a genuine written instrument fully drawn with respect to every essential feature thereof;
  3. “Controlled substance” has the same meaning as it does in KRS 218A.010 ;
  4. “Incomplete written instrument” means a written instrument which contains some matter by way of content or authentication but which requires additional matter in order to render it a complete written instrument;
  5. To “falsely alter” a written instrument means to change, without the authority of anyone entitled to grant it, a written instrument, whether it be in complete or incomplete form, by means of erasure, obliteration, deletion, insertion of new matter, transposition of matter, or in any other manner, so that such instrument in its thus altered form appears or purports to be in all respects an authentic creation of or fully authorized by its ostensible maker or drawer;
  6. To “falsely complete” a written instrument means to transform, by adding, inserting or changing matter, an incomplete written instrument into a complete one, without the authority of anyone entitled to grant it, so that the complete instrument appears or purports to be in all respects an authentic creation of or fully authorized by its ostensible maker or drawer;
  7. To “falsely make” a written instrument means to make or draw a complete written instrument in its entirety or an incomplete written instrument, which purports to be an authentic creation of its ostensible maker or drawer, but which is not either because the ostensible maker or drawer is fictitious or because, if real, he did not authorize the making or drawing thereof;
  8. “Forged instrument” means a written instrument which has been falsely made, completed, or altered;
  9. “Slug” means an object or article which by virtue of its size, shape, or any other quality is capable of being inserted, deposited, or otherwise used in a coin machine as an improper substitute for a genuine coin, bill, or token;
  10. “Value of the slug” means the value of the coin, bill, or token for which it is capable of being substituted; and
  11. “Written instrument” means any instrument or article containing written or printed matter or its equivalent used for the purpose of reciting, embodying, conveying, or recording information, or constituting a symbol or evidence of value, right, privilege, or identification, which is capable of being used to the advantage or disadvantage of some person.

History. Enact. Acts 1974, ch. 406, § 132, effective January 1, 1975; 2004, ch. 94, § 3, effective July 13, 2004.

NOTES TO DECISIONS

1.Completed Written Instrument.

Where defendant was found in possession of United States Treasury check endorsed by someone other than payee third party and which was fully drawn with respect to every essential feature under KRS 355.3-104, defendant could not be convicted of criminal possession of forged instrument in the first degree under KRS 516.050 since the evidence showed that no one other than the ostensible drawer, the United States government, created the instrument and no one altered any part of it, thus, the check itself was not forged since defendant had not acted to “falsely alter,” “falsely complete” or “falsely make” the instrument under this section and if an alleged forger has done nothing to falsify an already complete written instrument, he cannot be guilty of forging that instrument. Frazier v. Commonwealth, 613 S.W.2d 423, 1981 Ky. LEXIS 228 ( Ky. 1981 ).

2.Forged Instrument.

Where defendant tendered money order which contained blank spaces for the purchaser’s signature and address, he could not be convicted for criminal possession of a forged instrument in the second degree under KRS 516.060 , since a written instrument is only forged if it is falsely altered, completed or made under subdivisions (4), (5), (6) and (7) of this section so that the instrument appears or purports to be in all respects an authentic creation of or fully authorized by its ostensible maker or drawer, whether real or fictitious. Frazier v. Commonwealth, 613 S.W.2d 423, 1981 Ky. LEXIS 228 ( Ky. 1981 ).

While defendant could not be convicted for possession of a forged instrument in the first degree under KRS 516.050 where he had done nothing to falsify an already complete written instrument, he may be guilty of criminal possession of a forged instrument in the second degree under KRS 516.060 since the two-word endorsement on the United States Treasury check creates a contract whereby the endorser promises to pay under KRS 355.3-414 and the endorsement is a sine qua non to effect a transfer of the endorser’s rights in the instrument under KRS 355.3-202 and such a contract is under the categories of instruments under KRS 516.030 , and thus the forgery of an endorsement comes under subsection (6) of this section. Frazier v. Commonwealth, 613 S.W.2d 423, 1981 Ky. LEXIS 228 ( Ky. 1981 ).

Evidence was insufficient to support a conviction of possession of a forged instrument, under KRS 516.050(1), because the evidence against defendant was all circumstantial and could have proven his innocence as well as his guilt; among other things, the instrument at issue, a copy of a 20 dollar bill, had been torn and discarded, was one-sided, printed on ordinary, white printer paper, had not been cut out of the sheet of paper, and the reverse side of the paper bore a photo of a child. Williams v. Commonwealth, 2009 Ky. App. LEXIS 65 (Ky. Ct. App. May 22, 2009).

Where the police found a ripped-up copy of a $ 20 bill in a waste basket in defendant’s home, there was a child’s picture on the back of the piece of paper; the bill had been printed on plain white printer paper and had not been cut from the full sheet. The trial court erred in failing to grant a directed verdict on the charge of possession of a forged instrument under KRS 516.050(1); the ripped-up pieces of copy paper did not constitute a counterfeit bill or forged instrument for purposes of KRS 516.010(11). Williams v. Commonwealth, 2009 Ky. App. LEXIS 204 (Ky. Ct. App. Oct. 23, 2009).

Cited:

Commonwealth v. Schumacher, 566 S.W.2d 762, 1978 Ky. App. LEXIS 524 (Ky. Ct. App. 1978).

Research References and Practice Aids

Kentucky Bench & Bar.

Stamn, The Attorney General Goes to Market, Vol. 41, No. 2, April 1977 Ky. Bench & B. 14.

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Theft and Related Offenses, Part 1 Definitions, §§ 6.07 — 6.11.

Kentucky Instructions To Juries (Criminal), 5th Ed., Theft and Related Offenses, Part 4 Forgery and Related Offenses, § 6.69.

516.020. Forgery in the first degree.

  1. A person is guilty of forgery in the first degree when, with intent to defraud, deceive or injure another, he falsely makes, completes or alters a written instrument which is or purports to be or which is calculated to become or to represent when completed:
    1. Part of an issue of money, stamps, securities or other valuable instruments issued by a government or governmental agency; or
    2. Part of an issue of stock, bonds or other instruments representing interests in or claims against a corporate or other organization or its property.
  2. Forgery in the first degree is a Class C felony.

History. Enact. Acts 1974, ch. 406, § 133, effective January 1, 1975.

NOTES TO DECISIONS

1.Evidence.

Evidence was insufficient to support a conviction of possession of a forged instrument, under KRS 516.050(1), because the evidence against defendant was all circumstantial and could have proven his innocence as well as his guilt; among other things, the instrument at issue, a copy of a $20 bill, had been torn and discarded, was one-sided, printed on ordinary, white printer paper, had not been cut out of the sheet of paper, and the reverse side of the paper bore a photo of a child. Williams v. Commonwealth, 2009 Ky. App. LEXIS 65 (Ky. Ct. App. May 22, 2009).

Where the police found a ripped-up copy of a $20 bill in a waste basket in defendant’s home, there was a child’s picture on the back of the piece of paper; the bill had been printed on plain white printer paper and had not been cut from the full sheet. The trial court erred in failing to grant a directed verdict on the charge of possession of a forged instrument under KRS 516.050(1); the ripped-up pieces of copy paper did not constitute a counterfeit bill or forged instrument for purposes of KRS 516.020(1)(a). Williams v. Commonwealth, 2009 Ky. App. LEXIS 204 (Ky. Ct. App. Oct. 23, 2009).

Conviction for possession of forged instruments did not show a modus operandi that was relevant to the defense that the witness had forged defendant’s signature because of the distinction between committing forgery and possessing the product of forgery. Allen v. Commonwealth, 395 S.W.3d 451, 2013 Ky. LEXIS 30 ( Ky. 2013 ).

Cited:

Frazier v. Commonwealth, 613 S.W.2d 423, 1981 Ky. LEXIS 228 ( Ky. 1981 ); Harris v. Commonwealth, 878 S.W.2d 801, 1994 Ky. App. LEXIS 68 (Ky. Ct. App. 1994).

Research References and Practice Aids

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Theft and Related Offenses, Part 4 Forgery and Related Offenses, §§ 6.64, 6.65, 6.69.

516.030. Forgery in the second degree.

  1. A person is guilty of forgery in the second degree when, with intent to defraud, deceive or injure another, he falsely makes, completes or alters a written instrument, or in the commission of a human trafficking offense as described in KRS 529.100 or 529.110 , coerces another person to falsely make, complete, or alter a written instrument, which is or purports to be or which is calculated to become or to represent when completed:
    1. A deed, will, codicil, contract, assignment, commercial instrument, credit card or other instrument which does or may evidence, create, transfer, terminate or otherwise affect a legal right, interest, obligation or status; or
    2. A public record or an instrument filed or required or authorized by law to be filed in or with a public office or public employee; or
    3. A written instrument officially issued or created by a public office, public employee or governmental agency.
  2. Forgery in the second degree is a Class D felony.

History. Enact. Acts 1974, ch. 406, § 134, effective January 1, 1975; 2013, ch. 25, § 26, effective June 25, 2013.

NOTES TO DECISIONS

1.Burden of Proof.

In a prosecution for forging another person’s name to a note prosecution had the burden of proving by competent evidence that the defendant himself wrote or caused to be written the name of the maker without her authority or consent. (Decided under prior law) Flaugher v. Commonwealth, 279 S.W.2d 775, 1955 Ky. LEXIS 538 ( Ky. 1955 ).

The burden of proving all the elements of the crime of forgery, including intent to defraud, is on the Commonwealth. (Decided under prior law) Ward v. Commonwealth, 444 S.W.2d 896, 1969 Ky. LEXIS 232 ( Ky. 1969 ).

2.Commercial Instruments.

Checks fall under the designation of “commercial instruments.” Jones v. Commonwealth, 662 S.W.2d 483, 1983 Ky. App. LEXIS 400 (Ky. Ct. App. 1983).

3.Elements.

To render indictable and punishable forgery of a signature of a private person, there need not be any similitude, and it is immaterial that the paper was not such an instrument as was calculated to deceive, on its face, any person of ordinary care, intelligence, and prudence. (Decided under prior law) Barnes v. Commonwealth, 101 Ky. 556 , 41 S.W. 772, 19 Ky. L. Rptr. 803 , 1897 Ky. LEXIS 221 ( Ky. 1897 ).

Neither the common law nor law that provided penalty for forgery or counterfeiting of writings made it a forgery punishable thereunder to publish a writing to which the name of a woman had been forged, purporting to be an invitation to a man to come to her home at night for a private conversation. (Decided under prior law) Colson v. Commonwealth, 110 Ky. 233 , 61 S.W. 46, 22 Ky. L. Rptr. 1674 , 1901 Ky. LEXIS 74 ( Ky. 1901 ).

It is immaterial who committed the forgery or how it was done for the acts constituting the uttering are the gravamen of the offense. (Decided under prior law) Commonwealth v. Cochran, 143 Ky. 807 , 137 S.W. 521, 1911 Ky. LEXIS 508 ( Ky. 1911 ); Honeycutt v. Commonwealth, 245 S.W.2d 444, 1951 Ky. LEXIS 1258 ( Ky. 1951 ); Finley v. Commonwealth, 259 S.W.2d 32, 1953 Ky. LEXIS 913 ( Ky. 1953 ).

Forgery is the false making or materially altering, with intent to defraud, of any writing which, if genuine, is of legal efficacy, or the foundation of a legal liability and includes an unsuccessful attempt as well as accomplished fraud. (Decided under prior law) Commonwealth v. Fenwick, 177 Ky. 685 , 198 S.W. 32, 1917 Ky. LEXIS 654 ( Ky. 1917 ) ( Ky. 1917 ).

The name of a person who cannot write may be forged. (Decided under prior law) Davis v. Commonwealth, 217 Ky. 801 , 290 S.W. 702, 1927 Ky. LEXIS 72 ( Ky. 1927 ).

To authorize a conviction for forgery, it is not necessary to show that the accused signed the forged name or prepared forged instrument himself; it is sufficient that he was present and caused the name to be signed or the instrument prepared. (Decided under prior law) Carter v. Commonwealth, 311 Ky. 252 , 223 S.W.2d 900, 1949 Ky. LEXIS 1109 ( Ky. 1949 ).

Where a person has reasonable ground to believe, and does believe, that he is authorized to sign name of another to a written instrument, and signs it without any fraudulent design, he does not commit forgery, and such authority may be inferred from failure to repudiate previous, ungranted use of name of same person on such obligations as checks, notes and the like. (Decided under prior law) Smith v. Commonwealth, 282 S.W.2d 618, 1955 Ky. LEXIS 254 ( Ky. 1955 ).

Intent to defraud is an essential ingredient of offense of forgery. (Decided under prior law) Smith v. Commonwealth, 282 S.W.2d 618, 1955 Ky. LEXIS 254 ( Ky. 1955 ).

Forgery, and uttering a forged instrument, are entirely different and distinct offenses. (Decided under prior law) Flaugher v. Commonwealth, 279 S.W.2d 775, 1955 Ky. LEXIS 538 ( Ky. 1955 ).

Evidence that the defendant had forged and uttered another check drawn by the same company on the same bank and payable to the same payee, payable just a short time before the instant offense, was competent to show a plan, system and guilty knowledge. (Decided under prior law) Hopkins v. Commonwealth, 328 S.W.2d 419, 1959 Ky. LEXIS 111 ( Ky. 1959 ).

In the determination of the defendant’s guilty knowledge or his intent to defraud, the fact that the check in his possession was stolen was a material and relevant factor. (Decided under prior law) Francis v. Commonwealth, 468 S.W.2d 287, 1971 Ky. LEXIS 330 ( Ky. 1971 ).

Where defendant selected merchandise which was purchased by another using stolen credit cards, drove the person to all of the stores where the purchases were made and carried the merchandise in her car, she was aiding, counseling and attempting to aid the other person to commit forgery and is guilty of committing forgery by complicity under KRS 502.020 where other person was convicted of forgery in the second degree under this section; thus, it was error for trial judge to dismiss indictment against defendant on the grounds that no specific statutory penalty is provided for violation of KRS 502.020 since defendant was guilty of forgery in the second-degree offense itself through KRS 502.020, and this section does provide a penalty. Commonwealth v. Caswell, 614 S.W.2d 253, 1981 Ky. App. LEXIS 231 (Ky. Ct. App. 1981).

It was not the intent of the legislature to make the forgery of a check a misdemeanor, so forgery in the third degree is not a lesser included offense of forgery in the second degree, but it is a distinct and separate offense which generates less harm to the victim and is penalized accordingly. Jones v. Commonwealth, 662 S.W.2d 483, 1983 Ky. App. LEXIS 400 (Ky. Ct. App. 1983).

4.Evidence.

Where it was contended by the defendant that the evidence was fatally at variance with the indictment on the theory that indictment charged that upon presentation of the note the bank paid the defendant $300 in money, whereas the proof showed that the defendant did not receive money in the transaction, but only the canceled renewal note, the variance was not such as would mislead the defendant in making his defense, or expose him to the danger of double jeopardy, and therefore it was not material. (Decided under prior law) Finley v. Commonwealth, 259 S.W.2d 32, 1953 Ky. LEXIS 913 ( Ky. 1953 ).

There was no fatal variance where the indictment charged that the forged check was given to an agent named Booth and the proof indicated that the check was in fact given to another agent of the same company. (Decided under prior law) Smith v. Commonwealth, 307 S.W.2d 201, 1957 Ky. LEXIS 85 ( Ky. 1957 ).

In a prosecution under law that provided penalty for forgery or counterfeiting of writings where the only evidence that the indorsement of the payee was forged was based on hearsay testimony the admission of such testimony was prejudicial error. (Decided under prior law) Hopkins v. Commonwealth, 328 S.W.2d 419, 1959 Ky. LEXIS 111 ( Ky. 1959 ).

The authorization of a bank to engage in business is a necessary element of the offense only when the forged document is a certificate of deposit, but parol evidence is sufficient to show de facto existence and authority. (Decided under prior law) Francis v. Commonwealth, 468 S.W.2d 287, 1971 Ky. LEXIS 330 ( Ky. 1971 ).

When teller of bank covered by a banker’s blanket bond, after receiving a phone call from a person who falsely represented himself as a spokesman for another local bank which was in need of extra cash, gave $20,000 to a person who appeared at the bank with a cashier’s check drawn on the other bank in reliance on the validity of the check when in fact the check had been originally drawn for $20 and had been altered, the loss suffered was effected directly or indirectly by forgery as defined by law that provided penalty for forgery or counterfeiting of writings although false representations had been made and relied on and, therefore, the loss fell within the provisions of the blanket bond which excepted from coverage any loss which occurred directly or indirectly by forgery and not within provisions providing for coverage for loss which occurred as a result of false pretenses. (Decided under prior law) American Nat'l Bank & Trust Co. v. Hartford Accident & Indem. Co., 442 F.2d 995, 1971 U.S. App. LEXIS 10015 (6th Cir. Ky. 1971 ).

Councilman who was charged with second degree forgery pursuant to KRS 516.030 for endorsing checks mailed to his deceased mother by his estranged father could not successfully bring claims of false arrest and retaliatory and malicious prosecution because probable cause existed at the time of the arrest. Until a probate lawyer clarified arrearage obligations to the estate owed by the councilman’s father, the police were aware of facts and circumstances sufficient to warrant a prudent man in believing that the councilman had committed forgery. Martin v. Schutzman, 426 Fed. Appx. 384, 2011 FED App. 0387N, 2011 U.S. App. LEXIS 11470 (6th Cir. Ky. 2011 ).

5.—Admissibility.

Admissions by defendant, to police chief, of certain facts tending to establish his guilt, do not constitute a “confession” within the meaning of a former rule requiring corroboration of a confession (see RCr 9.60). (Decided under prior law) Hedger v. Commonwealth, 294 Ky. 731 , 172 S.W.2d 560, 1943 Ky. LEXIS 519 ( Ky. 1943 ).

Testimony that the defendant had “beat” his brother out of $10,000, and that he had his mother sign another person’s name to notes, was not of itself prejudicial but when combined with the prosecutor’s argument, which involved the fact that many people would attest to the defendant’s being a deadbeat, the effect of the testimony was prejudicial in that it emphasized conduct of the defendant other than the offense with which he was charged. (Decided under prior law) Finley v. Commonwealth, 259 S.W.2d 32, 1953 Ky. LEXIS 913 ( Ky. 1953 ).

Notes written by the defendant to the jailer during his confinement pending trial were admissible in evidence to permit a comparison of the defendant’s handwriting with the handwriting on the forged check. (Decided under prior law) Francis v. Commonwealth, 468 S.W.2d 287, 1971 Ky. LEXIS 330 ( Ky. 1971 ).

6.— Insufficient.

The testimony of an accomplice that he had collaborated with the two codefendants in forging and uttering checks was not sufficient to convict one defendant where there was no other evidence to connect him with the crime. (Decided under prior law) Goodhue v. Commonwealth, 415 S.W.2d 845, 1967 Ky. LEXIS 338 ( Ky. 1967 ).

7.— Sufficient.

Testimony that witness compared check which was destroyed by accused and upon which forgery prosecution was founded, with check presented in court, and that check was duplicate of one presented, was competent to prove contents of check destroyed. (Decided under prior law) Fain v. Commonwealth, 287 Ky. 507 , 154 S.W.2d 553, 1941 Ky. LEXIS 589 ( Ky. 1941 ), overruled, Francis v. Commonwealth, 468 S.W.2d 287, 1971 Ky. LEXIS 330 ( Ky. 1971 ).

Where a defendant falsely identified himself to bank employee as a depositor of the bank, and employee, in compliance with defendant’s request, believing that he was the depositor in question, and knowing that depositor could not write, wrote out check and signed depositor’s name, and witnessed mark put on check by defendant, defendant was guilty of forgery notwithstanding he did not sign check. (Decided under prior law) Carter v. Commonwealth, 311 Ky. 252 , 223 S.W.2d 900, 1949 Ky. LEXIS 1109 ( Ky. 1949 ).

The fact that there was no proof that the mother had any fraudulent intent in signing the comaker’s name to the note was immaterial, because the evidence showed that she signed the comaker’s name at the defendant’s request and direction, and to all intents and purposes the forging was done by the defendant, and his intent to defraud was established. (Decided under prior law) Finley v. Commonwealth, 259 S.W.2d 32, 1953 Ky. LEXIS 913 ( Ky. 1953 ).

Where there was testimony by defendant’s mother which appeared to show that the defendant had her consent, either express or implied, to sign her name to checks there was not sufficient evidence to sustain a conviction. (Decided under prior law) Smith v. Commonwealth, 282 S.W.2d 618, 1955 Ky. LEXIS 254 ( Ky. 1955 ).

There was sufficient evidence to sustain a conviction where the defendant had made a deposit to an account in a name not his own, learned the balance of that account and subsequently signed a check on that account. (Decided under prior law) Smith v. Commonwealth, 307 S.W.2d 201, 1957 Ky. LEXIS 85 ( Ky. 1957 ).

Where facts established all the elements of the crime of obtaining property by false pretenses they would be sufficient notwithstanding such facts would also have established that the defendant had committed forgery. (Decided under prior law) Taylor v. Commonwealth, 384 S.W.2d 333, 1964 Ky. LEXIS 100 ( Ky. 1964 ).

A voluntary statement by a codefendant that he forged several checks was sufficient corroboration of the testimony of an accomplice to support the conviction of his codefendant for aiding and abetting. (Decided under prior law) Goodhue v. Commonwealth, 415 S.W.2d 845, 1967 Ky. LEXIS 338 ( Ky. 1967 ).

Where the deputy clerk testified that the defendant had signed the name of another to transfer papers for a car and police officers testified the owner of the car told them he had not given the defendant his consent to sign his name although the defendant claimed he had permission, the evidence was sufficient to permit a finding of an intent to defraud. (Decided under prior law) Ward v. Commonwealth, 444 S.W.2d 896, 1969 Ky. LEXIS 232 ( Ky. 1969 ).

8.Instruments.

A deed or certificate of acknowledgment may be the subject of forgery, and the forging by a deputy county clerk of a certificate of acknowledgment to a deed is as much a crime as would be the forgery of the deed of which it is a part. (Decided under prior law) Daniels v. Commonwealth, 181 Ky. 365 , 205 S.W. 968, 1918 Ky. LEXIS 628 ( Ky. 1918 ).

A “forgery” depends not upon the skill with which it is executed, but upon the character of the instrument forged. It must be a writing which, if genuine, might apparently be of legal efficacy or the foundation of a legal liability. (Decided under prior law) Carter v. Commonwealth, 311 Ky. 252 , 223 S.W.2d 900, 1949 Ky. LEXIS 1109 ( Ky. 1949 ).

A promissory note that was blank except for signatures and was given to a bank which was authorized to complete the note was a writing of legal efficacy. (Decided under prior law) Davis v. Commonwealth, 399 S.W.2d 711, 1965 Ky. LEXIS 34 ( Ky. 1965 ), cert. denied, 385 U.S. 831, 87 S. Ct. 67, 17 L. Ed. 2d 66, 1966 U.S. LEXIS 698 (U.S. 1966).

While defendant could not be convicted for possession of a forged instrument in the first degree under KRS 516.050 where had done nothing to falsify an already complete written instrument, he may be guilty of criminal possession of a forged instrument in the second degree under KRS 516.060 since the two-word endorsement on the United States Treasury check creates a contract whereby the endorser promises to pay under KRS 355.3-414 and the endorsement is a sine qua non to effect a transfer of the endorser’s rights in the instrument under KRS 355.3-202 and such a contract is under the categories of instruments under this section, and thus the forgery of an endorsement comes under subsection (6) of KRS 516.010 . Frazier v. Commonwealth, 613 S.W.2d 423, 1981 Ky. LEXIS 228 ( Ky. 1981 ).

9.Indictment.

An indictment which alleged that the instrument forged was a “writing purporting to be an order to Nelson Bros. by W.A. Hill to pay said Jatha Hill $2.00 in goods” was insufficient. (Decided under prior law) Hill v. Commonwealth, 33 S.W. 823, 17 Ky. L. Rptr. 1135 (1896).

In an indictment for forgery the instrument charged to have been forged should be set out in terms or, if it is lost, the substance of the instrument should be set out. (Decided under prior law) Hill v. Commonwealth, 33 S.W. 823, 17 Ky. L. Rptr. 1135 (1896).

An indictment must charge that the bank on which the allegedly forged check was drawn was “authorized by law of the United States or any state of the United States or any foreign government” and a failure to so allege renders the indictment insufficient. (Decided under prior law) Commonwealth v. Lee, 37 S.W. 72, 18 Ky. L. Rptr. 484 (1896); Commonwealth v. Miller, 115 S.W. 234 ( Ky. 1909 ); Mason v. Commonwealth, 156 Ky. 493 , 161 S.W. 229, 1913 Ky. LEXIS 453 ( Ky. 1913 ).

An indictment charging forgery by having changed the figures in a receipt issued to accused by an express company, for charges advanced by him on goods shipped to another, by increasing the amount named therein for purpose of defrauding the shipper of the difference, does not state facts constituting forgery. (Decided under prior law) Commonwealth v. Butler, 37 S.W. 840, 18 Ky. L. Rptr. 614 (1896).

An indictment for forgery must aver the name of the person, corporation, or state, or the like, whom it was intended to defraud by the forgery, if known, and if unknown it must be averred that it is unknown. (Decided under prior law) Barnes v. Commonwealth, 101 Ky. 556 , 41 S.W. 772, 19 Ky. L. Rptr. 803 , 1897 Ky. LEXIS 221 ( Ky. 1897 ).

An indictment which set out the allegedly forged check in full was sufficient. (Decided under prior law) Ashcraft v. Commonwealth, 60 S.W. 931, 22 Ky. L. Rptr. 1542 (1901).

The indictment must set forth an instrument, which if true, would be of some legal efficacy, since otherwise it has no legal tendency to defraud. (Decided under prior law) Commonwealth v. Cochran, 143 Ky. 807 , 137 S.W. 521, 1911 Ky. LEXIS 508 ( Ky. 1911 ).

The indictment charging defendant with erasing and altering United States treasury note was not duplicitous where erasure and alteration were necessary to accomplish purpose. (Decided under prior law) Sexton v. Commonwealth, 236 Ky. 354 , 33 S.W.2d 28, 1930 Ky. LEXIS 752 ( Ky. 1930 ).

Indictment for forgery with intent to defraud bank and individual is not vitiated by want of averment or proof of bank’s incorporation, false making of instrument with intent to defraud being gist of charge. (Decided under prior law) Literal v. Commonwealth, 250 Ky. 565 , 63 S.W.2d 587, 1933 Ky. LEXIS 721 ( Ky. 1933 ).

In prosecution for forgery of a check it is essential that the indictment charge that the check was upon a bank “authorized by the United States, any state of the United States or any foreign government” to do a banking business and where indictment did not so charge, it could not be amended under former rule of procedure, authorizing amendments in form, since omitted language went to substance rather than form. (Decided under prior law) Commonwealth v. Browning, 301 Ky. 376 , 192 S.W.2d 87, 1946 Ky. LEXIS 477 ( Ky. 1946 ).

After forgery case had been called for trial, jury formed and some testimony taken, it was reversible error to allow Commonwealth to amend indictment by changing date of allegedly forged check. (Decided under prior law) Lovings v. Commonwealth, 313 Ky. 102 , 230 S.W.2d 469, 1950 Ky. LEXIS 824 ( Ky. 1950 ).

Where the indictment informed the defendant of the offense with which he was charged, of the act of which complaint was being made, and of the claim of forgery, and the caption contained the number of the statute under which the defendant was charged, the indictment adequately apprised the defendant of the charge against him. (Decided under prior law) Ward v. Commonwealth, 444 S.W.2d 896, 1969 Ky. LEXIS 232 ( Ky. 1969 ).

The trial court erred in granting the motion to Commonwealth’s attorney to amend the indictment from the offense of forgery to the charge of uttering a forged instrument where the record revealed that such a motion was sustained over the objection of the defendant. (Decided under prior law) Frizzell v. Commonwealth, 511 S.W.2d 200, 1974 Ky. LEXIS 472 ( Ky. 1974 ).

10.Judgment.

Although Court of Appeals reversed first judgment on ground that verdict finding will to be a forgery was flagrantly against the evidence, judgment based on third successive verdict making same finding would be sustained where additional evidence of probative value was introduced having effect to weaken the credibility of witness on whose testimony court relied in reversing first judgment. (Decided under prior law) Polley v. Cline, 280 Ky. 773 , 134 S.W.2d 631, 1939 Ky. LEXIS 208 ( Ky. 1939 ).

11.Jurisdiction.

A Kentucky court would have no jurisdiction in forgery prosecution where there was no evidence that the nonresident defendant was in the state at the time the allegedly forged note was executed. (Decided under prior law) Flaugher v. Commonwealth, 279 S.W.2d 775, 1955 Ky. LEXIS 538 ( Ky. 1955 ).

Cited:

Anderson v. Commonwealth, 554 S.W.2d 882, 1977 Ky. App. LEXIS 777 (Ky. Ct. App. 1977); Johnson v. Commonwealth, 709 S.W.2d 838, 1986 Ky. App. LEXIS 1063 (Ky. Ct. App. 1986); Webster v. Allstate Ins. Co., 689 F. Supp. 689, 1986 U.S. Dist. LEXIS 16342 (W.D. Ky. 1986 ).

Opinions of Attorney General.

The sending of a spurious hearing notice on the stationery of a board of zoning adjustment inviting protests against the proposed construction of a sewage disposal plant does not constitute second degree forgery. OAG 75-357 .

Falsely making, completing, or altering a driver’s license with intent to defraud constitutes forgery in the second degree. OAG 83-121 .

Forged checks are considered to be forgery in the second degree; such an offense is a class D felony. The amount of the check is one of several factors that a court may consider in determining the amount of a fine for a felony conviction. OAG 83-121 .

It is illegal and punishable as forgery for someone to change the “date of signature” on a local option petition, after it is signed, and prior to being filed with the clerk, all without the consent of the signor. OAG 91-204 .

Research References and Practice Aids

Cross-References.

False making, embossing or possession of credit cards, KRS 434.630 .

Falsifying business records, KRS 517.050 .

Forgery of proof of motorist’s financial responsibility, KRS 187.990 .

Kentucky Law Journal.

Kentucky Law Survey, Sellars, Criminal Law, 71 Ky. L.J. 355 (1982-83).

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Theft and Related Offenses, Part 4 Forgery and Related Offenses, §§ 6.66 — 6.69.

516.040. Forgery in the third degree.

  1. A person is guilty of forgery in the third degree when, with intent to defraud, deceive or injure another, he falsely makes, completes or alters a written instrument.
  2. Forgery in the third degree is a Class A misdemeanor.

History. Enact. Acts 1974, ch. 406, § 135, effective January 1, 1975.

NOTES TO DECISIONS

1.In General.

It was not the intent of the legislature to make the forgery of a check a misdemeanor, so forgery in the third degree is not a lesser included offense of forgery in the second degree, but it is a distinct and separate offense which generates less harm to the victim and is penalized accordingly. Jones v. Commonwealth, 662 S.W.2d 483, 1983 Ky. App. LEXIS 400 (Ky. Ct. App. 1983).

2.Elements.

Where a defendant signed and submitted a bid tabulation allegedly knowing that the information therein was false, but he did not compile such tabulation himself or alter it in any way, and there was no evidence that he submitted unauthorized or deceptive data to be used in such compilation, the elements of the crime of forgery were not established. Commonwealth v. Schumacher, 566 S.W.2d 762, 1978 Ky. App. LEXIS 524 (Ky. Ct. App. 1978), disapproved, Commonwealth v. Littrell, 677 S.W.2d 881, 1984 Ky. LEXIS 285 ( Ky. 1984 ).

Research References and Practice Aids

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Theft and Related Offenses, Part 1 Definitions, § 6.12.

Kentucky Instructions To Juries (Criminal), 5th Ed., Theft and Related Offenses, Part 4 Forgery and Related Offenses, § 6.69.

516.050. Criminal possession of forged instrument in the first degree.

  1. A person is guilty of criminal possession of a forged instrument in the first degree when, with knowledge that it is forged and with intent to defraud, deceive or injure another, he utters or possesses any forged instrument of a kind specified in KRS 516.020 .
  2. Criminal possession of a forged instrument in the first degree is a Class C felony.

History. Enact. Acts 1974, ch. 406, § 136, effective January 1, 1975.

NOTES TO DECISIONS

1.Elements.

While defendant could not be convicted for possession of a forged instrument in the first degree under this section where he had done nothing to falsify an already complete written instrument, he may be guilty of criminal possession of a forged instrument in the second degree under KRS 516.060 since the two-word endorsement on the United States Treasury check creates a contract whereby the endorser promises to pay under KRS 355.3-414 and the endorsement is a sine qua non to effect a transfer of the endorser’s rights in the instrument under KRS 355.3-202 and such a contract is under the categories of instruments under KRS 516.030 , and thus the forgery of an endorsement comes under subsection (6) of KRS 516.010 . Frazier v. Commonwealth, 613 S.W.2d 423, 1981 Ky. LEXIS 228 ( Ky. 1981 ).

2.Evidence.

Where defendant was found in possession of United States Treasury check endorsed by someone other than payee third party and which was fully drawn with respect to every essential feature under KRS 355.3-104, defendant could not be convicted of criminal possession of forged instrument in the first degree under this section since the evidence showed that no one other than the ostensible drawer, the United States government, created the instrument and no one altered any part of it, thus, the check itself was not forged since defendant had not acted to “falsely alter,” “falsely complete” or “falsely make” the instrument under KRS 516.010 and if an alleged forger has done nothing to falsely an already complete written instrument, he cannot be guilty of forging that instrument. Frazier v. Commonwealth, 613 S.W.2d 423, 1981 Ky. LEXIS 228 ( Ky. 1981 ).

Evidence was insufficient to support a conviction of possession of a forged instrument, under KRS 516.050(1), because the evidence against defendant was all circumstantial and could have proven his innocence as well as his guilt; among other things, the instrument at issue, a copy of a $20 bill, had been torn and discarded, was one-sided, printed on ordinary, white printer paper, had not been cut out of the sheet of paper, and the reverse side of the paper bore a photo of a child. Williams v. Commonwealth, 2009 Ky. App. LEXIS 65 (Ky. Ct. App. May 22, 2009).

Where the police found a ripped-up copy of a $20 bill in a waste basket in defendant’s home, there was a child’s picture on the back of the piece of paper; the bill had been printed on plain white printer paper and had not been cut from the full sheet of paper. The trial court erred in failing to grant a directed verdict on the charge of possession of a forged instrument under KRS 516.050(1); the ripped-up pieces of copy paper did not constitute a counterfeit bill or forged instrument, and there was no evidence of any intent to defraud, deceive, or injure another. Williams v. Commonwealth, 2009 Ky. App. LEXIS 204 (Ky. Ct. App. Oct. 23, 2009).

Defendant’s motion for a directed verdict was properly denied as under the evidence as a whole, the appellate court was unable to say that it would have been clearly unreasonable for a jury to find guilt. Boyd v. Commonwealth, 357 S.W.3d 216, 2011 Ky. App. LEXIS 152 (Ky. Ct. App. 2011).

Conviction for possession of forged instruments did not show a modus operandi that was relevant to the defense that the witness had forged defendant’s signature because of the distinction between committing forgery and possessing the product of forgery. Allen v. Commonwealth, 395 S.W.3d 451, 2013 Ky. LEXIS 30 ( Ky. 2013 ).

3.Illustrative Cases.

Where defendant paid for gasoline with a counterfeit $20 bill, he was convicted for first-degree possession of a forged instrument in violation of KRS 516.050(1). As a second-degree persistent felony offender, he was sentenced to 18 years in prison. Williams v. Commonwealth, 2009 Ky. App. LEXIS 204 (Ky. Ct. App. Oct. 23, 2009).

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Sellars, Criminal Law, 71 Ky. L.J. 355 (1982-83).

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Theft and Related Offenses, Part 4 Forgery and Related Offenses, §§ 6.70, 6.71, 6.75.

516.060. Criminal possession of forged instrument in the second degree.

  1. A person is guilty of criminal possession of a forged instrument in the second degree when, with knowledge that it is forged and with intent to defraud, deceive or injure another, he utters or possesses any forged instrument of a kind specified in KRS 516.030 .
  2. Criminal possession of a forged instrument in the second degree is a Class D felony.

History. Enact. Acts 1974, ch. 406, § 137, effective January 1, 1975.

NOTES TO DECISIONS

1.Burden of Proof.

Where it has been proved that check was forged and that defendant uttered it, the burden is upon the defendant to show that he did not know the check was forged. (Decided under prior law) Hedger v. Commonwealth, 294 Ky. 731 , 172 S.W.2d 560, 1943 Ky. LEXIS 519 ( Ky. 1943 ).

It is incumbent upon the Commonwealth to establish beyond a reasonable doubt that defendant charged with uttering forged check knew it was a forgery, but where evidence shows that check was forged there is a presumption that person who uttered it either forged it or knew it was forged, and the burden then passes to the defendant to satisfactorily explain the forging or uttering. (Decided under prior law) Hatton v. Commonwealth, 294 Ky. 740 , 172 S.W.2d 564, 1943 Ky. LEXIS 521 ( Ky. 1943 ).

Under both KRS 514.040 and this section, the Commonwealth is required to prove that the accused intended either to deprive the victim of property or to defraud, deceive, or injure the victim. Caudill v. Commonwealth, 723 S.W.2d 881, 1986 Ky. App. LEXIS 1487 (Ky. Ct. App. 1986), cert. denied, 483 U.S. 1021, 107 S. Ct. 3265, 97 L. Ed. 2d 764, 1987 U.S. LEXIS 2958 (U.S. 1987).

2.Defenses.

Ratification or condonation is not a defense to the offense of uttering a forged instrument. (Decided under prior law) Finley v. Commonwealth, 259 S.W.2d 32, 1953 Ky. LEXIS 913 ( Ky. 1953 ).

The defendant’s contention that, as between the comaker and the defendant, each was supposed to pay one half of the original note and since the defendant had paid his one half he had no real criminal intent in uttering the forged renewal note, would not constitute an avoidance of the crime, because as between the bank and the two brothers, both were liable on the note. (Decided under prior law) Finley v. Commonwealth, 259 S.W.2d 32, 1953 Ky. LEXIS 913 ( Ky. 1953 ).

3.Double Jeopardy.

In a prosecution for possessing and uttering a forged check, where the record revealed no evidence that the check was forged, the Commonwealth failed to prove an essential element of the crime beyond a reasonable doubt. Therefore, the conviction was not supported by the evidence and was required to be reversed as violative of due process. Because it was reversed due to the insufficiency of the evidence, the double jeopardy clause of the Fifth Amendment precluded retrial for the same offense. Perkins v. Commonwealth, 694 S.W.2d 721, 1985 Ky. App. LEXIS 625 (Ky. Ct. App. 1985).

4.Elements.

Uttering is offering a forged instrument, knowing it to be such, whether such offer is accepted or not, with a representation by words or actions that it is genuine, and with intent to defraud. (Decided under prior law) Commonwealth v. Fenwick, 177 Ky. 685 , 198 S.W. 32, 1917 Ky. LEXIS 654 ( Ky. 1917 ) ( Ky. 1917 ).

Knowledge of the forgery is made an essential element of the crime of uttering a forged check, and an instruction authorizing a conviction if defendant knew or believed the check was a forgery was prejudicial error. (Decided under prior law) Montgomery v. Commonwealth, 189 Ky. 306 , 224 S.W. 878, 1920 Ky. LEXIS 421 ( Ky. 1920 ).

An attempt to cash a check to which the drawer’s name had been forged constituted the offense of “uttering a forged instrument.” (Decided under prior law) Louisa Nat'l Bank v. Kentucky Nat'l Bank, 239 Ky. 302 , 39 S.W.2d 497, 1931 Ky. LEXIS 776 ( Ky. 1931 ).

Evidence that defendant had on other occasions cashed checks forged by an associate was competent for purpose of proving his knowledge that check which he was indicted for cashing was forged. (Decided under prior law) Hedger v. Commonwealth, 294 Ky. 731 , 172 S.W.2d 560, 1943 Ky. LEXIS 519 ( Ky. 1943 ).

Where witness for Commonwealth testified that defendant cashed check, which was proved to be forged, and defendant did not deny knowledge of the forgery but only denied that he was the person who cashed the check, no proof was necessary to establish that defendant knew the check was forged. (Decided under prior law) Hatton v. Commonwealth, 294 Ky. 740 , 172 S.W.2d 564, 1943 Ky. LEXIS 521 ( Ky. 1943 ).

The essence of the crime of uttering and publishing a forged instrument is the offering or presenting of it to another with the knowledge of its falsity with the intent to defraud, commonly to obtain money or other property directly thereon. (Decided under prior law) Gilpin v. Commonwealth, 297 Ky. 67 , 178 S.W.2d 964, 1944 Ky. LEXIS 667 ( Ky. 1944 ).

Where the defendant had told a police officer that he had obtained the check in issue from a witness, testimony of that witness to the effect that he had been given another check by the accused to be cashed on another occasion, was admissible to show plan, system and guilty knowledge. (Decided under prior law) Miller v. Commonwealth, 301 Ky. 66 , 190 S.W.2d 864, 1945 Ky. LEXIS 692 ( Ky. 1945 ).

The actual accomplishment of a fraud is not a necessary element of the offense of uttering a forged instrument. (Decided under prior law) Finley v. Commonwealth, 259 S.W.2d 32, 1953 Ky. LEXIS 913 ( Ky. 1953 ).

The requisites of offense of “uttering a forged instrument” are the uttering of the paper with knowledge of its spurious character and with intent to defraud, and in prosecution for such offense the Commonwealth need not show that defendant actually forged the instrument or where he forged it. (Decided under prior law) Flaugher v. Commonwealth, 279 S.W.2d 775, 1955 Ky. LEXIS 538 ( Ky. 1955 ).

When evidence showed that name attached to instrument had been forged, inference arose that person who uttered it as genuine either forged instrument or knew it was forged, and unless the uttering or forgery was explained satisfactorily the presumption became conclusive. (Decided under prior law) Smith v. Commonwealth, 307 S.W.2d 201, 1957 Ky. LEXIS 85 ( Ky. 1957 ).

The offense of uttering a forgery consists of publishing or placing in circulation as genuine a forged writing, with actual knowledge of its falsity and with intent to defraud. (Decided under prior law) Smith v. Commonwealth, 307 S.W.2d 201, 1957 Ky. LEXIS 85 ( Ky. 1957 ).

It is immaterial to offense of uttering a forgery whether the forgery is such as is likely to deceive, and acceptance of it is unnecessary. (Decided under prior law) Smith v. Commonwealth, 307 S.W.2d 201, 1957 Ky. LEXIS 85 ( Ky. 1957 ).

While defendant could not be convicted for possession of a forged instrument in the first degree under KRS 516.050 where he had done nothing to falsify an already complete written instrument, he may be guilty of criminal possession of a forged instrument in the second degree under this section since the two-word endorsement on the United States Treasury check creates a contract whereby the endorser promises to pay under KRS 355.3-414 and the endorsement is a sine qua non to effect a transfer of the endorser’s rights in the instrument under KRS 355.3-202 and such a contract is under the categories of instrument under KRS 516.030 , and thus the forgery of an endorsement comes under subsection (6) of KRS 516.010 . Frazier v. Commonwealth, 613 S.W.2d 423, 1981 Ky. LEXIS 228 ( Ky. 1981 ).

Where defendant tendered money order which contained blank spaces for the purchaser’s signature and address, he could not be convicted for criminal possession of a forged instrument in the second degree under this section since a written instrument is only forged if it is falsely altered, completed or made under subsections (4), (5), (6) and (7) of KRS 516.010 so that the instrument appears or purports to be in all respects an authentic creation of or fully authorized by its ostensible maker or drawer, whether real or fictitious. Frazier v. Commonwealth, 613 S.W.2d 423, 1981 Ky. LEXIS 228 ( Ky. 1981 ).

5.Evidence.

The fact that the forged check had not been indorsed by the payee when uttered was immaterial except upon defendant’s knowledge of the forgery. (Decided under prior law) Montgomery v. Commonwealth, 189 Ky. 306 , 224 S.W. 878, 1920 Ky. LEXIS 421 ( Ky. 1920 ).

Evidence that accused sought to cash allegedly forged check for merchandise showed uttering of same, notwithstanding it was not cashed or value obtained thereon. (Decided under prior law) Fain v. Commonwealth, 287 Ky. 507 , 154 S.W.2d 553, 1941 Ky. LEXIS 589 ( Ky. 1941 ), overruled, Francis v. Commonwealth, 468 S.W.2d 287, 1971 Ky. LEXIS 330 ( Ky. 1971 ).

Under indictment charging defendant with uttering forged check to “J. C. Penney Company, a corporation,” it was not necessary to prove the incorporation of the company. (Decided under prior law) Hatton v. Commonwealth, 294 Ky. 740 , 172 S.W.2d 564, 1943 Ky. LEXIS 521 ( Ky. 1943 ).

Where, at previous trial under indictment charging the uttering of a forged check, person jointly indicted with defendant had testified concerning the check, but had not mentioned another check previously cashed in collaboration with the defendant, the testimony of such person as to the other check, given at instant trial, did not constitute surprise entitling defendant to a continuance. (Decided under prior law) Miller v. Commonwealth, 301 Ky. 66 , 190 S.W.2d 864, 1945 Ky. LEXIS 692 ( Ky. 1945 ).

In a prosecution of the defendant, who with his brother as comaker, had executed a note for $600 to a bank, for uttering a forged second renewal note which was signed by the mother of the defendant and of the comaker, on behalf of the comaker, at the request of the defendant, the trial court did not err in refusing to permit the mother to answer a question as to whether it was her custom to sign similar papers for her children, as the mother did not claim that she had any authority, by the virtue of a custom, to sign the comaker’s name to the note. (Decided under prior law) Finley v. Commonwealth, 259 S.W.2d 32, 1953 Ky. LEXIS 913 ( Ky. 1953 ).

There was no error in admitting a picture of the person cashing the forged check over the defendant’s objections that the photograph was so unclear as not to identify anyone where the photograph was relevant and the defendant was otherwise identified. (Decided under prior law) Howell v. Commonwealth, 445 S.W.2d 123, 1969 Ky. LEXIS 143 ( Ky. 1969 ).

On charge of uttering forged checks in contravention of law that provided penalty for forgery or counterfeiting of writings, it was unnecessary to prove that the bank upon which forged checks were written was authorized by law to do banking business. (Decided under prior law) Harston v. Commonwealth, 474 S.W.2d 354, 1971 Ky. LEXIS 99 ( Ky. 1971 ).

6.— Admissibility.

Where it was evident, in a prosecution for uttering a forged check, that three other forged checks passed by accused on former occasions, were separate and distinct, and far removed in point of time from the one charged, and there was nothing novel, unusual, or distinct in the method or means employed to commit the separate crimes, there was nothing to justify the inference that because the accused had passed the former forgeries she must have passed the one in question, hence the introduction of evidence concerning them was error. (Decided under prior law) Jones v. Commonwealth, 303 Ky. 666 , 198 S.W.2d 969, 1947 Ky. LEXIS 531 ( Ky. 1947 ).

Where the entire case, as to the uttering of a check and the defendant’s involvement, depended upon the testimony of one witness, it was prejudicial error to refuse to allow impeachment of the testimony of that witness. (Decided under prior law) Hopkins v. Commonwealth, 328 S.W.2d 419, 1959 Ky. LEXIS 111 ( Ky. 1959 ).

Where the trial court sustained an objection to the defense attorney’s attempt to question a police officer as to what a handwriting expert had told him concerning the checks uttered, no prejudicial error was committed since the conviction was based not on forgery but on possession of a forged instrument, so that the evidence was not only hearsay but was also irrelevant. Harrison v. Commonwealth, 559 S.W.2d 744, 1977 Ky. App. LEXIS 874 (Ky. Ct. App. 1977).

7.— Insufficient.

Where defendant was accused of uttering a forged instrument there was not sufficient evidence to sustain a conviction, where there was no evidence at all that the instrument had ever been in the defendant’s possession, that he had ever seen it, or that he ever caused it to be recorded, or that it had ever been delivered to him after it was recorded. (Decided under prior law) Price v. Commonwealth, 287 S.W.2d 165, 1956 Ky. LEXIS 450 ( Ky. 1956 ).

The testimony of the defendant’s two accomplices where they alleged the defendant had agreed to participate with them in cashing forged checks was not sufficiently corroborated where there was no evidence that defendant had ever in fact cashed such a check or received any proceeds from those that were cashed and where defendant was with one of the accomplices at the time of the accomplice’s arrest and nothing was said at that time to implicate the defendant. (Decided under prior law) Hartsock v. Commonwealth, 382 S.W.2d 861, 1964 Ky. LEXIS 361 ( Ky. 1964 ).

8.— Sufficient.

Where the defendant presented for payment a stolen money order and carried a false identification card which identified him as the person to whom the money order had been made payable the evidence was sufficient to sustain a conviction. (Decided under prior law) United States v. Bradford, 423 F.2d 681, 1970 U.S. App. LEXIS 10060 (6th Cir. Ky. 1970 ).

Defendant who cashed a forged check was correctly convicted as an aider and abettor to the crime of uttering a forged check even though the principal was unknown and not in custody. (Decided under prior law) Gulley v. Commonwealth, 476 S.W.2d 817, 1972 Ky. LEXIS 389 ( Ky. 1972 ).

Where the evidence showed that the defendant had tried to cash a check which had a noticeable erasure over which the defendant’s name had been written and that he was noticeably nervous at the time and left without the check when an inquiry was made into its validity, the jury could reasonably infer the defendant’s guilt. Gregory v. Commonwealth, 557 S.W.2d 439, 1977 Ky. App. LEXIS 838 (Ky. Ct. App. 1977).

9.Indictment.

Where the indictment charged the defendant with uttering two forged checks to named individuals, the indictment was not void. (Decided under prior law) Whitworth v. Commonwealth, 437 S.W.2d 731, 1969 Ky. LEXIS 448 ( Ky. 1969 ).

Where an indictment charged the defendant with possession of a forged instrument in the second degree, informed him of the specific date and place of the offense and the instrument involved and apprised him of the specific statute involved, such indictment was not defective despite its failure to specifically mention “intent to defraud, deceive or injure another.” Harrison v. Commonwealth, 559 S.W.2d 744, 1977 Ky. App. LEXIS 874 (Ky. Ct. App. 1977).

The indictment under which the defendant, an attorney, was charged stated an offense under this section, where it specifically charged the defendant with possession of a check payable to his client on which the endorsement of his client was forged. Johnson v. Commonwealth, 709 S.W.2d 838, 1986 Ky. App. LEXIS 1063 (Ky. Ct. App.), cert. denied, 479 U.S. 865, 107 S. Ct. 222, 93 L. Ed. 2d 150, 1986 U.S. LEXIS 4055 (U.S. 1986).

10.Instructions.

Failure to tell jury that it could not convict accused upon check presented as evidence was not prejudicial error, where evidence plainly showed that accused was being tried for uttering check destroyed by him and that one presented in court was merely evidence of contents of destroyed check. (Decided under prior law) Fain v. Commonwealth, 287 Ky. 507 , 154 S.W.2d 553, 1941 Ky. LEXIS 589 ( Ky. 1941 ), overruled, Francis v. Commonwealth, 468 S.W.2d 287, 1971 Ky. LEXIS 330 ( Ky. 1971 ).

A defendant charged with criminal possession of a forged instrument in the second degree was not entitled to an instruction on possession in the third degree where the document in question was a social security check. Relford v. Commonwealth, 558 S.W.2d 175, 1977 Ky. App. LEXIS 862 (Ky. Ct. App. 1977).

The court did not err by instructing the jury on both second-degree possession of a forged instrument and theft by deception, since neither is a lesser-included offense of the other, nor do they require identical courses of conduct. Caudill v. Commonwealth, 723 S.W.2d 881, 1986 Ky. App. LEXIS 1487 (Ky. Ct. App. 1986), cert. denied, 483 U.S. 1021, 107 S. Ct. 3265, 97 L. Ed. 2d 764, 1987 U.S. LEXIS 2958 (U.S. 1987).

In a prosecution of theft by deception and second-degree criminal possession of a forged instrument, because defendant was entitled to the lesser-included offense instruction on the offense of facilitation of both charges, and, was not given the option to waive his limitations defense in exchange for the instructions, reversal of his convictions, and an order granting a new trial, were proper. Commonwealth v. Oliver, 253 S.W.3d 520, 2008 Ky. LEXIS 135 ( Ky. 2008 ).

11.Presumptions.

Where the name attached to an instrument is shown to be forged, an inference arises that the person uttering it either forged the instrument or knew it to be forged and, unless the uttering or forgery is explained satisfactorily, the presumption becomes conclusive. Gregory v. Commonwealth, 557 S.W.2d 439, 1977 Ky. App. LEXIS 838 (Ky. Ct. App. 1977).

12.Practice and Procedure.

The prosecutor’s statement in closing argument that the judge would not have let the jury consider the case if there was not sufficient evidence to find the defendant guilty of forgery constituted prejudicial error where the evidence was circumstantial and “just barely” sufficient to justify submission to the jury. Gregory v. Commonwealth, 557 S.W.2d 439, 1977 Ky. App. LEXIS 838 (Ky. Ct. App. 1977).

Research References and Practice Aids

Cross-References.

False making, embossing or possession of credit cards, KRS 434.630 .

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Theft and Related Offenses, Part 4 Forgery and Related Offenses, §§ 6.72 — 6.75.

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public and Judicial Administration, Part 2 Obstruction of Public Administration, § 7.20.

516.070. Criminal possession of forged instrument in the third degree.

  1. A person is guilty of criminal possession of a forged instrument in the third degree when, with knowledge that it is forged and with intent to defraud, deceive or injure another, he utters or possesses a forged instrument.
  2. Criminal possession of a forged instrument in the third degree is a Class A misdemeanor.

History. Enact. Acts 1974, ch. 406, § 138, effective January 1, 1975.

Research References and Practice Aids

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Theft and Related Offenses, Part 4 Forgery and Related Offenses, § 6.75.

516.080. Limitations on criminal liability.

A person may not be convicted of both forgery and criminal possession of a forged instrument with respect to the same instrument.

History. Enact. Acts 1974, ch. 406, § 139, effective January 1, 1975.

516.090. Possession of forgery device.

  1. A person is guilty of possession of a forgery device when he:
    1. Makes or possesses with knowledge of its character any plate, die or other device, apparatus, equipment or article specifically designed or adapted for use in forging written instruments; or
    2. Makes or possesses with knowledge of its character any device, apparatus, equipment or article capable of or adaptable to use in forging written instruments with intent to use it himself or to aid or permit another to use it for purposes of forgery.
  2. Possession of a forgery device is a Class D felony.

History. Enact. Acts 1974, ch. 406, § 140, effective January 1, 1975.

NOTES TO DECISIONS

1.Sufficiency of Evidence.

Where a man driving a car belonging to defendant’s ex-wife paid for gas with a counterfeit $20 bill, defendant’s roommate told police that he had seen defendant print counterfeit money; in defendant’s home the police found a ripped-up copy of a $20 bill in a wastebasket and a printer/scanner used to produce counterfeit bills. The evidence was sufficient to support a charge of possession of a forgery device under KRS 516.090(1)(b); the trial court properly denied defendant’s directed verdict motion. Williams v. Commonwealth, 2009 Ky. App. LEXIS 204 (Ky. Ct. App. Oct. 23, 2009).

Research References and Practice Aids

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Theft and Related Offenses, Part 4 Forgery and Related Offenses, §§ 6.76, 6.77.

516.100. Forfeiture of forgery device.

Any forgery device which is made, possessed or used in violation of this chapter is forfeited to the state and shall be disposed of in accordance with KRS 500.090 .

History. Enact. Acts 1974, ch. 406, § 141, effective January 1, 1975.

516.108. Criminal simulation in the first degree.

  1. A person is guilty of criminal simulation in the first degree when he or she knowingly manufactures, markets, or distributes any product which is intended to defraud a test designed to detect the presence of alcohol or a controlled substance.
  2. Criminal simulation in the first degree is a Class D felony.

History. Enact. Acts 2004, ch. 94, § 1, effective July 13, 2004.

Research References and Practice Aids

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Theft and Related Offenses, Part 5 Business and Commercial Frauds, § 6.94.

516.110. Criminal simulation in the second degree.

  1. A person is guilty of criminal simulation in the second degree when, with intent to defraud, he or she:
    1. Makes or alters any object in such manner that it appears to have an antiquity, rarity, source, or authorship which it does not in fact possess;
    2. Uses any product to alter the results of a test designed to detect the presence of alcohol or a controlled substance in that person; or
    3. Possesses an object so simulated with knowledge of its character.
  2. Criminal simulation in the second degree is a Class A misdemeanor.

History. Enact. Acts 1974, ch. 406, § 142, effective January 1, 1975; 2004, ch. 94, § 2, effective July 13, 2004.

Research References and Practice Aids

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Theft and Related Offenses, Part 5 Business and Commercial Frauds, § 6.95.

516.120. Using slugs in the first degree.

  1. A person is guilty of unlawfully using slugs in the first degree when:
    1. He makes, possesses or disposes of slugs with intent to enable a person to insert, deposit or use them in a coin machine; and
    2. The value of such slugs exceeds $100.
  2. Unlawfully using slugs in the first degree is a Class D felony.

History. Enact. Acts 1974, ch. 406, § 143, effective January 1, 1975.

516.130. Using slugs in the second degree.

  1. A person is guilty of unlawfully using slugs in the second degree when:
    1. With intent to defraud the owner, licensee or lessee of a coin machine, he inserts, deposits or uses a slug in such machine; or
    2. He makes, possesses or disposes of a slug with intent to enable a person to insert, deposit or use it in a coin machine.
  2. Unlawfully using slugs in the second degree is a Class B misdemeanor.

History. Enact. Acts 1974, ch. 406, § 144, effective January 1, 1975.

CHAPTER 517 Business and Commercial Frauds

517.010. Definitions for chapter.

The following definitions apply in this chapter, unless the context otherwise requires:

  1. “Adulterated” means varying from the standard of composition or quality prescribed by statute or lawfully promulgated administrative regulation or, if none, as set by established commercial usage.
  2. “Business record” means any writing or article kept or maintained by an enterprise for the purpose of evidencing or reflecting its condition or activity.
  3. “Enterprise” means any entity of one (1) or more persons, corporate or otherwise, public or private, engaged in business, commercial, professional, industrial, eleemosynary, social, political, or governmental activity.
  4. “Fiduciary” means a trustee, guardian, executor, administrator, receiver, and any person carrying on fiduciary functions on behalf of a corporation or other organization which is a fiduciary.
  5. “Mislabeled” means:
    1. Varying from the standard of truth or disclosure in labeling prescribed by statute or lawfully promulgated administrative regulation or, if none, as set by established commercial usage; or
    2. Represented as being another person’s product, though otherwise labeled accurately as to quality or quantity.
  6. “Sham or front company” means any business established or in existence which falsely represents that business to be a minority business enterprise, or disadvantaged business enterprise, as defined in 79 C.F.R. 23.5 or 15 C.F.R. 1400.2, operated or operating for the purpose of obtaining funds, contracts, subcontracts, services, or other benefits from any local government, local government agency, or special district of this Commonwealth from the Commonwealth, or any state government agency or public corporation of this Commonwealth, or from the United States government or any federal government agency.

History. Enact. Acts 1974, ch. 406, § 145, effective January 1, 1975; 1994, ch. 476, § 2, effective July 15, 1994.

Research References and Practice Aids

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Theft and Related Offenses, Part 5 Business and Commercial Frauds, §§ 6.79, 6.80, 6.91.

517.020. Deceptive business practices.

  1. A person is guilty of deceptive business practices when, in the course of engaging in a business, occupation or profession, he knowingly:
    1. Uses or possesses for use a false weight or measure or any other device for falsely determining or recording any quality or quantity; or
    2. Sells, offers or exposes for sale, or delivers less than the represented quantity of any commodity or service; or
    3. Takes or attempts to take more than the represented quantity of any commodity, thing or service when as a buyer, agency or receiver he furnishes the weight, measure, or weighing or measuring device by means of which the amount of the commodity, thing or service is determined; or
    4. Sells, offers or exposes for sale adulterated commodities; or
    5. Sells, offers or exposes for sale mislabeled commodities.
  2. Deceptive business practices is a Class A misdemeanor.

History. Enact. Acts 1974, ch. 406, § 146, effective January 1, 1975.

NOTES TO DECISIONS

1.Standing.

KRS 446.070 provides a cause of action to a person injured by a violation of a statute which is penal in nature or which does not prescribe the remedy for its enforcement or violation. The cause of action exists only for those persons who belong to the class intended to be protected by the statute. The repair work performed on machinery which formed the basis for the complaint was not done at the request of subsequent purchaser. The original seller of machinery did not “sell, offer, or expose for sale adulterated or mislabeled commodities” to subsequent purchaser. Subsequent purchaser was not a member of the class of persons intended to be protected by this section; therefore, KRS 446.070 afforded him no private right of action under the deceptive business practices statute. Skilcraft Sheetmetal, Inc. v. Kentucky Machinery, Inc., 836 S.W.2d 907, 1992 Ky. App. LEXIS 175 (Ky. Ct. App. 1992).

Opinions of Attorney General.

If drugs labelled with such statements as “clinic pack,” “clinic package — not for retail pharmacy sale,” or similar wording are distributed to an ultimate consumer and the labelling misleads the ultimate consumer in any respect, there is a violation of KRS 217.065(1). Further, this practice may also constitute a violation of subdivision (1)(e) of this section, as well as a violation of the Consumer Protection Act, KRS Chapter 367, and more specifically KRS 367.170. OAG 85-114 .

Research References and Practice Aids

Cross-References.

Agricultural products regulations, KRS Ch. 260.

False brands, KRS 365.100, 365.110.

Stockyards, false weights, KRS 261.280 .

Timber, false branding, KRS Ch. 364.

Weights and measures, KRS Ch. 363.

Kentucky Bench & Bar.

Stamm, The Attorney General Goes to Market, Vol. 41, No. 2, April 1977 Ky. Bench & B. 14.

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Theft and Related Offenses, Part 5 Business and Commercial Frauds, §§ 6.78 — 6.80.

517.030. False advertising.

  1. A person is guilty of false advertising when, in connection with the promotion of the sale of or to increase the consumption of property or services, he knowingly makes or causes to be made a false or misleading statement in any advertisement addressed to the public or to a substantial number of persons.
  2. False advertising is a Class A misdemeanor.

History. Enact. Acts 1974, ch. 406, § 147, effective January 1, 1975.

NOTES TO DECISIONS

1.Liability.

One drug company could not be found liable under the Kentucky Medicaid Fraud Statute, KRS 205.8463(4), the Kentucky False Advertising Statute, KRS 517.030 , and the Kentucky Consumer Protection Act, § KRS 367.170, and the second drug company could not be found liable under the Kentucky Medicaid Fraud Statute and the Kentucky Consumer Protection Act, all for allegedly misreporting the “average wholesale prices” of their prescription drugs. The jury acted unreasonably in finding them liable to the Commonwealth because the Commonwealth absolutely failed to show that any conduct by them was a “substantial factor” in damaging the Commonwealth given that the Commonwealth had long known that “average wholesale prices” were reported as inflated figures rather than the cost of real transactions. Sandoz Inc. v. Commonwealth ex rel. Conway, 405 S.W.3d 506, 2012 Ky. App. LEXIS 205 (Ky. Ct. App. 2012).

Opinions of Attorney General.

The use by a bank of a sign at one of its branches designating the branch bank as the bank of the town where it was located, with smaller letters underneath describing it as a branch of the parent bank, does not constitute false advertising or transacting business under an assumed name. OAG 75-83 .

The gravamen of this offense is knowingly engaging in false or misleading advertisements, and such fraudulent intent was not present where sign in front of bank was not precisely accurate as to the name of the bank, there being other signs posted about the bank which left no doubt as to its identity. OAG 75-83 .

Research References and Practice Aids

Cross-References.

Advertising of sales at wholesale, KRS 365.495.

Food, drugs or cosmetics, false advertising, KRS 217.105 .

Insurers, regulation of advertising by KRS 304.12-020 to 304.12-050 .

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Theft and Related Offenses, Part 5 Business and Commercial Frauds, § 6.81.

517.040. Bait advertising.

  1. A person is guilty of bait advertising when in any manner, including advertising or other means of communication, he offers to the public or a substantial number of persons property or services as part of a scheme or plan with the intent not to sell or provide the advertised property or services:
    1. At the price at which he offered them; or
    2. In a quantity sufficient to meet the reasonably expected public demand, unless the quantity is specifically stated in the advertisement; or
    3. At all.
  2. Bait advertising is a Class A misdemeanor.

History. Enact. Acts 1974, ch. 406, § 148, effective January 1, 1975.

Research References and Practice Aids

Kentucky Bench & Bar.

Stamm, The Attorney General Goes to Market, Vol. 41, No. 2, April 1977 Ky. Bench & B. 14.

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Theft and Related Offenses, Part 5 Business and Commercial Frauds, § 6.82.

517.050. Falsifying business records.

  1. A person is guilty of falsifying business records when, with intent to defraud, he:
    1. Makes or causes a false entry to be made in the business records of an enterprise; or
    2. Alters, erases, obliterates, deletes, removes or destroys a true entry in the business records of an enterprise; or
    3. Omits to make a true entry in the business records of an enterprise in violation of a duty to do so which he knows to be imposed upon him by law or by the nature of his position; or
    4. Prevents the making of a true entry or causes the omission thereof in the business records of an enterprise.
  2. Falsifying business records is a Class A misdemeanor.

History. Enact. Acts 1974, ch. 406, § 149, effective January 1, 1975.

NOTES TO DECISIONS

Analysis

1.Applicability.

Employee’s attempt to fit her wrongful discharge claim under KRS 517.050 governing falsification of business records failed because, at best, the employee alleged that she was instructed to use sales materials other than those pre-approved by the Food and Drug Administration, and that is not a direct violation of this section. Clark v. Sanofi-Synthelabo, Inc., 489 F. Supp. 2d 759, 2007 U.S. Dist. LEXIS 19332 (W.D. Ky. 2007 ).

2.Evidence.

Under an indictment for altering business records, Commonwealth must show that the entry was made, that it was false and that it was made with the intention of cheating and defrauding the bank. (Decided under prior law) Head v. Commonwealth, 165 Ky. 339 , 176 S.W. 1162, 1915 Ky. LEXIS 526 ( Ky. 1915 ).

Where the defendant bank cashier admitted that he had instructed another person to make a fake entry on the bank’s books this was sufficient evidence to sustain a conviction. (Decided under prior law) Miller v. Commonwealth, 240 Ky. 346 , 42 S.W.2d 518, 1931 Ky. LEXIS 411 ( Ky. 1931 ).

Record was devoid of evidence to support the wrongful discharge claims; there was no instance where any of the former employees refused to falsify a form and the purported evidence cited by the employees related to a manager instructing a safety inspector to sometimes return vehicles to service after the inspector completed forms to remove them. The employees did not cite a single instance where the manager instructed the employees to falsify a form or a single instance where they refused to do so, let alone establish a causal link to their terminations; the evidence was likewise lacking as to the employees’ alleged refusal to drive unsafe vehicles as there was no evidence that the employees refused to drive unsafe vehicles or that such a refusal was what motivated the manager to terminate them. Burgess v. Paducah Area Transit Auth., 387 Fed. Appx. 538, 2010 FED App. 0421N, 2010 U.S. App. LEXIS 14384 (6th Cir. Ky. 2010 ).

3.Instructions.

An instruction that where false entries were made with “intention of circumventing, misleading and deceiving the officers of the Deposit Bank of Midway, to his advantage and benefits, said intention was fraudulent within the meaning of the law,” was proper. (Decided under prior law) Shipp v. Commonwealth, 101 Ky. 518 , 41 S.W. 856, 19 Ky. L. Rptr. 634 , 1897 Ky. LEXIS 222 ( Ky. 1897 ); Head v. Commonwealth, 165 Ky. 603 , 177 S.W. 731, 1915 Ky. LEXIS 579 ( Ky. 1915 ).

An indictment of the livestock inspector of Louisville was defective for indefiniteness, for failure to allege the duties devolving on defendant, and the items concerning which he failed to make proper entries, and what items he improperly allowed or disallowed, and for failure to give names of person or persons he permitted to make false entries, and for failure to return books as required. (Decided under prior law) Commonwealth v. Bradley, 132 Ky. 512 , 116 S.W. 761, 1909 Ky. LEXIS 129 ( Ky. 1909 ).

4.Intent.

In a prosecution for altering business records, testimony as to other similar transactions was competent to throw light upon intention of accused in doing the act complained of. (Decided under prior law) Shipp v. Commonwealth, 101 Ky. 518 , 41 S.W. 856, 19 Ky. L. Rptr. 634 , 1897 Ky. LEXIS 222 ( Ky. 1897 ); Head v. Commonwealth, 165 Ky. 603 , 177 S.W. 731, 1915 Ky. LEXIS 579 ( Ky. 1915 ).

Notes to Unpublished Decisions

Analysis

1.Evidence.

Unpublished decision: Where an at-will employee asserted that he was terminated in violation of public policy because he refused to falsify business records and the employee relied on KRS 517.050 , the district court’s grant of summary judgment in favor of the former employer was affirmed. The record did not support the employee’s assertion that he was terminated in retaliation for refusing to violate the law or for exercising a right. Childers v. Prod. Action Int'l, Inc., 146 Fed. Appx. 6, 2005 FED App. 0634N, 2005 U.S. App. LEXIS 15506 (6th Cir. Ky. 2005 ).

2.Intent.

Unpublished decision: Where an employee alleged that the employer fired the employee from a regional property manager position for refusing to falsify business records in violation of public policy, the wrongful discharge claim failed because, inter alia, no reasonable jury could conclude that the discharge was caused by the employee’s refusal to fluff occupancy rates, and the employee did not identify why the misrepresentation regarding the acquisition of fake social security numbers would have been material to obtaining 26 U.S.C.S. § 42 tax credits to which property owners would otherwise not be entitled. Fleming v. Flaherty & Collins, Inc., 529 Fed. Appx. 654, 2013 FED App. 0631N, 2013 U.S. App. LEXIS 13703 (6th Cir. Ky. 2013 ).

Research References and Practice Aids

Cross-References.

Forgery, KRS 516.030 , 516.040 .

Kentucky Bench & Bar.

Stamm, The Attorney General Goes to Market, Vol. 41, No. 2, April 1977 Ky. Bench & B. 14.

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Theft and Related Offenses, Part 5 Business and Commercial Frauds, § 6.83.

517.060. Defrauding secured creditors.

  1. A person is guilty of defrauding secured creditors when he destroys, damages, removes, conceals, encumbers, transfers, or otherwise deals with property subject to a security interest with intent either to lower the value of the secured interest or unlawfully to hinder enforcement of that interest.
  2. Defrauding secured creditors is a Class A misdemeanor unless the value of the property subject to the security interest is:
    1. Five hundred dollars ($500) or more up to ten thousand dollars ($10,000), in which case it is a Class D felony; or
    2. Ten thousand dollars ($10,000) or more, in which case it is a Class C felony.

History. Enact. Acts 1974, ch. 406, § 150, effective January 1, 1975; 1978, ch. 342, § 1, effective June 17, 1978; 2012, ch. 93, § 3, effective July 12, 2012.

NOTES TO DECISIONS

1.Defenses.

Sale by mortgagor of part of the mortgaged property is not justified by the fact that there is still sufficient property left, in his opinion, to pay the debt. (Decided under prior law) Riley v. Commonwealth, 275 Ky. 370 , 121 S.W.2d 921, 1938 Ky. LEXIS 436 ( Ky. 1938 ).

2.Evidence.

Where the credit association manager’s testimony consisted chiefly of introducing the contents of the mortgage and evidence concerning business practices of the credit association with which he was familiar and conversations with the defendant wherein the defendant admitted disposing of the mortgaged property, the evidence was competent, though it was not shown that the manager had been an employee of the credit association at time of the negotiations for the loan. (Decided under prior law) Sims v. Commonwealth, 260 S.W.2d 393, 1953 Ky. LEXIS 970 ( Ky. 1953 ).

Evidence that the mortgagor had sold automobile when it developed serious motor trouble while he was traveling in effort to obtain work was sufficient for the jury to infer mortgagor’s intention in prosecution for removing automobile, on which there was a mortgage, from state, with the intent to prevent or hinder the enforcement of a lien, even though mortgagor contended that he did not call mortgagee before selling the vehicle because he did not have the money to make the call and that he did not intend to hinder or prevent the enforcement of the mortgage, but merely wanted to get home. (Decided under prior law) Saylor v. Commonwealth, 317 S.W.2d 875, 1958 Ky. LEXIS 108 ( Ky. 1958 ).

3.Instructions.

It was error to submit prosecution for fraudulently concealing parts of mortgaged truck to the jury on a felony instruction, where only evidence was as to value of truck before and after removal of parts, there was no evidence as to value of parts, and fact that both truck and parts were damaged was not taken into consideration. (Decided under prior law) Quillen v. Commonwealth, 275 Ky. 158 , 120 S.W.2d 1047, 1938 Ky. LEXIS 389 ( Ky. 1938 ).

Where the defendant’s defense amounted to a denial of the existence of certain elements of the crime charged against him, the instruction given by the court which followed the language of the statute and its negative (raised by the usual reasonable doubt instruction) adequately covered his defense. (Decided under prior law) Sims v. Commonwealth, 260 S.W.2d 393, 1953 Ky. LEXIS 970 ( Ky. 1953 ).

4.Intent.

The intent and purpose to defraud the mortgagee or the public constitutes the offense, which must be gathered from attendant facts and circumstances. The question of the defendant’s intent is one of fact for the jury. (Decided under prior law) Commonwealth v. Wiggins, 165 Ky. 73 , 176 S.W. 946, 1915 Ky. LEXIS 478 ( Ky. 1915 ); Lucas v. Commonwealth, 255 S.W.2d 609, 1953 Ky. LEXIS 665 ( Ky. 1953 ).

In prosecution for removal of mortgaged personalty the question of intent to prevent or hinder enforcement of lien was for the jury, and the fact that defendant executed forthcoming bond after levy of attachment, and purchased property for full amount of lien at judicial sale did not conclusively negative fraudulent intent to conceal. (Decided under prior law) Quillen v. Commonwealth, 275 Ky. 158 , 120 S.W.2d 1047, 1938 Ky. LEXIS 389 ( Ky. 1938 ).

The intent to defraud constitutes the offense of removal of mortgaged personalty and the presence of such intent is a question for the jury and the disposition is not conclusive proof of the intent. (Decided under prior law) Riley v. Commonwealth, 275 Ky. 370 , 121 S.W.2d 921, 1938 Ky. LEXIS 436 ( Ky. 1938 ).

5.Lien.

Defendant could not be convicted of fraudulently and knowingly removing his automobile from the state, with intent to prevent or hinder the enforcement of a lien, where the constable who served the order of attachment did not put the order on the car but merely served a copy of the summons on defendant and did not at any time take possession of the vehicle, and where defendant retained possession and drove the vehicle to work daily into Tennessee where the car was destroyed by fire on the last trip. (Decided under prior law) Thacker v. Commonwealth, 284 S.W.2d 325, 1955 Ky. LEXIS 25 ( Ky. 1955 ).

Lien on specific piece of property acquired by attachment does not become effective merely by issuance of writ of attachment, by placing writ in hands of an officer, or by delivery of copy of attachment to the debtor; but, for lien to become effective, there must be an actual levy on the property itself. (Decided under prior law) Thacker v. Commonwealth, 284 S.W.2d 325, 1955 Ky. LEXIS 25 ( Ky. 1955 ).

Opinions of Attorney General.

The county clerk must, where KRS 186.190 is complied with, effect the transfer of registration of the motor vehicle even though a lien or security interest is shown on the part of the registration receipt, without any consent on the part of the holder of the security interest and the knowledge and bad conduct of the seller and his intent cannot be finally imputed to the clerk where the clerk has no knowledge of the intent of the seller to violate this section. OAG 75-479 .

Research References and Practice Aids

Cross-References.

Severance of timber, buildings, minerals, and fixtures from mortgaged land by third person prohibited, KRS 382.350 .

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Theft and Related Offenses, Part 5 Business and Commercial Frauds, §§ 6.84, 6.85.

517.070. Defrauding judgment creditors.

  1. A person is guilty of defrauding judgment creditors when he secretes, assigns, conveys or otherwise disposes of his property with intent to defraud a judgment creditor or to prevent that property from being subjected to payment of a judgment.
  2. Defrauding judgment creditors is a Class A misdemeanor.

History. Enact. Acts 1974, ch. 406, § 151, effective January 1, 1975.

Research References and Practice Aids

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Theft and Related Offenses, Part 5 Business and Commercial Frauds, § 6.86.

517.080. Fraud in insolvency.

  1. A person is guilty of fraud in insolvency when, knowing that proceedings have been or are about to be instituted for the appointment of a receiver or other person entitled to administer property for the benefit of creditors, or that any other composition or liquidation for the benefit of creditors has been or is about to be made, he:
    1. Destroys, removes, conceals, encumbers, transfers or otherwise deals with any property with intent to defeat or obstruct the claim of any creditor, or otherwise to obstruct the operation of any law relating to administration of property for the benefit of creditors; or
    2. Knowingly falsifies any writing or record relating to the property; or
    3. Knowingly misrepresents or refuses to disclose to a receiver or other person entitled to administer property for the benefit of creditors, the existence, amount or location of the property, or any other information which the actor would be legally required to furnish to such administrator.
  2. Fraud in insolvency is a Class A misdemeanor.

History. Enact. Acts 1974, ch. 406, § 152, effective January 1, 1975.

Research References and Practice Aids

Cross-References.

Fraudulent conveyances, KRS 378.010 to 378.100 .

Voluntary conveyances for benefit of creditors, KRS 379.010 to 379.170 .

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Theft and Related Offenses, Part 5 Business and Commercial Frauds, § 6.87.

517.090. Issuing false financial statement.

  1. A person is guilty of issuing a false financial statement when, with intent to defraud, he:
    1. Knowingly makes or utters a written instrument which purports to describe the financial condition or ability to pay of himself or of some other person and which is inaccurate in some material respect; or
    2. Represents in writing that a written instrument purporting to describe a person’s financial condition or ability to pay as of a prior date is accurate with respect to that person’s financial condition or ability to pay, knowing the instrument to be materially inaccurate in that respect.
  2. Issuing a false financial statement is a Class A misdemeanor.

History. Enact. Acts 1974, ch. 406, § 153, effective January 1, 1975.

NOTES TO DECISIONS

1.Elements.

Offense of misrepresenting financial condition includes sale of corporate stock, and false representation must be in writing. (Decided under prior law) Commonwealth v. Dant, 194 Ky. 691 , 240 S.W. 359, 1922 Ky. LEXIS 220 ( Ky. 1922 ).

One who violated law that provided penalty for knowingly making misrepresentations as to financial condition was guilty regardless of whether one to whom representations were made could have ascertained falsity of such statement. (Decided under prior law) Commonwealth v. Miller, 215 Ky. 547 , 286 S.W. 691, 1926 Ky. LEXIS 755 ( Ky. 1926 ).

Representation that defendant was owner of realty, to induce others to sign note as sureties, related to defendant’s “financial condition.” (Decided under prior law) Combs v. Commonwealth, 276 Ky. 260 , 124 S.W.2d 64, 1939 Ky. LEXIS 514 ( Ky. 1939 ).

Representations as to one’s financial condition or ability to pay must be in writing before there is criminal liability. (Decided under prior law) Combs v. Commonwealth, 276 Ky. 260 , 124 S.W.2d 64, 1939 Ky. LEXIS 514 ( Ky. 1939 ); Tartar v. Commonwealth, 267 Ky. 502 , 102 S.W.2d 971, 1937 Ky. LEXIS 340 ( Ky. 1937 ).

2.Indictment.

An indictment for misrepresentation of financial condition should conform to the statutory terms containing all the material facts and circumstances necessary to convict so as to inform the court it is within the law and give defendant notice of what he is to answer. (Decided under prior law) Gardner v. Commonwealth, 164 Ky. 196 , 175 S.W. 362, 1915 Ky. LEXIS 361 ( Ky. 1915 ).

An indictment charging false statements as to defendant’s own financial condition and ability, which further showed that false statement relied on for conviction was made concerning the financial condition and ability of another, was insufficient. (Decided under prior law) Gardner v. Commonwealth, 164 Ky. 196 , 175 S.W. 362, 1915 Ky. LEXIS 361 ( Ky. 1915 ).

An indictment which set out five allegedly false statements and negatived only three of these statements was not demurrable for not having negatived all five statements as the three statements expressly negatived may have been the statements on which the prosecution relied for conviction. (Decided under prior law) Commonwealth v. Miller, 215 Ky. 547 , 286 S.W. 691, 1926 Ky. LEXIS 755 ( Ky. 1926 ).

Research References and Practice Aids

Cross-References.

Civil liability for false statement of financial condition, KRS 411.070 .

Credit card, false statements as to identity or financial condition to procure, KRS 434.570 .

Theft by deception, KRS 514.040 .

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Libel and Slander, § 129.00.

Kentucky Instructions To Juries (Criminal), 5th Ed., Theft and Related Offenses, Part 5 Business and Commercial Frauds, § 6.88.

517.100. Receiving deposits in failing financial institution.

  1. A person is guilty of receiving deposits in a failing financial institution when, as an officer, manager or other person participating in the direction of a financial institution, he knowingly receives or permits the receipt of a deposit or other investment, knowing that the institution is insolvent.
  2. A financial institution is insolvent within the meaning of this section when it is unable to pay its obligations in the ordinary or usual course of business for any reason.
  3. Receiving deposits in a failing financial institution is a Class D felony.

History. Enact. Acts 1974, ch. 406, § 154, effective January 1, 1975.

NOTES TO DECISIONS

1.Deposits.

“Deposits” has a well understood popular meaning and implies that the depositor has placed in the bank money, or evidences or representatives of money, such as banks of deposit are authorized to and do receive. (Decided under prior law) Parrish v. Commonwealth, 136 Ky. 77 , 123 S.W. 339, 1909 Ky. LEXIS 461 ( Ky. 1909 ).

2.Evidence.

It is not necessary to prove actual guilty knowledge. It may be implied from the accused’s office, authority, and opportunities of knowledge. (Decided under prior law) Parrish v. Commonwealth, 136 Ky. 77 , 123 S.W. 339, 1909 Ky. LEXIS 461 ( Ky. 1909 ); Commonwealth v. Croft, 208 Ky. 220 , 270 S.W. 816, 1925 Ky. LEXIS 256 ( Ky. 1925 ).

It is not necessary that the assenting officer shall have received the deposit, or that it shall have been received at his direction, or that he shall have been present. It is sufficient that the bank remained open for such business. (Decided under prior law) Parrish v. Commonwealth, 136 Ky. 77 , 123 S.W. 339, 1909 Ky. LEXIS 461 ( Ky. 1909 ).

The Commonwealth must prove (1) that the deposit described in the petition was actually received, (2) that the bank was then insolvent, and (3) that the officer indicted assented to receive the deposit, knowing of the bank’s insolvency. (Decided under prior law) Parrish v. Commonwealth, 136 Ky. 77 , 123 S.W. 339, 1909 Ky. LEXIS 461 ( Ky. 1909 ).

Full control of the bank’s books and records is sufficient evidence to take the case to the jury on the issue of knowledge. (Decided under prior law) Medlock v. Commonwealth, 215 Ky. 498 , 285 S.W. 232, 1926 Ky. LEXIS 744 ( Ky. 1926 ).

The bank books are not the best evidence of the bank’s insolvency. (Decided under prior law) Medlock v. Commonwealth, 215 Ky. 498 , 285 S.W. 232, 1926 Ky. LEXIS 744 ( Ky. 1926 ).

Although the bank books are not the best evidence of the bank’s insolvency the defendant is entitled to have them produced. (Decided under prior law) Gaugh v. Commonwealth, 261 Ky. 91 , 87 S.W.2d 94, 1935 Ky. LEXIS 596 ( Ky. 1935 ).

Cross-examination of defendant’s character witnesses by asking what public opinion would have been had the fact of defendant’s withdrawals been known is prejudicial. (Decided under prior law) Gaugh v. Commonwealth, 261 Ky. 91 , 87 S.W.2d 94, 1935 Ky. LEXIS 596 ( Ky. 1935 ).

Evidence of withdrawals by the defendant on the day the deposit was received is competent to show the bank’s insolvency and defendant’s knowledge of it. (Decided under prior law) Gaugh v. Commonwealth, 261 Ky. 91 , 87 S.W.2d 94, 1935 Ky. LEXIS 596 ( Ky. 1935 ).

Evidence of other deposits should not be admitted. (Decided under prior law) Gaugh v. Commonwealth, 261 Ky. 91 , 87 S.W.2d 94, 1935 Ky. LEXIS 596 ( Ky. 1935 ).

Evidence that the deposit has not been repaid in whole or in part is incompetent. (Decided under prior law) Gaugh v. Commonwealth, 261 Ky. 91 , 87 S.W.2d 94, 1935 Ky. LEXIS 596 ( Ky. 1935 ).

3.Indictment.

An averment that a bank is insolvent is a statement of fact. (Decided under prior law) Parrish v. Commonwealth, 136 Ky. 77 , 123 S.W. 339, 1909 Ky. LEXIS 461 ( Ky. 1909 ).

The indictment for assenting to such a deposit need not describe accurately the items constituting the deposit, nor identify the receiving officer or his title. (Decided under prior law) Parrish v. Commonwealth, 136 Ky. 77 , 123 S.W. 339, 1909 Ky. LEXIS 461 ( Ky. 1909 ).

The date of the offense charged is immaterial, provided it was prior to the date of the indictment. (Decided under prior law) Medlock v. Commonwealth, 215 Ky. 498 , 285 S.W. 232, 1926 Ky. LEXIS 744 ( Ky. 1926 ).

Indictment charging receipt from an individual while proof showed its receipt from a corporation is a fatal variance, notwithstanding that the individual was the sole stockholder of the corporation. (Decided under prior law) Miller v. Commonwealth, 242 Ky. 122 , 45 S.W.2d 853, 1932 Ky. LEXIS 228 ( Ky. 1932 ).

The indictment need not allege that the deposit was received by the bank. (Decided under prior law) Gaugh v. Commonwealth, 261 Ky. 91 , 87 S.W.2d 94, 1935 Ky. LEXIS 596 ( Ky. 1935 ).

Allegations were held sufficient to charge directors of bank with violation by receiving deposits when they knew bank was insolvent. (Decided under prior law) Roberts v. Hargis, 265 Ky. 282 , 96 S.W.2d 691, 1936 Ky. LEXIS 466 ( Ky. 1936 ).

4.Insolvency.

It is not necessary that the affairs of the bank shall have been wound up and its insolvency thus shown before a prosecution can be begun. It is sufficient that it is unable to meet its obligations in the ordinary course of its usual and customary business, or has closed its doors, or gone into liquidation. (Decided under prior law) Parrish v. Commonwealth, 136 Ky. 77 , 123 S.W. 339, 1909 Ky. LEXIS 461 ( Ky. 1909 ).

A bank is insolvent when its property and assets are not sufficient to satisfy its debts. (Decided under prior law) Parrish v. Commonwealth, 136 Ky. 77 , 123 S.W. 339, 1909 Ky. LEXIS 461 ( Ky. 1909 ); Gaugh v. Commonwealth, 261 Ky. 91 , 87 S.W.2d 94, 1935 Ky. LEXIS 596 ( Ky. 1935 ).

5.Separate Offenses.

Each receiving or assenting constitutes a separate offense. (Decided under prior law) Commonwealth v. Croft, 208 Ky. 220 , 270 S.W. 816, 1925 Ky. LEXIS 256 ( Ky. 1925 ).

Trial for one offense of receiving deposits knowing bank is insolvent does not bar prosecution for an earlier or other offense. (Decided under prior law) Commonwealth v. Croft, 208 Ky. 220 , 270 S.W. 816, 1925 Ky. LEXIS 256 ( Ky. 1925 ).

Research References and Practice Aids

Cross-References.

False rumors about solvency of bank or insurance company, penalty for circulating, KRS 434.310 .

Receiving deposits by insolvent banks, penalty, Ky. Const., § 204.

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Theft and Related Offenses, Part 5 Business and Commercial Frauds, § 6.89.

517.110. Misapplication of entrusted property.

  1. A person is guilty of misapplication of entrusted property when he applies or disposes of property that has been entrusted to him as a fiduciary, or property of the government or of a financial institution in a manner which he knows is unauthorized and involves substantial risk of loss or detriment to the owner of the property or to a person for whose benefit the property was entrusted.
  2. Misapplication of entrusted property is a Class A misdemeanor.

History. Enact. Acts 1974, ch. 406, § 155, effective January 1, 1975.

Research References and Practice Aids

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Theft and Related Offenses, Part 5 Business and Commercial Frauds, § 6.90.

517.120. Operating a sham or front company.

  1. A person is guilty of operating a sham or front company when he knowingly:
    1. Establishes;
    2. Assists in the establishment of;
    3. Operates; or
    4. Assists in the operation of;

      a sham or front company.

  2. Operating a sham or front company is a Class D felony.

History. Enact. Acts 1994, ch. 476, § 1, effective July 15, 1994.

Research References and Practice Aids

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Theft and Related Offenses, Part 5 Business and Commercial Frauds, § 6.91.

517.130. Possession of automated business record falsification device.

  1. A person is guilty of possession of an automated business record falsification device when he or she knowingly possesses any device or software program that falsifies the business records created by a point-of-sale system, such as any electronic device or computer system that keeps a register or supporting documents designed to record retail sales transaction information, by eliminating or manipulating true retail sales transaction information in order to represent a false record of transactions. These devices may also be referred to as “zappers” or “phantom-ware.”
  2. Possession of an automated business record falsification device is a Class D felony.
  3. In addition to any other penalty provided by law:
    1. Any person guilty of possession of an automated business record falsification device shall forfeit all proceeds associated with its creation, sale, or usage; and
    2. An automated business record falsification device, and any device containing an automated business record falsification device, is contraband and shall be seized and forfeited to the state to be disposed of as provided in KRS 500.090 .

History. Enact. Acts 2014, ch. 9, § 1, effective July 15, 2014.

CHAPTER 518 Miscellaneous Crimes Affecting Businesses, Occupations, and Professions

518.010. Definitions for chapter.

The following definitions apply in this chapter, unless the context otherwise requires:

  1. “Benefit” means gain or advantage to the beneficiary or to a third person pursuant to the desire or consent of the beneficiary.
  2. “Event” means a sports contest or other public performance to which the general public is not admitted without consideration.
  3. “Public performance” means any form of entertainment other than a sports contest involving machines, persons, animals, or objects that is viewed by the public.
  4. “Sports contest” means any professional or amateur sport, athletic game or contest, or race or contest involving machines, persons, animals, or objects that is viewed by the public.
  5. “Sports official” means any person who acts or expects to act in a sports contest as an umpire, referee, or judge, or otherwise to officiate at a sports contest.
  6. “Sports participant” means any person who participates or expects to participate in a sports contest as a player, contestant, or member of a team, or as a coach, manager, trainer or other person directly associated with a player, contestant, or team.

History. Enact. Acts 1974, ch. 406, § 156, effective January 1, 1975; 1978, ch. 78, § 5, effective June 17, 1978; 1988, ch. 286, § 2, effective July 15, 1988; 1994, ch. 324, § 1, effective July 15, 1994; 1998, ch. 259, § 10, effective July 15, 1998.

NOTES TO DECISIONS

1.Sports Contest.

A beauty pageant is not a sports contest. Davis v. Commonwealth, 564 S.W.2d 33, 1978 Ky. App. LEXIS 494 (Ky. Ct. App. 1978).

Research References and Practice Aids

Northern Kentucky Law Review.

Grosse and Warren, The Regulation, Control, and Protection of Athlete Agents, 19 N. Ky. L. Rev. 49 (1991).

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public Order, Safety and Morals, Part 1 Definitions, §§ 8.22 — 8.26.

518.020. Commercial bribery.

  1. A person is guilty of commercial bribery when he:
    1. Offers, confers or agrees to confer any benefit upon any employee or agent without the consent of the latter’s employer or principal with intent to influence his conduct contrary to his employer’s or principal’s best interests; or
    2. Offers, confers or agrees to confer any benefit upon any fiduciary without the consent of the latter’s beneficiary with intent to influence him to act or conduct himself contrary to his fiduciary obligation.
  2. Commercial bribery is a Class A misdemeanor.

History. Enact. Acts 1974, ch. 406, § 157, effective January 1, 1975.

NOTES TO DECISIONS

1.In General.

Federal District Court refused to apply direct-purchaser rule, which does not exist under Kentucky law, to Kentucky state-law claim for the first time, as whether the direct-purchaser rule should limit the class of injured parties able to recover for a violation of the commercial bribery statute was a decision best left to Kentucky courts. Big Rivers Elec. Corp. v. Thorpe, 921 F. Supp. 460, 1996 U.S. Dist. LEXIS 6365 (W.D. Ky. 1996 ).

Appellant lacked standing to assert a commercial bribery claim because the commercial bribery statute seeks to protect employers from the manipulation of their employees in ways contrary to the employer’s interests, and appellant company was a business competitor rather than an employer for purposes of this action. Louisa Coca-Cola Bottling Co. v. Pepsi-Cola Metro. Bottling Co., 94 F. Supp. 2d 804, 1999 U.S. Dist. LEXIS 21663 (E.D. Ky. 1999 ).

Opinions of Attorney General.

There is no precedent for a school or any other public organization accepting bids as to the amount of rebate, commission or kickback the school will accept as a condition for awarding a contract for services or supplies and, where a school in return for such remuneration grants a photographic studio a monopoly to furnish senior pictures for a yearbook without any understanding as to the price to be charged the students, it is acting improperly and not in the best interests of the students and in addition the school and the photographer may be guilty of commercial bribery under this section and KRS 518.030 . OAG 75-618 .

Research References and Practice Aids

Cross-References.

Malt beverage retailers, commercial bribery, KRS 244.600 .

Kentucky Law Journal.

Miller, America Singing: The Role of Custom and Usage in the Thoroughbred Horse Business, 74 Ky. L.J. 781 (1985-86).

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public Order, Safety and Morals, Part 7 Miscellaneous Crimes Affecting Businesses, Occupations and Professions, § 8.90.

518.030. Receiving commercial bribe.

  1. A person is guilty of receiving a commercial bribe when:
    1. As an employee or agent, and without the consent of his employer or principal, he knowingly solicits, accepts or agrees to accept any benefit from another person upon an agreement or understanding that the benefit will influence his conduct contrary to his employer’s or principal’s best interest; or
    2. As a fiduciary, and without the consent of his beneficiary, he knowingly solicits, accepts or agrees to accept any benefit from another person upon an agreement or understanding that the benefit will influence his conduct contrary to his fiduciary obligation.
  2. Receiving a commercial bribe is a Class A misdemeanor.

History. Enact. Acts 1974, ch. 406, § 158, effective January 1, 1975.

Opinions of Attorney General.

There is no precedent for a school or any other public organization accepting bids as to the amount of rebate, commission or kickback the school will accept as a condition for awarding a contract for services or supplies and, where a school in return for such remuneration grants a photographic studio a monopoly to furnish senior pictures for a yearbook without any understanding as to the price to be charged the students, it is acting improperly and not in the best interests of the students and in addition the school and the photographer may be guilty of commercial bribery under KRS 518.020 and this section. OAG 75-618 .

Research References and Practice Aids

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public Order, Safety and Morals, Part 7 Miscellaneous Crimes Affecting Businesses, Occupations and Professions, § 8.91.

518.040. Sports bribery.

  1. A person is guilty of sports bribery when he:
    1. Offers, confers or agrees to confer any benefit upon a sports participant with intent to influence him not to give his best efforts in a sports contest; or
    2. Offers, confers or agrees to confer any benefit upon a sports official with intent to influence him to perform his duties improperly.
  2. Sports bribery is a Class D felony.

History. Enact. Acts 1974, ch. 406, § 159, effective January 1, 1975.

NOTES TO DECISIONS

Cited:

Davis v. Commonwealth, 564 S.W.2d 33, 1978 Ky. App. LEXIS 494 (Ky. Ct. App. 1978).

Research References and Practice Aids

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public Order, Safety and Morals, Part 7 Miscellaneous Crimes Affecting Businesses, Occupations and Professions, § 8.92.

518.050. Receiving sports bribe.

  1. A person is guilty of receiving a sports bribe when:
    1. Being a sports participant, he knowingly solicits, accepts or agrees to accept any benefit from another person upon an agreement or understanding that he will thereby be influenced not to give his best efforts in a sports contest; or
    2. Being a sports official, he knowingly solicits, accepts or agrees to accept any benefit from another person upon an agreement or understanding that he will perform his duties improperly.
  2. Receiving a sports bribe is a Class D felony.

History. Enact. Acts 1974, ch. 406, § 160, effective January 1, 1975.

NOTES TO DECISIONS

Cited:

Davis v. Commonwealth, 564 S.W.2d 33, 1978 Ky. App. LEXIS 494 (Ky. Ct. App. 1978).

Research References and Practice Aids

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public Order, Safety and Morals, Part 7 Miscellaneous Crimes Affecting Businesses, Occupations and Professions, § 8.93.

518.060. Tampering with or rigging sports contest.

  1. A person is guilty of tampering with or rigging a sports contest when, with intent to influence the outcome of a sports contest, he or she:
    1. Tampers with any sports participant or sports official or with any animal other than a horse, equipment, or other thing involved in the conduct or operation of a sports contest in a manner contrary to the rules governing the sports contest in question; or
    2. Substitutes a sports participant, animal, other than a horse, equipment, or other thing involved in the conduct or operation of a sports contest for the genuine person, animal, or thing.
  2. Tampering with or rigging a sports contest is a Class A misdemeanor.

History. Enact. Acts 1974, ch. 406, § 161, effective January 1, 1975; 1998, ch. 342, § 2, effective July 15, 1998.

NOTES TO DECISIONS

1.Beauty Pageants.

The proscription of this section was intended to be and is limited in application to sports contests as are normally understood by the usage of that term and does not apply to beauty pageants. Davis v. Commonwealth, 564 S.W.2d 33, 1978 Ky. App. LEXIS 494 (Ky. Ct. App. 1978).

Cited:

White v. Turfway Park Racing Ass’n, 909 F.2d 941, 1990 U.S. App. LEXIS 12648 (6th Cir. 1990).

Research References and Practice Aids

Cross-References.

Horse race, tampering with, KRS 230.070 to 230.090 .

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public Order, Safety and Morals, Part 7 Miscellaneous Crimes Affecting Businesses, Occupations and Professions, §§ 8.94, 8.95.

518.070. Ticket scalping.

  1. A person is guilty of ticket scalping when he intentionally sells or offers to sell a ticket to an event at a price greater than that charged at the place of admission or printed on the ticket, unless authorized by the issuer or by law.
  2. Ticket scalping is a violation.

History. Enact. Acts 1974, ch. 406, § 162, effective January 1, 1975.

NOTES TO DECISIONS

Cited:

Davis v. Commonwealth, 564 S.W.2d 33, 1978 Ky. App. LEXIS 494 (Ky. Ct. App. 1978).

Opinions of Attorney General.

A peace officer, in whose presence a “violation” is committed, has the option of issuing the violator a citation or making a full custodial arrest. OAG 76-166 .

Research References and Practice Aids

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public Order, Safety and Morals, Part 7 Miscellaneous Crimes Affecting Businesses, Occupations and Professions, § 8.96.

518.080. Unauthorized sports agency practices. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1988, ch. 286, § 1, effective July 15, 1988; 1994, ch. 324, § 2, effective July 15, 1994) was repealed by Acts 1998, ch. 259, § 11, effective July 15, 1998.

518.090. Assault of sports official.

  1. A person is guilty of assault of a sports official when he intentionally causes physical injury to a sports official:
    1. Who was performing sports official duties at the time the physical injury was perpetrated; or
    2. If the physical injury occurs while the sports official is arriving at or departing from the athletic facility at which the athletic event occurred.
  2. For the purposes of this section, “sports official” means an individual who serves as a referee, umpire, linesman, or in a similar capacity that may be known by another title, and who is duly registered as or is a member of a national, state, regional, or local organization engaged, in part, in providing education and training to sports officials.
  3. A person who is guilty of assault of a sports official shall, for a first offense, be guilty of a Class A misdemeanor, unless the defendant assembles with five (5) or more persons for the purpose of assaulting a sports official, in which case it is a Class D felony.
  4. A person who is guilty of assault of a sport official shall, for a second or subsequent offense, be guilty of a Class D felony.

History. Enact. Acts 1998, ch. 508, § 1, effective July 15, 1998.

CHAPTER 519 Obstruction of Public Administration

519.010. Definitions.

The following definitions apply in this chapter unless the context otherwise requires:

  1. “Governmental function” means any activity which a public servant is legally authorized to undertake on behalf of the governmental unit which he serves;
  2. “Public record” includes all books, papers, maps, photographs, cards, tapes, discs, diskettes, recordings, magnetic or electronic images, optical images or other documentary materials regardless of physical form or characteristics, which are prepared, owned, used, in the possession of, received or retained by a public agency. “Public record” shall not include any records owned by a private person or corporation that are not related to functions, activities, programs, or operations funded by state or local authority;
  3. “Public servant” means:
    1. Any public officer or employee of the state or of any political subdivision thereof or of any governmental instrumentality within the state;
    2. Any person exercising the functions of any such public officer or employee;
    3. Any person participating as advisor, consultant or otherwise in performing a governmental function, but not including witnesses; or
    4. Any person elected, appointed or designated to become a public servant although not yet occupying that position;
  4. As used in this chapter, “benefit” means gain or advantage to the beneficiary or to a third person pursuant to the desire or consent of the beneficiary.

History. Enact. Acts 1974, ch. 406, § 163, effective January 1, 1975; 1984, ch. 112, § 1, effective July 13, 1984; 1986, ch. 150, § 4, effective July 15, 1986.

Research References and Practice Aids

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public and Judicial Administration, Part 2 Obstruction of Public Administration, § 7.13.

519.020. Obstructing governmental operations.

  1. A person is guilty of obstructing governmental operations when he intentionally obstructs, impairs or hinders the performance of a governmental function by using or threatening to use violence, force or physical interference.
  2. This section shall not apply to:
    1. Any means of avoiding compliance with the law without affirmative interference with governmental functions; or
    2. The obstruction, impairment or hindrance of unlawful action by a public servant; or
    3. The obstruction, impairment or hindrance of an arrest.
  3. Obstructing governmental operations is a Class A misdemeanor.

History. Enact. Acts 1974, ch. 406, § 164, effective January 1, 1975.

NOTES TO DECISIONS

1.Indictment.

An indictment charging defendant with the offense of obstructing justice by taking an automobile from the custody of the sheriff at a time when the automobile was in process of being searched under lawful authority, without consent of the sheriff, thereby preventing search of the automobile, sufficiently charged the offense of obstructing justice and specified circumstances with sufficient accuracy to apprise defendant as to the charge against him. (Decided under prior law) Brown v. Commonwealth, 263 S.W.2d 238, 1953 Ky. LEXIS 1239 (Ky. Ct. App. 1953).

2.Penalty.

A fine of $1,000 and 12 months’ imprisonment for inducing witnesses not to appear at a trial were not excessive where the legislature provided no limits on penalties that could be imposed under law that provided penalty for obstruction of justice. (Decided under prior law) Loving v. Commonwealth, 209 Ky. 536 , 273 S.W. 56, 1925 Ky. LEXIS 537 ( Ky. 1925 ).

Research References and Practice Aids

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public and Judicial Administration, Part 2 Obstruction of Public Administration, § 7.13.

519.030. Compounding a crime.

  1. A person is guilty of compounding a crime when:
    1. He solicits, accepts or agrees to accept any benefit upon an agreement or understanding that he will refrain from initiating a prosecution for a crime; or
    2. He confers, offers, or agrees to confer any benefit upon another person upon agreement or understanding that such other person will refrain from initiating a prosecution for a crime.
  2. In any prosecution under this section, it is a defense that the benefit did not exceed an amount which the defendant reasonably believed to be due as restitution or indemnification for harm caused by the offense.
  3. Compounding a crime is a Class A misdemeanor.

History. Enact. Acts 1974, ch. 406, § 165, effective January 1, 1975.

NOTES TO DECISIONS

Cited:

Fields v. Commonwealth, 905 S.W.2d 510, 1995 Ky. App. LEXIS 158 (Ky. Ct. App. 1995); James v. Wilson, 95 S.W.3d 875, 2002 Ky. App. LEXIS 770 (Ky. Ct. App. 2002).

Research References and Practice Aids

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public and Judicial Administration, Part 2 Obstruction of Public Administration, §§ 7.14, 7.15.

519.040. Falsely reporting an incident.

  1. A person is guilty of falsely reporting an incident when he:
    1. Knowingly causes a false alarm of fire or other emergency to be transmitted to or within any organization, official or volunteer, that deals with emergencies involving danger to life or property; or
    2. Reports to law enforcement authorities an offense or incident within their official concern knowing that it did not occur; or
    3. Furnishes law enforcement authorities with information allegedly relating to an offense or incident within their official concern when he knows he has no information relating to such offense or incident; or
    4. Knowingly gives false information to any law enforcement officer with intent to implicate another; or
    5. Initiates or circulates a report or warning of an alleged occurrence or impending occurrence of a fire or other emergency under circumstances likely to cause public inconvenience or alarm when he knows the information reported, conveyed or circulated is false or baseless.
  2. Falsely reporting an incident is a Class A misdemeanor.

History. Enact. Acts 1974, ch. 406, § 166, effective January 1, 1975.

NOTES TO DECISIONS

Cited:

United States v. Miller, 314 F.3d 265, 2002 FED App. 0433P, 2002 U.S. App. LEXIS 26450 (6th Cir. Ky. 2002 ); Tolbert v. United States, 112 Fed. Appx. 440, 2004 U.S. App. LEXIS 21162 (6th Cir. Ky. 2004 ); Harralson v. Monger, 206 S.W.3d 336, 2006 Ky. LEXIS 291 ( Ky. 2006 ).

Notes to Unpublished Decisions

1.Probable Cause.

Unpublished decision: Where an arrestee allegedly was assaulted, bound, and raped in the arrestee's apartment, but officers arrested the arrestee for falsely reporting an incident, the arrestee's Fourth Amendment claims failed because the officers had probable cause to arrest the arrestee since it was not unreasonable for the officers to believe that the arrestee falsely reported to the police that the arrestee had been raped because, inter alia, the arrestee claimed that the arrestee was in the shower, but the shower walls and shower head were completely dry and a perfectly dry towel remained neatly folded over the side of the bathtub. Lilly v. City of Erlanger, 598 Fed. Appx. 370, 2015 FED App. 0071N, 2015 U.S. App. LEXIS 1079 (6th Cir. Ky. 2015 ).

Unpublished decision: Order denying appellant's motion to suppress was affirmed because the totality of circumstances provided the magistrate with substantial basis for determining existence of probable cause; appellant provided no authority for the proposition that prosecution for falsely reporting an incident was impossible where a report was based on hearsay. United States v. Howard, 632 Fed. Appx. 795, 2015 U.S. App. LEXIS 20705 (6th Cir. Ky. 2015 ).

Research References and Practice Aids

Cross-References.

Terroristic threatening, KRS 508.080 .

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public and Judicial Administration, Part 2 Obstruction of Public Administration, §§ 7.16 — 7.18.

519.050. Impersonating a public servant.

  1. A person is guilty of impersonating a public servant, other than a peace officer, if he pretends to be a public servant, other than a peace officer, or to represent a public agency, other than a law enforcement agency, or act with the authority or approval of a public agency, other than a law enforcement agency, with intent to induce another to submit to such pretended official authority or otherwise to act in reliance upon that pretense to his prejudice.
  2. Impersonating a public servant, other than a peace officer, is a Class A misdemeanor.

History. Enact. Acts 1974, ch. 406, § 167, effective January 1, 1975; 1992, ch. 420, § 1, effective July 14, 1992; 1998, ch. 606, § 163, effective July 15, 1998.

NOTES TO DECISIONS

1.Elements.

It is sufficient if the representations are made with the view of procuring money or property, and such is procured by the person so representing himself to be an officer and a belief as to the truth of the representations is not an element of the offense. (Decided under prior law) Smith v. Commonwealth, 153 Ky. 385 , 155 S.W. 1125, 1913 Ky. LEXIS 850 ( Ky. 1913 ).

2.Indictment.

An indictment against a deputy sheriff charging him for unlawfully collecting taxes which were not in fact assessed did not charge an offense of false personation of an officer because it failed to allege that the defendant was not in fact a deputy sheriff when he collected the money. (Decided under prior law) Commonwealth v. Wolfford, 136 Ky. 239 , 124 S.W. 288, 1910 Ky. LEXIS 474 ( Ky. 1910 ).

Research References and Practice Aids

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public and Judicial Administration, Part 1 Definitions, § 7.06B.

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public and Judicial Administration, Part 2 Obstruction of Public Administration, §§ 7.13, 7.19A, 7.19B.

519.055. Impersonating a peace officer.

  1. A person is guilty of impersonating a peace officer if he pretends to be a peace officer, or to represent a law enforcement agency or act with the authority or approval of law enforcement agency, with intent to induce another to submit to the pretended official authority or otherwise to act in reliance upon the pretense to his prejudice.
  2. Impersonating a peace officer is a Class D felony.
  3. As used in this section, the phrase “peace officer” means a peace officer as defined in KRS 446.010 .

History. Enact. Acts 1998, ch. 606, § 164, effective July 15, 1998.

Research References and Practice Aids

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public and Judicial Administration, Part 1 Definitions, § 7.06B.

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public and Judicial Administration, Part 2 Obstruction of Public Administration, §§ 7.19A, 7.19B.

519.060. Tampering with public records.

  1. A person is guilty of tampering with public records when:
    1. He knowingly makes a false entry in or falsely alters any public record; or
    2. Knowing he lacks the authority to do so, he intentionally destroys, mutilates, conceals, removes, or otherwise impairs the availability of any public records; or
    3. Knowing he lacks the authority to retain it, he intentionally refuses to deliver up a public record in his possession upon proper request of a public servant lawfully entitled to receive such record for examination or other purposes.
  2. Tampering with public records is a Class D felony.

History. Enact. Acts 1974, ch. 406, § 168, effective January 1, 1975; 1992, ch. 16, § 1, effective July 14, 1992.

NOTES TO DECISIONS

1.Elements.

A conviction for tampering with court records may not be sustained unless the evidence establishes all the common-law elements of larceny which include a simultaneous combination of an unlawful taking, an asportation and a felonious intent. (Decided under prior law) Rice v. Commowealth, 300 S.W.2d 238, 1957 Ky. LEXIS 446 ( Ky. 1957 ).

2.Theft of Indictment.

An indictment in a criminal case is a part of the record and within the meaning of law providing a penalty for tampering with court records, and its theft is punishable thereunder. (Decided under prior law) Sullivan v. Commonwealth, 170 Ky. 802 , 186 S.W. 906, 1916 Ky. LEXIS 141 ( Ky. 1916 ).

Opinions of Attorney General.

The destruction of “minute sheets” of the court, which contain the style of all cases on the docket for the day and abbreviated notes of the clerk, and which are later transcribed into orders and signed by the judge, does not constitute a criminal offense or an infringement on the authority of the state archives and records commission since the sheets do not contain any information which is not permanently preserved elsewhere. OAG 75-103 .

While it is not lawful to permanently remove the official seals from land warrants, such seals may be removed for purposes of laminating the warrants so long as they are replaced in such a manner that the laminated warrant is restored to its original condition since, to hold that the removal and replacement constitutes an unlawful alteration of a public record under subsection (1) (b) of this section would render such restoration impossible and would defeat the legislative policy of preserving these warrants. OAG 77-516 .

The Attorney General is not authorized to render a decision on questions arising under KRS 61.991(2)(a) or KRS 519.060 , or to conduct an investigation into allegations of these offenses in an open records appeal. OAG 00-ORD-150.

Research References and Practice Aids

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public and Judicial Administration, Part 2 Obstruction of Public Administration, §§ 7.20 — 7.22.

519.070. Tampering with a prisoner monitoring device.

  1. A person is guilty of tampering with a prisoner monitoring device when he or she intentionally alters, disables, deactivates, tampers with, removes, damages, or destroys any device used to facilitate electronic monitoring or supervision of a person who is on probation or parole, or has been ordered to wear a device as a condition of pretrial release.
  2. Tampering with a prisoner monitoring device is a Class D felony.

History. Enact. Acts 2006, ch. 182, § 36, effective July 12, 2006.

CHAPTER 520 Escape and Other Offenses Relating to Custody

520.010. Definitions for chapter.

The following definitions apply in this chapter, unless the context otherwise requires:

  1. “Contraband” means any article or thing which a person confined in a detention facility is prohibited from obtaining or possessing by statute, departmental regulation, or posted institutional rule or order;
  2. “Custody” means restraint by a public servant pursuant to a lawful arrest, detention, or an order of court for law enforcement purposes, but does not include supervision of probation or parole or constraint incidental to release on bail;
  3. “Dangerous contraband” means contraband which is capable of use to endanger the safety or security of a detention facility or persons therein, including, but not limited to, dangerous instruments as defined in KRS 500.080 ; any controlled substances; any quantity of an alcoholic beverage; any quantity of marijuana; cell phones not authorized under KRS 441.111 ; drones, unmanned aircraft, or other remotely controlled vehicles, and any payload carried by those vehicles; and saws, files, and similar metal cutting instruments;
  4. “Detention facility” means any building and its premises used for the confinement of a person:
    1. Charged with or convicted of an offense;
    2. Alleged or found to be delinquent;
    3. Held for extradition or as a material witness; or
    4. Otherwise confined pursuant to an order of court for law enforcement purposes;
  5. “Escape” means departure from custody or the detention facility in which a person is held or detained when the departure is unpermitted, or failure to return to custody or detention following a temporary leave granted for a specific purpose or for a limited period; and
  6. As used in this section and KRS 520.015 , “penitentiary” includes any facility operated by the Department of Corrections and the confines of any work detail or other detail, whether under guard or not, under the custody and control of the Department of Corrections.

History. Enact. Acts 1974, ch. 406, § 169, effective January 1, 1975; 1982, ch. 405, § 1, effective July 15, 1982; 1982, ch. 410, § 1, effective July 15, 1982; 1986, ch. 297, § 1, effective July 15, 1986; 1990, ch. 497, § 23, effective July 13, 1990; 1992, ch. 211, § 133, effective July 14, 1992; 1998, ch. 606, § 170, effective July 15, 1998; 2014, ch. 94, § 3, effective July 15, 2014; 2018 ch. 190, § 1, effective July 14, 2018; 2019 ch. 61, § 2, effective June 27, 2019.

NOTES TO DECISIONS

Analysis

1.Contraband.

It is apparent from subsections (1) and (3) of this section defining contraband and dangerous contraband that the bureau of corrections (now Corrections Cabinet) is free to designate through appropriate regulation, rule, or order what will constitute “contraband” for purposes of KRS 520.060 , while it is given no such freedom as to what constitutes “dangerous contraband” for the purposes of KRS 520.050 . Cooper v. Commonwealth, 648 S.W.2d 530, 1982 Ky. App. LEXIS 287 (Ky. Ct. App. 1982) (decision prior to 1990 amendment).

Where the statute is silent, a court cannot be asked to specify what quantity of a contraband substance is sufficient to invoke criminal sanctions, so long as the presence of the substance is readily determined. Commonwealth v. O'Hara, 793 S.W.2d 840, 1990 Ky. App. LEXIS 79 (Ky. Ct. App. 1990).

2.Custody.

Where a warrant was issued while defendant was in the hospital but was not served until his release, there was neither a lawful arrest, nor detention, nor an order of court constituting “custody.” The request by a detective that he be notified when the appellant would be released from the hospital, and the hospital’s agreement to do so, did not amount to the restraint contemplated by the “in custody” as provided in KRS 532.120(3); accordingly, defendant would not be credited with time spent in the hospital. Bartrug v. Commonwealth, 582 S.W.2d 61, 1979 Ky. App. LEXIS 413 (Ky. Ct. App. 1979).

Defendant was not in “custody” during the time he was released from prison pursuant to his appeal bond; therefore, his resident record card would not be corrected to reflect credit for time served while he was released on an appeal bond. Prewitt v. Wilkinson, 843 S.W.2d 335, 1992 Ky. App. LEXIS 237 (Ky. Ct. App. 1992).

Court ordered yard restriction does not constitute custody for which credit for time served must be given, for subsection (2) of this section in defining “custody” specifically excludes incidental constraints pursuant to release on bail such as a court imposed condition on yard restraint. Cooper v. Commonwealth, 902 S.W.2d 833, 1995 Ky. App. LEXIS 35 (Ky. Ct. App. 1995).

Despite defendant’s contention that his participation in the home incarceration program was a constraint incidental to release on bail, thereby excepting him from the escape statute, defendant was not released on bail; thus, the trial court erred in dismissing said charge filed against him. Weaver v. Commonwealth, 156 S.W.3d 270, 2005 Ky. LEXIS 44 ( Ky. 2005 ).

County was not liable under KRS 441.045(3) for medical treatment given to an inmate by a hospital while the inmate was released from the county jail on bail because the inmate was not in custody when he was released on bail, and thus he was not a “prisoner” during these periods for purposes of KRS 441.045(3). Hosp. of Louisa v. Johnson County Fiscal Court, 2009 Ky. App. LEXIS 53 (Ky. Ct. App. Apr. 10, 2009).

3.Dangerous Contraband.

It is apparent from subsections (1) and (3) of this section defining contraband and dangerous contraband that the bureau of corrections (now Corrections Cabinet) is free to designate through appropriate regulation, rule, or order what will constitute “contraband” for purposes of KRS 520.060 , while it is given no such freedom as to what constitutes “dangerous contraband” for the purposes of KRS 520.050 . Cooper v. Commonwealth, 648 S.W.2d 530, 1982 Ky. App. LEXIS 287 (Ky. Ct. App. 1982) (decision prior to 1990 amendment).

Clearly, the legislature redefined “dangerous contraband” to include marijuana; in so doing, it did not require possession of any specific amount in order to constitute an offense under KRS 520.050 . Commonwealth v. O'Hara, 793 S.W.2d 840, 1990 Ky. App. LEXIS 79 (Ky. Ct. App. 1990).

“Dangerous contraband” specifically includes marijuana in an institutional setting; accordingly, there can be no question that marijuana is “dangerous contraband”; there is no language in the statute requiring a “usable amount” in order to constitute an offense. Commonwealth v. O'Hara, 793 S.W.2d 840, 1990 Ky. App. LEXIS 79 (Ky. Ct. App. 1990).

Subsection (3) of this section expressly defines dangerous contraband as including marijuana; equally clear is that the legislature intended to classify marijuana as a dangerous contraband for the purpose of KRS 520.050 . Commonwealth v. O'Hara, 793 S.W.2d 840, 1990 Ky. App. LEXIS 79 (Ky. Ct. App. 1990).

4.Detention Facility.

The county jail, being used for incarceration of convicted persons for penal purposes, as well as detention or correctional purposes, was determined to be a penal institution within the sense the term is used in the exclusion provisions of the county’s liability policy. Home Indem. Co. v. Johnson County Fiscal Court, 682 F. Supp. 326, 1987 U.S. Dist. LEXIS 13208 (E.D. Ky. 1987 ).

The statutory definition of “detention facility” is not sufficiently broad to encompass temporary work sites. Commonwealth v. Simmons, 753 S.W.2d 872, 1988 Ky. App. LEXIS 26 (Ky. Ct. App. 1988).

In defining dangerous contraband in this section, the state legislature articulated a clear public policy concerning the presence of contraband which would endanger the safety or security of a detention facility or the persons therein; this policy is one of zero tolerance where marijuana is concerned. Commonwealth v. O'Hara, 793 S.W.2d 840, 1990 Ky. App. LEXIS 79 (Ky. Ct. App. 1990).

The trial court’s findings of fact and conclusions of law were clearly erroneous where it dismissed indictments against five prison inmates who were each found to have less than one-tenth of a gram of marijuana in his possession, based on a determination that the amount of marijuana found in possession of each inmate was not a “usable amount.” The legislature did not intend such limited application of the term “capable of such use” in subsection (3) of this section, and in drafting KRS 520.050 the legislature intended to adopt a zero tolerance policy toward marijuana in an institutional setting because the presence of marijuana endangers the safety and security of a detention facility. Commonwealth v. O'Hara, 793 S.W.2d 840, 1990 Ky. App. LEXIS 79 (Ky. Ct. App. 1990).

The “booking area” of a county jail is included in the statutory definition of “detention facility.” Fulton v. Commonwealth, 849 S.W.2d 553, 1992 Ky. App. LEXIS 203 (Ky. Ct. App. 1992).

Home incarceration is an alternative to confinement in a penitentiary after the fact of release of sentencing by a court and release on bond precedes the fact of conviction and attachment of jeopardy, and moreover a defendant released on bond would not be subject to prosecution for escape should he violate the terms of his release, thus a defendant on court ordered yard restriction was not entitled to credit for the time served under such order. Cooper v. Commonwealth, 902 S.W.2d 833, 1995 Ky. App. LEXIS 35 (Ky. Ct. App. 1995).

Defendant’s contention that privately owned and operated correctional facility contracted with by county was not a “detention facility” from which he could escape was without merit. Such a facility falls precisely within the subsection (4)(a) of this section definition of a detention facility and facility had made defendant aware of consequences of escape; second-degree escape conviction affirmed. Phipps v. Commonwealth, 933 S.W.2d 825, 1996 Ky. App. LEXIS 118 (Ky. Ct. App. 1996).

Under the plain meaning of KRS 520.010(4), a residence to which a defendant is confined as part of the Home Incarceration Program (HIP) constitutes a detention facility. The statute describing the conditions of home incarceration, KRS 532.220(1), states that the home incarceree shall be confined to his home at all times except when participating in a permitted activity, and the definition of “home incarceration” under KRS 532.200(2) makes it clear that the home is used as the place of confinement. Thus, in the home incarceration program, the home is the building used for the confinement of a person, and so it meets the definition of detention facility in KRS 520.010(4). Lawton v. Commonwealth, 354 S.W.3d 565, 2011 Ky. LEXIS 155 ( Ky. 2011 ).

5.Escape.

Where defendant out on work-release order escaped, he could be charged with the felony of escape in the second degree under KRS 520.030 even though he was only jailed on misdemeanor charges, since he was an escapee under subsection (5) of this section and had escaped from a detention facility as well as custody, thus he could not be charged with misdemeanor escape under KRS 520.040 which covers only escape from arrest custody by one not a felon or not charged with a felony. Commonwealth v. Johnson, 615 S.W.2d 1, 1981 Ky. App. LEXIS 239 (Ky. Ct. App. 1981).

Where the evidence showed that the defendant had sawed his way out of his jail cell, had gone past a locked steel door by assaulting a deputy jailer, and had entered a lobby area which was used by the jailer as his television room, the defendant’s escape from the detention facility was completed when he entered the lobby/television room since there were no locked doors remaining between that room and the street; accordingly, the trial court did not err when it refused to instruct the jury on the lesser charge of attempted escape. Cope v. Commonwealth, 645 S.W.2d 703, 1983 Ky. LEXIS 215 ( Ky. 1983 ).

Inmate in jail on a misdemeanor conviction who failed to return to jail at the designated time while out on work-release was properly convicted of escape, and the evidence was sufficient to show that defendant did not intend to return on time where, when released from work due to weather, defendant did not return to the detention facility but instead drove around drinking beer, stayed in a motel room drinking beer for several more hours, and claimed that he was unable to then return due to a snowstorm; the fact that defendant eventually returned voluntarily did not preclude the conviction. Reynolds v. Commonwealth, 113 S.W.3d 647, 2003 Ky. App. LEXIS 198 (Ky. Ct. App. 2003).

Defendant was properly convicted of second-degree escape under KRS 520.030 after defendant cut off an ankle band and fled from a home incarceration program while serving 12 months for a misdemeanor because defendant remained in the county detention center’s custody even though defendant was not physically confined within the center, and no third-degree escape instruction was required since defendant offered no testimony from which jurors could have concluded that defendant was restrained by a public servant or any entity other than the center. Lawton v. Commonwealth, 2010 Ky. App. LEXIS 54 (Ky. Ct. App. Feb. 26, 2010).

Reasonable jury could have concluded that arrest for escape was not based on probable cause because plaintiff did not flee from the police car until after she was initially seized and that, based on the evidence presented at trial, the officer arrested plaintiff without authority so she was justified in fleeing from the police car. Arnold v. Wilder, 657 F.3d 353, 2011 FED App. 0267P, 2011 U.S. App. LEXIS 18928 (6th Cir. Ky. 2011 ).

Cited in:

Poteete v. Commonwealth, 701 S.W.2d 416, 1985 Ky. App. LEXIS 706 (Ky. Ct. App. 1985); Commonwealth v. Kenley, 516 S.W.3d 362, 2017 Ky. App. LEXIS 51 (Ky. Ct. App. 2017).

Notes to Unpublished Decisions

1.Custody.

Unpublished decision: Trial court erred in granting defendant’s motion to dismiss after finding defendant was not in custody for purposes of the second-degree escape statute because defendant was in a home incarceration program, as the home incarceration program was “custody” for the purposes of that statute because defendant was being detained by a public servant pursuant to an order of the court for law enforcement purposes. Commonwealth v. Weaver, 2003 Ky. App. LEXIS 74 (Ky. Ct. App. Apr. 11, 2003), aff'd, 156 S.W.3d 270, 2005 Ky. LEXIS 44 ( Ky. 2005 ).

Research References and Practice Aids

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public and Judicial Administration, Part 1 Definitions, §§ 7.01 — 7.05.

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public and Judicial Administration, Part 3 Escape and Offenses Related to Custody, § 7.28.

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Related to Sex and Pornography, Part 1 Definitions, § 4.21B.

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Related to Sex and Pornography, Part 4 Sexual Abuse, § 4.52B.

520.015. Attempting to escape from penitentiary.

  1. A person is guilty of attempting to escape from the penitentiary when he:
    1. Conceals himself within the walls of the penitentiary; or
    2. Attempts to scale the enclosure surrounding the penitentiary; or
    3. Flees from whatever bounds he may be assigned, whether under guard or as a trusty; or
    4. Escapes from a locked cell, dormitory, hospital or other lockup in the penitentiary; or
    5. Escapes from one part of the penitentiary to another; or
    6. Does any other act in furtherance of an escape from the penitentiary; or
    7. Does any act or omission constituting criminal attempt under KRS 506.010 .
  2. Attempting to escape from the penitentiary is a Class D felony.
  3. No penalty provision of KRS 506.010 shall apply to an offense committed under this section.

History. Enact. Acts 1982, ch. 405, § 2, effective July 15, 1982; 1984, ch. 111, § 166, effective July 13, 1984.

Research References and Practice Aids

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public and Judicial Administration, Part 3 Escape and Offenses Related to Custody, § 7.23.

520.020. Escape in the first degree.

  1. A person is guilty of escape in the first degree when he escapes from custody or a detention facility by the use of force or threat of force against another person.
  2. Escape in the first degree is a Class C felony.

History. Enact. Acts 1974, ch. 406, § 170, effective January 1, 1975.

NOTES TO DECISIONS

1.Double Jeopardy.

The defendant was not placed in double jeopardy by virtue of his having been placed in solitary confinement for 21 days after having escaped and prior to his indictment for that escape. (Decided under prior law) Yager v. Commonwealth, 407 S.W.2d 413, 1966 Ky. LEXIS 162 ( Ky. 1966 ), cert. denied, 385 U.S. 1030, 87 S. Ct. 762, 17 L. Ed. 2d 677, 1967 U.S. LEXIS 2551 (U.S. 1967).

In a prosecution for both first-degree assault under KRS 508.010 and first-degree escape under this section there was no violation of the defendants’ protection against double jeopardy, despite the showing of the common element of the use of force, since first-degree assault does not require proof of escape from custody and first-degree escape does not require proof of physical injury. McClain v. Commonwealth, 607 S.W.2d 421, 1980 Ky. LEXIS 261 ( Ky. 1980 ).

Escape from a detention facility or custody is not an element of KRS 508.010 which defines assault in the first degree; thus, double jeopardy did not prohibit punishing the defendant for escape from a detention facility as well as for an assault he committed during the escape. Cope v. Commonwealth, 645 S.W.2d 703, 1983 Ky. LEXIS 215 ( Ky. 1983 ).

2.Due Process.

Where two prisoners escaped together the fact that they were recaptured separately did not cause it to be error for them to be tried jointly. (Decided under prior law) Fite v. Commonwealth, 469 S.W.2d 357, 1971 Ky. LEXIS 298 ( Ky. 1971 ).

3.Elements.

The use of force or violence is not a necessary element of an escape unless force or violence are by law, made essential elements. (Decided under prior law) Cutter v. Buchanan, 286 S.W.2d 902, 1956 Ky. LEXIS 429 ( Ky. 1956 ).

4.— From Custody.

Escape from custody of an officer is made an offense only if accomplished forcibly or by bribery where not under sentence of imprisonment or capias. (Decided under prior law) Maggard v. Commonwealth, 173 Ky. 97 , 190 S.W. 666, 1917 Ky. LEXIS 413 ( Ky. 1917 ); Potter v. Commonwealth, 199 Ky. 77 , 250 S.W. 496, 1923 Ky. LEXIS 756 ( Ky. 1923 ).

Where the officer permitted his prisoner to go into a house out of his sight and the prisoner, instead of returning, walked through the house and quietly made his escape without the use of any force or violence and was not pursued by the officer, the offense of forcibly effecting his escape from an officer was not committed. (Decided under prior law) Maggard v. Commonwealth, 173 Ky. 97 , 190 S.W. 666, 1917 Ky. LEXIS 413 ( Ky. 1917 ); Anderson v. Commonwealth, 232 Ky. 159 , 22 S.W.2d 599, 1929 Ky. LEXIS 412 ( Ky. 1929 ).

An escape from the custody of an officer is a punishable offense only if accomplished as a result of force in some degree or by bribery. (Decided under prior law) Brock v. Commonwealth, 242 S.W.2d 1007, 1951 Ky. LEXIS 1100 ( Ky. 1951 ).

Where sheriff gave defendant permission to change his clothes and waited outside of house for defendant’s return and defendant failed to return to control of sheriff, his escape from custody was not a punishable offense. (Decided under prior law) Brock v. Commonwealth, 242 S.W.2d 1007, 1951 Ky. LEXIS 1100 ( Ky. 1951 ).

A condition of escape as charged in law that provided penalty for escape of prisoner from jail was that the person must have been “lawfully arrested.” (Decided under prior law) Hopkins v. Commonwealth, 301 S.W.2d 586, 1957 Ky. LEXIS 485 ( Ky. 1957 ).

Force is the essential element of offense of escape of a prisoner from an officer. (Decided under prior law) Hopkins v. Commonwealth, 301 S.W.2d 586, 1957 Ky. LEXIS 485 ( Ky. 1957 ).

5.— From Jail.

An escape from jailer or guard while being worked on highway is an escape from jail. (Decided under prior law) Saylor v. Commonwealth, 122 Ky. 776 , 93 S.W. 48, 29 Ky. L. Rptr. 337 , 1906 Ky. LEXIS 106 ( Ky. 1906 ).

Mere verbal directions of circuit judge to jailer are not a sentence of imprisonment so as to warrant conviction for escaping from jail. (Decided under prior law) Saylor v. Commonwealth, 122 Ky. 776 , 93 S.W. 48, 29 Ky. L. Rptr. 337 , 1906 Ky. LEXIS 106 ( Ky. 1906 ).

Jailer committed to his own jail upon failure to execute peace bond in lieu of sentence of imprisonment who thereupon unlocked the jail with key in his possession and walked out was guilty of an escape. (Decided under prior law) Whitaker v. Commonwealth, 188 Ky. 95 , 221 S.W. 215, 1920 Ky. LEXIS 238 ( Ky. 1920 ).

Where a prisoner escaped by taking advantage of a hole dug by others through the jail wall, he did not forcibly escape. (Decided under prior law) Crosby v. Commonwealth, 242 Ky. 62 , 45 S.W.2d 822, 1932 Ky. LEXIS 215 ( Ky. 1932 ).

Where a prisoner confined in jail under a felony conviction escaped while his appeal from the conviction was pending, the fact that the Court of Appeals reversed the judgment of conviction did not make his confinement in jail illegal so as to bar prosecution for escape. (Decided under prior law) Moore v. Commonwealth, 301 Ky. 851 , 193 S.W.2d 448, 1946 Ky. LEXIS 584 ( Ky. 1946 ).

Where the evidence showed that the defendant had sawed his way out of his jail cell, had gone past a locked steel door by assaulting a deputy jailer, and had entered a lobby area which was used by the jailer as his television room, the defendant’s escape from the detention facility was completed when he entered the lobby/television room since there were no locked doors remaining between that room and the street; accordingly, the trial court did not err when it refused to instruct the jury on the lesser charged of attempted escape. Cope v. Commonwealth, 645 S.W.2d 703, 1983 Ky. LEXIS 215 ( Ky. 1983 ).

6.— From Penitentiary.

The law punishing a person who, while serving a sentence in a penitentiary, escapes therefrom or flees from whatever bounds he may be assigned describes two modes of committing one offense, that is, escaping while imprisoned in a penitentiary, whether it be from bounds where he had been assigned or from within walls of prison itself. (Decided under prior law) Clark v. Commonwealth, 293 S.W.2d 465, 1956 Ky. LEXIS 67 ( Ky. 1956 ), cert. denied, 353 U.S. 923, 77 S. Ct. 682, 1 L. Ed. 2d 720, 1957 U.S. LEXIS 1116 (U.S. 1957).

A prisoner who had been made a trusty and given a degree of liberty by employment outside the prison walls was still in lawful control and custody and, therefore, could be indicted for escape. (Decided under prior law) Cutter v. Buchanan, 286 S.W.2d 902, 1956 Ky. LEXIS 429 ( Ky. 1956 ).

A prisoner who was a trusty committed to the reformatory but who was being kept in a prison compound and who, at the time he allegedly escaped, was looking after dairy cattle in a pasture, was not under guard, and could walk away when he pleased was constructively “confined” in the reformatory within the meaning of law that provided penalty for escape of prisoner from penitentiary and was guilty of escape from prison. (Decided under prior law) Cutter v. Buchanan, 286 S.W.2d 902, 1956 Ky. LEXIS 429 ( Ky. 1956 ).

Where the defendant was transferred from the reformatory to a camp which was a branch of the reformatory, his disappearance from the camp constituted an escape even though he was allowed freedom of movement within the unwalled area. (Decided under prior law) Jones v. Commonwealth, 317 S.W.2d 491, 1958 Ky. LEXIS 94 ( Ky. 1958 ).

7.Evidence.

Testimony of a fellow prisoner that the accused helped to saw bars in effecting escape from jail was sufficient evidence that the accused used force in escaping jail notwithstanding that credibility of the witness was questionable. (Decided under prior law) Moore v. Commonwealth, 301 Ky. 851 , 193 S.W.2d 448, 1946 Ky. LEXIS 584 ( Ky. 1946 ).

In a prosecution for an escape from a camp which was a branch of a reformatory, it was not necessary to produce an eyewitness to the defendant’s departure where the defendant was in the camp one day and gone the next. (Decided under prior law) Jones v. Commonwealth, 317 S.W.2d 491, 1958 Ky. LEXIS 94 ( Ky. 1958 ).

Escape can be proved by circumstantial evidence. (Decided under prior law) Stevenson v. Commonwealth, 442 S.W.2d 597, 1969 Ky. LEXIS 281 ( Ky. 1969 ).

Where the defendant, in his testimony, admitted to all the necessary elements of the crime, it was immaterial that he was not actually seen escaping nor observed going out the cell window. (Decided under prior law) Stevenson v. Commonwealth, 442 S.W.2d 597, 1969 Ky. LEXIS 281 ( Ky. 1969 ).

8.Indictment.

It is not necessary that the indictment allege the reason for which the convict was under guard or the length of time to which he had been sentenced. (Decided under prior law) Harris v. Commonwealth, 64 S.W. 434, 23 Ky. L. Rptr. 775 (1901).

An indictment charging escape from lawful arrest without alleging that the escape was accomplished by force or bribery was insufficient. (Decided under prior law) Potter v. Commonwealth, 199 Ky. 77 , 250 S.W. 496, 1923 Ky. LEXIS 756 ( Ky. 1923 ).

An indictment which charged that accused “did unlawfully, willfully and forcibly escape from jail, while confined therein for a violation of the criminal and penal laws of the state of Kentucky, to wit: on a charge of housebreaking” was not subject to demurrer, since it sufficiently charged an offense and the allegation that he was confined on a charge of housebreaking was equivalent to charging that he was held in jail under a capias. (Decided under prior law) Moore v. Commonwealth, 301 Ky. 851 , 193 S.W.2d 448, 1946 Ky. LEXIS 584 ( Ky. 1946 ).

An indictment which charged the accused with unlawfully, willfully and feloniously escaping from jail, to which he was committed by a judgment of the Circuit Court upon conviction of a misdemeanor, was sufficient to charge the crime of escaping jail, although it did not charge that the accused accomplished his escape forcibly or by bribery and did not name the specific misdemeanor of which the accused was convicted. (Decided under prior law) Bentley v. Commonwealth, 269 S.W.2d 253, 1954 Ky. LEXIS 986 ( Ky. 1954 ).

Where the accusative part of the indictment alleged that the defendant escaped from the reformatory “while under confinement therein” and the descriptive part alleged that he escaped “from custody” while confined in the reformatory, it was not necessary that the Commonwealth elect which offense to prosecute. (Decided under prior law) Clark v. Commonwealth, 293 S.W.2d 465, 1956 Ky. LEXIS 67 ( Ky. 1956 ), cert. denied, 353 U.S. 923, 77 S. Ct. 682, 1 L. Ed. 2d 720, 1957 U.S. LEXIS 1116 (U.S. 1957).

9.Instructions.

Where a defendant was indicted for escape, it was prejudicial error for the court to give instructions on the common-law offense, fixing that penalty as a fine of any sum or imprisonment for any length of time or both. (Decided under prior law) Bentley v. Commonwealth, 269 S.W.2d 253, 1954 Ky. LEXIS 986 ( Ky. 1954 ).

An instruction submitting the question of guilt of the offense of escape from officer should hypothesize every material condition which goes to establish it and should be accompanied by the definition of “forcibly effected.” (Decided under prior law) Hopkins v. Commonwealth, 301 S.W.2d 586, 1957 Ky. LEXIS 485 ( Ky. 1957 ).

The defendants were not entitled to jury instructions on coercion and necessity where they refused to divulge who had threatened them and they admitted that at the time they escaped they were not in imminent danger. (Decided under prior law) Roy v. Commonwealth, 500 S.W.2d 921, 1973 Ky. LEXIS 267 ( Ky. 1973 ).

Where a prisoner escaped from the Kentucky State Penitentiary after serving four (4) years and 11 months of a five (5) year sentence and turned himself in, admitting that he escaped, claiming he was under imminent, impending danger to life or great bodily harm because he owed a gambling debt to another prisoner, defendant was entitled to an instruction on his affirmative defense of compulsion so a jury could weigh it and determine its believability. (Decided under prior law) Pittman v. Commonwealth, 512 S.W.2d 488, 1974 Ky. LEXIS 393 ( Ky. 1974 ).

Because appellant was not merely a facilitator of the first murder as he was at the scene of the crime, stole various items from the store where the victim worked, helped codefendant carry the loot back to the homeless shelter, stored the bags of stolen goods in a storage unit rented under his name, and both he and codefendant made repeated trips to the unit to retrieve items, the trial judge was correct in refusing to instruct on criminal facilitation under KRS 506.080 as a lesser-included offense and instructing the jury on complicity to commit murder under KRS 520.020 . Murray v. Commonwealth, 399 S.W.3d 398, 2013 Ky. LEXIS 230 ( Ky. 2013 ).

10.Sentencing.

Upon prisoner’s conviction for escape, the court could suspend sentence for escape until the first sentence was satisfied. (Decided under prior law) Tippit v. Thomas, 355 S.W.2d 149, 1962 Ky. LEXIS 57 ( Ky. 1962 ).

11.Venue.

Where the defendant, at the time of his escape, was confined in a reformatory located in Oldham County, the Oldham Circuit Court had jurisdiction to try the defendant for escape. (Decided under prior law) Cutter v. Buchanan, 286 S.W.2d 902, 1956 Ky. LEXIS 429 ( Ky. 1956 ).

A prisoner who escaped from a work detail may be prosecuted in the Circuit Court of the county in which the reformatory was located or in the Circuit Court of the county into which he was sent to work as the county where the escape occurred would not have exclusive jurisdiction. (Decided under prior law) Clark v. Commonwealth, 293 S.W.2d 465, 1956 Ky. LEXIS 67 ( Ky. 1956 ), cert. denied, 353 U.S. 923, 77 S. Ct. 682, 1 L. Ed. 2d 720, 1957 U.S. LEXIS 1116 (U.S. 1957).

Cited:

Thompson v. Commonwealth, 862 S.W.2d 871, 1993 Ky. LEXIS 126 ( Ky. 1993 ), overruled in part, St. Clair v. Commonwealth, 140 S.W.3d 510, 2004 Ky. LEXIS 44 ( Ky. 2004 ).

Research References and Practice Aids

Cross-References.

Escape from penitentiary, warrant for capture, KRS 440.010 .

Fee of officer for apprehending fugitive from justice, KRS 64.060 .

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Complicity and Inchoate Offenses, Part 3 Inchoate Offenses, § 10.22.

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public and Judicial Administration, Part 3 Escape and Offenses Related to Custody, §§ 7.23, 7.24, 7.26.

520.030. Escape in the second degree.

  1. A person is guilty of escape in the second degree when he escapes from a detention facility or, being charged with or convicted of a felony, he escapes from custody.
  2. Escape in the second degree is a Class D felony.

History. Enact. Acts 1974, ch. 406, § 171, effective January 1, 1975.

NOTES TO DECISIONS

Analysis

1.In General.

Kentucky’s second-degree escape statute, KRS 520.030 , applies to escapes that may be categorized as walk away escapes; however, KRS 520.030 has not been construed as a completed offense once the prisoner has impermissibly left custody. On this issue, the majority rule among the various jurisdictions is that the crime of escape is considered a continuing offense. United States v. Lancaster, 501 F.3d 673, 2007 FED App. 0355P, 2007 U.S. App. LEXIS 20942 (6th Cir. Tenn. 2007).

2.Detention Facility.

Defendant’s contention that privately owned and operated correctional facility contracted with by county was not a “detention facility” from which he could escape was without merit. Such a facility falls precisely within the KRS 520.010(4)(a) definition of a detention facility and facility had made defendant aware of consequences of escape; second-degree escape conviction affirmed. Phipps v. Commonwealth, 933 S.W.2d 825, 1996 Ky. App. LEXIS 118 (Ky. Ct. App. 1996).

In a case in which defendant appealed his conviction for violating 18 U.S.C.S. § 931(a), the district court did not err in finding that his prior state-law conviction for second-degree escape from a secured facility, in violation of KRS 520.030 , constituted a crime of violence, as defined by 18 U.S.C.S. § 16(b). United States v. Stout, 706 F.3d 704, 2013 FED App. 0029P, 2013 U.S. App. LEXIS 2460 (6th Cir. Ky. 2013 ).

3.Due Process.

The joinder of a charge of escape with three charges of armed robbery was error, but, in light of the overwhelming evidence of guilt the error was non-prejudicial and therefore harmless. Sears v. Commonwealth, 561 S.W.2d 672, 1979 Ky. LEXIS 217 ( Ky. 1979 ).

4.Escape from Work-Release.

Where defendant out on work-release order escaped, he could be charged with the felony of escape in the second degree under this section, even though he was only jailed on misdemeanor charges, since he was an escapee under subsection (5) of KRS 520.010 and had escaped from a detention facility as well as custody, thus he could not be charged with misdemeanor escape under KRS 520.040 which covers only escape from arrest custody by one not a felon or not charged with a felony. Commonwealth v. Johnson, 615 S.W.2d 1, 1981 Ky. App. LEXIS 239 (Ky. Ct. App. 1981).

Inmate in jail on a misdemeanor conviction who failed to return to jail at the designated time while out on work-release was properly convicted of escape, and the evidence was sufficient to show that defendant did not intend to return on time where, when released from work due to weather, defendant did not return to the detention facility but instead drove around drinking beer, stayed in a motel room drinking beer for several more hours, and claimed that he was unable to then return due to a snowstorm; the fact that defendant eventually returned voluntarily did not preclude the conviction. Reynolds v. Commonwealth, 113 S.W.3d 647, 2003 Ky. App. LEXIS 198 (Ky. Ct. App. 2003).

5.Evidence.

Although, in prosecution for escape from confinement, both the defense of a homosexual assault two and a half years earlier and questions regarding a prior escape should have been excluded, in light of careful admonition of trial court, testimony relating to both matters was not so substantially damaging as to result in a denial of due process. (Decided under prior law) Brainard v. Commonwealth, 551 S.W.2d 829, 1977 Ky. App. LEXIS 709 (Ky. Ct. App. 1977).

6.Home Incarceration Program.

Defendant’s violation of the Home Incarceration Program properly resulted in a charge of second degree escape under this section, where defendant disconnected a bracelet required to be worn by him as part of the program. Stroud v. Commonwealth, 922 S.W.2d 382, 1996 Ky. LEXIS 53 ( Ky. 1996 ).

Despite defendant’s contention that his participation in the home incarceration program was a constraint incidental to release on bail, thereby excepting him from the escape statute, defendant was not released on bail; thus, the trial court erred in dismissing said charge filed against him. Weaver v. Commonwealth, 156 S.W.3d 270, 2005 Ky. LEXIS 44 ( Ky. 2005 ).

Defendant was properly convicted of second-degree escape under KRS 520.030 after defendant cut off an ankle band and fled from a home incarceration program while serving 12 months for a misdemeanor because defendant remained in the county detention center’s custody even though defendant was not physically confined within the center, and no third-degree escape instruction was required since defendant offered no testimony from which jurors could have concluded that defendant was restrained by a public servant or any entity other than the center. Lawton v. Commonwealth, 2010 Ky. App. LEXIS 54 (Ky. Ct. App. Feb. 26, 2010).

For an incarceree in the Home Incarceration Program (HIP), leaving the specified home without permission or failing to return to the home after a temporary authorized leave is escape from a detention facility under KRS 520.030(1). Escape from such a home can therefore constitute second-degree escape. This reading of the statute is consistent with the HIP statutes, including KRS 532.220 , which specifically notes that violation of HIP conditions can result in a second-degree escape charge. Lawton v. Commonwealth, 354 S.W.3d 565, 2011 Ky. LEXIS 155 ( Ky. 2011 ).

7.Sentencing.

Defendant’s convictions and sentences were proper because KRS 520.030 was a crime of violence under U.S. Sentencing Guidelines Manual § 4B1.1. United States v. Bailey, 510 F.3d 562, 2008 FED App. 0018P, 2007 U.S. App. LEXIS 30274 (6th Cir. Ky. 2007 ).

Although a conviction for second-degree escape under KRS 520.030(1) did not show that defendant committed a crime of violence because the offense covered a variety of escapes, some of which were not crimes of violence, reliable documents showed that defendant committed a walkaway escape, which no doubt may have created a greater risk of physical injury than a failure to report, but which remained different from a jailbreak and other crimes of violence both in kind and in its risk of physical injury to others; for those reasons, a walkaway was not a crime of violence. United States v. Ford, 560 F.3d 420, 2009 FED App. 0106P, 2009 U.S. App. LEXIS 5739 (6th Cir. Ky. 2009 ).

8.Jury Instructions.

In a second-degree escape case, the court was required to instruct on third-degree escape because the Commonwealth failed to establish that defendant had been charged with a felony at the time of his escape; the Commonwealth’s failure to present any evidence regarding an element of the offense was a serious error that should have resulted in the jury being instructed only on third-degree escape. Cohron v. Commonwealth, 306 S.W.3d 489, 2010 Ky. LEXIS 47 ( Ky. 2010 ).

Cited:

Thacker v. Commonwealth, 115 S.W.3d 834, 2003 Ky. App. LEXIS 225 (Ky. Ct. App. 2003).

Notes to Unpublished Decisions

Analysis

1.Detention Facility.

Unpublished decision: Defendant’s escape from an unsecured facility in violation of KRS 520.030 was a crime of violence as defined by federal law under U.S. Sentencing Guidelines Manual § 4B1.2 because the escape by its nature, presented a serious potential risk of physical injury and thus constituted a crime of violence. United States v. Jackson, 63 Fed. Appx. 839, 2003 U.S. App. LEXIS 8077 (6th Cir. Tenn.), cert. denied, 540 U.S. 910, 124 S. Ct. 297, 157 L. Ed. 2d 200, 2003 U.S. LEXIS 6512 (U.S. 2003), cert. denied, 540 U.S. 916, 124 S. Ct. 304, 157 L. Ed. 2d 209, 2003 U.S. LEXIS 6588 (U.S. 2003).

2.Home Incarceration Program.

Unpublished decision: Defendant escaped from “custody,” within the meaning of the second-degree escape statute, when defendant removed defendant’s electronic monitoring device and made an unauthorized departure from defendant’s home incarceration program as the home incarceration program qualified as “custody;” accordingly, the trial court erred in granting defendant’s motion to dismiss on the ground that defendant could not have escaped because defendant was not in custody at the time defendant escaped. Commonwealth v. Weaver, 2003 Ky. App. LEXIS 74 (Ky. Ct. App. Apr. 11, 2003), aff'd, 156 S.W.3d 270, 2005 Ky. LEXIS 44 ( Ky. 2005 ).

Unpublished decision: Defendant’s removal of defendant’s electronic monitoring device and unauthorized departure from defendant’s home constituted an escape from custody as defined by KRS 520.030 since defendant’s home incarceration program involved confinement or custody, and, thus, the trial court erred in granting defendant’s motion to dismiss the second-degree escape charge filed against defendant. Commonwealth v. Weaver, 2003 Ky. App. LEXIS 74 (Ky. Ct. App. Apr. 11, 2003), aff'd, 156 S.W.3d 270, 2005 Ky. LEXIS 44 ( Ky. 2005 ).

Research References and Practice Aids

Cross-References.

Community residential correction centers, escape, KRS 439.610 .

Escape from penitentiary, warrant for capture, KRS 440.010 .

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Complicity and Inchoate Offenses, Part 3 Inchoate Offenses, § 10.22.

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public and Judicial Administration, Part 3 Escape and Offenses Related to Custody, §§ 7.25, 7.27.

520.040. Escape in the third degree.

  1. A person is guilty of escape in the third degree when he escapes from custody.
  2. Escape in the third degree is a Class B misdemeanor.

History. Enact. Acts 1974, ch. 406, § 172, effective January 1, 1975.

NOTES TO DECISIONS

1.Escape from Work-Release.

Where defendant out on work-release order escaped, he could be charged with the felony of escape in the second degree under KRS 520.030 , even though he was only jailed on misdemeanor charges, since he was an escapee under subsection (5) of KRS 520.010 and had escaped from a detention facility as well as custody, thus, he could not be charged with misdemeanor escape under this section which covers only escape from arrest custody by one not a felon or not charged with a felony. Commonwealth v. Johnson, 615 S.W.2d 1, 1981 Ky. App. LEXIS 239 (Ky. Ct. App. 1981).

2.Home Incarceration Program.

Defendant was properly convicted of second-degree escape under KRS 520.030 after defendant cut off an ankle band and fled from a home incarceration program while serving 12 months for a misdemeanor because defendant remained in the county detention center’s custody even though defendant was not physically confined within the center, and no third-degree escape instruction was required since defendant offered no testimony from which jurors could have concluded that defendant was restrained by a public servant or any entity other than the center. Lawton v. Commonwealth, 2010 Ky. App. LEXIS 54 (Ky. Ct. App. Feb. 26, 2010).

Research References and Practice Aids

Cross-References.

Escape of person from custody, warrant for capture, KRS 440.030 .

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public and Judicial Administration, Part 3 Escape and Offenses Related to Custody, § 7.28.

520.050. Promoting contraband in the first degree.

  1. A person is guilty of promoting contraband in the first degree when:
    1. He knowingly introduces dangerous contraband into a detention facility or a penitentiary; or
    2. Being a person confined in a detention facility or a penitentiary, he knowingly makes, obtains, or possesses dangerous contraband.
  2. Promoting contraband in the first degree is a Class D felony.

History. Enact. Acts 1974, ch. 406, § 173, effective January 1, 1975; 1990, ch. 497, § 24, effective July 13, 1990.

NOTES TO DECISIONS

1.Construction.

It is apparent from KRS 520.010 defining dangerous contraband and contraband that the Bureau of Corrections (now Department of Corrections) is free to designate through appropriate regulation, rule, or order what will constitute “contraband” for purposes of KRS 520.060 , while it is given no such freedom as to what constitutes “dangerous contraband” for the purposes of this section. Cooper v. Commonwealth, 648 S.W.2d 530, 1982 Ky. App. LEXIS 287 (Ky. Ct. App. 1982) (decision prior to 1990 amendment of KRS 520.010 ).

2.Elements.

Where, in prosecution for promoting contraband in the first degree, the indictment failed in that it did not include an essential element of the crime with which defendant was charged, that the defendant be confined to a detention facility, the Circuit Court properly dismissed the indictment pursuant to motion by the defendant. Commonwealth v. Simmons, 753 S.W.2d 872, 1988 Ky. App. LEXIS 26 (Ky. Ct. App. 1988).

“Voluntary act” element of KRS 520.050 is satisfied when a defendant knowingly brings contraband into a detention facility, notwithstanding the fact that the defendant’s entry into the facility is involuntary. Taylor v. Commonwealth, 2009 Ky. App. LEXIS 29 (Ky. Ct. App. Feb. 20, 2009), aff'd, 313 S.W.3d 563, 2010 Ky. LEXIS 153 ( Ky. 2010 ).

Defendant’s convictions for both possession of a controlled substance and promoting contraband did not violate double jeopardy under KRS 505.020(2)(a) as his arrest constituted a legal process that interrupted his possession of cocaine. Thus, his continued concealment of the second quantity once he arrived at the detention facility, after specifically denying any additional contraband, constituted a second, distinct offense. Stewart v. Commonwealth, 306 S.W.3d 502, 2010 Ky. LEXIS 57 ( Ky. 2010 ).

3.— Detention Facility.

The statutory definition of “detention facility” is not sufficiently broad to encompass temporary work sites. Commonwealth v. Simmons, 753 S.W.2d 872, 1988 Ky. App. LEXIS 26 (Ky. Ct. App. 1988).

While it is unlawful for an inmate on work detail to possess marijuana and to carry a concealed weapon, it does not constitute promoting contraband in the first degree until they are brought within the confines of the detention facility. Commonwealth v. Simmons, 753 S.W.2d 872, 1988 Ky. App. LEXIS 26 (Ky. Ct. App. 1988).

The “booking area” of a county jail is included in the statutory definition of “detention facility.” Fulton v. Commonwealth, 849 S.W.2d 553, 1992 Ky. App. LEXIS 203 (Ky. Ct. App. 1992).

Dismissal of first-degree promoting contraband and first-degree persistent felony offender charges against defendant was in err because defendant's choice to possess a separate quantity of a dangerous contraband while also overdosing on a controlled substance inside a detention facility constituted a crime that could be investigated and prosecuted. Allowing defendant to escape prosecution for possessing the dangerous contraband also did not further the public policy. Commonwealth v. Kenley, 516 S.W.3d 362, 2017 Ky. App. LEXIS 51 (Ky. Ct. App. 2017).

4.— Contraband or Dangerous Contraband.

Clearly, the legislature redefined “dangerous contraband” to include marijuana; in so doing, it did not require possession of any specific amount in order to constitute an offense under this section. Commonwealth v. O'Hara, 793 S.W.2d 840, 1990 Ky. App. LEXIS 79 (Ky. Ct. App. 1990).

“Dangerous contraband” specifically includes marijuana in an institutional setting; accordingly, there can be no question that marijuana is “dangerous contraband;” there is no language in the statute requiring a “usable amount” in order to constitute an offense. Commonwealth v. O'Hara, 793 S.W.2d 840, 1990 Ky. App. LEXIS 79 (Ky. Ct. App. 1990).

KRS 520.010(3) expressly defines dangerous contraband as including marijuana; equally clear is that the legislature intended to classify marijuana as a dangerous contraband for the purpose of this section. Commonwealth v. O'Hara, 793 S.W.2d 840, 1990 Ky. App. LEXIS 79 (Ky. Ct. App. 1990).

Where the statute is silent, a court cannot be asked to specify what quantity of a contraband substance is sufficient to invoke criminal sanctions, so long as the presence of the substance is readily determined. Commonwealth v. O'Hara, 793 S.W.2d 840, 1990 Ky. App. LEXIS 79 (Ky. Ct. App. 1990).

In defining dangerous contraband in KRS 520.010 , the state legislature articulated a clear public policy concerning the presence of contraband which would endanger the safety or security of a detention facility or the persons therein; this policy is one of zero tolerance where marijuana is concerned. Commonwealth v. O'Hara, 793 S.W.2d 840, 1990 Ky. App. LEXIS 79 (Ky. Ct. App. 1990).

The trial court’s findings of fact and conclusions of law were clearly erroneous where it dismissed indictments against five prison inmates who were each found to have less than one-tenth of a gram of marijuana in his possession, based on a determination that the amount of marijuana found in possession of each inmate was not a “usable amount.” The legislature did not intend such limited application of the term “capable of such use” in KRS 520.050(1), and in drafting this section the legislature intended to adopt a zero tolerance policy toward marijuana in an institutional setting because the presence of marijuana endangers the safety and security of a detention facility. Commonwealth v. O'Hara, 793 S.W.2d 840, 1990 Ky. App. LEXIS 79 (Ky. Ct. App. 1990).

Prisoner need not have possession of the contraband to be convicted of a conspiracy to introduce contraband into the jail. Fulton v. Commonwealth, 849 S.W.2d 553, 1992 Ky. App. LEXIS 203 (Ky. Ct. App. 1992).

It was reasonable to infer that defendant knew he had a pipe when he went into the jail as it was in his own pocket and that he knew the pipe had cocaine on it; thus, the directed verdict was properly denied as to the contraband charge. Hampton v. Commonwealth, 231 S.W.3d 740, 2007 Ky. LEXIS 162 ( Ky. 2007 ).

5.Indictment.

An indictment was sufficient to charge the felony offense of promoting contraband in the first degree where it indicated that the offense was accomplished by conspiring to introduce dangerous contraband into a county jail. Fulton v. Commonwealth, 849 S.W.2d 553, 1992 Ky. App. LEXIS 203 (Ky. Ct. App. 1992).

6.Instructions.

Inmate convicted of promoting contraband in the first degree was not entitled to jury instructions on the lesser included offense of promoting contraband in the second degree where there was no question that the amount of marijuana possessed by the inmate was usable. Koonce v. Commonwealth, 769 S.W.2d 73, 1989 Ky. App. LEXIS 30 (Ky. Ct. App. 1989).

7.Evidence Sufficient.

Evidence, which included defendant’s own explanation that he had hidden a packet of marijuana between his buttocks after forgetting it was in his pocket, was sufficient to convict defendant of knowingly introducing dangerous contraband into a jail even though defendant did not voluntarily enter the jail; KRS 520.050 did not require defendant to have intentionally taken marijuana to the jail, it merely required that defendant knew that the marijuana was on his person when he entered the jail. Taylor v. Commonwealth, 2009 Ky. App. LEXIS 29 (Ky. Ct. App. Feb. 20, 2009), aff'd, 313 S.W.3d 563, 2010 Ky. LEXIS 153 ( Ky. 2010 ).

Research References and Practice Aids

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public and Judicial Administration, Part 1 Definitions, § 7.05.

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public and Judicial Administration, Part 3 Escape and Offenses Related to Custody, §§ 7.29, 7.30.

520.060. Promoting contraband in the second degree.

  1. A person is guilty of promoting contraband in the second degree when:
    1. He knowingly introduces contraband into a detention facility or a penitentiary; or
    2. Being a person confined in a detention facility or a penitentiary, he knowingly makes, obtains, or possesses contraband.
  2. Promoting contraband in the second degree is a Class A misdemeanor.

History. Enact. Acts 1974, ch. 406, § 174, effective January 1, 1975; 1990, ch. 497, § 25, effective July 13, 1990.

NOTES TO DECISIONS

1.Contraband.

It is apparent from KRS 520.010 defining dangerous contraband and contraband that the bureau of corrections (now Department of Corrections) is free to designate through appropriate regulation, rule, or order what will constitute “contraband” for purposes of this section, while it is given no such freedom as to what constitutes “dangerous contraband” for the purposes of KRS 520.050 . Cooper v. Commonwealth, 648 S.W.2d 530, 1982 Ky. App. LEXIS 287 (Ky. Ct. App. 1982).

2.Instructions.

Inmate convicted of promoting contraband in the first degree was not entitled to jury instructions on the lesser included offense of promoting contraband in the second degree where there was no question that the amount of marijuana possessed by the inmate was usable. Koonce v. Commonwealth, 769 S.W.2d 73, 1989 Ky. App. LEXIS 30 (Ky. Ct. App. 1989).

Research References and Practice Aids

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public and Judicial Administration, Part 3 Escape and Offenses Related to Custody, § 7.31.

520.070. Bail jumping in the first degree.

  1. A person is guilty of bail jumping in the first degree when, having been released from custody by court order, with or without bail, upon condition that he will subsequently appear at a specified time and place in connection with a charge of having committed a felony, he intentionally fails to appear at that time and place.
  2. In any prosecution for bail jumping, the defendant may prove in exculpation that his failure to appear was unavoidable and due to circumstances beyond his control.
  3. Bail jumping in the first degree is a Class D felony.

History. Enact. Acts 1974, ch. 406, § 175, effective January 1, 1975.

NOTES TO DECISIONS

1.Elements.

Intent is a necessary element of bail jumping under this section. Malicoat v. Commonwealth, 637 S.W.2d 640, 1982 Ky. LEXIS 287 ( Ky. 1982 ).

Because defendant’s original felony charge was amended to a misdemeanor charge, and the trial court accepted his guilty plea on the misdemeanor charge before the bail jumping occurred, defendant was guilty of second degree bail jumping under KRS 520.080 rather than first degree bail jumping under this section. Curley v. Commonwealth, 895 S.W.2d 10, 1995 Ky. App. LEXIS 59 (Ky. Ct. App. 1995).

The nature of the charge against the defendant at the time he jumped bail determines whether this section or KRS 520.080 applies. Curley v. Commonwealth, 895 S.W.2d 10, 1995 Ky. App. LEXIS 59 (Ky. Ct. App. 1995).

2.— In Connection with Felony Charge.

The defendant was properly convicted of first degree bail jumping since his release on bail pending his trial on a persistent felony offender charge constituted a release “in connection with a charge of having committed a felony.” Widner v. Commonwealth, 2000 Ky. App. LEXIS 55 (Ky. Ct. App. May 26, 2000).

3.Evidence.

Where defendant was in the courtroom when the trial court orally informed him of new trial date, and a deputy clerk recorded such date in her minute book, but defendant failed to appear and a warrant for his arrest was issued, and where the warrant was executed two (2) weeks later by sheriff’s deputies who found defendant in the attic of his mother’s home, which was not equipped for living, a jury could reasonably conclude that defendant knew the proper date, having been present when it was assigned, and was hiding in his mother’s attic with the express objective of escaping trial. Accordingly, defendant’s conviction was based on proof which supported the jury’s verdict. Malicoat v. Commonwealth, 637 S.W.2d 640, 1982 Ky. LEXIS 287 ( Ky. 1982 ).

In prosecution for bail jumping, the trial court’s ruling admitting evidence of the forfeiture of defendant’s bail bond was not improper. Malicoat v. Commonwealth, 637 S.W.2d 640, 1982 Ky. LEXIS 287 ( Ky. 1982 ).

Evidence was insufficient to support a conviction for first-degree bail jumping where the defendant’s appeal bond provided only that he was to appear in court “when notified” and did not require him to appear at a specified time. Reynolds v. Commonwealth, 994 S.W.2d 23, 1999 Ky. App. LEXIS 58 (Ky. Ct. App. 1999).

Defendant testified at trial that on the day before he was to appear in the district court for his preliminary hearing, he took a Percocet according to a prescription, overslept the next day, and missed his court appearance because of the drug’s effect on him; the evidence also showed that defendant was in another county on the night before the hearing, which was a violation of his probation on another charge. The evidence was sufficient to support a charge of bail jumping in violation of KRS 520.070(2); the trial court did not err by denying his motion for a directed verdict. Williams v. Commonwealth, 2009 Ky. App. LEXIS 204 (Ky. Ct. App. Oct. 23, 2009).

4.Instructions.

Where the circumstances surrounding the defendant’s bail jumping indicated that his failure to appear was entirely within his control and not unavoidable, he was not entitled to an instruction based upon subsection (2) of this section that he could prove in exculpation that his failure to appear was unavoidable and due to circumstances beyond his control. Beasley v. Commonwealth, 618 S.W.2d 179, 1981 Ky. App. LEXIS 250 (Ky. Ct. App. 1981), overruled in part, LaPradd v. Commonwealth, 334 S.W.3d 88, 2011 Ky. LEXIS 41 ( Ky. 2011 ).

Second-degree bail jumping is not a lesser-included offense of first-degree bail jumping and trial court was not required to instruct on it. Whalen v. Commonwealth, 891 S.W.2d 86, 1995 Ky. App. LEXIS 9 (Ky. Ct. App. 1995).

Cited:

Pedigo v. Commonwealth, 644 S.W.2d 355, 1982 Ky. App. LEXIS 279 (Ky. Ct. App. 1982).

Research References and Practice Aids

Cross-References.

Forfeiture of bail, RCr 4.48.

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., General Principles, Part 1 Matters of Substance, § 1.03.

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public and Judicial Administration, Part 3 Escape and Offenses Related to Custody, §§ 7.32, 7.34.

520.080. Bail jumping in the second degree.

  1. A person is guilty of bail jumping in the second degree when, having been released from custody by court order, with or without bail, upon condition that he will subsequently appear at a specified time and place in connection with a charge of having committed a misdemeanor, he intentionally fails to appear at that time and place.
  2. In any prosecution for bail jumping, the defendant may prove in exculpation that his failure to appear was unavoidable and due to circumstances beyond his control.
  3. Bail jumping in the second degree is a Class A misdemeanor.

History. Enact. Acts 1974, ch. 406, § 176, effective January 1, 1975.

NOTES TO DECISIONS

1.Elements.

Because defendant’s original felony charge was amended to a misdemeanor charge, and the trial court accepted his guilty plea on the misdemeanor charge before the bail jumping occurred, defendant guilty of second degree bail jumping under this section rather than first degree bail jumping under KRS 520.070 . Curley v. Commonwealth, 895 S.W.2d 10, 1995 Ky. App. LEXIS 59 (Ky. Ct. App. 1995).

The nature of the charge against the defendant at the time he jumped bail determines whether KRS 520.070 or this section applies. Curley v. Commonwealth, 895 S.W.2d 10, 1995 Ky. App. LEXIS 59 (Ky. Ct. App. 1995).

2.Lesser Included Offenses.

Second-degree bail jumping is not a lesser-included offense of first-degree bail jumping and trial court was not required to instruct on it. Whalen v. Commonwealth, 891 S.W.2d 86, 1995 Ky. App. LEXIS 9 (Ky. Ct. App. 1995).

Research References and Practice Aids

Cross-References.

Forfeiture of bail, RCr 4.48.

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public and Judicial Administration, Part 3 Escape and Offenses Related to Custody, §§ 7.33, 7.35.

520.090. Resisting arrest.

  1. A person is guilty of resisting arrest when he intentionally prevents or attempts to prevent a peace officer, recognized to be acting under color of his official authority, from effecting an arrest of the actor or another by:
    1. Using or threatening to use physical force or violence against the peace officer or another; or
    2. Using any other means creating a substantial risk of causing physical injury to the peace officer or another.
  2. Resisting arrest is a Class A misdemeanor.

History. Enact. Acts 1974, ch. 406, § 177, effective January 1, 1975.

NOTES TO DECISIONS

1.Color of Official Authority.

Because defendant knew that officers, seeking to serve him with felony fugitive warrants, were acting under color of official authority, defendant was not entitled to resist the arrest, and therefore could not claim justification for his actions in shooting officers. Baze v. Commonwealth, 965 S.W.2d 817, 1997 Ky. LEXIS 40 ( Ky. 1997 ), cert. denied, 523 U.S. 1083, 118 S. Ct. 1536, 140 L. Ed. 2d 685, 1998 U.S. LEXIS 2686 (U.S. 1998).

2.Defenses.

Like KRS 520.090 , which precludes the unlawfulness of an arrest as a defense to a prosecution for resisting arrest, the unlawfulness of an entry or search is not a defense to an assault on a police officer under KRS 508.025 . Commonwealth v. Johnson, 245 S.W.3d 821, 2008 Ky. App. LEXIS 26 (Ky. Ct. App. 2008).

3.Instructions.

A judge’s instruction to the jury that the defendant’s belief that the existence of criminal charges against him was “legally irrelevant” did not deny the defendant his right to a defense or a meaningful opportunity to present his defense. Under subsection (1) of this section and KRS 503.060(1), a person may not legally resist arrest if he knows that the arresting officers act under color of law, even if he believes that the charges against him are false or that the arrest is in some other way unlawful. Baze v. Commonwealth, 965 S.W.2d 817, 1997 Ky. LEXIS 40 ( Ky. 1997 ), cert. denied, 523 U.S. 1083, 118 S. Ct. 1536, 140 L. Ed. 2d 685, 1998 U.S. LEXIS 2686 (U.S. 1998).

4.Probable cause.

Reasonable jury could have concluded that there was no probable cause to believe that plaintiff had committed or was committing the crimes of resisting arrest, hindering communication to a police officer, or any other crime and neither her flight from arrest nor passive resistance were punishable under this section. Arnold v. Wilder, 657 F.3d 353, 2011 FED App. 0267P, 2011 U.S. App. LEXIS 18928 (6th Cir. Ky. 2011 ).

Defendant’s motion to suppress was properly denied because, while a police officer lacked probable cause to stop and frisk him for failing to give his name, once defendant broke free and assaulted the officer, the officer had probable cause to arrest defendant and the search of his person that yielded the cocaine at issue was properly obtained from a valid search incident to a valid arrest. Kavanaugh v. Commonwealth, 427 S.W.3d 178, 2014 Ky. LEXIS 157 ( Ky. 2014 ).

5.Collateral Estoppel.

Evidence was sufficient to sustain defendant’s resisting arrest conviction because the officer had yet to handcuff or search defendant prior to placing him in the cruiser, and defendant began lunging at the officer, tried to head-butt him, and began yelling and spitting at him. Perdue v. Commonwealth, 411 S.W.3d 786, 2013 Ky. App. LEXIS 145 (Ky. Ct. App. 2013).

Arrestee’s state conviction for resisting arrest did not preclude him from asserting an excessive force claim against a local police officer because the Commonwealth was not required to prove absence of excessive force in the arrestee’s state criminal case, and the officer did not demonstrate the issue of his use of force was even mentioned or litigated in state court. Gonzalez v. Lusardi, 930 F. Supp. 2d 840, 2013 U.S. Dist. LEXIS 35521 (E.D. Ky. 2013 ).

6.Directed Verdicts.

Circuit court did not err in denying defendant's motions for directed verdict on a resisting arrest charge given a trooper's testimony that defendant pulled his arm away and tried to stand while being handcuffed. Montgomery v. Commonwealth, 505 S.W.3d 274, 2016 Ky. App. LEXIS 198 (Ky. Ct. App. 2016).

Failing to direct a verdict as to the resisting arrest charge, Ky. Rev. Stat. Ann. § 520.090(1)(a), was not error where a deputy’s testimony, coupled with the body-cam footage, indicated that defendant fought vigorously and aggressively against the deputies while they attempted to handcuff him, and that conduct constituted a use of physical force against the deputies in an attempt to prevent his arrest. Gardner v. Commonwealth, 2021 Ky. App. Unpub. LEXIS 144 (Ky. Ct. App. Mar. 12, 2021).

Cited:

Donovan v. Thames, 105 F.3d 291, 1997 U.S. App. LEXIS 1225 (6th Cir. 1997).

Opinions of Attorney General.

A passenger in a car would be guilty of resisting arrest of “another” if he physically interfered with an officer attempting to give the car’s driver a verbal warning or citation. OAG 75-8 .

Where a peace officer in hot pursuit has continued across corporate or county lines, as authorized by KRS 431.045 , for purposes of making an arrest outside of his jurisdiction, he may properly arrest a third person who is resisting the arrest of the original offender, as prohibited by this section, so long as the peace officer is in uniform or otherwise acting under color of his authority. OAG 81-152 .

Research References and Practice Aids

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public and Judicial Administration, Part 3 Escape and Offenses Related to Custody, § 7.35.

520.095. Fleeing or evading police in the first degree.

  1. A person is guilty of fleeing or evading police in the first degree:
    1. When, while operating a motor vehicle with intent to elude or flee, the person knowingly or wantonly disobeys a direction to stop his or her motor vehicle, given by a person recognized to be a police officer, and at least one (1) of the following conditions exists:
      1. The person is fleeing immediately after committing an act of domestic violence as defined in KRS 403.720 ;
      2. The person is driving under the influence of alcohol or any other substance or combination of substances in violation of KRS 189A.010 ;
      3. The person is driving while his or her driver’s license is suspended for violating KRS 189A.010 ; or
      4. By fleeing or eluding, the person is the cause, or creates substantial risk, of serious physical injury or death to any person or property; or
    2. When, as a pedestrian, and with intent to elude or flee, the person knowingly or wantonly disobeys an order to stop, given by a person recognized to be a peace officer, and at least one (1) of the following conditions exists:
      1. The person is fleeing immediately after committing an act of domestic violence as defined in KRS 403.720 ; or
      2. By fleeing or eluding, the person is the cause of, or creates a substantial risk of, serious physical injury or death to any person or property.
  2. Fleeing or evading police in the first degree is a Class D felony.

History. Enact. Acts 1998, ch. 606, § 161, effective July 15, 1998.

NOTES TO DECISIONS

1.Double Jeopardy.

Because the offenses of driving under the influence and wanton endangerment, found in KRS 189A.010 (c)(1) and 508.060(1) respectively, were included in the offense of fleeing or evading police, found in KRS 520.095(1)(a), defendant’s conviction for all three (3) offenses constituted double jeopardy in violation of Ky. Const. § 12 and KRS 505.020 . Pinkston v. Commonwealth, 2003 Ky. App. LEXIS 92 (Ky. Ct. App. May 2, 2003).

Defendant’s conduct in fleeing from officers was a single event without any sufficient break in conduct and time, and could not have been parsed into separate and distinct offenses regardless of the facts that the chase began in one county and ended in another, and regardless of how many officers may have given an order to stop; therefore, an additional fleeing and evading charge in another county based on the same incident was a violation of double jeopardy protection. Foley v. Commonwealth, 233 S.W.3d 734, 2007 Ky. App. LEXIS 333 (Ky. Ct. App. 2007).

Defendant’s convictions for first-degree fleeing or evading under KRS 520.095(1)(a)(4) and first-degree wanton endangerment under KRS 508.060 were not prohibited by double jeopardy as each offense contained at least one element not present in the other. Eberenz v. Commonwealth, 2008 Ky. App. LEXIS 184 (Ky. Ct. App. June 13, 2008).

Convictions on both first-degree fleeing or evading under KRS 520.095(1)(a)(4) and first-degree wanton endangerment under KRS 508.060 will not trigger double jeopardy, as fleeing and eluding requires operation of a motor vehicle and disobeying a direction to stop given by one recognized to be a police officer, while wanton endangerment does not; to prove wanton endangerment, the Commonwealth has to prove that a defendant manifested an extreme indifference to the value of human life, while fleeing or evading does not contain this element. Eberenz v. Commonwealth, 2008 Ky. App. LEXIS 184 (Ky. Ct. App. June 13, 2008).

Defendant’s convictions for first-degree fleeing or evading police, KRS 520.095(1), and second-degree wanton endangerment, KRS 508.070(1), constituted double jeopardy because once the Commonwealth proved the specific conduct required to convict defendant of first-degree fleeing or evading police, it necessarily proved the general conduct necessary to convict him of second-degree wanton endangerment; both statutes were satisfied by proof of wantonly engaging in certain conduct that creates a substantial danger of serious physical injury to another person, and for second-degree wanton endangerment, the conduct is general and open-ended, and for first-degree fleeing or evading police, the conduct is specified as intentionally fleeing from police while operating a motor vehicle. Brown v. Commonwealth, 297 S.W.3d 557, 2009 Ky. LEXIS 256 ( Ky. 2009 ).

Defendant’s convictions for first-degree fleeing or evading police, KRS 520.095(1), and first-degree wanton endangerment, KRS 508.060(1), did not constitute double jeopardy because as with first-degree wanton endangerment, the three elements of operating a motor vehicle, having intent to elude or flee, and disobeying a police officer’s direction to stop were required of the fleeing or evading charge but not of the wanton endangerment charge; consequently, each provision required proof of a fact that the other did not. Brown v. Commonwealth, 297 S.W.3d 557, 2009 Ky. LEXIS 256 ( Ky. 2009 ).

Trial court committed reversible error by denying defendant's motion for directed verdict as it related to the second-degree wanton endangerment charge because double jeopardy precluded convictions on the combination of second-degree wanton endangerment and first-degree fleeing or evading. Culver v. Commonwealth, 2017 Ky. App. LEXIS 534 (Ky. Ct. App. Sept. 22, 2017, sub. op., 2017 Ky. App. Unpub. LEXIS 952 (Ky. Ct. App. Sept. 22, 2017).

2.Evidence.

Defendant’s possession of a handgun during his flight from a police officer did not, in itself, create a substantial risk of serious physical injury or death within the meaning of KRS 520.095(1)(b) such as would support a conviction for first-degree fleeing or evading police. Bell v. Commonwealth, 122 S.W.3d 490, 2003 Ky. LEXIS 236 ( Ky. 2003 ).

Evidence was insufficient to establish a conviction for fleeing or evading the police in the first degree, and defendant’s motion for a directed verdict should have been granted, because the evidence established that defendant drove for a short distance after seeing the police siren, so that defendant could pull his vehicle into his own driveway. Defendant did not commit any traffic violations during the drive and indicated that he was concerned about pulling his large vehicle over on narrow portions of road. Huff v. Commonwealth, 2006 Ky. App. LEXIS 306 (Ky. Ct. App. Oct. 6, 2006).

Denial of defendant’s motion for a directed verdict of acquittal on the charge of first-degree fleeing or evading the police was proper where the evidence was sufficient to create a jury question on the element of substantial risk of death or serious injury, as an officer testified that during his pursuit of the vehicle in which defendant was traveling, the vehicle was going at or above the speed limit in a 45 miles-per-hour zone and ran three stop signs; although the officer did not describe any trouble arising from the failure to stop at those signs, he did indicate that there were a school and a shopping center in the area and that traffic was heavy due to the wet roads. McCleery v. Commonwealth, 410 S.W.3d 597, 2013 Ky. LEXIS 407 ( Ky. 2013 ) sub. nom.Darcy v. Commonwealth, 441 S.W.3d 77, 2014 Ky. LEXIS 433 ( Ky. 2014 ).

It was not clearly unreasonable for a jury to find that defendant intended to flee from police and was thus complicit with his co-defendant in fleeing or evading because the Commonwealth presented evidence to establish that defendant and his co-defendant burglarized and left the victim’s trailer together in a vehicle and that the vehicle did not yield to police commands to stop. McCleery v. Commonwealth, 410 S.W.3d 597, 2013 Ky. LEXIS 407 ( Ky. 2013 ) sub. nom.Darcy v. Commonwealth, 441 S.W.3d 77, 2014 Ky. LEXIS 433 ( Ky. 2014 ).

Commonwealth presented adequate proof to survive a directed verdict motion on the charge of fleeing or evading police in the first degree because defendant ignored the signals of a marked police cruiser and drove away at an excessive rate of speed; a police officer testified that he terminated his pursuit because he feared for his safety. Culver v. Commonwealth, 2017 Ky. App. LEXIS 534 (Ky. Ct. App. Sept. 22, 2017, sub. op., 2017 Ky. App. Unpub. LEXIS 952 (Ky. Ct. App. Sept. 22, 2017).

Defendant’s conviction for fleeing or evading police in the second degree was vacated because insufficient evidence was presented that his flight created a substantial risk of physical injury to any person; both parties agreed that the trial court erred in finding sufficient evidence was presented to submit the amended charge to the jury. Hunter v. Commonwealth, 587 S.W.3d 298, 2019 Ky. LEXIS 434 ( Ky. 2019 ).

Trial court properly convicted defendant of first-degree fleeing or evading police following his conditional guilty plea because the fact that defendant had not been previously convicted of DUI was of no consequence since the fleeing and eluding statute only required factual proof that defendant was driving under the influence while fleeing or evading police; it did not require the Commonwealth to actually convict defendant of it. Fogle v. Commonwealth, 600 S.W.3d 736, 2020 Ky. App. LEXIS 22 (Ky. Ct. App. 2020).

Trial court did not err when it failed to grant directed verdict motions for first-degree wanton endangerment and first-degree fleeing or evading because a sergeant testified that he was 100% certain defendant was the driver of the pickup truck, and defense counsel thoroughly cross-examined the sergeant; the deputy’s police cruiser blocking a single-lane road with its emergency lights on was a visible, non-verbal direction to approaching drivers, including defendant, to stop their vehicles, but defendant accelerated, and the deputy was forced to drive his cruiser out of the way and into a ditch to avoid a head-on collision; and defendant’s actions created a substantial risk of serious physical injury or death. Eversole v. Commonwealth, 600 S.W.3d 209, 2020 Ky. LEXIS 121 ( Ky. 2020 ).

3.Lesser Included Offenses.

Defendant’s proposed jury instruction on second-degree fleeing or evading police, under KRS 520.100(1), as a lesser included offense of the first degree fleeing or evading he was charged with, under KRS 520.095(1)(a)(4), was properly refused because no reasonable jury could find that defendant did not create a substantial risk of death or serious physical injury when he led police on a high-speed chase. Lawson v. Commonwealth, 85 S.W.3d 571, 2002 Ky. LEXIS 175 ( Ky. 2002 ).

As it was clear that defendant caused a substantial risk of injury to a person since he drove his car into three other vehicles while driving erratically, no reasonable juror could acquit him on the charge of creating a substantial risk of injury to a person while fleeing or evading the police and yet find him guilty of fleeing or evading the police without causing such risk or actual injury. Crain v. Commonwealth, 257 S.W.3d 924, 2008 Ky. LEXIS 110 ( Ky. 2008 ).

4.Reasonable Cause to Arrest.

Police officers were entitled to summary judgment on the issue of qualified immunity in a 42 USCS § 1983 suit alleging an illegal arrest in violation of plaintiff’s Fourth Amendment rights because, although the officers initially began their pursuit because plaintiff did not have his license plate illuminated as required by KRS 186.170 and 186.990 , they arrested plaintiff for fleeing in violation of KRS 520.095 and 520.100 and there was no dispute as to the officers’ assertion that plaintiff failed to stop once they were in pursuit. Nelson v. Riddle, 217 Fed. Appx. 456, 2007 FED App. 0129N, 2007 U.S. App. LEXIS 3592 (6th Cir. Ky. 2007 ).

5.Jury Instructions.

Court issued erroneous jury instructions on a fleeing charge because no mention was made of the statutory term, “unmarried couple” in KRS 403.720 ; the instructions were at odds with KRS 520.095 , which required the jury to find defendant was “fleeing immediately after committing an act of domestic violence.” The jury was not instructed to find that defendant and the complainant were members of an unmarried couple. Wright v. Commonwealth, 2012 Ky. LEXIS 170 (Ky. Oct. 25, 2012), modified, 391 S.W.3d 743, 2012 Ky. LEXIS 496 ( Ky. 2012 ), modified, 2013 Ky. LEXIS 209 (Ky. Feb. 21, 2013).

Jury was improperly instructed on the elements of first-degree fleeing or evading because (1) KRS 520.095 required a finding that defendant was fleeing immediately after committing an act of domestic violence as defined in KRS 403.720 , requiring findings that defendant committed an act of violence enumerated in KRS 403.720 , and that defendant and the victim were members of an “unmarried couple,” but, (2) under the instruction given, the jury had to find defendant guilty if the jury decided defendant and the victim had “shared living quarters,” without mentioning the statutory definition of an “unmarried couple” in KRS 403.720(4), so the instructions were too broad. Wright v. Commonwealth, 391 S.W.3d 743, 2012 Ky. LEXIS 496 ( Ky. 2012 ).

When instructing a jury on the crime of fleeing or evading in the first degree, under KRS 520.095 , domestic violence means physical injury, serious physical injury, sexual abuse, assault, or the infliction of fear of imminent physical injury, serious physical injury, sexual abuse, or assault between family members or members of an unmarried couple, and member of an unmarried couple means each member of an unmarried couple which allegedly has a child in common, any children of that couple, or a member of an unmarried couple who is living together or have formerly lived together. Wright v. Commonwealth, 391 S.W.3d 743, 2012 Ky. LEXIS 496 ( Ky. 2012 ).

6.Violent Felony.

District court properly enhanced defendant's sentence under the Armed Career Criminal Act (ACCA) because his prior state conviction for fleeing police in a motor vehicle qualified as “violent” where it created a substantial risk of serious physical injury, tracked the ACCA's residual clause, did not lack a specific mens rea, defendant actually created a substantial risk of serious injury or death, and the government did not have to provide notice where the conviction was not under Title 21. United States v. Ball, 771 F.3d 964, 2014 FED App. 0282P, 2014 U.S. App. LEXIS 21741 (6th Cir. Ky. 2014 ).

Research References and Practice Aids

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public and Judicial Administration, Part 3 Escape and Offenses Related to Custody, §§ 7.36A — 7.36C.

520.100. Fleeing or evading police in the second degree.

  1. A person is guilty of fleeing or evading police in the second degree when:
    1. As a pedestrian, and with intent to elude or flee, the person knowingly or wantonly disobeys a direction to stop, given by a person recognized to be a peace officer who has an articulable reasonable suspicion that a crime has been committed by the person fleeing, and in fleeing or eluding the person is the cause of, or creates a substantial risk of, physical injury to any person; or
    2. While operating a motor vehicle with intent to elude or flee, the person knowingly or wantonly disobeys a recognized direction to stop his vehicle, given by a person recognized to be a peace officer.
  2. No offense is committed under this section when the conduct involved constitutes a failure to comply with a directive of a traffic control officer.
  3. Fleeing or evading police in the second degree is a Class A misdemeanor.

History. Enact. Acts 1974, ch. 406, § 178, effective January 1, 1975; 1998, ch. 606, § 162, effective July 15, 1998; 2002, ch. 350, § 8, effective July 15, 2002.

NOTES TO DECISIONS

1.Lesser Included Offenses.

Defendant’s proposed jury instruction on second-degree fleeing or evading police, under KRS 520.100(1), as a lesser included offense of the first degree fleeing or evading he was charged with, under KRS 520.095(1)(a)(4), was properly refused because no reasonable jury could find that defendant did not create a substantial risk of death or serious physical injury when he led police on a high-speed chase. Lawson v. Commonwealth, 85 S.W.3d 571, 2002 Ky. LEXIS 175 ( Ky. 2002 ).

As it was clear that defendant caused a substantial risk of injury to a person since he drove his car into three (3) other vehicles while driving erratically, no reasonable juror could acquit him on the charge of creating a substantial risk of injury to a person while fleeing or evading the police and yet find him guilty of fleeing or evading the police without causing such risk or actual injury. Crain v. Commonwealth, 257 S.W.3d 924, 2008 Ky. LEXIS 110 ( Ky. 2008 ).

2.Reasonable Cause to Arrest.

Police officers were entitled to summary judgment on the issue of qualified immunity in a 42 USCS § 1983 suit alleging an illegal arrest in violation of plaintiff’s Fourth Amendment rights because, although the officers initially began their pursuit because plaintiff did not have his license plate illuminated as required by KRS 186.170 and 186.990 , they arrested plaintiff for fleeing in violation of KRS 520.095 and 520.100 and there was no dispute as to the officers’ assertion that plaintiff failed to stop once they were in pursuit. Nelson v. Riddle, 217 Fed. Appx. 456, 2007 FED App. 0129N, 2007 U.S. App. LEXIS 3592 (6th Cir. Ky. 2007 ).

3.Risk of Physical Injury.

Sufficient evidence existed to support defendant’s conviction for fleeing or evading the police in the second degree under KRS 520.100 because no proof of risk of serious physical injury or death was required and the jury could have reasonably concluded that defendant created a dangerous situation for himself, the officer, and any nearby vehicular traffic by running away in the direction of a four-way traffic stop. Jones v. Commonwealth, 247 S.W.3d 539, 2008 Ky. App. LEXIS 36 (Ky. Ct. App. 2008).

Search of defendant’s pocket was lawful as a search incident to arrest, and the trial court did not err in admitting the fruits of that search, because probable cause existed to justify his arrest for fleeing or evading police in the first degree; a reasonable and prudent police officer would have reason to believe that chasing an armed individual on foot and by vehicle across trafficked streets, through backyards, and across railway tracks created a substantial risk of serious physical injury. Hunter v. Commonwealth, 587 S.W.3d 298, 2019 Ky. LEXIS 434 ( Ky. 2019 ).

Defendant’s motion for directed verdict should have been granted because based upon the evidence presented at trial, a reasonable juror could not find defendant guilty of fleeing or evading in the first degree beyond a reasonable doubt; there was insufficient evidence at trial that his flight created a substantial risk of serious physical injury or death. Hunter v. Commonwealth, 587 S.W.3d 298, 2019 Ky. LEXIS 434 ( Ky. 2019 ).

Cited:

United States v. Sturgill, 563 F.2d 307, 1977 U.S. App. LEXIS 11273 (6th Cir. 1977).

Research References and Practice Aids

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public and Judicial Administration, Part 3 Escape and Offenses Related to Custody, §§ 7.36, 7.36C.

520.110. Definitions for KRS 520.120 and 520.130.

  1. For the purposes of KRS 520.120 and 520.130 , a person renders assistance to another when he:
    1. Harbors or conceals such person; or
    2. Warns such person of impending discovery or apprehension, except that this does not apply to a warning given in connection with an effort to bring another into compliance with law; or
    3. Provides such person with money, transportation, weapon, disguise or other means of avoiding discovery or apprehension; or
    4. Prevents or obstructs, by means of force, deception or intimidation, anyone from performing an act that might aid in the discovery or apprehension of such person; or
    5. Volunteers false information to a law enforcement officer; or
    6. Suppresses by an act of concealment, alteration or destruction any physical evidence that might aid in the discovery or apprehension of such person.
  2. In any prosecution for hindering prosecution or apprehension it is a defense that the accused is the spouse, parent, child, brother, sister, grandparent or grandchild of the person whose discovery or apprehension he sought to prevent.

History. Enact. Acts 1974, ch. 406, § 179, effective January 1, 1975.

NOTES TO DECISIONS

1.Applicability.

Since KRS 520.110 provides an affirmative defense to KRS 520.130 , because the detective knew that plaintiff was the mother of an individual wanted by the police, the detective lacked probable cause to arrest plaintiff for violation of KRS 520.130 . Butts v. City of Bowling Green, 2005 U.S. Dist. LEXIS 34811 (W.D. Ky. Aug. 29, 2005).

Research References and Practice Aids

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public and Judicial Administration, Part 3 Escape and Offenses Related to Custody, § 7.38.

520.120. Hindering prosecution or apprehension in the first degree.

  1. A person is guilty of hindering prosecution or apprehension in the first degree when, with the intent to hinder the apprehension, prosecution, conviction or punishment of another whom he knows is being sought in connection with the commission of a capital offense or Class A felony, he renders assistance to such person.
  2. Hindering prosecution or apprehension in the first degree is a Class D felony.

History. Enact. Acts 1974, ch. 406, § 180, effective January 1, 1975.

NOTES TO DECISIONS

1.Accessory After the Fact.

An accessory after the fact is not an accomplice or a principal but is a person who harbors a felon or aids him in escaping punishment knowing that the person he is aiding has committed a crime. (Decided under prior law) Reed v. Commonwealth, 270 Ky. 447 , 109 S.W.2d 1198, 1937 Ky. LEXIS 98 ( Ky. 1937 ).

An accessory after the fact is one who aids or assists the offender, after the commission of a felony, to avoid or escape punishment. (Decided under prior law) White v. Commonwealth, 301 Ky. 228 , 191 S.W.2d 244, 1945 Ky. LEXIS 722 ( Ky. 1945 ).

An accessory after the fact is not an accomplice. (Decided under prior law) Hall v. Commonwealth, 248 S.W.2d 417, 1952 Ky. LEXIS 740 ( Ky. 1952 ).

An “accessory after the fact” is one who, knowing a felony to have been committed, receives, relieves, comforts or assists a person whom he knows to be the felon, intending thereby to enable the felon to escape arrest or detection, and, in such a case, certainty of knowledge is not required and it is sufficient that the accused had actual knowledge of facts which would give him good reason to believe the person assisted to be a felon. (Decided under prior law) Maddox v. Commonwealth, 349 S.W.2d 686, 1960 Ky. LEXIS 3 ( Ky. 1960 ).

An accessory after the fact is not an accomplice or principal. (Decided under prior law) Cissell v. Commonwealth, 419 S.W.2d 555, 1967 Ky. LEXIS 164 ( Ky. 1967 ).

2.— Corroboration.

An accessory after the fact is not an accomplice and therefore his testimony need not be corroborated. (Decided under prior law) Levering v. Commonwealth, 132 Ky. 666 , 117 S.W. 253, 1909 Ky. LEXIS 146 ( Ky. 1909 ); Ne Camp v. Commonwealth, 311 Ky. 676 , 225 S.W.2d 109, 1949 Ky. LEXIS 1220 ( Ky. 1949 ).

3.— Guilt of Principal.

Accessory after the fact may be tried and convicted notwithstanding principal has been tried and acquitted as an acquittal is not res judicata as between the Commonwealth and the alleged accessory. (Decided under prior law) Commonwealth v. Long, 246 Ky. 809 , 56 S.W.2d 524, 1933 Ky. LEXIS 29 ( Ky. 1933 ).

The conviction of an accessory after the fact does not depend upon that of the principal, but the principal’s guilt must be alleged and proved. (Decided under prior law) Maddox v. Commonwealth, 349 S.W.2d 686, 1960 Ky. LEXIS 3 ( Ky. 1960 ).

4.— Evidence.

It was not error to admit evidence of a statement made prior to the shooting by a member of a group which included both the principal and the defendant where the person stated that you don’t need uniforms when you “kill them and throw them over the hill” when this statement had a bearing on the guilt of the principal. (Decided under prior law) Maddox v. Commonwealth, 349 S.W.2d 686, 1960 Ky. LEXIS 3 ( Ky. 1960 ).

5.— Intent.

The intent of the person rendering assistance to the felon, rather than the intent of the felon, is controlling and, if the person rendering assistance knows or expected that his assistance would aid the felon to escape, it is not necessary that the felon himself had an intent to escape or avoid detection. (Decided under prior law) Maddox v. Commonwealth, 349 S.W.2d 686, 1960 Ky. LEXIS 3 ( Ky. 1960 ).

6.— Instructions.

Where the evidence, in prosecution of defendant and companion for robbery, based on charge that while confined in jail they took money from pocket of cell mate who had “passed out,” was that the money alleged to have been taken was found hidden on the persons of both defendant and companion but there was no proof as to which of them did the actual taking, defendant was not entitled to an instruction as to his being an accessory after the fact rather than a principal on the theory that his only offense might have been to accept some of the money wrongfully taken by his companion. (Decided under prior law) White v. Commonwealth, 301 Ky. 228 , 191 S.W.2d 244, 1945 Ky. LEXIS 722 ( Ky. 1945 ).

Where the accused was indicted for armed robbery, any instruction on the crime of being an accessory after the fact should have been given, if at all, under law which provided that an accessory after the fact not otherwise punished shall be guilty of a high misdemeanor and fined and imprisoned at the discretion of the jury, and it was erroneous for the court to instruct under law that provided for penalty of offense of aiding or comforting a robber or burglar, since that law was not applicable. (Decided under prior law) Watts v. Commonwealth, 272 S.W.2d 475, 1954 Ky. LEXIS 1112 ( Ky. 1954 ).

Where the indictment of the accessory after the fact charged that the principal had wilfully murdered the victim and that the accessory was aware of this and the instructions authorized a conviction if the jury found that the principal had shot and wounded the victim, the deviation from the indictment was not fatal as the elements of being an accessory after the fact are the same regardless of whether the principal was guilty of murder, voluntary manslaughter or malicious shooting. (Decided under prior law) Maddox v. Commonwealth, 349 S.W.2d 686, 1960 Ky. LEXIS 3 ( Ky. 1960 ).

7.— Knowledge.

Where the defendant assisted a person who admitted that he had just shot a man, defendant could be held to be an accessory after the fact whether or not he knew that the victim was dead or alive, because an accessory after the fact is guilty of a misdemeanor despite the degree of the felon’s crime and, in this case, the defendant knew that the man he aided had committed a felony. (Decided under prior law) Maddox v. Commonwealth, 349 S.W.2d 686, 1960 Ky. LEXIS 3 ( Ky. 1960 ).

8.— Permissible Activities.

An accessory after the fact is one who harbors a felon or aids him in an attempt to escape punishment with the knowledge that a felony has been committed, but mere neglect to inform authorities that a felony has been committed or to attempt to apprehend the felon will not make one an accessory after the fact. (Decided under prior law) Levering v. Commonwealth, 132 Ky. 666 , 117 S.W. 253, 1909 Ky. LEXIS 146 ( Ky. 1909 ); Schleeter v. Commonwealth, 218 Ky. 72 , 290 S.W. 1075, 1927 Ky. LEXIS 109 ( Ky. 1927 ).

Any assistance whatever given to a felon to hinder his being apprehended, tried or punished makes the one who assists an accessory, but actions which do not enable the felon to elude punishment, including acts of charity that relieve or comfort a felon without tending to hinder his detection, apprehension or conviction, or aid his escape, nondisclosure of crime, and failure to apprehend or attempt to apprehend a criminal will not render one an accessory. (Decided under prior law) Maddox v. Commonwealth, 349 S.W.2d 686, 1960 Ky. LEXIS 3 ( Ky. 1960 ).

9.Aiding Interstate Flight.

The privilege against self-incrimination guaranteed by the Fifth Amendment precluded prosecution of defendant under 18 USCS § 4 for misprision of a felony, where defendant could have reasonably apprehended that he had violated this section by aiding in the interstate flight of a person who was being sought for the capital offense of murder, and where the duty to disclose the offense of interstate flight to avoid prosecution would have compelled defendant to give information which would tend to show he had committed a crime. United States v. Graham, 487 F. Supp. 1317, 1980 U.S. Dist. LEXIS 11023 (W.D. Ky. 1980 ).

10.Lesser Offense.

The request by defendant, on trial for murder, for an instruction on hindering prosecution as a lesser included offense thereof, was without merit as hindering prosecution is not a lesser included offense of murder. Turpin v. Commonwealth, 780 S.W.2d 619, 1989 Ky. LEXIS 108 ( Ky. 1989 ), cert. denied, 494 U.S. 1058, 110 S. Ct. 1530, 108 L. Ed. 2d 769, 1990 U.S. LEXIS 1576 (U.S. 1990).

Research References and Practice Aids

Cross-References.

Liability for aiding escape of prisoner, KRS 440.050 .

Parties to crimes, KRS Ch. 502.

Kentucky Bench & Bar.

Hawse, Spoliation of Evidence, Vol. 54, No. 3, Summer 1990, Ky. Bench & Bar 13.

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public and Judicial Administration, Part 3 Escape and Offenses Related to Custody, § 7.37.

520.130. Hindering prosecution or apprehension in the second degree.

  1. A person is guilty of hindering prosecution or apprehension in the second degree when, with the intent to hinder the apprehension, prosecution, conviction or punishment of another who is being sought in connection with the commission of a criminal offense, he renders assistance to such person.
  2. Hindering prosecution or apprehension in the second degree is a Class A misdemeanor.

History. Enact. Acts 1974, ch. 406, § 181, effective January 1, 1975.

NOTES TO DECISIONS

1.In General.

Law that forbids giving aid, protection or comfort to robber or burglar referred to an accessory after the fact, who took no part in the crime, but who knowingly aided or gave protection to the guilty person after the crime had been committed. (Decided under prior law) Jackson v. Commonwealth, 265 Ky. 458 , 97 S.W.2d 21, 1936 Ky. LEXIS 515 ( Ky. 1936 ).

2.Applicability.

Since KRS 520.110 provides an affirmative defense to KRS 520.130 , because the detective knew that plaintiff was the mother of an individual wanted by the police, the detective lacked probable cause to arrest plaintiff for violation of KRS 520.130 . Butts v. City of Bowling Green, 2005 U.S. Dist. LEXIS 34811 (W.D. Ky. Aug. 29, 2005).

Research References and Practice Aids

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public and Judicial Administration, Part 3 Escape and Offenses Related to Custody, § 7.38.

CHAPTER 521 Bribery and Corrupt Influences

521.010. Definitions.

The following definitions apply in this chapter, unless the context otherwise requires:

  1. “Public servant” means:
    1. Any public officer or employee of the state or of any political subdivision thereof or of any governmental instrumentality within the state; or
    2. Any person exercising the functions of any such public officer or employee; or
    3. Any person participating as advisor, consultant or otherwise in performing a governmental function, but not including witnesses; or
    4. Any person elected, appointed or designated to become a public servant although not yet occupying that position.
  2. “Pecuniary benefit” means benefit in the form of money, property, commercial interests or anything else the primary significance of which is economic gain.

History. Enact. Acts 1974, ch. 406, § 182, effective January 1, 1975.

NOTES TO DECISIONS

Cited:

United States v. Robinson, 763 F.2d 778, 1985 U.S. App. LEXIS 31315 (6th Cir. 1985).

Research References and Practice Aids

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public and Judicial Administration, Part 1 Definitions, §§ 7.06A, 7.07.

521.020. Bribery of public servant.

  1. A person is guilty of bribery of a public servant when:
    1. He offers, confers, or agrees to confer any pecuniary benefit upon a public servant with the intent to influence the public servant’s vote, opinion, judgment, exercise of discretion, or other action in his official capacity as a public servant; or
    2. While a public servant, he solicits, accepts, or agrees to accept any pecuniary benefit upon an agreement or understanding that his vote, opinion, judgment, exercise of discretion, or other action as a public servant will thereby be influenced.
  2. It is a defense under this section if a person confers or agrees to confer any pecuniary benefit upon a public servant as a result of conduct of the public servant which constitutes extortion or coercion.
  3. It is no defense to a prosecution under this section that the person sought to be influenced was not qualified to act in the desired way because he had not yet assumed office, lacked jurisdiction, or for any other reason.
  4. Bribery of a public servant is a Class C felony.

History. Enact. Acts 1974, ch. 406, § 183, effective January 1, 1975; 1994, ch. 477, § 5, effective July 15, 1994.

NOTES TO DECISIONS

1.Constitutionality.

Section 39 of the Kentucky Constitution does not exclusively vest in the general assembly the power to try those charged with bribery or attempted bribery of members of the legislature. (Decided under prior law) Campbell v. Commonwealth, 229 Ky. 264 , 17 S.W.2d 227, 1929 Ky. LEXIS 756 ( Ky. 1929 ).

2.Construction.

The statutory language “upon an agreement or understanding” found in subdivision (1)(b) of this section refers to the state of mind of the public servant and the condition upon which his agreement to receive or his acceptance of the bribe is made. Lovell v. Commonwealth, 695 S.W.2d 429, 1985 Ky. App. LEXIS 593 (Ky. Ct. App. 1985).

The policy of this statute is to proscribe unilateral as well as bilateral acts of a public servant with respect to bribery; therefore, a unilateral agreement or offer to accept money in return for voting in a certain way falls within the meaning of the term “agrees to accept.” Lovell v. Commonwealth, 695 S.W.2d 429, 1985 Ky. App. LEXIS 593 (Ky. Ct. App. 1985).

3.Defenses.

The defense available under subsection (2) of this section is not an implied defense available to a defendant prosecuted for bribing a witness pursuant to KRS 524.020 , which does not itself contain a defense based upon extortion or coercion, because the defense provided under subsection (2) of this section is designed for a situation in which members of the public are preyed upon by avaricious public officials to the point that it almost becomes a business necessity to pay them off, whereas bribery of a witness, as prohibited by KRS 524.020 , reaches to the heart of the judicial process and cannot be tolerated under any circumstances regardless of whether the witness who attempts to shake down a litigant is a police officer. Schaefer v. Commonwealth, 622 S.W.2d 218, 1981 Ky. LEXIS 273 ( Ky. 1981 ).

Since the defense of entrapment is not of constitutional dimensions, the habeas corpus petitioner’s contention that he was improperly denied an instruction regarding the defense of entrapment in connection with his convictions for bribery of a public servant did not raise any issue of violation of federally protected rights, and the writ would be denied as to those convictions. Sherrill v. Nicholson, 545 F. Supp. 573, 1982 U.S. Dist. LEXIS 14291 (W.D. Ky. 1982 ).

In a prosecution for conspiracy to sell contraband liquor confiscated in defendant judge’s jurisdiction, where defendants failed to show that ABC agent preyed upon them or shook them down, they were not as a matter of law entitled to the defense of extortion. United States v. Robinson, 763 F.2d 778, 1985 U.S. App. LEXIS 31315 (6th Cir. Ky. 1985 ).

4.Due Process.

There was no violation of the defendant’s right to equal protection of the law where he was convicted of accepting a bribe, although the person claimed to have given the bribe was only to be tried for attempted bribery. (Decided under prior law) Fanelli v. Commonwealth, 423 S.W.2d 255, 1968 Ky. LEXIS 479 ( Ky. 1968 ).

5.Elements.

In order to violate law that provided penalty for giving to or taking bribes from certain public officials, the bribe must be taken or agreed to while the person is an officer and, therefore, any agreement made prior to the officer’s election does not violate this section. (Decided under prior law) Tharp v. Nolan, 119 Ky. 870 , 84 S.W. 1168, 27 Ky. L. Rptr. 326 , 1905 Ky. LEXIS 49 ( Ky. 1905 ).

A water commission is an officer within the meaning of law that provided penalty for giving to or taking bribes from certain public officials. (Decided under prior law) Commonwealth v. Howard, 379 S.W.2d 475, 1964 Ky. LEXIS 247 ( Ky. 1964 ).

Subdivision (1)(a) of this section is not violated by a person who is not himself a “public servant,” when said person accepts money from another upon the promise to “pay off” a judge or influence a judge’s actions, where the person accepting the money, in fact, never has any contact with the judge, directly or indirectly, regarding any such payment. United States v. Cissell, 642 S.W.2d 901, 1982 Ky. LEXIS 323 ( Ky. 1982 ).

If the person accused of bribery has neither conferred any pecuniary benefit upon nor directed any communication to the public servant, he has not violated subdivision (1)(a) of this section. United States v. Cissell, 642 S.W.2d 901, 1982 Ky. LEXIS 323 ( Ky. 1982 ).

6.Evidence.

Court erred in directing verdict of acquittal on bribery charge where there was evidence that director of building and housing had agreed on payment of a certain sum to a third party in return for dropping condemnation proceedings against certain property even though defendant had never touched the money himself. (Decided under prior law) Commonwealth v. Hillebrand, 508 S.W.2d 566, 1974 Ky. LEXIS 613 ( Ky. 1974 ).

7.Punishment.

A Commonwealth’s attorney accused of accepting a bribe to quash indictments may be prosecuted either for the common-law offense of malfeasance in office or under law that provided penalty for giving to or taking bribes from certain public officials but the punishment assessed is limited to that prescribed under such law. (Decided under prior law) Commonwealth v. Rowe, 112 Ky. 482 , 66 S.W. 29, 23 Ky. L. Rptr. 1718 , 1902 Ky. LEXIS 183 ( Ky. 1902 ).

Where the defendant attorney was convicted of accepting a bribe, the offense involved moral turpitude warranting his disbarment. (Decided under prior law) Kentucky State Bar Asso. v. Howard, 437 S.W.2d 171, 1969 Ky. LEXIS 423 ( Ky. 1969 ).

Cited:

Commonwealth v. Gettys, 610 S.W.2d 899, 1980 Ky. App. LEXIS 403 (Ky. Ct. App. 1980); McCall v. Courier-Journal & Louisville Times Co., 623 S.W.2d 882, 1981 Ky. LEXIS 289 ( Ky. 1981 ); United States v. Cissell, 700 F.2d 338, 1983 U.S. App. LEXIS 30170 (6th Cir. 1983); Commonwealth v. Wortman, 929 S.W.2d 199, 1996 Ky. App. LEXIS 92 (Ky. Ct. App. 1996).

Research References and Practice Aids

Cross-References.

Commercial bribery, KRS 518.020 .

Forfeiture of office and disfranchisement for bribery, KRS 432.350 .

General assembly member, bribery of or attempt to corrupt, KRS 6.080 .

Offering or receiving rebate or kickback in business dealings with state, KRS 45.990 .

Official misconduct, KRS 522.020 .

School system, bribery in, KRS 156.465.

Sports bribery, KRS 518.040 , 518.050 .

Unlawful compensation of peace officer, KRS 61.310 .

Kentucky Bench & Bar.

Palmore, A Summary of Significant Decisions by the Supreme Court of Kentucky April 1982-April 1983, Vol. 47, No. 3, July 1983, Ky. Bench & Bar 14.

Kentucky Law Journal.

Comment, The Federal Bribery Statute: An Argument for Cautious Revision, 68 Ky. L.J. 1026 (1979-1980).

Treatises

Kentucky Instructions To Juries (Criminal) 5th Ed., Complicity and Inchoate Offenses, Part 1 Definitions, § 10.04.

Kentucky Instructions To Juries (Criminal) 5th Ed., Complicity and Inchoate Offenses, Part 3 Inchoate Offenses, § 10.22.

Kentucky Instructions To Juries (Criminal) 5th Ed., Offenses Against Public and Judicial Administration, Part 4 Bribery and Related Offenses, §§ 7.39, 7.40, 7.41.

521.030. Soliciting unlawful compensation.

  1. A public servant is guilty of soliciting unlawful compensation when he requests a pecuniary benefit for the performance of an official action knowing that he was required to perform that action without compensation or at a level of compensation lower than that requested.
  2. Solicitation of unlawful compensation is a Class B misdemeanor.

History. Enact. Acts 1974, ch. 406, § 184, effective January 1, 1975.

NOTES TO DECISIONS

1.Promise.

The alleged question by a school trustee to an applicant for a teaching position asking “Will it be worth $100 to you to get your place as a teacher?” did not amount to a “promise” within law prohibiting sale of public office. (Decided under prior law) Faulkner v. Commonwealth, 256 Ky. 563 , 76 S.W.2d 634, 1934 Ky. LEXIS 451 ( Ky. 1934 ).

To constitute a violation of law that provided penalty for promise to sell a public office, the promise must have at least been sufficiently explicit to be susceptible of acceptance; negotiations or mere representations of the accused that might have shown his venal attitude were not alone sufficient. (Decided under prior law) Faulkner v. Commonwealth, 256 Ky. 563 , 76 S.W.2d 634, 1934 Ky. LEXIS 451 ( Ky. 1934 ).

Research References and Practice Aids

Cross-References.

Peace officer, unlawful compensation, KRS 61.310 .

Public officers, unlawful compensation, KRS 45A.340 .

Rebate or kickback in business dealings with state, offering or receiving, KRS 45.990 .

Theft by extortion through wrongful use of position by public officer, KRS 514.080 .

Treatises

Kentucky Instructions To Juries (Criminal) 5th Ed., Offenses Against Public and Judicial Administration, Part 4 Bribery and Related Offenses, § 7.42.

521.040. Unlawful compensation for assistance in public matters.

  1. A person is guilty of unlawful compensation for assistance in public matters when:
    1. While a public servant, he solicits, accepts or agrees to accept compensation for advice or other assistance in preparing a bill, contract, claim or other transaction or proposal as to which he knows that he is likely to have an official discretion to exercise; or
    2. He offers, pays or agrees to pay compensation to a public servant for advice or other assistance in preparing or promoting a bill, contract, claim or other transaction with knowledge that acceptance by the public servant is unlawful.
  2. Unlawful compensation for assistance in public matters is a Class A misdemeanor.

History. Enact. Acts 1974, ch. 406, § 185, effective January 1, 1975.

NOTES TO DECISIONS

1.Applicability.

A contract to pay for management of petition to governor, in case of a certain forfeiture, was void as against public policy. (Decided under prior law) McGill's Adm'r v. Burnett, 30 Ky. 640 , 1832 Ky. LEXIS 170 ( Ky. 1832 ); Averbeck v. Hall, 77 Ky. 505 , 1879 Ky. LEXIS 14 ( Ky. 1879 ); Henderson v. Brown, 13 Ky. Op. 941, 7 Ky. L. Rptr. 609 , 1886 Ky. LEXIS 153 (Ky. Ct. App. Feb. 23, 1886).

A contract to reimburse one for expenses in preparing application for parole and to obtain necessary facts and information to support petition for parole was neither forbidden by law that provided penalty for giving to or taking bribes from public officials nor against public policy and was enforceable. (Decided under prior law) Gordon v. Gordon's Adm'r, 168 Ky. 409 , 182 S.W. 220, 1916 Ky. LEXIS 570 ( Ky. 1916 ) ( Ky. 1916 ).

Cited:

Commonwealth v. Gettys, 610 S.W.2d 899, 1980 Ky. App. LEXIS 403 (Ky. Ct. App. 1980).

Opinions of Attorney General.

A sanitarian who performs a percolation test as a private business should not take any part in the decision on a permit for a subsurface disposal system that relies on the percolation test he performed. Additionally, the sanitarian should not perform the inspection of the installation of that same subsurface disposal system because of the appearance of conflicting loyalties presented. OAG 82-338 .

Research References and Practice Aids

Cross-References.

Extortion by public official, KRS 514.080 .

Official misconduct, KRS 522.020 .

Rebate or kickback, offering or receiving, KRS 45.990 .

School textbooks, bribery in adoption of, KRS 156.465.

State purchasing, bribery in, KRS 45A.990 .

Unlawful compensation of public officers, KRS 45A.340 .

Treatises

Kentucky Instructions To Juries (Criminal) 5th Ed., Offenses Against Public and Judicial Administration, Part 4 Bribery and Related Offenses, §§ 7.43, 7.44.

521.050. Providing a pecuniary benefit for bribery of a public servant.

  1. A person is guilty of providing a pecuniary benefit for bribery of a public servant when, while not engaging in the bribery directly, he intentionally provides the pecuniary benefit to the person who offers or accepts the bribe.
  2. It is a defense under this section if a person provides the pecuniary benefit, confers, or agrees to confer any pecuniary benefit upon a public servant as a result of conduct of the public servant which constitutes extortion or coercion.
  3. It is no defense to a prosecution under this section that the person sought to be influenced was not qualified to act in the desired way because he had not yet assumed office, because he lacked jurisdiction, or for any other reason.
  4. Providing a pecuniary benefit for bribery of a public servant is a Class C felony.

History. Enact. Acts 1994, ch. 477, § 1, effective July 15, 1994.

Research References and Practice Aids

Treatises

Kentucky Instructions To Juries (Criminal) 5th Ed., Complicity and Inchoate Offenses, Part 3 Inchoate Offenses, § 10.22.

Kentucky Instructions To Juries (Criminal) 5th Ed., Offenses Against Public and Judicial Administration, Part 4 Bribery and Related Offenses, § 7.39A.

521.060. Offer or acceptance of donations to sheriff’s office — Exemption from charges of bribery.

  1. If a sheriff responds to an offer to receive a donation of money or goods made available to the sheriff’s office, then that action in itself shall not constitute a violation of KRS 521.030 . If a sheriff accepts a donation of money or goods in accordance with the provisions of KRS 61.310 , that acceptance in itself shall not constitute a violation of KRS 521.020 or 521.040 .
  2. The offering of a donation of money or goods to the office of the sheriff in accordance with the provisions of KRS 61.310 shall not in itself constitute a violation of KRS 521.020 or KRS 521.040 .

History. Enact. Acts 2005, ch. 103, § 2, effective June 20, 2005.

CHAPTER 522 Abuse of Public Office

522.010. Definitions.

The following definitions apply in this chapter, unless the context otherwise requires:

  1. “Public servant” means:
    1. Any public officer or employee of the state or of any political subdivision thereof or of any governmental instrumentality within the state; or
    2. Any person exercising the functions of any such public officer or employee; or
    3. Any person participating as advisor, consultant or otherwise in performing a governmental function, but not including witnesses; or
    4. Any person elected, appointed or designated to become a public servant although not yet occupying that position.
  2. “Benefit” means gain or advantage to the beneficiary or to a third person pursuant to the desire or consent of the beneficiary.

History. Enact. Acts 1974, ch. 406, § 186, effective January 1, 1975.

Opinions of Attorney General.

If the department for local government’s investigation and supervision of a county’s fiscal affairs discloses the possible commission of crime on the part of those local officials responsible for carrying on the fiscal affairs of the county, the department should disclose it to the local prosecutorial officers, for any action they deem proper, including possible prosecutions under KRS 61.170 or this chapter. OAG 80-139 .

Research References and Practice Aids

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public and Judicial Administration, Part 1 Definitions, §§ 7.06A, 7.08.

522.020. Official misconduct in the first degree.

  1. A public servant is guilty of official misconduct in the first degree when, with intent to obtain or confer a benefit or to injure another person or to deprive another person of a benefit, he knowingly:
    1. Commits an act relating to his office which constitutes an unauthorized exercise of his official functions; or
    2. Refrains from performing a duty imposed upon him by law or clearly inherent in the nature of his office; or
    3. Violates any statute or lawfully adopted rule or regulation relating to his office.
  2. Official misconduct in the first degree is a Class A misdemeanor.

History. Enact. Acts 1974, ch. 406, § 187, effective January 1, 1975.

NOTES TO DECISIONS

1.Elements.

The statutory definition of official misconduct in the first degree clearly calls for an official act. Bailey v. Commonwealth, 790 S.W.2d 233, 1990 Ky. LEXIS 52 ( Ky. 1990 ).

2.Governmental Immunity.

When a nursing home owner moved to file an amended complaint against the Governor to assert claims of official misconduct under KRS 522.020 and KRS 522.030 , pursuant to KRS 446.070 allowing actions for statutory violations, the owner’s motion was properly denied because under Ky. Const. § 81 the Governor was absolutely immune for official acts taken while in office, and the owner was claiming that state agencies harassed the owner’s nursing home after the owner terminated an affair with the Governor. Conner v. Patton, 2007 Ky. App. Unpub. LEXIS 213 (Ky. Ct. App. Oct. 26, 2007), review denied, ordered not published, 2008 Ky. LEXIS 246 (Ky. Oct. 15, 2008).

Cited:

Graham v. Mills, 694 S.W.2d 698, 1985 Ky. LEXIS 236 ( Ky. 1985 ); Polk v. Kentucky Bar Ass’n, 885 S.W.2d 691, 1994 Ky. LEXIS 113 ( Ky. 1994 ).

Opinions of Attorney General.

Where members of a city council have allowed city funds to be spent unconstitutionally, they are subject to prosecution under this section and/or KRS 522.030 , taxpayer’s suits for the recovery of the misused funds, and impeachment under Ky. Const., §§ 60 to 68 and KRS 63.020 to 63.070 . OAG 79-509 .

Research References and Practice Aids

Cross-References.

Bribery and corrupt influences under Penal Code, KRS 521.010 to 521.040 .

Extortion by public official, KRS 514.080 .

Malfeasance, misfeasance and willful neglect of official duties, Const., § 227.

Malfeasance or neglect of county officers, KRS 61.170 .

Removal of officers for neglect of duty, KRS 63.090 to 63.180 .

Treatises

Kentucky Instructions To Juries (Criminal) 5th Ed., Offenses Against Public and Judicial Administration, Part 4 Bribery and Related Offenses, § 7.45.

522.030. Official misconduct in the second degree.

  1. A public servant is guilty of official misconduct in the second degree when he knowingly:
    1. Commits an act relating to his office which constitutes an unauthorized exercise of his official functions; or
    2. Refrains from performing a duty imposed upon him by law or clearly inherent in the nature of his office; or
    3. Violates any statute or lawfully adopted rule or regulation relating to his office.
  2. Official misconduct in the second degree is a Class B misdemeanor.

History. Enact. Acts 1974, ch. 406, § 188, effective January 1, 1975.

NOTES TO DECISIONS

1.Constitutionality.

Where this section was never effectively and finally declared unconstitutional, defendant was never relieved of the legal duty to comply with this section. Donta v. Commonwealth, 858 S.W.2d 719, 1993 Ky. App. LEXIS 95 (Ky. Ct. App. 1993).

2.Evidence.

It was unlawful, and a violation of his official duty, for a county jailer to permit a prisoner to go home at the direction of the county judge who had no authority in the matter. (Decided under prior law) Lynch v. Commonwealth, 115 Ky. 309 , 73 S.W. 745, 24 Ky. L. Rptr. 2180 , 1903 Ky. LEXIS 96 ( Ky. 1903 ).

3.Governmental Immunity.

When a nursing home owner moved to file an amended complaint against the Governor to assert claims of official misconduct under KRS 522.020 and KRS 522.030 , pursuant to KRS 446.070 allowing actions for statutory violations, the owner’s motion was properly denied because under Ky. Const. § 81 the Governor was absolutely immune for official acts taken while in office, and the owner was claiming that state agencies harassed the owner’s nursing home after the owner terminated an affair with the Governor. Conner v. Patton, 2007 Ky. App. Unpub. LEXIS 213 (Ky. Ct. App. Oct. 26, 2007), review denied, ordered not published, 2008 Ky. LEXIS 246 (Ky. Oct. 15, 2008).

4.Injunction.

Injunction is not a proper remedy where one holds office unlawfully. (Decided under prior law) Hill v. Anderson, 122 Ky. 87 , 90 S.W. 1071, 28 Ky. L. Rptr. 1032 , 1906 Ky. LEXIS 24 ( Ky. 1906 ).

5.Practice and Procedure.

Where defendant and his counsel believed a plea of guilty under law that provided penalty for negligently allowing a prisoner to escape would completely insure his nonremoval from office, but later discovered that the Governor has authority under another law to institute removal proceedings, such discovery did not constitute grounds for a new trial. (Decided under prior law) Whitaker v. Commonwealth, 487 S.W.2d 901, 1972 Ky. LEXIS 78 ( Ky. 1972 ).

6.Usurpation of Office.

To usurp an office is to seize it by force, actual or constructive, without any color of right or title. (Decided under prior law) Wayman v. Commonwealth, 77 Ky. 466 , 1879 Ky. LEXIS 7 ( Ky. 1879 ).

One who holds a public office for which he is not eligible is guilty of usurpation of office. (Decided under prior law) Hill v. Anderson, 122 Ky. 87 , 90 S.W. 1071, 28 Ky. L. Rptr. 1032 , 1906 Ky. LEXIS 24 ( Ky. 1906 ).

Usurpation consists of the seizure of an office by actual or constructive force without any color of right or title. (Decided under prior law) Palmer v. Commonwealth, 122 Ky. 693 , 92 S.W. 588, 29 Ky. L. Rptr. 219 , 1906 Ky. LEXIS 83 ( Ky. 1906 ); Eubank v. Commonwealth, 126 Ky. 348 , 103 S.W. 368, 31 Ky. L. Rptr. 746 , 1907 Ky. LEXIS 51 ( Ky. 1907 ).

Usurpation is entirely different from holding an office originally rightfully possessed but to which the incumbent becomes ineligible by the happening of some extraneous fact or circumstance. (Decided under prior law) Palmer v. Commonwealth, 122 Ky. 693 , 92 S.W. 588, 29 Ky. L. Rptr. 219 , 1906 Ky. LEXIS 83 ( Ky. 1906 ).

A person who continued to function as a notary public after having been appointed as a postmaster was not guilty of usurpation. (Decided under prior law) Palmer v. Commonwealth, 122 Ky. 693 , 92 S.W. 588, 29 Ky. L. Rptr. 219 , 1906 Ky. LEXIS 83 ( Ky. 1906 ).

A usurper is one who intrudes himself into an office which is vacant or ousts the incumbent without any color of title. (Decided under prior law) Eubank v. Commonwealth, 126 Ky. 348 , 103 S.W. 368, 31 Ky. L. Rptr. 746 , 1907 Ky. LEXIS 51 ( Ky. 1907 ); Henry v. Commonwealth, 126 Ky. 357 , 103 S.W. 371, 31 Ky. L. Rptr. 760 , 1907 Ky. LEXIS 52 ( Ky. 1907 ).

Where, though election as road supervisor was not legal, person was put into office by fiscal court and, though he retained possession and exercised duties after fiscal court declared office vacant, there had never been a judicial interpretation that election was illegal, he was not guilty of usurpation of office. (Decided under prior law) Eubank v. Commonwealth, 126 Ky. 348 , 103 S.W. 368, 31 Ky. L. Rptr. 746 , 1907 Ky. LEXIS 51 ( Ky. 1907 ); Henry v. Commonwealth, 126 Ky. 357 , 103 S.W. 371, 31 Ky. L. Rptr. 760 , 1907 Ky. LEXIS 52 ( Ky. 1907 ).

Where an ex-sheriff collected taxes after his term of office had expired giving a receipt therefor as “ex-sheriff,” it was not a usurpation of office. (Decided under prior law) Commonwealth v. Bush, 131 Ky. 384 , 115 S.W. 249, 1909 Ky. LEXIS 37 ( Ky. 1909 ).

Cited:

Wilson v. Bureau of State Police, 669 S.W.2d 18, 1984 Ky. App. LEXIS 490 (Ky. Ct. App. 1984), overruled, Howard v. Transportation Cabinet, 878 S.W.2d 14, 1994 Ky. LEXIS 72 ( Ky. 1994 ); Littrell v. Bosse, 581 S.W.3d 584, 2019 Ky. App. LEXIS 128 (Ky. Ct. App. 2019).

Opinions of Attorney General.

A police judge in a city of the fourth class who knowingly refrains from performing a duty imposed on him by law, or clearly inherent in the nature of his office, is guilty of official misconduct in the second degree. OAG 75-352 .

Where members of a city council have allowed city funds to be spent unconstitutionally, they are subject to prosecution under KRS 522.020 and/or this section, taxpayer’s suits for the recovery of the misused funds, and impeachment under Ky. Const., §§ 66 to 68 and KRS 63.020 to 63.070 . OAG 79-509 .

The failure of a county official to perform an act mandated by statute provides a basis for charges being brought under KRS 61.170 . OAG 88-45 .

Research References and Practice Aids

Cross-References.

Malfeasance, misfeasance and willful neglect of official duties, Ky. Const., § 227.

Malfeasance or neglect of county officers, KRS 61.170 .

Prevention of usurpation of office, KRS 415.030 to 415.080 .

Removal of officers for neglect of duty, KRS 63.090 to 63.180 .

Kentucky Law Journal.

Kentucky Law Survey, Fortune, Criminal Rules, 70 Ky. L.J. 395 (1981-82).

Treatises

Kentucky Instructions To Juries (Criminal) 5th Ed., Offenses Against Public and Judicial Administration, Part 4 Bribery and Related Offenses, §§ 7.46, 7.47A.

522.040. Misuse of confidential information.

  1. A public servant is guilty of misuse of confidential information when, in contemplation of official action by himself or by a governmental unit with which he is associated, or in reliance on information to which he has access in his official capacity and which has not been made public, he:
    1. Accepts or agrees to accept a pecuniary interest in any property, transaction or enterprise which may be affected by such information or official action; or
    2. Speculates or wagers on the basis of such information or official action; or
    3. Aids another to do any of the foregoing.
  2. Misuse of confidential information is a Class D felony.

History. Enact. Acts 1974, ch. 406, § 189, effective January 1, 1975.

Research References and Practice Aids

Cross-References.

Conflicts of interest, KRS 45A.340 , 61.210 to 61.230 .

Malfeasance, misfeasance and willful neglect of official duties, Ky. Const., § 227.

Malfeasance or neglect of county officers, KRS 61.170 .

Removal of officers for neglect of duty, KRS 63.090 to 63.180 .

Treatises

Kentucky Instructions To Juries (Criminal) 5th Ed., Offenses Against Public and Judicial Administration, Part 4 Bribery and Related Offenses, §§ 7.48, 7.49.

522.050. Abuse of public trust.

  1. A public servant who is entrusted with public money or property by reason of holding public office or employment, exercising the functions of a public officer or employee, or participating in performing a governmental function, is guilty of abuse of public trust when:
    1. He or she obtains public money or property subject to a known legal obligation to make specified payment or other disposition, whether from the public money or property or its proceeds; and
    2. He or she intentionally deals with the public money or property as his or her own and fails to make the required payment or disposition.
  2. A public servant is presumed:
    1. To know any legal obligation relative to his or her criminal liability under this section; and
    2. To have dealt with the public money or property as his or her own when:
      1. He or she fails to account upon lawful demand; or
      2. An audit reveals a shortage or falsification of accounts.
  3. Abuse of public trust is:
    1. A Class D felony if the value of the public money or property is less than ten thousand dollars ($10,000);
    2. A Class C felony if the value of the public money or property is ten thousand dollars ($10,000) or more, but less than one hundred thousand dollars ($100,000); and
    3. A Class B felony if the value of the public money or property is one hundred thousand dollars ($100,000) or more.
  4. The judgment of conviction under this section shall recite that the offender is disqualified to hold any public office thereafter.
  5. Conduct serving as the basis for the conviction of a public servant under this section shall not also be used to obtain a conviction of the public servant under KRS 514.070 .

History. Enact. Acts 2003, ch. 76, § 1, effective June 24, 2003.

CHAPTER 523 Perjury and Related Offenses

523.010. Definitions.

The following definitions apply in this chapter unless the context otherwise requires:

  1. “Material false statement” means any false statement, regardless of its admissibility under the rules of evidence which could have affected the outcome of the proceeding. Whether a falsification is material in a given factual situation is a question of law.
  2. “Oath” means an affirmation or other legally authorized manner of attesting to the truth of a statement. A written statement shall be treated as if made under oath when:
    1. The statement was made on or pursuant to a form bearing notice, authorized by law, that false statements made therein are punishable; or
      1. The document recites that the statement was made under oath, and (b) 1. The document recites that the statement was made under oath, and
        1. The declarant was aware of such recitation at the time he made the statement; 2. a. The declarant was aware of such recitation at the time he made the statement;
        2. The declarant intended that the statement be represented as sworn; and
        3. The statement was in fact so represented by its delivery or utterance with the signed jurat of an officer, authorized to administer oaths appended thereto.
  3. “Official proceeding” means a proceeding heard before any legislative, judicial, administrative or other governmental agency or official authorized to hear evidence under oath, including any referee, hearing examiner, commissioner, notary or other person taking testimony or depositions in any such proceedings.
  4. “Required or authorized by law” means the oath is provided for by statute, regulation, court rule, or otherwise by law.
  5. “Statement” means any representation, but includes a representation of opinion, belief or other state of mind only if the representation clearly relates to state of mind apart from or in addition to any facts which are the subject of the representation.
  6. “Public servant” means:
    1. Any public officer or employee of the state or of any political subdivision thereof or of any governmental instrumentality within the state; or
    2. Any person exercising the functions of any such public officer or employee; or
    3. Any person participating as advisor, consultant or otherwise in performing a governmental function, but not including witnesses; or
    4. Any person elected, appointed or designated to become a public servant although not yet occupying that position.

History. Enact. Acts 1974, ch. 406, § 190, effective January 1, 1975.

Legislative Research Commission Note.

(12/12/94). To make its renumbering consistent with standard practice, subsection (2) of this statute has been renumbered under the authority of KRS 7.136(1)(a).

NOTES TO DECISIONS

1.Instructions.

Trial court did not err in giving jury instructions that did not define the term “materiality,” and in not having the jury decide whether defendant’s false representation of defendant’s identity was material, materiality was a question of law for the trial court to decide, not the jury. Holbrooks v. Commonwealth, 85 S.W.3d 563, 2002 Ky. LEXIS 173 ( Ky. 2002 ).

2.Material False Statement.

Charges of first-degree perjury against a Commonwealth attorney and his part-time secretary were properly dismissed because the two (2) witnesses, when testifying in grand jury proceedings as to the amount of hours the secretary worked per month in theft by unlawful taking or disposition and complicity by taking proceedings, did not make “material false statements.” Had the two witnesses testified falsely as to number of hours the secretary worked, such testimony would not affect the outcome of the proceedings because no published guidelines defined the minimum number of hours required for her position. Making such false statements could constitute the misdemeanor of false swearing, which does not require proof that the false statement was material to the case. Commonwealth v. Stallard, 958 S.W.2d 21, 1997 Ky. LEXIS 155 ( Ky. 1997 ).

Defendant’s misrepresentation on affidavit of indigency for purposes of receiving appointed counsel that defendant was somebody else was a “material false statement” which supported defendant’s conviction for second-degree perjury as it was a false statement that could have affected the outcome of the proceeding for which defendant was arrested. Holbrooks v. Commonwealth, 85 S.W.3d 563, 2002 Ky. LEXIS 173 ( Ky. 2002 ).

3.Civil Actions.

Claims of wrongful discharge in violation of the public policy against perjury (embodied in KRS ch. 523) were not preempted by civil rights claims arising from the same facts and asserting retaliation for testifying in support of a civil rights complaint by a co-worker. Hill v. Ky. Lottery Corp., 2010 Ky. LEXIS 82 (Ky. Apr. 22, 2010), sub. op., 327 S.W.3d 412, 2010 Ky. LEXIS 317 ( Ky. 2010 ), modified, 2010 Ky. LEXIS 318 (Ky. Dec. 16, 2010).

Claims for wrongful discharge were viable, despite the fact that former employees also asserted a civil rights claim for retaliatory discharge; because the statutes that declared the unlawful act of perjury under KRS ch. 523 were not the same statutes that declared and remedied civil rights violations under KRS ch. 344, the claims under KRS ch. 344 did not preempt the common law claims for wrongful discharge based on the public policy against perjured testimony. Hill v. Ky. Lottery Corp., 327 S.W.3d 412, 2010 Ky. LEXIS 317 ( Ky. 2010 ).

Research References and Practice Aids

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public and Judicial Administration, Part 1 Definitions, §§ 7.06A, 7.11, 7.12.

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public and Judicial Administration, Part 5 Perjury and Related Offenses, §§ 7.65, 7.68 — 7.70.

523.020. Perjury in the first degree.

  1. A person is guilty of perjury in the first degree when he or she makes a material false statement, which he or she does not believe:
    1. In any official proceeding under an oath required or authorized by law;
    2. In a subscribed written instrument for which an oath is required or authorized by law, with the intent to mislead a public servant in the performance of his or her official functions when such person is subscribing a warrant accusing his or her spouse of an offense under KRS Chapter 510; or
    3. In an application for a warrant under KRS 455.180 .
  2. Perjury in the first degree is a Class D felony.

History. Enact. Acts 1974, ch. 406, § 191, effective January 1, 1975; 1986, ch. 486, § 2, effective July 15, 1986; 2021 ch. 202, § 4, effective June 29, 2021.

NOTES TO DECISIONS

1.Contempt Proceedings.

Contempt proceedings do not lie for perjury except where the truth of the facts or the falsity of the evidence is judicially known. (Decided under prior law) Wilder v. Sampson, 279 Ky. 103 , 129 S.W.2d 1022, 1939 Ky. LEXIS 235 ( Ky. 1939 ).

2.Defenses.

False swearing in a trial before a United States commissioner cannot be punished in the state courts. (Decided under prior law) Commonwealth v. Kitchen, 141 Ky. 655 , 133 S.W. 586, 1911 Ky. LEXIS 70 ( Ky. 1911 ).

A person cannot be punished for false swearing unless the false oath was taken on a subject on which he could legally be sworn. (Decided under prior law) Mitchell v. Commonwealth, 237 Ky. 849 , 36 S.W.2d 649, 1931 Ky. LEXIS 704 ( Ky. 1931 ).

It was error not to give concrete instructions that the defendant could be acquitted if the jury believed the defendant’s assertion that at the time he made the statements to the grand jury, he was unaware they were false. (Decided under prior law) Morgan v. Commonwealth, 242 Ky. 116 , 45 S.W.2d 850, 1932 Ky. LEXIS 227 ( Ky. 1932 ).

One did not violate law that provided penalty for false swearing by voluntarily and gratuitously swearing on a subject concerning which an oath was not authorized, permitted or required. (Decided under prior law) Commonwealth v. Strunk, 260 Ky. 35 , 83 S.W.2d 861, 1935 Ky. LEXIS 408 ( Ky. 1935 ).

Where there is no statutory requirement that an application for a marriage license must be given under oath and the clerk had no right to require an oath, the defendant could not be convicted for giving false information in the application. (Decided under prior law) Whitaker v. Commonwealth, 367 S.W.2d 831, 1963 Ky. LEXIS 28 ( Ky. 1963 ).

The defendant’s retraction, made after her false statement had been exposed, was too late to qualify as a defense in the case-in-chief. Price v. Commonwealth, 734 S.W.2d 491, 1987 Ky. App. LEXIS 522 (Ky. Ct. App. 1987).

3.Elements.

Under law that provided penalty for false swearing a person might have been convicted of false swearing even though he was compelled to testify over his objections that his testimony might have incriminated him. (Decided under prior law) Commonwealth v. Turner, 98 Ky. 526 , 33 S.W. 88, 17 Ky. L. Rptr. 925 , 1895 Ky. LEXIS 64 ( Ky. 1895 ).

A person may not be convicted for giving testimony which was literally true and where there was no evidence that the defendant believed that his statement was false. (Decided under prior law) Weiner v. Commonwealth, 221 Ky. 455 , 298 S.W. 1075, 1927 Ky. LEXIS 735 ( Ky. 1927 ).

A literally true statement cannot be the basis for a conviction for false swearing. (Decided under prior law) Pancake v. Commonwealth, 237 Ky. 1 , 34 S.W.2d 735, 1931 Ky. LEXIS 530 ( Ky. 1 931 ).

Under law that provided penalty for false swearing the oath must be expressly authorized or required by law. (Decided under prior law) Whitaker v. Commonwealth, 367 S.W.2d 831, 1963 Ky. LEXIS 28 ( Ky. 1963 ).

To prove false swearing, it must be shown not only that the statements made were false but also that the defendant knew they were false at the time he made them. (Decided under prior law) Booth v. Commonwealth, 419 S.W.2d 739, 1967 Ky. LEXIS 182 ( Ky. 1967 ).

It is not necessary to prove whether one or both of two inconsistent statements was false. It is sufficient to show that one of the statements, because of the inconsistency, is bound to be false. If both of the inconsistent statements, if false, would constitute first degree perjury, a verdict of guilty of first degree perjury is justified. Commonwealth v. Thurman, 691 S.W.2d 213, 1985 Ky. LEXIS 239 ( Ky. 1985 ).

4.Evidence.

Where the statement which was the basis for an accusation of false swearing was a matter of construction or deduction from given facts, the fact that it was erroneous, or was not a correct construction or a logical deduction from all the facts, did not constitute false swearing. (Decided under prior law) Commonwealth v. Bray, 123 Ky. 336 , 96 S.W. 522, 29 Ky. L. Rptr. 757 , 1906 Ky. LEXIS 158 ( Ky. 1906 ).

Falsity of evidence of a person charged with false swearing may be shown by evidence of living witnesses, or by documentary or written evidence, or by facts that clearly and convincingly establish falsity of statements made by accused. (Decided under prior law) Blakey v. Commonwealth, 183 Ky. 493 , 209 S.W. 516, 1919 Ky. LEXIS 512 ( Ky. 1919 ).

Where persons who were present at a trial testified that they had heard the defendant make false statements in the trial, it was not error to fail to introduce the official reporter who had recorded the evidence of the trial. (Decided under prior law) Goins v. Commonwealth, 250 Ky. 636 , 63 S.W.2d 794, 1933 Ky. LEXIS 751 ( Ky. 1933 ).

Where the charge was that the defendant in adultery trial had falsely testified that he had never been alone with woman “on the side road,” and several witnesses testified that they had seen him alone with woman on one side road but only one witness testified to seeing him alone with woman on another side road, and it was not clear which road was referred to in defendant’s testimony, evidence was insufficient to support conviction. (Decided under prior law) Sams v. Commonwealth, 294 Ky. 436 , 172 S.W.2d 44, 1943 Ky. LEXIS 471 ( Ky. 1943 ).

Where a defendant, while testifying as a witness for himself during his trial in police court on a charge of possessing whiskey in local option territory, stated that the arresting officers, at the time they arrested him, searched his premises and robbed him of money and jewelry, such allegedly false statement was not competent testimony in that trial but was sufficiently relevant to sustain a conviction of the defendant for false swearing. (Decided under prior law) Barkley v. Commonwealth, 264 S.W.2d 297, 1953 Ky. LEXIS 1248 (Ky. Ct. App. 1953).

A conviction may not be sustained where the evidence was as consistent with a case of mistaken identification as it is with a statement known to be false at the time it was made. (Decided under prior law) Booth v. Commonwealth, 419 S.W.2d 739, 1967 Ky. LEXIS 182 ( Ky. 1967 ).

To convict the defendant of false swearing where the defendant had testified that he was not present at the scene of a collision between two motor vehicles while two witnesses testified that he was present, and where the court reporter who took the evidence at the previous trial testified that the defendant had been sworn, it is not necessary to prove that the defendant knew that testimony was false when he gave it because the knowledge of the falsity of the evidence proved itself. (Decided under prior law) Murray v. Commonwealth, 473 S.W.2d 150, 1971 Ky. LEXIS 157 ( Ky. 1971 ).

Where defendant was accused of false swearing for testifying that he had purchased whiskey in question from a licensed dealer and not from a bootlegger and the only contrary testimony was that of the licensed dealer who was the only witness indicating that defendant had made a false statement and was not supported by the necessary corroborating testimony or circumstances, conviction could not be sustained. (Decided under prior law) Walden v. Commonwealth, 481 S.W.2d 89, 1972 Ky. LEXIS 230 ( Ky. 1972 ).

Where the evidence showed that the defendant believed she was lying when she recanted her previous testimony, she was not denied due process by the trial court’s refusal to admit expert testimony regarding the mental condition of victims of incestuous rape. Price v. Commonwealth, 734 S.W.2d 491, 1987 Ky. App. LEXIS 522 (Ky. Ct. App. 1987).

5.False Swearing.

False swearing is a statutory offense entirely distinct from the common-law crime of perjury, and is not included in the latter. (Decided under prior law) Commonwealth v. Scowden, 92 Ky. 120 , 17 S.W. 205, 13 Ky. L. Rptr. 404 , 1891 Ky. LEXIS 120 ( Ky. 1891 ).

In order to convict a defendant of false swearing, it is only necessary to show that the false statement was willfully made with knowledge of its falsity on a subject on which the person could legally be sworn and that the oath was administered by a person authorized to administer it. (Decided under prior law) Stamper v. Commonwealth, 100 S.W. 286, 30 Ky. L. Rptr. 992 (1907); Commonwealth v. Bradshaw, 210 Ky. 405 , 276 S.W. 124, 1925 Ky. LEXIS 689 ( Ky. 1925 ).

The crime of false swearing is committed where one willfully and knowingly swears falsely on any subject on which he can be legally sworn, or on which he is required to be sworn, by one authorized to administer an oath, and the materiality of the evidence is not essential. (Decided under prior law) Commonwealth v. Ransdall, 153 Ky. 334 , 155 S.W. 1117, 1913 Ky. LEXIS 848 ( Ky. 1913 ).

The former charge of false swearing was distinct from the common-law offense of perjury in that with false swearing the oath need not be given in a matter judicially pending or in a matter material to any point in question. (Decided under prior law) Commonwealth v. Hinkle, 177 Ky. 22 , 197 S.W. 455, 1917 Ky. LEXIS 533 ( Ky. 1917 ), cert. denied, 245 U.S. 673, 38 S. Ct. 222, 62 L. Ed. 541, 1918 U.S. LEXIS 2098 (U.S. 1918).

In order to convict a person for falsely swearing that he did not draw an ax on another person, it must be shown that the handling of the ax constituted an assault. (Decided under prior law) Yarberry v. Commonwealth, 209 Ky. 15 , 272 S.W. 24, 1925 Ky. LEXIS 414 ( Ky. 1925 ).

To sustain conviction in a prosecution for false swearing, the jury must find that the testimony was false and find beyond a reasonable doubt that the witness knew that it was false when given. (Decided under prior law) Sams v. Commonwealth, 280 Ky. 378 , 133 S.W.2d 539, 1939 Ky. LEXIS 138 ( Ky. 1939 ).

False swearing or perjury is an offense which can only by committed by an individual in his individual capacity and a joint indictment for false swearing is unauthorized. (Decided under prior law) Jewell v. Commonwealth, 296 Ky. 718 , 178 S.W.2d 415, 1944 Ky. LEXIS 621 ( Ky. 1944 ).

One cannot be convicted of false swearing unless his statements had reference to a matter which was judicially pending, under investigation, or were given under circumstances where a person can legally be sworn or is required to be sworn. (Decided under prior law) Whitaker v. Commonwealth, 367 S.W.2d 831, 1963 Ky. LEXIS 28 ( Ky. 1963 ).

Even though a witness’s statement was voluntary, where it was a proper part of a police investigation, it could be sworn to and serve as the basis of a charge of false swearing. (Decided under prior law) Holland v. Commonwealth, 479 S.W.2d 903, 1972 Ky. LEXIS 330 ( Ky. 1972 ).

6.Indictment.

The state could choose to indict for false swearing even though the facts alleged constituted common-law perjury. (Decided under prior law) Commonwealth v. Maynard, 91 Ky. 131 , 15 S.W. 52, 12 Ky. L. Rptr. 710 , 1891 Ky. LEXIS 9 ( Ky. 1891 ).

Where a person was indicted for false swearing in a prosecution for gaming, the indictment was not defective for failing to state when the alleged game was played, because the witness had not been required to give any testimony as to the time of the alleged game. (Decided under prior law) Goslin v. Commonwealth, 121 Ky. 698 , 90 S.W. 223, 28 Ky. L. Rptr. 683 , 1905 Ky. LEXIS 253 ( Ky. 1905 ).

Where an indictment alleged that the defendant had made false statements before a named notary, the state had the burden of proving that the notary before whom the oath was taken was the one named. (Decided under prior law) Commonwealth v. Schwieters, 29 Ky. L. Rptr. 417 (1906).

Where an indictment sufficiently and properly described the offense of false swearing, it was not defective because other words were used in addition to those necessary, such additional words being mere surplusage. (Decided under prior law) Ferrell v. Commonwealth, 127 S.W. 162 ( Ky. 1910 ).

Where an indictment alleges that the false swearing was done in a pending action, it is necessary to prove the pendency of the action. (Decided under prior law) Brittian v. Commonwealth, 200 Ky. 461 , 255 S.W. 59, 1923 Ky. LEXIS 102 ( Ky. 1923 ).

An indictment which charged false swearing during the investigation of a fire must indicate what was done during the investigation and by whose authority it was conducted. (Decided under prior law) Mitchell v. Commonwealth, 237 Ky. 849 , 36 S.W.2d 649, 1931 Ky. LEXIS 704 ( Ky. 1931 ).

An indictment which charged that the accused falsely testified that he was not gambling and drinking with others on the night the deceased met his death was not insufficient because it failed to describe in more detail the gambling games that allegedly took place. (Decided under prior law) Neal v. Commonwealth, 246 Ky. 59 , 54 S.W.2d 599, 1932 Ky. LEXIS 702 ( Ky. 1932 ).

An indictment which stated that the defendant knowingly and falsely swore in a trial of election cases that a candidate, in the November 1937 election in a certain town, gave him a $50 bribe on Sunday, October 31, 1937, at 11 a.m., was sufficient against a demurrer. (Decided under prior law) Helton v. Commonwealth, 274 Ky. 697 , 120 S.W.2d 245, 1938 Ky. LEXIS 334 ( Ky. 1938 ).

Indictment alleging that accused, when on trial under an indictment after first being duly sworn by the circuit judge in a matter judicially pending, when testifying in his own behalf, falsely, willfully and knowingly swore and gave in evidence that he did not take liquor to a certain place, knowing when he testified that the statements were false, was sufficient. (Decided under prior law) Capps v. Commonwealth, 294 Ky. 743 , 172 S.W.2d 610, 1943 Ky. LEXIS 532 ( Ky. 1943 ).

7.— Defective.

An indictment which charged that the defendant made a false affidavit to the effect that he would leave the judicial district did not charge any offense under law that provided penalty for false swearing. (Decided under prior law) Commonwealth v. Hinkle, 177 Ky. 22 , 197 S.W. 455, 1917 Ky. LEXIS 533 ( Ky. 1917 ), cert. denied, 245 U.S. 673, 38 S. Ct. 222, 62 L. Ed. 541, 1918 U.S. LEXIS 2098 (U.S. 1918).

An indictment which did not allege that the grand jury before which the defendant appeared was duly sworn, that the evidence given related to a matter being investigated by the grand jury, or that the testimony was on a subject in which the defendant might legally be sworn was defective. (Decided under prior law) Allison v. Commonwealth, 227 Ky. 557 , 13 S.W.2d 769, 1929 Ky. LEXIS 926 ( Ky. 1929 ).

Where one is charged with testifying falsely in a judicial action, the indictment is fatally defective if it fails to state that the testimony was given in a matter judicially pending. (Decided under prior law) Daniels v. Commonwealth, 300 Ky. 541 , 189 S.W.2d 849, 1945 Ky. LEXIS 598 ( Ky. 1945 ).

8.— Allegation of Intent.

An indictment must allege not only that the statements given were false but also that the defendant knew that the statements were false. (Decided under prior law) Adams v. Commonwealth, 123 Ky. 258 , 94 S.W. 664, 29 Ky. L. Rptr. 683 , 1906 Ky. LEXIS 146 ( Ky. 1906 ); Tudor v. Commonwealth, 134 Ky. 186 , 119 S.W. 816, 1909 Ky. LEXIS 372 ( Ky. 1909 ).

An indictment charging that the defendant “did knowingly, willfully, corruptly, falsely” testify to certain facts was not sufficient because it failed to charge that the defendant knew that his testimony was false at the time he gave it. (Decided under prior law) Pipes v. Commonwealth, 148 Ky. 174 , 146 S.W. 38, 1912 Ky. LEXIS 399 ( Ky. 1912 ).

An indictment which alleged that the defendants knew that the statements they gave were false at the time they gave them was sufficient even though the word “knowingly” was not used. (Decided under prior law) Fisher v. Commonwealth, 152 Ky. 411 , 153 S.W. 417, 1913 Ky. LEXIS 645 ( Ky. 1913 ); Wheeler v. Commonwealth, 248 Ky. 728 , 59 S.W.2d 992, 1933 Ky. LEXIS 310 ( Ky. 1933 ).

It was not necessary that an indictment state that the accused had not done the thing he had testified he had done where it alleged that the defendant knew when he made the statements alleged that they were false. (Decided under prior law) Blakey v. Commonwealth, 183 Ky. 493 , 209 S.W. 516, 1919 Ky. LEXIS 512 ( Ky. 1919 ).

An indictment must allege not only that the testimony or false oath of the accused was false but also that at the time of giving it he knew its falsity, and general language in description of the offense that false testimony was “willfully, feloniously and knowingly” given by the accused is not sufficient. (Decided under prior law) Williams v. Commonwealth, 287 Ky. 659 , 154 S.W.2d 728, 1941 Ky. LEXIS 602 ( Ky. 1941 ).

An indictment which charged the defendant with willfully and knowingly giving false testimony was insufficient because it failed to allege that the defendant was aware at the time that his statements were incorrect. (Decided under prior law) Greenwell v. Commonwealth, 316 S.W.2d 353, 1958 Ky. LEXIS 41 ( Ky. 1958 ).

9.— Negation of Statements.

An indictment which merely alleged that the defendant “well knew” that his statements were false but did not specifically negative the truth of the alleged statements was insufficient. (Decided under prior law) Commonwealth v. Bennett, 207 Ky. 300 , 269 S.W. 321, 1925 Ky. LEXIS 80 ( Ky. 1925 ).

An indictment which alleged that the defendant knowingly gave testimony that he knew to be false is sufficient as a specific averment of the falsity of the matter on which the false swearing is predicated. (Decided under prior law) Kinniard v. Commonwealth, 233 Ky. 347 , 25 S.W.2d 744, 1930 Ky. LEXIS 556 ( Ky. 1930 ).

Where an indictment as to false swearing did not expressly contradict the truth of the matter falsely stated, a demurrer to the indictment should have been sustained. (Decided under prior law) Thompson v. Commonwealth, 239 Ky. 627 , 40 S.W.2d 287, 1931 Ky. LEXIS 839 ( Ky. 1931 ).

The indictment must specifically negative the matter allegedly falsely sworn to unless it avers the defendant gave testimony known to be false. (Decided under prior law) Wheeler v. Commonwealth, 248 Ky. 728 , 59 S.W.2d 992, 1933 Ky. LEXIS 310 ( Ky. 1933 ).

An indictment which charged the defendant with knowingly and falsely making a willful, corrupt and false statement was sufficient and it was not necessary to negative the statement allegedly made by the defendant by special averment. (Decided under prior law) Goins v. Commonwealth, 250 Ky. 636 , 63 S.W.2d 794, 1933 Ky. LEXIS 751 ( Ky. 1933 ).

10.— Grand Jury Testimony.

An indictment against one for false swearing before a grand jury must set out the “matter” being investigated by the grand jury, when the alleged offense was committed, so definitely as to apprise defendant of the nature of the charge against him and to enable the court to determine whether the grand jury had the authority to investigate such matter. (Decided under prior law) Commonwealth v. Taylor, 96 Ky. 394 , 29 S.W. 138, 16 Ky. L. Rptr. 482 , 1895 Ky. LEXIS 94 ( Ky. 1895 ).

An indictment charging the defendant with falsely swearing before a grand jury that he did not drive a certain surrey on a certain night is defective as it does not show that the statements were in any way connected with an offense which the grand jury had a right to investigate. (Decided under prior law) Ford v. Commonwealth, 29 S.W. 446, 16 Ky. L. Rptr. 528 (1895).

An indictment charging false swearing before a grand jury need not allege the specific subject matter under investigation by the grand jury and it was sufficient to charge that the matter pertaining to which the false testimony was given was related to a subject that the grand jury had jurisdiction to investigate. (Decided under prior law) Blakey v. Commonwealth, 183 Ky. 493 , 209 S.W. 516, 1919 Ky. LEXIS 512 ( Ky. 1919 ); Childress v. Commonwealth, 197 Ky. 641 , 247 S.W. 705, 1923 Ky. LEXIS 667 ( Ky. 1923 ).

An indictment for false swearing before a grand jury must state the matter judicially pending or the specific public offense being investigated by the grand jury in regard to which the defendant was alleged to have falsely testified. (Decided under prior law) Childress v. Commonwealth, 197 Ky. 641 , 247 S.W. 705, 1923 Ky. LEXIS 667 ( Ky. 1923 ); Sizemore v. Commonwealth, 210 Ky. 401 , 276 S.W. 123, 1925 Ky. LEXIS 687 ( Ky. 1925 ); Ketcham v. Commonwealth, 210 Ky. 469 , 276 S.W. 139, 1925 Ky. LEXIS 709 ( Ky. 1925 ); Sanlin v. Commonwealth, 212 Ky. 394 , 279 S.W. 648, 1926 Ky. LEXIS 154 ( Ky. 1926 ). But see Blakey v. Commonwealth, 183 Ky. 493 , 209 S.W. 516, 1919 Ky. LEXIS 512 ( Ky. 1919 ).

An indictment for false swearing before a grand jury need not show affirmatively that the grand jury was properly sworn and a foreman appointed, since regularity in complying with mandatory statutes is presumed. (Decided under prior law) Young v. Commonwealth, 275 Ky. 98 , 120 S.W.2d 772, 1938 Ky. LEXIS 372 ( Ky. 1938 ).

11.— Variance.

A variance between the allegation of the indictment and the proof with respect to the date of the trial at which the defendant was alleged to have given false testimony was not material. (Decided under prior law) Cope v. Commonwealth, 47 S.W. 436, 20 Ky. L. Rptr. 721 (1898).

As false swearing is a form of perjury, an indictment which named false swearing as the offense in the accusatory section and alleged elements of perjury in the descriptive part of the indictment was not defective as containing a fatal variance. (Decided under prior law) Weiner v. Commonwealth, 221 Ky. 455 , 298 S.W. 1075, 1927 Ky. LEXIS 735 ( Ky. 1927 ).

12.Instructions.

An instruction which required the jury to find that the accused was asked whether he and others were drunk and gambling and that he answered falsely was sufficient to encompass the accused’s contention that he was never asked such a question. (Decided under prior law) Neal v. Commonwealth, 246 Ky. 59 , 54 S.W.2d 599, 1932 Ky. LEXIS 702 ( Ky. 1932 ).

The issue of whether or not the accused was sworn by the judge presiding at the trial in which the accused made the allegedly false statements was for the jury; therefore, an instruction that the accused had been sworn by the judge was not erroneous where the jury was required to believe beyond a reasonable doubt that the accused was duly sworn. (Decided under prior law) Goins v. Commonwealth, 250 Ky. 636 , 63 S.W.2d 794, 1933 Ky. LEXIS 751 ( Ky. 1933 ).

An instruction which allowed the jury to convict the defendant if it believed that the defendant, having been sworn as a witness in a murder trial, knowingly and falsely testified that he had witnessed the homicide and that the person charged with the murder had not witnessed or committed the homicide was a proper instruction and not objectionable because it did not conclude with a requirement that the jury find that the testimony was knowingly false. (Decided under prior law) Taylor v. Commonwealth, 256 Ky. 667 , 76 S.W.2d 923, 1934 Ky. LEXIS 471 ( Ky. 1934 ).

Where defendant is charged with common-law perjury for which no specific statutory punishment is provided, he could be punished only in accordance with law providing a general penalty for common-law offense for which penalty is not otherwise provided by law, and it is prejudicial error for court to authorize by its instructions and for jury to impose punishment prescribed for statutory offense of false swearing. (Decided under prior law) Gibson v. Commonwealth, 328 S.W.2d 162, 1959 Ky. LEXIS 100 ( Ky. 1959 ).

13.Intent.

No offense was committed unless the false testimony was willfully and knowingly given. (Decided under prior law) Commonwealth v. Davis, 94 Ky. 612 , 23 S.W. 218, 15 Ky. L. Rptr. 262 , 1893 Ky. LEXIS 90 ( Ky. 1893 ).

In a prosecution for false swearing the jury must find not only that the testimony was given but also that beyond a reasonable doubt the testimony was corruptly false. (Decided under prior law) Goslin v. Commonwealth, 121 Ky. 698 , 90 S.W. 223, 28 Ky. L. Rptr. 683 , 1905 Ky. LEXIS 253 ( Ky. 1905 ); Botner v. Commonwealth, 219 Ky. 272 , 292 S.W. 805, 1927 Ky. LEXIS 319 ( Ky. 1927 ).

The crime of perjury or false swearing involves a willful, corrupt misstatement of a fact in that the witness willfully testifies to a fact as true which he knows to be untrue, or so testifies to a fact as being within his knowledge when he knows that it is not, and does not consist in swearing rashly or inconsiderately according to belief. (Decided under prior law) Johnson v. Featherstone, 141 Ky. 793 , 133 S.W. 753, 1911 Ky. LEXIS 72 ( Ky. 1911 ); Conn v. Commonwealth, 234 Ky. 153 , 27 S.W.2d 702, 1930 Ky. LEXIS 140 ( Ky. 1930 ).

In order to constitute perjury or false swearing, the matter sworn to must be either false in fact or, if true, the defendant must believe it to be false. (Decided under prior law) Weiner v. Commonwealth, 221 Ky. 455 , 298 S.W. 1075, 1927 Ky. LEXIS 735 ( Ky. 1927 ).

The corrupt intention of the witness is the gist of the offense of false swearing. (Decided under prior law) Wheeler v. Commonwealth, 248 Ky. 728 , 59 S.W.2d 992, 1933 Ky. LEXIS 310 ( Ky. 1933 ); Greenwell v. Commonwealth, 316 S.W.2d 353, 1958 Ky. LEXIS 41 ( Ky. 1958 ).

14.Materiality.

It is not necessary that testimony, to be material, must relate to the principal issue in a case. It is sufficiently material if it has the potential to influence a tribunal or a jury. Commonwealth v. Thurman, 691 S.W.2d 213, 1985 Ky. LEXIS 239 ( Ky. 1985 ).

Perjury requires that the false statement be material, false swearing does not. Commonwealth v. Thurman, 691 S.W.2d 213, 1985 Ky. LEXIS 239 ( Ky. 1985 ).

Charges of first-degree perjury against a Commonwealth attorney and his part-time secretary were properly dismissed because the two witnesses, when testifying in grand jury proceedings as to the amount of hours the secretary worked per month in theft by unlawful taking or disposition and complicity by taking proceedings, did not make “material false statements.” Had the two witnesses testified falsely as to number of hours the secretary worked, such testimony would not affect the outcome of the proceedings because no published guidelines defined the minimum number of hours required for her position. Making such false statements could constitute the misdemeanor of false swearing, which does not require proof that the false statement was material to the case. Commonwealth v. Stallard, 958 S.W.2d 21, 1997 Ky. LEXIS 155 ( Ky. 1997 ).

15.Purpose.

The manifest purpose was to punish the practice of willfully and knowingly making false statements in any and all matters upon which the witness might be sworn or on which he was required to be sworn. (Decided under prior law) Strader v. Commonwealth, 240 Ky. 559 , 42 S.W.2d 736, 1931 Ky. LEXIS 446 ( Ky. 1931 ).

Research References and Practice Aids

Kentucky Law Journal.

West, Criminal Law, 74 Ky. L.J. 403 (1985-86).

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public and Judicial Administration, Part 5 Perjury and Related Offenses, §§ 7.65, 7.67.

523.030. Perjury in the second degree.

  1. A person is guilty of perjury in the second degree when he makes a material false statement which he does not believe in a subscribed written instrument for which an oath is required or authorized by law with the intent to mislead a public servant in the performance of his official functions.
  2. Perjury in the second degree is a Class A misdemeanor.

History. Enact. Acts 1974, ch. 406, § 192, effective January 1, 1975.

NOTES TO DECISIONS

1.Evidence.

Allegedly false statements made in an affidavit supporting a motion for a new trial may be the basis for a prosecution for false swearing. (Decided under prior law) Neal v. Commonwealth, 217 Ky. 334 , 289 S.W. 242, 1926 Ky. LEXIS 58 ( Ky. 1926 ).

A defendant who signed an affidavit that he was ill on the day of registration is guilty of false swearing where the evidence showed that he was ill for only part of the day. (Decided under prior law) Jennings v. Commonwealth, 222 Ky. 95 , 300 S.W. 353, 1927 Ky. LEXIS 880 ( Ky. 1927 ).

2.Indictment.

Indictment that charged making of false affidavit stating that defendant would leave judicial district, made to obtain release from custody on a charge of being a common nuisance, did not charge the offense of false swearing. (Decided under prior law) Commonwealth v. Hinkle, 177 Ky. 22 , 197 S.W. 455, 1917 Ky. LEXIS 533 ( Ky. 1917 ), cert. denied, 245 U.S. 673, 38 S. Ct. 222, 62 L. Ed. 541, 1918 U.S. LEXIS 2098 (U.S. 1918).

Where an indictment charged false swearing by making a false affidavit at an election, it was demurrable because it failed to state under what auspices the election was held, or for what reason, or whether the affidavit was made in any matter which is or may be judicially pending or which is being investigated by a grand jury, or on any subject on which a person can legally be sworn or on which he was required to be sworn. (Decided under prior law) Commonwealth v. Pierce, 269 S.W.2d 196, 1954 Ky. LEXIS 954 ( Ky. 1954 ).

Research References and Practice Aids

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public and Judicial Administration, Part 5 Perjury and Related Offenses, § 7.68.

523.040. False swearing.

  1. A person is guilty of false swearing when he makes a false statement which he does not believe under oath required or authorized by law.
  2. False swearing is a Class B misdemeanor.

History. Enact. Acts 1974, ch. 406, § 193, effective January 1, 1975.

NOTES TO DECISIONS

1.Materiality.

To convict a person of false swearing, it is not essential that the alleged false testimony should have been material. (Decided under prior law) Milstead v. Commonwealth, 51 S.W. 451, 21 Ky. L. Rptr. 358 (1899); Sullivan v. Commonwealth, 158 Ky. 536 , 165 S.W. 696, 1914 Ky. LEXIS 664 ( Ky. 1914 ).

In a prosecution for false swearing, the matter inquired about need not have been material to the issue then being tried, as is necessary in a prosecution for perjury, and it is sufficient if the court had jurisdiction of the case, administered the oath to the witness, who was required to and did answer the question, and that his answer was corruptly false. (Decided under prior law) Goslin v. Commonwealth, 121 Ky. 698 , 90 S.W. 223, 28 Ky. L. Rptr. 683 , 1905 Ky. LEXIS 253 ( Ky. 1905 ).

In order to convict for false swearing, it is not necessary that the false testimony be material but only that it be relevant. (Decided under prior law) Partin v. Commonwealth, 154 Ky. 701 , 159 S.W. 542, 1913 Ky. LEXIS 147 ( Ky. 1913 ).

Charges of first-degree perjury against a Commonwealth attorney and his part-time secretary were properly dismissed because the two witnesses, when testifying in grand jury proceedings as to the amount of hours the secretary worked per month in theft by unlawful taking or disposition and complicity by taking proceedings, did not make “material false statements”. Had the two witnesses testified falsely as to number of hours the secretary worked, such testimony would not affect the outcome of the proceedings because no published guidelines defined the minimum number of hours required for her position. Making such false statements could constitute the misdemeanor of false swearing, which does not require proof that the false statement was material to the case. Commonwealth v. Stallard, 958 S.W.2d 21, 1997 Ky. LEXIS 155 ( Ky. 1997 ).

Research References and Practice Aids

Kentucky Law Journal.

West, Criminal Law, 74 Ky. L.J. 403 (1985-86).

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public and Judicial Administration, Part 5 Perjury and Related Offenses, § 7.69.

Petrilli, Kentucky Family Law, Marriage License, § 5.3.

523.050. Inconsistent statements.

  1. When a person has made inconsistent statements under oath, both having been made within the period of the statute of limitations, the prosecution may proceed by setting forth the inconsistent statements in a single charge alleging in the alternative that one or the other was false and not believed by the defendant. In such case it shall not be necessary for the prosecution to prove which statement was false but only that one or the other was false and not believed by the defendant to be true.
  2. The highest offense of which a person may be convicted in such an instance shall be determined by hypothetically assuming each statement to be false. If perjury of different degrees would be established by the making of the two (2) statements, the person may only be convicted of the lesser degree. If perjury or false swearing would be established by the making of the two (2) statements, the person may only be convicted of false swearing.

History. Enact. Acts 1974, ch. 406, § 194, effective January 1, 1975.

NOTES TO DECISIONS

1.Elements.

A conviction for perjury or false swearing cannot be sustained by the mere proof that contradictory sworn statements were made by defendant. The Commonwealth must prove which of the two statements is false and must prove such falsity by other evidence than the contradictory statement. (Decided under prior law) Commonwealth v. Sesco, 279 Ky. 791 , 132 S.W.2d 314, 1931 Ky. LEXIS 876 ( Ky. 1931 ).

Where accused testified before the grand jury that her brother-in-law had sexual intercourse with her and, at the time she was not living in his home but at the trial of her brother-in-law, she denied that he had intercourse with her, the court held that these circumstances, tending to show that defendant’s testimony before the petit jury was false, were sufficient to go to the jury in prosecution of defendant for false swearing. (Decided under prior law) Commonwealth v. Sesco, 279 Ky. 791 , 132 S.W.2d 314, 1931 Ky. LEXIS 876 ( Ky. 1931 ).

Where the Commonwealth produced two contradictory sworn statements of the defendant but did not prove which was false, the conviction had to be reversed. (Decided under prior law) Holland v. Commonwealth, 479 S.W.2d 903, 1972 Ky. LEXIS 330 ( Ky. 1972 ).

The fact that three years had elapsed between the defendant’s two contradictory statements was a matter of defense. (Decided under prior law) Holland v. Commonwealth, 479 S.W.2d 903, 1972 Ky. LEXIS 330 ( Ky. 1972 ).

Under this section, it is not necessary to prove whether one or both of two inconsistent statements was false. It is sufficient to show that one of the statements, because of the inconsistency, is bound to be false. If both of the inconsistent statements, if false, would constitute first degree perjury, a verdict of guilty of first degree perjury is justified. Commonwealth v. Thurman, 691 S.W.2d 213, 1985 Ky. LEXIS 239 ( Ky. 1985 ).

Research References and Practice Aids

Kentucky Law Journal.

West, Criminal Law, 74 Ky. L.J. 403 (1985-86).

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public and Judicial Administration, Part 5 Perjury and Related Offenses, §§ 7.66, 7.72.

523.060. Corroboration.

In any prosecution for perjury or false swearing, except prosecution based upon inconsistent statements pursuant to KRS 523.050 , falsity of a statement may not be established solely through contradiction by the testimony of a single witness.

History. Enact. Acts 1974, ch. 406, § 195, effective January 1, 1975.

NOTES TO DECISIONS

1.Evidence.

A charge of perjury or false swearing must be supported by the evidence of two witnesses, or the evidence of one witness supported by strongly corroborating evidence, and such support may be furnished by record, by writing, or by facts and circumstances testified to by one other than the accusing witness tending strongly to corroborate his statement. (Decided under prior law) Day v. Commonwealth, 195 Ky. 790 , 243 S.W. 1051, 1922 Ky. LEXIS 427 ( Ky. 1922 ).

To convict one of false swearing or perjury, every fact essential to establish guilt must be proved beyond a reasonable doubt by testimony of at least two witnesses, or one witness and strongly corroborating circumstances. (Decided under prior law) Botner v. Commonwealth, 219 Ky. 272 , 292 S.W. 805, 1927 Ky. LEXIS 319 ( Ky. 1927 ); Williams v. Commonwealth, 113 Ky. 652 , 68 S.W. 871, 24 Ky. L. Rptr. 465 , 1902 Ky. LEXIS 95 ( Ky. 1902 ); Commonwealth v. Wheeler, 235 Ky. 327 , 31 S.W.2d 377, 1930 Ky. LEXIS 355 ( Ky. 1930 ); Thompson v. Commonwealth, 239 Ky. 627 , 40 S.W.2d 287, 1931 Ky. LEXIS 839 ( Ky. 1931 ); Broughton v. Ridings, 247 Ky. 722 , 57 S.W.2d 672, 1933 Ky. LEXIS 449 ( Ky. 1933 ); Sams v. Commonwealth, 280 Ky. 378 , 133 S.W.2d 539, 1939 Ky. LEXIS 138 ( Ky. 1939 ); Sams v. Commonwealth, 294 Ky. 436 , 172 S.W.2d 44, 1943 Ky. LEXIS 471 ( Ky. 1943 ); Jewell v. Commonwealth, 296 Ky. 718 , 178 S.W.2d 415, 1944 Ky. LEXIS 621 ( Ky. 1944 ); Self v. Commonwealth, 301 Ky. 777 , 193 S.W.2d 419, 1946 Ky. LEXIS 573 ( Ky. 1946 ); Bussell v. Commonwealth, 314 Ky. 278 , 234 S.W.2d 955, 1950 Ky. LEXIS 1075 ( Ky. 1950 ); Whitaker v. Commonwealth, 314 Ky. 303 , 234 S.W.2d 971, 1950 Ky. LEXIS 1086 ( Ky. 1950 ).

2.— Sufficiency.

The testimony of two witnesses that they saw the defendant near the prosecuting witness’s home with a pistol in hand was sufficient to corroborate the prosecuting witness’s testimony that at about the same time the defendant made demonstrations toward him with the pistol. (Decided under prior law) Shepherd v. Commonwealth, 240 Ky. 261 , 42 S.W.2d 311, 1931 Ky. LEXIS 385 ( Ky. 1931 ).

Where the defendant’s own testimony as to the time and place when he appeared on the road with a pistol was the same as that of the prosecuting witness, the defendant’s own testimony constituted corroboration. (Decided under prior law) Shepherd v. Commonwealth, 240 Ky. 261 , 42 S.W.2d 311, 1931 Ky. LEXIS 385 ( Ky. 1931 ).

Testimony of one or two witnesses that accused’s reputation for morality was bad, without attacking his reputation for veracity, was not sufficiently corroborative of testimony of prosecuting witness that accused had sworn falsely in testifying that prosecuting witness had given him money to buy votes to meet the rule that, to convict, accusation must be established by at least two witnesses, or one witness and strongly corroborating circumstances. (Decided under prior law) Williams v. Commonwealth, 287 Ky. 570 , 154 S.W.2d 563, 1941 Ky. LEXIS 592 ( Ky. 1941 ); Sizemore v. Commonwealth, 287 Ky. 631 , 154 S.W.2d 732, 1941 Ky. LEXIS 605 ( Ky. 1941 ).

Where defendant was charged with falsely swearing, in liquor prosecution, that he did not take whiskey to a garage and put it in a drawer in a room, and the only positive testimony was that of boy who saw defendant bring whiskey to garage and place it in drawer, testimony of boy’s mother that she saw defendant at garage on day in question and found whiskey in drawer after boy had told her of defendant’s putting it there was not sufficient corroboration to sustain conviction. (Decided under prior law) Capps v. Commonwealth, 294 Ky. 743 , 172 S.W.2d 610, 1943 Ky. LEXIS 532 ( Ky. 1943 ).

In prosecution for false swearing based upon false statement made by defendant under oath before police judge for purpose of obtaining warrant for arrest of defendant’s wife on disorderly conduct charge, testimony of police judge as to the making of the statement under oath, corroborated by chief of police who was present at the time, was sufficient to establish that the false statement was on a subject on which defendant could legally be sworn, and that it was made before a person authorized by law to administer an oath. The fact that defendant later dismissed the warrant against his wife and admitted he was trying to “put something over” on her was sufficient corroboration of the wife’s testimony as to the falsity of the statement. (Decided under prior law) Self v. Commonwealth, 301 Ky. 777 , 193 S.W.2d 419, 1946 Ky. LEXIS 573 ( Ky. 1946 ).

Testimony of only one witness that the defendant had made the alleged false statement and such testimony was not supported by strong corroborating circumstances was not sufficient evidence to sustain a conviction. (Decided under prior law) Walden v. Commonwealth, 481 S.W.2d 89, 1972 Ky. LEXIS 230 ( Ky. 1972 ).

3.Instructions.

An instruction which stated that the two corroborating witnesses did not have to testify to the same facts or circumstances in order to convict the defendant was erroneous. (Decided under prior law) Pancake v. Commonwealth, 237 Ky. 1 , 34 S.W.2d 735, 1931 Ky. LEXIS 530 ( Ky. 1 931 ).

An instruction which stated that the defendant’s guilt must be “established” by two witnesses or one witness and strongly corroborating circumstances was not improper, because “established” was used in the sense of “proven.” (Decided under prior law) Shepherd v. Commonwealth, 240 Ky. 261 , 42 S.W.2d 311, 1931 Ky. LEXIS 385 ( Ky. 1931 ).

An instruction which stated that the defendant could not be convicted unless on testimony of at least two witnesses or one witness and strongly corroborating testimony was proper. (Decided under prior law) Cavin v. Commonwealth, 279 Ky. 343 , 130 S.W.2d 803, 1939 Ky. LEXIS 287 ( Ky. 1939 ).

Research References and Practice Aids

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Miscellaneous Guilt Phase Instructions, § 2.05.

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public and Judicial Administration, Part 5 Perjury and Related Offenses, § 7.72.

523.070. Previous trial.

No prosecution shall be brought under this chapter when the substance of the defendant’s false statement is his denial of guilt in a previous criminal trial.

History. Enact. Acts 1974, ch. 406, § 196, effective January 1, 1975.

NOTES TO DECISIONS

1.Acquittal of Other Charges.

A person may be indicted and convicted for false swearing even though he was acquitted of charges in the trial in which he gave the false testimony. (Decided under prior law) Teague v. Commonwealth, 172 Ky. 665 , 189 S.W. 908, 1916 Ky. LEXIS 252 ( Ky. 1916 ) ( Ky. 1916 ).

523.080. Irregularities — No defense.

It is not a defense to prosecution under this chapter that:

  1. The oath or affirmation was administered or taken in an irregular manner or that the declarant was not competent to make the statement; or
  2. The court in which the acts constituting the offense were committed lacked jurisdiction over the person of the accused or the subject matter.

History. Enact. Acts 1974, ch. 406, § 197, effective January 1, 1975.

NOTES TO DECISIONS

1.Elements.

Where the charge was for false swearing while on trial before a county judge, it was proper to allow testimony of that judge as to his capacity during the trial and, as the authority of the judge of a court of record to administer an oath is prima facie established, the burden of proving that the authority did not exist in a particular case was on the defendant. (Decided under prior law) Goslin v. Commonwealth, 121 Ky. 698 , 90 S.W. 223, 28 Ky. L. Rptr. 683 , 1905 Ky. LEXIS 253 ( Ky. 1905 ).

No one may be punished for giving false testimony under oath unless the one who administered the oath was legally authorized to do so. (Decided under prior law) Young v. Commonwealth, 275 Ky. 98 , 120 S.W.2d 772, 1938 Ky. LEXIS 372 ( Ky. 1938 ).

2.Indictment.

An indictment for false swearing in a forcible detainer action before a justice of the peace was not invalid for failing to aver the location of the premises, for the justice of the peace had the power to administer oaths generally without regard to whether he had jurisdiction to render a final judgment. (Decided under prior law) Commonwealth v. Weingartner, 27 S.W. 815, 16 Ky. L. Rptr. 221 (1894).

An indictment for false swearing must show the jurisdiction of the officer administering the oath or it is bad. (Decided under prior law) Commonwealth v. Ransdall, 153 Ky. 334 , 155 S.W. 1117, 1913 Ky. LEXIS 848 ( Ky. 1913 ); Sanlin v. Commonwealth, 212 Ky. 394 , 279 S.W. 648, 1926 Ky. LEXIS 154 ( Ky. 1926 ).

An indictment which alleged that the accused was sworn by the grand jury foreman is sufficient and need not allege that the foreman was authorized to administer the oath. (Decided under prior law) Kinniard v. Commonwealth, 233 Ky. 347 , 25 S.W.2d 744, 1930 Ky. LEXIS 556 ( Ky. 1930 ).

An indictment which failed to specifically set forth essential fact that defendant had been administered oath by authorized person before giving his allegedly false testimony at trial was demurrable for failure to allege offense. (Decided under prior law) Lee v. Commonwealth, 310 S.W.2d 549, 1958 Ky. LEXIS 399 ( Ky. 1958 ).

3.Jurisdiction.

A person could not be indicted for false statements made before a tribunal in which the accused could not legally be sworn because of the tribunal’s lack of authority to investigate the subject matter to which the allegedly false statements pertained. (Decided under prior law) Commonwealth v. Hillenbrand, 96 Ky. 407 , 29 S.W. 287, 16 Ky. L. Rptr. 485 , 1895 Ky. LEXIS 96 ( Ky. 1895 ).

One who gives false testimony in a cause of which the court has no jurisdiction does not violate law that provided penalty for false swearing. (Decided under prior law) Harkleroad v. Commonwealth, 207 Ky. 552 , 269 S.W. 724, 1925 Ky. LEXIS 135 ( Ky. 1925 ); Smiddy v. Commonwealth, 214 Ky. 100 , 282 S.W. 774, 1926 Ky. LEXIS 269 ( Ky. 1926 ).

An indictment for false swearing in a judicial action must show that the court had jurisdiction to try the cause. (Decided under prior law) Daniels v. Commonwealth, 300 Ky. 541 , 189 S.W.2d 849, 1945 Ky. LEXIS 598 ( Ky. 1945 ).

An indictment which averred that the court of inquiry before which the defendant gave false testimony for which he was later convicted had the jurisdiction to investigate a death and the selling of whiskey to two men by the defendant was sufficient to show that the court of inquiry had jurisdiction over the matter under investigation. (Decided under prior law) Whitaker v. Commonwealth, 314 Ky. 303 , 234 S.W.2d 971, 1950 Ky. LEXIS 1086 ( Ky. 1950 ).

523.090. Retraction.

No person shall be guilty of an offense under this chapter if he retracted the falsification in the course of the proceeding in which it was made before such false statement substantially affected the proceeding and before it became manifest that its falsity was or would be exposed.

History. Enact. Acts 1974, ch. 406, § 198, effective January 1, 1975.

NOTES TO DECISIONS

1.Timeliness.

The defendant’s retraction, made after her false statement had been exposed, was too late to qualify as a defense in the case-in-chief. Price v. Commonwealth, 734 S.W.2d 491, 1987 Ky. App. LEXIS 522 (Ky. Ct. App. 1987).

Research References and Practice Aids

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public and Judicial Administration, Part 5 Perjury and Related Offenses, § 7.71.

523.100. Unsworn falsification to authorities.

  1. A person is guilty of unsworn falsification to authorities when, with an intent to mislead a public servant in the performance of his duty, he:
    1. Makes a material false written statement, which he does not believe, in an application for any pecuniary or other benefit or in a record required by law to be submitted to any governmental agency;
    2. Submits or invites reliance on any writing which he knows to be a forged instrument, as defined in KRS 516.010 ; or
    3. Submits or invites reliance, except as provided in KRS 516.110 , on any sample, specimen, map, boundary mark, or other object he knows to be false.
  2. Unsworn falsification to authorities is a Class B misdemeanor.

History. Enact. Acts 1974, ch. 406, § 199, effective January 1, 1975; 2004, ch. 94, § 4, effective July 13, 2004.

NOTES TO DECISIONS

1.Attorney Discipline.

Because an attorney entered a guilty plea to unsworn falsification to authorities under KRS 523.100 in relation to a bribery case, the attorney’s SCR 3.480(2) motion was granted, and the attorney was publicly reprimanded and conditionally suspended for a year for violating SCR 3.130-8.3(b). Buehner v. Ky. Bar Ass'n, 271 S.W.3d 531, 2008 Ky. LEXIS 286 ( Ky. 2008 ).

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Fortune, Criminal Rules, 70 Ky. L.J. 395 (1981-82).

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public and Judicial Administration, Part 5 Perjury and Related Offenses, § 7.70.

523.110. Giving peace officer false identifying information.

  1. A person is guilty of giving a peace officer false identifying information when he or she gives a false name, address, or date of birth to a peace officer who has asked for the same in the lawful discharge of his or her official duties with the intent to mislead the officer as to his or her identity. The provisions of this section shall not apply unless the peace officer has first warned the person whose identification he or she is seeking that giving a peace officer false identifying information is a criminal offense.
  2. Giving a peace officer false identifying information is a Class B misdemeanor.

History. Enact. Acts 1990, ch. 447, § 1, effective July 13, 1990; 2016 ch. 98, § 2, effective July 15, 2016.

NOTES TO DECISIONS

1.Elements.

Defendant, who was charged with identity theft under KRS 514.160(1)(d), was not entitled to a jury instruction on the alternative crime of giving a false name to a police officer because the evidence did not support a conviction under KRS 523.110(1); there was no evidence that defendant had ever been warned that giving a false name to the officer who arrested defendant would be a crime. Crouch v. Commonwealth, 2009 Ky. App. LEXIS 13 (Ky. Ct. App. Feb. 6, 2009), aff'd, 323 S.W.3d 668, 2010 Ky. LEXIS 161 ( Ky. 2010 ).

Defendant was properly convicted of felony theft of identity under KRS 514.160(1) despite defendant’s claim that defendant should have been prosecuted for the misdemeanor offense of giving a false name to a police officer under KRS 523.110(1); giving another person’s social security number to a peace officer would not have been enough, standing alone, to support a charge of giving a false name to a peace officer under KRS 523.110(1). Crouch v. Commonwealth, 323 S.W.3d 668, 2010 Ky. LEXIS 161 ( Ky. 2010 ).

2.Evidence.

In a trial alleging that defendant lied when she said her boyfriend forged her signature on a loan document, defendant should have been permitted to inquire on cross-examination into the conduct underlying the boyfriend’s prior misdemeanor convictions for giving a false name to a peace officer, even though she could not ask about or otherwise show that this conduct led to a conviction. Allen v. Commonwealth, 395 S.W.3d 451, 2013 Ky. LEXIS 30 ( Ky. 2013 ).

3.Plea Agreements.

Trial court improperly revoked defendant’s probated three-year sentence and sentenced him instead to 20 years imprisonment because the sentencing arrangement imposed under the plea agreement violated KRS 532.030 by failing to “fix” the sentence and KRS 532.110(1) by failing to determine the concurrent or consecutive nature of the sentences. Machniak v. Commonwealth, 2010 Ky. LEXIS 282 (Ky. Dec. 16, 2010), op. withdrawn, 2011 Ky. LEXIS 146 (Ky. Sept. 22, 2011).

4.Jury instruction.

Trial court erred in denying defendant's request for an instruction on giving a false name to a peace officer because the false-name charge was a lesser-included offense to the charge against defendant of theft of identity and the evidence supported an instruction on both charges. When a police officer asked defendant for defendant's identity during a traffic stop, defendant gave the officer the name of defendant's sibling and a false date of birth before eventually giving the officer defendant's true identity. Stephenson v. Commonwealth, 2017 Ky. App. LEXIS 750 (Ky. Ct. App. Dec. 1, 2017, sub. op., 2017 Ky. App. Unpub. LEXIS 943 (Ky. Ct. App. Dec. 1, 2017).

CHAPTER 524 Interference with Judicial Administration

524.010. Definitions.

The following definitions apply in this chapter unless the context otherwise requires:

  1. “Judge” means, with reference to intimidating a participant in the legal process, any current justice or judge of the Court of Justice, a trial commissioner of the Court of Justice, and any person serving as a judge at a trial or judicial proceeding of or authorized by the Court of Justice. With reference to retaliating against a participant in the legal process, the term “judge” also includes a former justice or judge of the Court of Justice, a trial commissioner of the Court of Justice, and any person serving as a judge at a trial or judicial proceeding authorized by the Court of Justice. The term includes persons who have been elected or appointed, but have not yet taken office.
  2. “Juror” means a person who is or has been a member of any impaneled jury, including a grand jury, and includes any person who has been drawn or summoned to attend as a prospective juror.
  3. “Participant in the legal process” means any judge, prosecutor, attorney defending a criminal case, juror, or witness and includes members of the participant’s immediate family.
  4. “Official proceeding” means a proceeding heard before any legislative, judicial, administrative or other governmental agency or official authorized to hear evidence under oath, including any referee, hearing examiner, commissioner, notary or other person taking testimony or depositions in any such proceedings.
  5. “Pecuniary benefit” means benefit in the form of money, property, commercial interests, or anything else the primary significance of which is economic gain.
  6. “Physical evidence” means any article, object, document, record, or other thing of physical substance.
  7. “Prosecutor” means, with reference to intimidating a participant in the legal process, a current Commonwealth’s attorney, assistant Commonwealth’s attorney, county attorney, assistant county attorney, Attorney General, deputy attorney general, assistant attorney general, or special prosecutor appointed pursuant to law. With reference to retaliating against a participant in the legal process, the term “prosecutor” also includes a former Commonwealth’s attorney, assistant Commonwealth’s attorney, county attorney, assistant county attorney, Attorney General, deputy attorney general, assistant attorney general, or special prosecutor appointed pursuant to law.
  8. “Threat” means any direct threat to kill or injure a person protected by this chapter or an immediate family member of such a person. Persons protected by this chapter include persons who have been elected or appointed but have not yet taken office.
  9. “Witness” means any person who may be called to testify in an official proceeding, has been called to testify in an official proceeding, is testifying in an official proceeding, or who has testified in an official proceeding.

History. Enact. Acts 1974, ch. 406, § 200, effective January 1, 1975; 2002, ch. 251, § 1, effective July 15, 2002.

NOTES TO DECISIONS

1.Threat.

Since the legislative history evidenced an intent to narrow the definition of “threat”, for purposes of KRS 524.040 , to a threat of physical injury, because defendant made no threat of physical injury, the trial court should have directed a verdict of acquittal on that count. Godby v. Commonwealth, 187 S.W.3d 857, 2005 Ky. App. LEXIS 289 (Ky. Ct. App. 2005).

Because defendant knew that an individual was a potential witness that could testify about his involvement in a burglary and related offenses, it was not unreasonable for a jury to conclude that defendant’s statement regarding a “drive-by” was made to intimidate the individual. Rankin v. Commonwealth, 265 S.W.3d 227, 2007 Ky. App. LEXIS 341 (Ky. Ct. App. 2007).

2.Witness.

In a case involving intimidating a participant in the legal process, defendant fell within the purview of the statute when his girlfriend attempted to call police to report that she was the victim of a crime; she could have been called as a witness in a future official proceeding. The decision in Edmonds v. Commonwealth, 433 S.W.3d 309 ( Ky. 2014 ), applied to defendant because his conviction was not final yet. Jackson v. Commonwealth, 487 S.W.3d 921, 2016 Ky. App. LEXIS 47 (Ky. Ct. App. 2016).

Cited in:

Littrell v. Bosse, 581 S.W.3d 584, 2019 Ky. App. LEXIS 128 (Ky. Ct. App. 2019).

Research References and Practice Aids

Kentucky Law Journal.

West, Criminal Law, 74 Ky. L.J. 403 (1985-86).

Treatises

Palmore, Kentucky Instructions To Juries, 4th Ed., Offenses Against Public and Judicial Administration, Definitions, §§ 6.06, 6.08 — 6.10.

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public and Judicial Administration, Part 1 Definitions, §§ 7.07, 7.09 — 7.11.

524.020. Bribing a witness.

  1. A person is guilty of bribing a witness when he offers, confers or agrees to confer any pecuniary benefit upon a witness or a person he believes may be called as a witness in any official proceeding with intent to:
    1. Influence the testimony of that person; or
    2. Induce that person to avoid legal process summoning him to testify; or
    3. Induce that person to absent himself from an official proceeding to which he has been legally summoned.
  2. Bribing a witness is a Class D felony.

History. Enact. Acts 1974, ch. 406, § 201, effective January 1, 1975.

NOTES TO DECISIONS

1.Defenses.

The defense available under subsection (2) of KRS 521.020 , which excuses a bribery payment to a public servant when it results from that public servant’s when it results from that public servant’s extortion, is not an implied defense available to a defendant prosecuted for bribing a witness pursuant to this section, which does not itself contain a defense based upon extortion or coercion, because the defense provided under subsection (2) of KRS 521.020 is designed for a situation in which members of the public are preyed upon by avaricious public officials to the point that it almost becomes a business necessity to pay them off, whereas bribery of a witness, as prohibited by this section, reaches to the heart of the judicial process and cannot be tolerated under any circumstances regardless of whether the witness who attempts to shake down a litigant is a police officer. Schaefer v. Commonwealth, 622 S.W.2d 218, 1981 Ky. LEXIS 273 ( Ky. 1981 ).

2.Evidence.

It was improper for the prosecution in a witness bribery trial to elicit testimony from witnesses which referred to tape recorded conversations made at meeting between the defendant and a police detective and which had been suppressed prior to trial, and, since defendant’s guilt or innocence rested upon jury’s determination of what was said at the meeting, mention of the suppressed tape could have influenced the jury’s determination of what transpired at the meeting and thus prejudiced the defendant’s substantial rights under RCr 9.26. Schaefer v. Commonwealth, 622 S.W.2d 218, 1981 Ky. LEXIS 273 ( Ky. 1981 ).

3.Intent.

Provision of this section that a person is guilty of bribing a witness “when he offers, confers or agrees to confer any pecuniary benefit upon . . . . . a person he believes may be called as a witness” removes the absolute requirement previously imposed by Commonwealth v. Bailey , 82 S.W. 299 ( Ky. 1904 ), that the accused should know that the person to whom the bribe was offered was in fact a witness. The jury now must only be convinced that the accused had an intent to influence the testimony of a potential witness. Penn v. Commonwealth, 687 S.W.2d 135, 1985 Ky. LEXIS 213 ( Ky. 1985 ).

Inmate argued that, to the extent that witnesses received a reduced sentence, were not arrested or were not forced to forfeit property, those witnesses received a pecuniary benefit in violation of KRS 524.020 (1); however, the state appellate court rejected this interpretation of pecuniary benefit and held that the alleged payments were not within the common definition of pecuniary as intended by KRS 524.020 . Even if this legal conclusion reached by the state appellate court was incorrect, such an error would be an error of state law and errors of state law alone, absent an error of federal law, could not form the basis of relief under federal habeas corpus; moreover, contrary to the inmate’s suggestion, the mere fact that codefendants might receive favorable treatment from the government in exchange for testimony was not an inherent due process violation. Brewer v. Bottom, 2012 U.S. Dist. LEXIS 15478 (E.D. Ky. Feb. 8, 2012).

Research References and Practice Aids

Kentucky Law Journal.

West, Criminal Law, 74 Ky. L.J. 403 (1985-86).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Officers, § 10.00.

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public and Judicial Administration, Part 4 Bribery and Related Offenses, §§ 7.50, 7.52.

524.030. Bribe receiving by witness.

  1. A witness or a person believing he may be called as a witness in any official proceeding is guilty of bribe receiving by a witness when he solicits, accepts or agrees to accept any pecuniary benefit upon an agreement or understanding that:
    1. His testimony will thereby be influenced; or
    2. He will attempt to avoid legal process summoning him to testify; or
    3. He will attempt to absent himself from an official proceeding to which he has been legally summoned.
  2. Bribe receiving by a witness is a Class D felony.

History. Enact. Acts 1974, ch. 406, § 202, effective January 1, 1975.

Research References and Practice Aids

Kentucky Law Journal.

West, Criminal Law, 74 Ky. L.J. 403 (1985-86).

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public and Judicial Administration, Part 4 Bribery and Related Offenses, §§ 7.51, 7.52.

524.040. Intimidating a participant in the legal process.

  1. A person is guilty of intimidating a participant in the legal process when, by use of physical force or a threat directed to a person he believes to be a participant in the legal process, he or she:
    1. Influences, or attempts to influence, the testimony, vote, decision, or opinion of that person;
    2. Induces, or attempts to induce, that person to avoid legal process summoning him or her to testify;
    3. Induces, or attempts to induce, that person to absent himself or herself from an official proceeding to which he has been legally summoned;
    4. Induces, or attempts to induce, that person to withhold a record, document, or other object from an official proceeding;
    5. Induces, or attempts to induce, that person to alter, destroy, mutilate, or conceal an object with intent to impair the object’s integrity or availability for use in an official proceeding; or
    6. Hinders, delays, or prevents the communication to a law enforcement officer or judge of information relating to the possible commission of an offense or a violation of conditions of probation, parole or release pending judicial proceedings.
  2. For purposes of this section:
    1. An official proceeding need not be pending or about to be instituted at the time of the offense; and
    2. The testimony, record, document, or other object need not be admissible in evidence or free of a claim of privilege.
  3. Intimidating a participant in the legal process is a Class D felony.
  4. In order for a person to be convicted of a violation of this section, the act against a participant in the legal process or the immediate family of a participant in the legal process shall be related to the performance of a duty or role played by the participant in the legal process.

History. Enact. Acts 1974, ch. 406, § 203, effective January 1, 1975; 1986, ch. 212, § 5, effective July 15, 1986; 2002, ch. 251, § 2, effective July 15, 2002.

NOTES TO DECISIONS

1.Evidence.

Court properly denied defendant’s motion for a directed verdict as there was sufficient evidence to support defendant’s convictions for attempted murder and intimidating a witness where the victim, who, along with another witness who was murdered, had previously witnessed defendant’s uncle murder a man, testified as to being severly beaten and cut by defendant and others. Hatfield v. Commonwealth, 250 S.W.3d 590, 2008 Ky. LEXIS 12 ( Ky. 2008 ).

Plaintiff’s actions prior to being seized by defendant police officer would not lead a prudent individual to believe that plaintiff had committed or was committing an offense where plaintiff spoke with the officer calmly, asked the children to go inside, informed the officer that she had already spoken to a neighbor about the children playing in the neighbors’ yards, and pulled away or pulled back when the officer attempted to take her into custody; none of these actions constituted resisting arrest and plaintiff also did not use physical force toward or threaten the children in her care in order to hinder, delay, or prevent their communications with the officer regarding the possible commission of an offense. Thus, it was not error to deny defendants’ renewed motion for a judgment as a matter of law with respect to plaintiff’s false arrest claim because a reasonable jury could have concluded, based on the evidence presented at trial, that the officer did not have probable cause to arrest plaintiff. Arnold v. Wilder, 657 F.3d 353, 2011 FED App. 0267P, 2011 U.S. App. LEXIS 18928 (6th Cir. Ky. 2011 ).

It was reasonable for a jury to find that defendant intimidated a participant in the legal process when defendant hindered or delayed the victim’s reporting of a crime. Edmonds v. Commonwealth, 433 S.W.3d 309, 2014 Ky. LEXIS 229 ( Ky. 2014 ).

2.Indictment.

This section is designed for the protection of a witness, not for the protection of property. Accordingly, a defendant’s single act of threatening three witnesses constituted three separate criminal acts and could be joined in one indictment. Commonwealth v. Belcher, 640 S.W.2d 820, 1982 Ky. LEXIS 308 ( Ky. 1982 ).

3.Threat.

Since the legislative history evidenced an intent to narrow the definition of “threat”, for purposes of KRS 524.040 , to a threat of physical injury, because defendant made no threat of physical injury, the trial court should have directed a verdict of acquittal on that count. Godby v. Commonwealth, 187 S.W.3d 857, 2005 Ky. App. LEXIS 289 (Ky. Ct. App. 2005).

It was not clearly unreasonable for a jury to find defendant guilty of the requisite threat under KRS 524.040 since, when put in context of the other statements directed against an individual, although defendant did not use the phrase “drive-by shooting,” a jury could have reasonably believed that the statement “do a drive-by” was intended as a threat of bodily injury or death. Rankin v. Commonwealth, 265 S.W.3d 227, 2007 Ky. App. LEXIS 341 (Ky. Ct. App. 2007).

4.Lesser-Included Offenses.

Because terroristic threatening in the third degree requires proof of a threat to commit a crime likely to result in death or serious physical injury while intimidation of a participant in the legal process does not require proof of such a threat but requires proof simply that physical force or a threat of any nature be used, terroristic threatening in the third degree is, therefore, not a lesser included offense of intimidating a participant in the legal process. Cecil v. Commonwealth, 297 S.W.3d 12, 2009 Ky. LEXIS 245 ( Ky. 2009 ).

5.Relation to Murder.

Defendant cannot intentionally murder a potential witness and be convicted of intimidating that same witness because killing a witness forecloses the possibility of influencing that witness's testimony or inducing the witness to absent herself from trial; instead, the appropriate charge is retaliating against a witness. Therefore, a palpable and unjust error occurred where defendant was improperly convicted of both murdering a victim who was expected to offer adverse testimony in an upcoming trial and intimidating that same witness. Pettway v. Commonwealth, 470 S.W.3d 706, 2015 Ky. LEXIS 1862 ( Ky. 2015 ).

6.Participant.

In a case involving intimidating a participant in the legal process, defendant fell within the purview of the statute when his girlfriend attempted to call police to report that she was the victim of a crime; she could have been called as a witness in a future official proceeding. The decision in Edmonds v. Commonwealth, 433 S.W.3d 309 ( Ky. 2014 ), applied to defendant because his conviction was not final yet. Jackson v. Commonwealth, 487 S.W.3d 921, 2016 Ky. App. LEXIS 47 (Ky. Ct. App. 2016).

Cited:

Bishop v. Caudill, 87 S.W.3d 1, 2002 Ky. LEXIS 202 ( Ky. 2002 ); Littrell v. Bosse, 581 S.W.3d 584, 2019 Ky. App. LEXIS 128 (Ky. Ct. App. 2019).

Research References and Practice Aids

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public and Judicial Administration, Part 4 Bribery and Related Offenses, § 7.53.

524.045. Harassing a witness. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1986, ch. 212, § 6, effective July 15, 1986) was repealed by Acts 2002, ch. 251, § 6, effective July 15, 2002. For present law see KRS 524.040 and 524.050 .

524.050. Tampering with a witness.

  1. A person is guilty of tampering with a witness when, knowing that a person is or may be called as a witness in an official proceeding, he:
    1. Induces or attempts to induce the witness to absent himself or otherwise avoid appearing or testifying at the official proceeding with intent to influence the outcome thereby; or
    2. Knowingly makes any false statement or practices any fraud or deceit with intent to affect the testimony of the witness.
  2. Tampering with a witness is a Class D felony.

History. Enact. Acts 1974, ch. 406, § 204, effective January 1, 1975; 2002, ch. 251, § 4, effective July 15, 2002.

NOTES TO DECISIONS

Cited:

Bishop v. Caudill, 87 S.W.3d 1, 2002 Ky. LEXIS 202 ( Ky. 2002 ).

Research References and Practice Aids

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public and Judicial Administration, Part 4 Bribery and Related Offenses, §§ 7.55, 7.56.

524.055. Retaliating against a participant in the legal process.

  1. A person is guilty of retaliating against a participant in the legal process when he or she engages or threatens to engage in conduct causing or intended to cause bodily injury or damage to the tangible property of a participant in the legal process or a person he or she believes may be called as a participant in the legal process in any official proceeding or because the person has participated in a legal proceeding:
    1. Attending an official proceeding, or giving or producing any testimony, record, document, or other object produced at that proceeding;
    2. Giving information to a law enforcement officer relating to the possible commission of an offense or a violation of conditions of probation, parole, or release pending judicial proceedings;
    3. Vote, decision, or opinion; or
    4. Performance of his or her duty.
  2. Retaliating against a participant in the legal process is a Class D felony.
  3. In order for a person to be convicted of a violation of this section, the act against a participant in the legal process or the immediate family of a participant in the legal process shall be related to the performance of a duty or role played by the participant in the legal process.

History. Enact. Acts 1986, ch. 212, § 7, effective July 15, 1986; 2002, ch. 251, § 3, effective July 15, 2002.

NOTES TO DECISIONS

1.Double Jeopardy.

Criminal contempt conviction for violating domestic violence order prohibiting defendant from committing further acts of violence and abuse upon his wife did not bar action against him for first degree assault and retaliating against a witness; double jeopardy did not attach because the contempt conviction required proof of an element unnecessary to convict him of the underlying felony charges. Commonwealth v. Burge, 1996 Ky. LEXIS 82 (Ky. Aug. 29, 1996).

2.Relation to Murder.

Defendant cannot intentionally murder a potential witness and be convicted of intimidating that same witness because killing a witness forecloses the possibility of influencing that witness's testimony or inducing the witness to absent herself from trial; instead, the appropriate charge is retaliating against a witness. Therefore, a palpable and unjust error occurred where defendant was improperly convicted of both murdering a victim who was expected to offer adverse testimony in an upcoming trial and intimidating that same witness. Pettway v. Commonwealth, 470 S.W.3d 706, 2015 Ky. LEXIS 1862 ( Ky. 2015 ).

Research References and Practice Aids

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public and Judicial Administration, Part 4 Bribery and Related Offenses, §§ 7.57, 7.57A.

524.060. Bribing a juror.

  1. A person is guilty of bribing a juror when he offers, confers or agrees to confer any pecuniary benefit upon a juror with intent to influence the juror’s vote, opinion, decision or other action as a juror.
  2. Bribing a juror is a Class D felony.

History. Enact. Acts 1974, ch. 406, § 205, effective January 1, 1975.

NOTES TO DECISIONS

1.Construction.

Law that provided penalty for procuring a juror to accept a bribe did not repeal the common-law offense of “embracery” but provides for punishment of those guilty of only some of the elements of that offense. (Decided under prior law) Commonwealth v. Denny, 235 Ky. 588 , 31 S.W.2d 940, 1930 Ky. LEXIS 418 ( Ky. 1930 ).

2.Indictment.

An indictment charging that the defendant offered a bribe to a person eligible for jury service was insufficient as the person offered the bribe was neither a juror nor a prospective juror. (Decided under prior law) Commonwealth v. Denny, 235 Ky. 588 , 31 S.W.2d 940, 1930 Ky. LEXIS 418 ( Ky. 1930 ).

3.Juror.

A person who attempts to bribe a member of a petit jury panel may be punished for criminal contempt. (Decided under prior law) Mitchell v. Commonwealth, 206 Ky. 634 , 268 S.W. 313, 1925 Ky. LEXIS 1018 ( Ky. 1925 ).

The term “juror,” for purposes of law that provided penalty for procuring a juror to accept a bribe, included not only a person already selected and sworn but also one whose name had been selected from a list of prospective jurors to serve on a jury at a particular term of court. (Decided under prior law) Commonwealth v. Denny, 235 Ky. 588 , 31 S.W.2d 940, 1930 Ky. LEXIS 418 ( Ky. 1930 ).

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Officers, § 10.00.

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public and Judicial Administration, Part 4 Bribery and Related Offenses, §§ 7.58, 7.60.

524.070. Bribe receiving by a juror.

  1. A person is guilty of bribe receiving by a juror when he solicits, accepts or agrees to accept any pecuniary benefit upon an agreement or understanding that his vote, opinion, decision or other action as a juror will thereby be influenced.
  2. Bribe receiving by a juror is a Class D felony.

History. Enact. Acts 1974, ch. 406, § 206, effective January 1, 1975.

Research References and Practice Aids

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public and Judicial Administration, Part 4 Bribery and Related Offenses, §§ 7.59, 7.60.

524.080. Intimidating a juror. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1974, ch. 406, § 207, effective January 1, 1975) was repealed by Acts 2002, ch. 251, § 6, effective July 15, 2002. For present law see KRS 524.040 .

524.090. Jury tampering.

  1. A person is guilty of jury tampering when, with intent to influence a juror’s vote, opinion, decision or other action in a case, he communicates or attempts to communicate, directly or indirectly, with a juror other than as a part of the proceedings in the trial of the case.
  2. Jury tampering is a Class D felony.

History. Enact. Acts 1974, ch. 406, § 208, effective January 1, 1975; 2002, ch. 251, § 5, effective July 15, 2002.

Research References and Practice Aids

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public and Judicial Administration, Part 4 Bribery and Related Offenses, § 7.62.

524.100. Tampering with physical evidence.

  1. A person is guilty of tampering with physical evidence when, believing that an official proceeding is pending or may be instituted, he:
    1. Destroys, mutilates, conceals, removes or alters physical evidence which he believes is about to be produced or used in the official proceeding with intent to impair its verity or availability in the official proceeding; or
    2. Fabricates any physical evidence with intent that it be introduced in the official proceeding or offers any physical evidence, knowing it to be fabricated or altered.
  2. Tampering with physical evidence is a Class D felony.

History. Enact. Acts 1974, ch. 406, § 209, effective January 1, 1975.

NOTES TO DECISIONS

Analysis

1.Constitutionality.

Tampering with physical evidence under KRS 524.100 does not involve testimonial communications as defined under the Fifth Amendment to the United States Constitution and Ky. Const. § 11. Murray v. Commonwealth, 399 S.W.3d 398, 2013 Ky. LEXIS 230 ( Ky. 2013 ).

Because tampering with physical evidence under KRS 524.100 did not involve testimonial communications as defined under the Fifth Amendment to the United States Constitution and Ky. Const. § 11, and appellant was in no way compelled to produce evidence evincing his guilt, his right against self-incrimination was not violated, and the trial court did not err in refusing to dismiss the tampering charges. Murray v. Commonwealth, 399 S.W.3d 398, 2013 Ky. LEXIS 230 ( Ky. 2013 ).

2.Applicability.

A conviction of the offense may be obtained even if the tampering occurred prior to the initiation of an official proceeding. Burdell v. Commonwealth, 990 S.W.2d 628, 1999 Ky. LEXIS 52 ( Ky. 1999 ).

As one’s blood-alcohol content is not evidence until it exists in a state capable of analysis, a defendant’s intravenous blood is not evidence for purposes of KRS 524.100 . Page v. Commonwealth, 149 S.W.3d 416, 2004 Ky. LEXIS 278 ( Ky. 2004 ).

3.Evidence.

The defendant was not entitled to a directed verdict on a charge of tampering with physical evidence, notwithstanding his contention that because he placed the cocaine under the seat of his vehicle in the plain view of police officers, that he did not actually “conceal” the cocaine because the officers knew where the drugs were. Taylor v. Commonwealth, 987 S.W.2d 302, 1998 Ky. LEXIS 141 ( Ky. 1998 ), cert. denied, 528 U.S. 901, 120 S. Ct. 239, 145 L. Ed. 2d 200, 1999 U.S. LEXIS 6244 (U.S. 1999).

Evidence was sufficient to support a conviction where (1) a police officer standing at the storm door to the defendant’s residence saw defendant place a bag of white powder on kitchen counter, (2) the defendant stated that the door would not open, but that the officer could enter through the back door, and (3) the bag of powder was concealed or removed prior to the officer’s entry into the residence. Burdell v. Commonwealth, 990 S.W.2d 628, 1999 Ky. LEXIS 52 ( Ky. 1999 ).

Evidence was sufficient to support a conviction where, after a bystander was killed during an exchange of gunfire between the defendant and another immediately after a drug deal, the defendant disposed of the crack cocaine he purchased by ingestion, removed and disposed of two spent cartridges from the .38 revolver he fired, and returned the revolver to its owner. Phillips v. Commonwealth, 17 S.W.3d 870, 2000 Ky. LEXIS 19 (Ky.), cert. denied, 531 U.S. 1016, 121 S. Ct. 577, 148 L. Ed. 2d 494, 2000 U.S. LEXIS 7878 (U.S. 2000).

Investigatory process, which includes police chases, can be disrupted by hiding evidence on one’s person in an unconventional place such as the insole of a shoe, although the type of evidence, the place where it is hidden, and the circumstances under which it is concealed are all relevant; thus, where defendant, who had been involved in the snatching of a purse, placed the money from the purse in the insole of defendant’s shoe while the police were chasing the car in which defendant and defendant’s cohort were fleeing and the purse was thrown out of the car during the chase, defendant’s actions and the circumstances raised the necessary inference of defendant’s intention to conceal the money in order to prevent it from being used in an official proceeding and was sufficient to support defendant’s conviction for tampering with physical evidence in violation of KRS 524.100(1)(a). Commonwealth v. Henderson, 85 S.W.3d 618, 2002 Ky. LEXIS 182 ( Ky. 2002 ).

Where defendants admitted to tampering with evidence by attempting to destroy the victim’s body by placing it in the trunk of her car and setting fire to the car, and each testified that the other committed both the murder and arson, their convictions for tampering with physical evidence and second degree arson were supported by sufficient evidence. Caudill v. Commonwealth, 120 S.W.3d 635, 2003 Ky. LEXIS 140 ( Ky. 2003 ).

Defendant’s conviction for murder with regard to the killing of his ex-wife’s boyfriend was upheld where sufficient evidence existed to support the Commonwealth’s theory that defendant’s motive in killing the victim was his continuous and extreme obsession with his ex-wife and his jealousy of any relationship she had with any other man. Evidence of a bullet in a rental car leased by defendant linked the car to the crime and defendant’s attempt to dispose of the victim’s body also was indicative of his guilt. Davis v. Commonwealth, 147 S.W.3d 709, 2004 Ky. LEXIS 189 ( Ky. 2004 ), modified, 2004 Ky. LEXIS 298 (Ky. Nov. 18, 2004).

That defendant left the scene of a fatal accident such that his blood-alcohol content had diminished by time the police found him did not support his conviction of tampering with physical evidence, as his intravenous blood was not evidence for purposes of KRS 524.100(1)(a). Page v. Commonwealth, 149 S.W.3d 416, 2004 Ky. LEXIS 278 ( Ky. 2004 ).

Defendant’s conviction for tampering with physical evidence was set aside, where the Commonwealth failed to produce any evidence that a videotape, filmed by defendant, of children swimming at a state park pool even existed. Absent such a videotape, it strained the bounds of reason to conclude that defendant in some way actively concealed physical evidence with the intent to impair its verity or availability in the official proceeding. Sexton v. Commonwealth, 317 S.W.3d 62, 2010 Ky. LEXIS 108 ( Ky. 2010 ).

Trial court did not err by denying defendant’s motion for a directed verdict on charges of murder, complicity to second-degree arson, and complicity to tampering with physical evidence because the testimony of two witnesses that defendant had a large amount of cash a few hours after the shooting, that he then appeared blackened by smoke, and that he admitted his role in the murder, as well as the evidence that defendant left town a few days after the shooting and remained in another city while the case was being investigated was sufficient corroboration to permit reliance on the testimony of defendant’s two accomplices. Harris v. Commonwealth, 313 S.W.3d 40, 2010 Ky. LEXIS 110 ( Ky. 2010 ).

Evidence supported defendant’s conviction for tampering with evidence, as evidence that defendant participated in a robbery and that the victim’s personal effects and those of another person were found a short time after the victim’s murder in a catch basin near the victim’s residence permitted a rational juror to conclude either that defendant had aided a co-defendant in disposing of those items or that defendant had disposed of them (or some of them) himself, intending to conceal them and to prevent their use as evidence in the proceeding against defendant. Quisenberry v. Commonwealth, 336 S.W.3d 19, 2011 Ky. LEXIS 30 ( Ky. 2011 ), limited, Ellison v. Commonwealth, 2014 Ky. Unpub. LEXIS 110 (Ky. Dec. 18, 2014).

Walking away from the scene of a shooting with the gun was not enough to support a charge of tampering with evidence, in the absence of evidence of some additional act demonstrating an intent to conceal. Mullins v. Commonwealth, 350 S.W.3d 434, 2011 Ky. LEXIS 137 ( Ky. 2011 ).

Defendant was not entitled to a directed verdict on a tampering with physical evidence conviction because the gun was discovered in the open doorway of a building that was under construction in the field where an officer was shot; by placing the gun in the doorway of a building as he was fleeing from the scene, defendant intended to conceal the gun that could be used in an official proceeding against him. Buchanan v. Commonwealth, 399 S.W.3d 436, 2012 Ky. App. LEXIS 181 (Ky. Ct. App. 2012).

Leaving the scene of a murder with the gun was insufficient by itself to support an evidence tampering charge, and there was not sufficient other evidence to support the conviction; there was no testimony that police searched for the gun or discovered that it had been disposed of, concealed, destroyed or altered in any way. McAtee v. Commonwealth, 413 S.W.3d 608, 2013 Ky. LEXIS 400 ( Ky. 2013 ).

Where defendant, acting alone or in complicity with others, stabbed the victim with a knife following a heated telephone argument and washed the blood evidence from the knife to prevent the police from using it as evidence, he was convicted of second-degree assault and tampering with physical evidence. The trial court imposed a ten-year sentence for the assault conviction and a three-year sentence for the tampering conviction, to be served consecutively for a total of thirteen years. Spencer v. Commonwealth, 2013 Ky. App. LEXIS 123 (Ky. Ct. App. Aug. 9, 2013), review denied, ordered not published, 2014 Ky. LEXIS 268 (Ky. June 19, 2014).

Trial court properly denied defendant’s motions for directed verdict on the charges of tampering with physical evidence because the jury could logically conclude, from the testimony of three witnesses, that defendant (who shot the victim) sought to avoid criminal liability by changing the condition of the victim’s body, removing it from its original location, and wiping away traces of blood from the floor of the residence with rags and a towel, which altered the condition of the crime scene. Clark v. Commonwealth, 567 S.W.3d 565, 2019 Ky. LEXIS 62 ( Ky. 2019 ).

Evidence was insufficient to support defendant’s conviction of tampering with evidence because his act of dropping the evidence in the view of the officer in a manner that left the evidence easily retrievable was not an act of concealment or removal. Commonwealth v. James, 586 S.W.3d 717, 2019 Ky. LEXIS 480 ( Ky. 2019 ).

Because defendant merely tossed evidence while in the presence of a police officer, and the officer was able quickly and easily to retrieve the evidence, defendant did not conceal or remove the evidence within the meaning of the statute; accordingly, the trial court erred in denying defendant’s motion for a directed verdict with respect to the charge of tampering with physical evidence. McGuire v. Commonwealth, 595 S.W.3d 90, 2019 Ky. LEXIS 435 ( Ky. 2019 ).

Trial court did not err in denying defendant’s motion for a directed verdict on the charge of tampering with physical evidence because sufficient evidence was presented to induce a reasonable juror to find defendant guilty of tampering with physical evidence; defendant discarded a gun in an overgrown area along a fence line while outside of the sightline of police officers, requiring a K-9 officer to find it. Hunter v. Commonwealth, 587 S.W.3d 298, 2019 Ky. LEXIS 434 ( Ky. 2019 ).

4.Penalties.

Automatic suspension from the practice of law was the proper sanction against attorney convicted of tampering with evidence. Kentucky Bar Ass'n v. Marsh, 968 S.W.2d 89, 1998 Ky. LEXIS 83 ( Ky. 1998 ).

5.Elements.

While the location in which the evidence is recovered is relevant to the overall analysis, whether that location is one that is conventional or unconventional with respect to the type of evidence recovered is merely one factor that is relevant to determining whether the defendant acted with the necessary intent. McGuire v. Commonwealth, 595 S.W.3d 90, 2019 Ky. LEXIS 435 ( Ky. 2019 ).

Where a defendant merely drops, throws down, or abandons drugs in the vicinity of the defendant and in the presence and view of the police, and the officer can quickly and readily retrieve the evidence, the criminal act of concealment or removal has not taken place. Commonwealth v. James, 586 S.W.3d 717, 2019 Ky. LEXIS 480 ( Ky. 2019 ).

Circuit court erred in denying defendant’s motion for a directed verdict on the charge of tampering with physical evidence because he did not destroy, mutilate, or alter the contents of the plastic bag that he placed under his right leg and then in the space between the door and the passenger seat, did not discard the evidence beyond the confines of the vehicle, did not attempt to ingest it or otherwise alter or destroy it, and the arresting officer readily found the evidence in plain view and easily retrievable after defendant was removed from the car. Bell v. Commonwealth, 2021 Ky. App. LEXIS 74 (Ky. Ct. App. June 4, 2021).

Cited:

Smith v. Commonwealth, 722 S.W.2d 892, 1987 Ky. LEXIS 190 ( Ky. 1987 ).

Notes to Unpublished Decisions

Analysis

3.Evidence.

Unpublished decision: Where officers forcibly removed a passenger from a vehicle following a high-speed car chase and the estate claimed that officers tampered with physical evidence, the facts did not support the argument that any officer altered physical evidence with intent to impair its availability in the official proceeding. Estate of Brackens v. Louisville Jefferson Cnty. Metro Gov't, 680 Fed. Appx. 362, 2017 FED App. 0115N, 2017 U.S. App. LEXIS 3326 (6th Cir. Ky. 2017 ).

4.Penalties.

Unpublished decision: Sentencing enhancement was proper because the court properly enhanced the sentence when the self-defense justification under Kentucky law was not available, and evidence tampering provided an alternative basis. United States v. Sweat, 688 Fed. Appx. 352, 2017 FED App. 0257N, 2017 U.S. App. LEXIS 8092 (6th Cir. Ky. 2017 ).

Opinions of Attorney General.

If a pawnbroker, in the face of a lawful search warrant, were to refuse to turn stolen property over to the police, he could be charged with tampering with physical evidence. OAG 81-415 .

Research References and Practice Aids

Kentucky Bench & Bar.

Hawse, Spoliation of Evidence, Vol. 54, No. 3, Summer 1990, Ky. Bench & Bar 13.

Kentucky Law Journal.

Comment, The Destruction of Subpoenaed Corporate Records, 70 Ky. L.J. 859 (1981-82).

Note: Spare the Rod, Spoil the Litigator? The Varying Degrees of Culpability Required for an Adverse Inference Sanction Regarding Spoliation of Electronic Discovery, 99 Ky. L.J. 881 (2010/2011).

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public and Judicial Administration, Part 4 Bribery and Related Offenses, §§ 7.63, 7.64.

524.110. Simulating legal process.

  1. A person is guilty of simulating legal process when he delivers or causes to be delivered to another a request for the payment of money on behalf of a creditor knowing that in form and substance it simulates any legal process issued by any court of this state.
  2. Simulating legal process is a Class B misdemeanor.

History. Enact. Acts 1974, ch. 406, § 210, effective January 1, 1975.

524.120. Intimidating a judicial officer. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1976, ch. 69, § 1) was repealed by Acts 2002, ch. 251, § 6, effective July 15, 2002. For present law see KRS 524.040 .

524.130. Unauthorized practice of law.

  1. Except as provided in KRS 341.470 and subsection (2) of this section, a person is guilty of unlawful practice of law when, without a license issued by the Supreme Court, he engages in the practice of law, as defined by rule of the Supreme Court.
  2. A licensed nonresident attorney in good standing, although not licensed in Kentucky, is not guilty of unlawful practice if, in accordance with rules adopted by the Supreme Court, he practices law under specific authorization of a court.
  3. Unlawful practice of law is a Class B misdemeanor.

History. Enact. Acts 1976, ch. 58, § 11; 1984, ch. 12, § 2, effective July 13, 1984.

NOTES TO DECISIONS

Analysis

1.In General.

A prisoner, acting pro se, could not represent the class of prisoners and the prisoner could not act as the legal representative of the other prisoners in the capacity as a “jailhouse” lawyer. Jones v. Fletcher, 2005 U.S. Dist. LEXIS 44698 (E.D. Ky. May 5, 2005).

Mother suing as next friend on behalf of the mother’s infant son did not engage in the unauthorized practice of law because, after the mother’s attorney was allowed to withdraw, the trial court’s pre-trial order required the mother to either obtain new counsel, which the mother was unable to do, or proceed pro se. Azmat v. Bauer, 588 S.W.3d 441, 2018 Ky. LEXIS 359 ( Ky. 2018 ).

No conflict exists between the statute barring the unauthorized practice of law and the civil procedure rule on pre-trial orders, in a case brought by a child’s next friend, when a pre-trial order directs a party to obtain counsel or proceed pro se because it has never been held that a next friend representing a real party in interest has engaged in the unauthorized practice of law when explicitly directed by a trial court to proceed in such a manner. Azmat v. Bauer, 588 S.W.3d 441, 2018 Ky. LEXIS 359 ( Ky. 2018 ).

2.Violation of Standard of Care.

Jury found that appellee violated the standard of care, and thus whether he engaged in the unauthorized practice of law was immaterial; whether he violated his common law standard of care or the standard found in KRS 524.130 was immaterial because the violation had to be a substantial factor in causing the result, and the issue was whether substantial evidence supported the finding that appellee’s negligence was not a substantial factor in causing injury, and thus the argument that appellee’s actions violated the statute was not germane to the issue. Estate of Moloney v. Becker, 398 S.W.3d 459, 2013 Ky. App. LEXIS 65 (Ky. Ct. App. 2013).

Cited in:

Collins v. Commonwealth, — S.W.3d —, 2007 Ky. App. LEXIS 468 (Ky. Ct. App. 2007).

Notes to Unpublished Decisions

1.Real Estate Closings.

Unpublished decision: Kentucky Bar Association’s Advisory Opinion U-58, which declared that performance of a real estate closing by a lay closing agent was the unauthorized practice of law, was vacated; Advisory Opinion U-31, which stated that laypersons could conduct real estate closings so long as they avoided giving legal advice, accurately stated the law in Kentucky. Countrywide Home Loans, Inc. v. Ky. Bar Ass'n, 113 S.W.3d 105, 2003 Ky. LEXIS 181 ( Ky. 2003 ).

Opinions of Attorney General.

The nonattorney members of the board of tax appeals who permit the representation of taxpayers before the board by nonlawyers would be condoning the violation of this section. OAG 77-665 .

524.140. Disposal of biological evidence that may be subject to DNA testing — Motion to destroy — Liability for destruction — Penalty — Retention of biological material.

  1. As used in this section:
    1. “Biological evidence” means:
      1. The contents of a sexual assault evidence collection kit; or
      2. Any item, or representative sample taken from an item, that contains blood, saliva, sperm, hair, tissue, bones, teeth, or other bodily fluids that was collected as part of a criminal investigation and that reasonably may be used to incriminate or exculpate any person from an offense or delinquent act;
    2. “Defendant” means a person charged with a:
      1. Capital offense, Class A felony, Class B felony, or Class C felony; or
      2. Class D felony under KRS Chapter 510; and
    3. “Following trial” means after:
      1. The first appeal authorized by the Constitution of Kentucky in a criminal case has been decided; or
      2. The time for the first appeal authorized by the Constitution of Kentucky in a criminal case has lapsed without an appeal having been filed.
  2. No item of biological evidence gathered by law enforcement, prosecutorial, or defense authorities that may be subject to deoxyribonucleic acid (DNA) evidence testing and analysis in order to assist federal, state, and local criminal justice and law enforcement agencies within and outside the Commonwealth in the identification, detection, or exclusion of individuals who are subjects of investigation or prosecution, or to confirm the guilt or innocence of a criminal defendant, shall be disposed of prior to a criminal trial unless:
    1. The evidence has been in custody not less than fifty (50) years; or
    2. The evidence has been in custody not less than ten (10) years; and
      1. The prosecution has determined that the defendant will not be tried for the criminal offense; and
      2. The prosecution has made a motion, before the court in which the case would have been tried, to destroy the evidence.
  3. No item of biological evidence gathered by law enforcement, prosecutorial, or defense authorities that may be subject to deoxyribonucleic acid (DNA) evidence testing and analysis in order to confirm the guilt or innocence of a criminal defendant shall be disposed of following the trial unless:
    1. The evidence, together with DNA evidence testing and analysis results, has been presented at the trial, and the defendant has been found guilty, pled guilty, or entered an Alford plea at the trial;
    2. The evidence was not introduced at the trial, or if introduced at the trial was not the subject of DNA testing and analysis, and the defendant has been found guilty, pled guilty, or entered an Alford plea at the trial, and the trial court has ordered the destruction of the evidence after an adversarial hearing conducted upon motion of either the prosecution or the defendant;
    3. The trial resulted in the defendant being found not guilty or the charges were dismissed after jeopardy attached, whether or not the evidence was introduced at the trial or was subject to DNA testing and analysis or not, and the trial court ordered the destruction of the evidence after an adversarial hearing conducted upon motion of either the prosecution or the defendant; or
    4. The trial resulted in the dismissal of charges against the defendant, and the defendant may be subject to retrial, in which event the evidence shall be retained until after the retrial, which shall be considered a new trial for the purposes of this section.
  4. The burden of proof for a motion to destroy biological evidence that may be subject to DNA testing and analysis shall be upon the party making the motion, and the court may permit the destruction of the evidence under this section upon good cause shown favoring its destruction.
  5. It is recognized by the General Assembly that the DNA evidence laboratory testing and analysis procedure consumes and destroys a portion of the evidence or may destroy all of the evidence if the sample is small. The consuming and destruction of evidence during the laboratory analysis process shall not result in liability for its consumption or destruction if the following conditions are met:
    1. The Department of Kentucky State Police laboratory uses a method of testing and analysis which preserves as much of the biological material or other evidence tested and analyzed as is reasonably possible; or
    2. If the Department of Kentucky State Police laboratory knows or reasonably believes that the entire sample of evidence to be tested and analyzed that the laboratory, prior to the testing or analysis of the evidence, notifies in writing the court which ordered the testing and analysis and counsel for all parties:
      1. That the entire sample of evidence may be destroyed by the testing and analysis;
      2. The possibility that another laboratory may be able to perform the testing and analysis in a less destructive manner with at least equal results;
      3. The name of the laboratory capable of performing the testing and analysis, the costs of testing and analysis, the advantages of sending the material to that other laboratory, and the amount of biological material or other evidence which might be saved by alternative testing and analysis; and
      4. The Department of Kentucky State Police laboratory follows the directive of the court with regard to the testing and analysis; or
    3. If the Department of Kentucky State Police laboratory knows or reasonably believes that so much of the biological material or evidence may be consumed or destroyed in the testing and analysis that an insufficient sample will remain for independent testing and analysis that the laboratory follows the procedure specified in paragraph (b) of this subsection.
  6. Destruction of evidence in violation of this section shall be a violation of KRS 524.100 .
  7. Subject to KRS 422.285(9), the appropriate governmental entity shall retain any biological material secured in connection with a criminal case for the period of time that any person remains incarcerated in connection with that case. The governmental entity shall have the discretion to determine how the evidence is retained pursuant to this section, provided that the evidence is retained in a condition suitable for DNA testing and analysis.

History. Enact. Acts 2002, ch. 154, § 10, effective July 15, 2002; 2007, ch. 85, § 328, effective June 26, 2007; 2013, ch. 77, § 3, effective June 25, 2013; 2016 ch. 58, § 10, effective April 8, 2016; 2019 ch. 56, § 1, effective June 27, 2019.

Legislative Research Commission Notes.

(4/8/2016). 2016 Ky. Acts ch. 58, sec. 11 provided that that Act shall be known as the Sexual Assault Forensic Evidence (SAFE) Act of 2016. This statute was amended in Section 10 of that Act.

NOTES TO DECISIONS

1.Outside DNA Testing.

Requirements of KRS 524.140 apply with equal force to any outside laboratory acting as the agent of the Kentucky State Police Forensic Laboratory. Moore v. Commonwealth, 357 S.W.3d 470, 2011 Ky. LEXIS 191 ( Ky. 2011 ), modified, 2011 Ky. LEXIS 190 (Ky. Nov. 23, 2011).

CHAPTER 525 Riot, Disorderly Conduct and Related Offenses

525.010. Definitions for chapter.

The following definitions apply in this chapter unless the context otherwise requires:

  1. “Desecrate” means defacing, damaging, polluting, or otherwise physically mistreating in a way that the actor knows will outrage the sensibilities of persons likely to observe or discover his action.
  2. “Public” means affecting or likely to affect a substantial group of persons.
  3. “Public place” means a place to which the public or a substantial group of persons has access and includes but is not limited to highways, transportation facilities, schools, places of amusements, parks, places of business, playgrounds, and hallways, lobbies, and other portions of apartment houses and hotels not constituting rooms or apartments designed for actual residence. An act is deemed to occur in a public place if it produces its offensive or proscribed consequences in a public place.
  4. “Transportation facility” means any conveyance, premises, or place used for or in connection with public passenger transportation by air, railroad, motor vehicle, or any other method. It includes aircraft, watercraft, railroad cars, buses, and air, boat, railroad, and bus terminals and stations and all appurtenances thereto.
  5. “Riot” means a public disturbance involving an assemblage of five (5) or more persons which by tumultuous and violent conduct creates grave danger of damage or injury to property or persons or substantially obstructs law enforcement or other government function.
  6. “Service animal” includes a:
    1. “Bomb detection dog,” which means a dog that is trained to locate bombs or explosives by scent;
    2. “Narcotic detection dog,” which means a dog that is trained to locate narcotics by scent;
    3. “Patrol dog,” which means a dog that is trained to protect a peace officer and to apprehend a person;
    4. “Tracking dog,” which means a dog that is trained to track and find a missing person, escaped inmate, or fleeing felon;
    5. “Search and rescue dog,” which means a dog that is trained to locate lost or missing persons, victims of natural or man-made disasters, and human bodies;
    6. “Accelerant detection dog,” which means a dog that is trained for accelerant detection, commonly referred to as arson canines;
    7. “Cadaver dog,” which means a dog that is trained to find human remains;
    8. “Assistance dog,” which means any dog that is trained to meet the requirements of KRS 258.500 ;
    9. Any dog that is trained in more than one (1) of the disciplines specified in paragraphs (a) to (h) of this subsection; or
    10. “Police horse,” which means any horse that is owned, or the service of which is employed, by a law enforcement agency for the principal purpose of aiding in detection of criminal activity, enforcement of laws, and apprehension of offenders.

History. Enact. Acts 1974, ch. 406, § 211, effective January 1, 1975; 1998, ch. 419, § 1, effective July 15, 1998; 2002, ch. 94, § 4, effective July 15, 2002.

NOTES TO DECISIONS

Analysis

1.Public Place.

City ordinance which implemented more stringent requirement on erotic dancers to wear a “bikini top” rather than “pasties” was not greater than essential to further the government interest in controlling the evils concomitant to adult entertainment. Bright Lights v. City of Newport, 830 F. Supp. 378, 1993 U.S. Dist. LEXIS 11637 (E.D. Ky. 1993 ).

City ordinance which prohibited nudity in a public place, as defined by this section, applied to dancers who were performing in a public club. Hendricks v. Commonwealth, 865 S.W.2d 332, 1993 Ky. LEXIS 154 ( Ky. 1993 ).

Sweep of city ordinance which prohibited nudity in a public place was not overbroad and was reasonably related to its stated purpose as it did not operate unreasonably beyond the occasion or necessity of the particular situation. Hendricks v. Commonwealth, 865 S.W.2d 332, 1993 Ky. LEXIS 154 ( Ky. 1993 ).

City ordinance, which prohibited nudity in a public place, was not an unreasonable exercise of police power on the theory that it attempted to regulate activity in a private place where the patrons, entertainers and employees of these establishments had no expectation of privacy because anyone from the general public was admitted upon the payment of an admission fee. Hendricks v. Commonwealth, 865 S.W.2d 332, 1993 Ky. LEXIS 154 ( Ky. 1993 ).

Defendant’s motion to suppress her statements given after her arrest was properly denied because there was probable cause to arrest her for alcohol intoxication in a public place as her actions inside the vehicle had public consequences by interfering with a valid traffic stop on a highway. Grimes v. Commonwealth, 2013 Ky. App. LEXIS 83 (Ky. Ct. App. June 7, 2013), review denied, ordered not published, 2014 Ky. LEXIS 286 (Ky. June 11, 2014).

2.Evidence Sufficient.

Evidence was sufficient to sustain defendant’s disorderly conduct conviction because defendant’s offensive conduct occurred in a location where the public would have access — a residential street; defendant’s offensive conduct included kicking and yelling outside of the police cruiser on the street. Perdue v. Commonwealth, 411 S.W.3d 786, 2013 Ky. App. LEXIS 145 (Ky. Ct. App. 2013).

3.Civil Claims.

For purposes of an incitement to riot claim relating to a candidate's statement (“get 'em out of here”) at a campaign rally, it was not necessary to allege that a riot actual occurred. To the extent it was necessary to expressly allege the number of people involved or that there was tumult and violence, that requirement was satisfied by the allegation that the candidate directed supporters to eject peaceful protestors using harmful physical force and intended to create a public disturbance involving an assemblage of five or more persons which by tumultuous and violent conduct created grave danger of damage or injury. Nwanguma v. Trump, 273 F. Supp. 3d 719, 2017 U.S. Dist. LEXIS 49013 (W.D. Ky. 2017 ).

Cited:

Commonwealth v. Cook, 739 S.W.2d 541, 1987 Ky. LEXIS 255 ( Ky. 1987 ).

Notes to Unpublished Decisions

1.Public Place.

Unpublished decision: Where an officer responded to a distress call and found defendant screaming out of an apartment window, the officer had probable cause to arrest defendant for disorderly conduct under KRS 525.060(1) because defendant’s loud cries of “help me, they are going to kill me, they have got a gun” produced their offensive consequences in a public place under KRS 525.010(3). United States v. Edmundson, 405 Fed. Appx. 964, 2010 FED App. 0795N, 2010 U.S. App. LEXIS 26359 (6th Cir. Ky. 2010 ).

Opinions of Attorney General.

A private home does not become a public place because one of the owners summons police officers there. OAG 75-63 .

The parking lot of a single unit licensed alcoholic beverage business is a public place for the purpose of enforcing KRS 244.020 (repealed). OAG 75-86 .

The parking lot of multi-unit shopping center in which a retail establishment licensed to sell alcoholic beverages is located is “a public place” for the purpose of enforcement of KRS 244.020 (repealed). OAG 75-86 .

In a privately owned resort, banquet rooms which are rented to certain organizations would constitute public places even though access to the rooms is restricted solely to each particular organization. OAG 77-340 .

A proposed fiscal court ordinance permitting peace officers to arrest any individual upon private property who is drunk and disorderly would be unconstitutional, since a fiscal court has no legislative power. OAG 77-582 .

A dormitory room on a state university campus is not a “public place” within the definition found in subsection (3) of this section; consequently, a person of legal drinking age, 21 years or older, cannot be held criminally liable under KRS 222.202 for drinking alcoholic beverages or being alcohol intoxicated in his or her dormitory room in a residence hall situated on a state university campus. OAG 87-11 .

Research References and Practice Aids

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public Order, Safety and Morals, Part 1 Defenses, §§ 8.01, 8.03 — 8.06.

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public Order, Safety and Morals, Part 2 Riot, Disorderly Conduct and Related Offenses, §§ 8.38B, 8.39B, 8.52B.

525.015. Obstructing an emergency responder.

  1. As used in this section, “emergency responder” means state or local law enforcement personnel, fire department personnel, corrections officers, and emergency medical personnel and those contracted for official use by emergency responders.
  2. No person shall intentionally obstruct or disrupt an emergency responder from performing his or her official duties.
  3. Obstructing an emergency responder is a violation for a first offense, and a Class B misdemeanor for a second or subsequent offense.

HISTORY: 2018 ch. 26, § 3, effective July 14, 2018.

525.020. Riot in the first degree.

  1. A person is guilty of riot in the first degree when:
    1. He knowingly participates in a riot; and
    2. In the course of and as a result of such riot a person other than one of the participants suffers physical injury or substantial property damage occurs.
  2. Riot in the first degree is a Class D felony.

History. Enact. Acts 1974, ch. 406, § 212, effective January 1, 1975.

NOTES TO DECISIONS

1.Double Jeopardy.

The conviction of the defendant for first-degree riot and second-degree assault did not constitute double jeopardy because the same use of force was not used to establish assault and then elevate riot to a higher offense. Commonwealth v. Cook, 739 S.W.2d 541, 1987 Ky. LEXIS 255 ( Ky. 1987 ).

2.Elements.

What constitutes a riot does not depend so much on the number of persons engaged or assembled, as it does on the disorder, the tumult, the terrorizing, the putting in fear, the violence, the unlawful acts, and the general manner in which they act. (Decided under prior law) Spring Garden Ins. Co. v. Imperial Tobacco Co., 132 Ky. 7 , 116 S.W. 234, 1909 Ky. LEXIS 83 ( Ky. 1909 ).

Research References and Practice Aids

Cross-References.

Armed bodies of men not to be brought into state to quell violence, Ky. Const., § 225.

City, liability of, for destruction of property by mob, KRS 411.100 .

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public Order, Safety and Morals, Part 1 Defenses, § 8.02.

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public Order, Safety and Morals, Part 2 Riot, Disorderly Conduct and Related Offenses, §§ 8.27, 8.28.

525.030. Riot in the second degree.

  1. A person is guilty of riot in the second degree when he knowingly participates in a riot.
  2. Riot in the second degree is a Class A misdemeanor.

History. Enact. Acts 1974, ch. 406, § 213, effective January 1, 1975.

Research References and Practice Aids

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public Order, Safety and Morals, Part 2 Riot, Disorderly Conduct and Related Offenses, § 8.28.

525.040. Inciting to riot.

  1. A person is guilty of inciting to riot when he incites or urges five (5) or more persons to create or engage in a riot.
  2. Inciting to riot is a Class A misdemeanor.

History. Enact. Acts 1974, ch. 406, § 214, effective January 1, 1975.

NOTES TO DECISIONS

1.Elements.

The incitement of force and violence implicit in a refusal to move upon rightful order of the owner or custodian of property did not depend on the amount of noise being made or not made by the trespasser. (Decided under prior law) O'Leary v. Commonwealth, 441 S.W.2d 150, 1969 Ky. LEXIS 304 (Ky.), cert. denied, 396 U.S. 40, 90 S. Ct. 267, 24 L. Ed. 2d 208, 1969 U.S. LEXIS 356 (U.S. 1969).

For purposes of an incitement to riot claim relating to a candidate's statement (“get 'em out of here”) at a campaign rally, it was not necessary to allege that a riot actual occurred. To the extent it was necessary to expressly allege the number of people involved or that there was tumult and violence, that requirement was satisfied by the allegation that the candidate directed supporters to eject peaceful protestors using harmful physical force and intended to create a public disturbance involving an assemblage of five or more persons which by tumultuous and violent conduct created grave danger of damage or injury. Nwanguma v. Trump, 273 F. Supp. 3d 719, 2017 U.S. Dist. LEXIS 49013 (W.D. Ky. 2017 ).

Research References and Practice Aids

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public Order, Safety and Morals, Part 2 Riot, Disorderly Conduct and Related Offenses, § 8.29.

525.045. Terrorism.

  1. A person is guilty of the separate offense of terrorism if conviction of the underlying offense committed would classify the person as a violent offender under KRS 439.3401(1)(a), (b), (c), or (d), or the underlying offense was an offense under KRS 527.200 , 527.205 , or 527.210 and the person had the intent to:
    1. Intimidate the civilian population at large, or an identifiable group of the civilian population; or
    2. Influence, through intimidation, the conduct or activities of the government of the United States, the Commonwealth, any other state, or any unit of local government.
  2. A conviction of terrorism shall be punishable by a term of imprisonment for life without benefit of probation or parole. An offense under this section is a separate offense from the underlying offense and shall not merge with other offenses.
  3. A person convicted under this section shall not be released on probation, shock probation, parole, conditional discharge, or any other form of conditional release.
    1. All real and personal property used or intended for use in the course of, derived from, or realized through an offense punishable pursuant to this section shall be subject to lawful seizure and forfeiture to the Commonwealth as set forth in KRS 218A.405 to 218A.460 , except that any property seized and forfeited to the Commonwealth under this section that was used in an act of terror, as defined in KRS 411.025 , shall be held for at least five (5) years for the purposes of paying any damages awarded under KRS 411.025 . (4) (a) All real and personal property used or intended for use in the course of, derived from, or realized through an offense punishable pursuant to this section shall be subject to lawful seizure and forfeiture to the Commonwealth as set forth in KRS 218A.405 to 218A.460 , except that any property seized and forfeited to the Commonwealth under this section that was used in an act of terror, as defined in KRS 411.025, shall be held for at least five (5) years for the purposes of paying any damages awarded under KRS 411.025.
    2. Notwithstanding paragraph (a) of this subsection, any real or personal property:
      1. Taken by a lender in good faith as collateral for the extension of credit and recorded as provided by law;
      2. Of an owner who made a bona fide purchase of the property; or
      3. Of a person with rightful possession of the property; shall not be subject to forfeiture unless the lender, owner, or person had knowledge of an offense under this section.
  4. Damages awarded pursuant to a successful claim under KRS 411.025 may be paid by property lawfully seized and forfeited under this section.

HISTORY: 2018 ch. 111, § 2.

Legislative Research Commission Notes.

(7/14/2018). 2018 Ky. Acts ch. 111, sec. 3 provided that this statute as created in Section 2 of that Act shall be known and may be cited as Andy’s Law.

525.050. Unlawful assembly.

  1. A person is guilty of unlawful assembly when:
    1. He assembles with five (5) or more persons for the purpose of engaging or preparing to engage with them in a riot; or
    2. Being present at an assembly which either has or develops such a purpose, he remains there with intent to advance that purpose.
  2. Unlawful assembly is a Class B misdemeanor.

History. Enact. Acts 1974, ch. 406, § 215, effective January 1, 1975.

NOTES TO DECISIONS

1.First Amendment Rights.

An exercise or attempt to exercise rights otherwise guaranteed by the United States Const., Amend. 1 is not “protected” in the sense that, absent a regulation or statute specifically designed in advance to meet the narrow details of the event, it insulates the speaker or participant from the legal consequences of his presence or actions upon property where he knows or should know he has no right or permission to be. (Decided under prior law) O'Leary v. Commonwealth, 441 S.W.2d 150, 1969 Ky. LEXIS 304 (Ky.), cert. denied, 396 U.S. 40, 90 S. Ct. 267, 24 L. Ed. 2d 208, 1969 U.S. LEXIS 356 (U.S. 1969).

2.Dispersement of Assembly.

An assembly of persons cannot be prevented or dispersed until the commission of some unlawful conduct, or some overt act by which the assemblage would do a lawful act in a violent or tumultuous manner, to the terror or disturbance of others. (Decided under prior law) Louisville v. Lougher, 209 Ky. 299 , 272 S.W. 748, 1925 Ky. LEXIS 486 ( Ky. 1925 ).

If a public speaker or any sympathetic hearers should engage in any unlawful speech or conduct after the assemblage had been formed, then the assemblage would become unlawful and subject to dispersement by police officers. (Decided under prior law) Louisville v. Lougher, 209 Ky. 299 , 272 S.W. 748, 1925 Ky. LEXIS 486 ( Ky. 1925 ).

Research References and Practice Aids

Cross-References.

Assembling in peaceable manner an inalienable right, Ky. Const., § 1(6).

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public Order, Safety and Morals, Part 2 Riot, Disorderly Conduct and Related Offenses, § 8.30.

525.055. Disorderly conduct in the first degree.

  1. A person is guilty of disorderly conduct in the first degree when he or she:
    1. In a public place and with intent to cause public inconvenience, annoyance, or alarm, or wantonly creating a risk thereof:
      1. Engages in fighting or in violent, tumultuous, or threatening behavior;
      2. Makes unreasonable noise; or
      3. Creates a hazardous or physically offensive condition by any act that serves no legitimate purpose; and
    2. Acts in a way described in paragraph (a) of this subsection within three hundred (300) feet of a:
      1. Cemetery during a funeral or burial;
      2. Funeral home during the viewing of a deceased person;
      3. Funeral procession;
      4. Funeral or memorial service; or
      5. Building in which a funeral or memorial service is being conducted; and
    3. Acts in a way described in paragraph (a) of this subsection at any point in time between one (1) hour prior to the commencement of an event specified in paragraph (b) of this subsection and one (1) hour following its conclusion; and
    4. Knows that he or she is within three hundred (300) feet of an occasion described in paragraph (b) of this subsection.
  2. Disorderly conduct in the first degree is a Class A misdemeanor.

History. Enact. Acts 2006, ch. 50, § 1, effective March 27, 2006; 2006, ch. 51, § 1, effective March 27, 2006; 2007, ch. 107, § 2, effective June 26, 2007.

Legislative Research Commission Note.

(3/27/2006). This section was created by 2006 Ky. Acts ch. 50, sec. 1, and 2006 Ky. Acts ch. 51, sec. 1, which are substantially identical and have been codified together.

Research References and Practice Aids

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public Order, Safety and Morals, Part 2 Riot, Disorderly Conduct and Related Offenses, §§ 8.31 — 8.34.

525.060. Disorderly conduct in the second degree.

  1. A person is guilty of disorderly conduct in the second degree when in a public place and with intent to cause public inconvenience, annoyance, or alarm, or wantonly creating a risk thereof, he:
    1. Engages in fighting or in violent, tumultuous, or threatening behavior;
    2. Makes unreasonable noise;
    3. Refuses to obey an official order to disperse issued to maintain public safety in dangerous proximity to a fire, hazard, or other emergency; or
    4. Creates a hazardous or physically offensive condition by any act that serves no legitimate purpose.
  2. Disorderly conduct in the second degree is a Class B misdemeanor.

History. Enact. Acts 1974, ch. 406, § 216, effective January 1, 1975; 2006, ch. 50, § 2, effective March 27, 2006; 2006, ch. 51, § 2, effective March 27, 2006.

Legislative Research Commission Note.

(3/27/2006). This section was amended by 2006 Ky. Acts chs. 50 and 51, which are identical and have been codified together.

NOTES TO DECISIONS

Analysis

1.Disorderly Conduct.

When defendant refused, at the request of an officer, to leave a crowded roadside where a friend in another car was being ticketed for a traffic violation, his arrest did not interfere with any constitutional right as he was not engaged in protected activity and the state had a legitimate interest in enforcing its traffic laws free from interruption and interference. (Decided under prior law) Colten v. Kentucky, 407 U.S. 104, 92 S. Ct. 1953, 32 L. Ed. 2d 584, 1972 U.S. LEXIS 43 (U.S. 1972).

Conduct may be disorderly, and not a breach of peace, riot, rout or affray. (Decided under prior law) Mt. Sterling v. Holly, 57 S.W. 491, 22 Ky. L. Rptr. 358 (1900).

Law that provided that congregating with other people in a public place and refusing to obey a lawful order by police to disperse with intent to cause public inconvenience, annoyance, or alarm constituted disorderly conduct was not void for overbreadth or vagueness. (Decided under prior law) Colten v. Commonwealth, 467 S.W.2d 374, 1971 Ky. LEXIS 382 ( Ky. 1971 ), aff'd, 407 U.S. 104, 92 S. Ct. 1953, 32 L. Ed. 2d 584, 1972 U.S. LEXIS 43 (U.S. 1972).

The plain meaning of former law that required that the proscribed conduct be done “with intent to alarm, or recklessly creating a risk thereof” was that the specified intent must have been the predominant intent which could have been determined either from the fact that no bona fide intent to exercise a constitutional right appeared to have existed or from the fact that the interest to be advanced by the particular exercise of a constitutional right was insignificant in comparison with the inconvenience, annoyance or alarm caused by the exercise. (Decided under prior law) Colten v. Commonwealth, 467 S.W.2d 374, 1971 Ky. LEXIS 382 ( Ky. 1971 ), aff'd, 407 U.S. 104, 92 S. Ct. 1953, 32 L. Ed. 2d 584, 1972 U.S. LEXIS 43 (U.S. 1972).

Police officer had probable cause to arrest a man for disorderly conduct where a crowd was standing in the front-yard of an apartment complex surrounding the man who was arrested on top of a much smaller man; the larger man had the smaller man pinned face-down to the ground and had a chokehold or headlock around the smaller man’s neck. The officer ordered the larger man to get off the smaller man, but he did not. Woosley v. City of Paris, 591 F. Supp. 2d 913, 2008 U.S. Dist. LEXIS 97663 (E.D. Ky. 2008 ).

It was unreasonable for the jury to find defendant guilty of disorderly conduct in the second degree, because the Commonwealth failed to present any evidence sufficient to establish that defendant's conduct was done with intent to cause public inconvenience, annoyance, or alarm, or wantonly creating a risk thereof. Pulley v. Commonwealth, 481 S.W.3d 520, 2016 Ky. App. LEXIS 8 (Ky. Ct. App. 2016).

2.Findings.

Defendant’s conviction for criminal mischief and disorderly conduct was affirmed as: (1) the police officers had a legal right to be on the premises as they were there in response to a 911 call of domestic violence, (2) there was ample evidence to indicate that the potential for domestic violence existed, (3) after locating defendant, the police acted reasonably in asking him to step out of an abandoned vehicle so that they could determine whether he was a threat, (4) defendant’s repeated refusals to cooperate, his reaching under the seat, and his desire to let loose his dog caused the officers to remove him forcibly from the vehicle, and (5) defendant was handcuffed and placed in the police cruiser because he was prohibiting the officers from carrying out their duty under KRS 403.785 , not because the officers were attempting to place him under arrest. Poe v. Commonwealth, 201 S.W.3d 37, 2006 Ky. App. LEXIS 258 (Ky. Ct. App. 2006).

Police officer reasonably believed that the arrestee was committing the crime of disorderly conduct and was entitled to qualified immunity on claims of false arrest and excessive force where (1) there was no evidence that the officer gratuitously stunned the arrestee and the use of the taser was both necessary and objectively reasonable to stop the arrestee’s assault on the smaller man; (2) the arrestee had the other much smaller man pinned face-down to the ground and had a chokehold or headlock around the other man’s neck; (3) the officer ordered the arrestee to get off the other man, but he did not; and (4) the officer then used his taser to stun the arrestee. Woosley v. City of Paris, 2008 U.S. Dist. LEXIS 98252 (E.D. Ky. Dec. 4, 2008).

3.Probable cause for arrest.

Where an officer arrested an arrestee for disorderly conduct following a confrontation, the officer was not entitled to summary judgment based on qualified immunity as to the wrongful arrest claim because an officer could not reasonably believe that the officer had probable cause to arrest the arrestee for disorderly conduct under KRS 525.060(1)(b) and a genuine issue of material fact remained about whether the arrestee yelled or spoke loudly at all. Kennedy v. City of Villa Hills, 635 F.3d 210, 2011 FED App. 0073P, 2011 U.S. App. LEXIS 5985 (6th Cir. Ky. 2011 ).

4.Firearms.

If one willfully points and discharges a pistol at another and death ensues, he is at least guilty of involuntary manslaughter. (Decided under prior law) Ewing v. Commonwealth, 129 Ky. 237 , 111 S.W. 352, 33 Ky. L. Rptr. 749 , 1908 Ky. LEXIS 161 ( Ky. 1908 ).

The word “draw” means “to draw a bead on, to bring into line with the bead or foresight of a rifle and the hindsight; to aim at”; pointing can only be done by drawing. (Decided under prior law) Hatfield v. Commonwealth, 200 Ky. 243 , 254 S.W. 748, 1923 Ky. LEXIS 51 ( Ky. 1923 ).

Defendant, whose defense to an action for malicious shooting was that, though he shot, he did not shoot at named person, but was merely drunk and shooting to hear his gun crack, was entitled to an instruction under law that provided penalty for drawing, flourishing or recklessly using a deadly weapon in certain public places, a lesser degree of the crime charged. (Decided under prior law) Hall v. Commonwealth, 219 Ky. 446 , 293 S.W. 961, 1927 Ky. LEXIS 360 ( Ky. 1927 ).

Offense of shooting in sudden affray or heat and passion and offense of drawing, flourishing, and recklessly using deadly weapon are lower degrees of crime of malicious and willful wounding. (Decided under prior law) Hurst v. Commonwealth, 284 Ky. 599 , 145 S.W.2d 520, 1940 Ky. LEXIS 543 ( Ky. 1940 ).

In prosecution for carrying concealed a deadly weapon, testimony that defendant flourished his pistol at witness threateningly a quarter of a mile from the place where it was testified he was observed carrying concealed a deadly weapon, injected a distinctly different crime than that for which defendant was indicted but it was admissible as material evidence because the two acts formed one pattern of criminality. (Decided under prior law) Morgan v. Commonwealth, 310 S.W.2d 281, 1958 Ky. LEXIS 386 ( Ky. 1958 ).

In prosecution of company officer and guard for the offense of “holding and flourishing” a deadly weapon, described as a pistol, and pointing the same at a “picket line,” wives of men who had been on the picket line and persons who were members of the union should have been disqualified as jurors and trial court should have sustained motion for a new trial on that ground. (Decided under prior law) Tayloe v. Commonwealth, 335 S.W.2d 556, 1960 Ky. LEXIS 265 ( Ky. 1960 ).

Plaintiff’s Fourth Amendment claims of arrest without probable cause and excessive use of force were properly dismissed because faced with an armed individual in the secured area of the airport who refused to cooperate or identify himself, had already been removed from a flight for creating a disturbance, and was pulling away from the officer and reaching for something, a reasonable officer would believe that individual had or was about to engage in disorderly conduct in violation of KRS 525.060 . Furthermore, the force used by the officer to effectuate the arrest was objectively reasonable under the circumstances. Fox v. DeSoto, 489 F.3d 227, 2007 FED App. 0206P, 2007 U.S. App. LEXIS 12847 (6th Cir. Ky. 2007 ).

5.Hazardous or Physically Offensive Condition.

Where defendant was charged with disorderly conduct for shouting obscenities at the military components of a parade, and where defendant refused to move out of “safety zone” on police officer’s instructions, there was sufficient evidence to substantiate that defendant’s speech served no legitimate purpose and that such “action” resulted in the creation of a “hazardous or physically offensive condition.” Commonwealth v. Jones, 880 S.W.2d 544, 1994 Ky. LEXIS 52 ( Ky. 1994 ).

6.Unreasonable Noise.

Content, volume, and surrounding circumstances may be considered together when making a determination of reasonableness of noise. Commonwealth v. Jones, 880 S.W.2d 544, 1994 Ky. LEXIS 52 ( Ky. 1994 ).

There was sufficient evidence before the jury for a determination of “unreasonable noise” on disorderly conduct charge against defendant for shouting obscenities at the military components of a parade, where officer testified that defendant’s volume of speech was greater than a normal speaking voice, where defendant stated that she was yelling no louder than the parade itself, and where defendant’s voice escalated when the officer asked her to move out of parade safety zone. Commonwealth v. Jones, 880 S.W.2d 544, 1994 Ky. LEXIS 52 ( Ky. 1994 ).

8.Collateral Estoppel.

Arrestee’s state conviction for disorderly conduct did not preclude her from asserting an excessive force claim against a local police officer because the Commonwealth was not required to prove absence of excessive force in the arrestee’s state criminal case, and there was no indication that excessive force, or a lack thereof, was actually litigated at the arrestee’s trial. Gonzalez v. Lusardi, 930 F. Supp. 2d 840, 2013 U.S. Dist. LEXIS 35521 (E.D. Ky. 2013 ).

Cited:

United States v. Sturgill, 563 F.2d 307, 1977 U.S. App. LEXIS 11273 (6th Cir. 1977).

Notes to Unpublished Decisions

Analysis

1.Probable cause for arrest.

Unpublished decision: Where a juvenile was arrested after being found by a police officer randomly ringing doorbells at a condominium complex, allegedly trying to find her friend’s condominium, the officer did not violate her constitutional rights because the officer had probable cause to arrest her for disorderly conduct and harassment. Straub v. Kilgore, 100 Fed. Appx. 379, 2004 U.S. App. LEXIS 10668 (6th Cir. Ky. 2004 ).

Unpublished decision: Although the appellate court disagreed with the district court’s decision that there was probable cause to arrest under Kentucky’s disorderly conduct statute, KRS 525.060 , Kentucky cases were not sufficiently clear that the officer’s actions violated clearly established law. Thus, the officer was entitled to qualified immunity. Nails v. Riggs, 195 Fed. Appx. 303, 2006 FED App. 0555N, 2006 U.S. App. LEXIS 20057 (6th Cir. Ky. 2006 ).

Unpublished decision: Where an officer responded to a distress call and found defendant screaming out of an apartment window, the officer had probable cause to arrest defendant for disorderly conduct under KRS 525.060(1) because defendant’s loud cries of “help me, they are going to kill me, they have got a gun” produced their offensive consequences in a public place under KRS 525.010(3). United States v. Edmundson, 405 Fed. Appx. 964, 2010 FED App. 0795N, 2010 U.S. App. LEXIS 26359 (6th Cir. Ky. 2010 ).

Unpublished decision: Arrestees’ false arrest claims failed because an officer had probable cause to arrest them for disorderly conduct under KRS 525.060(1) since their fight occurred in a public place, the conduct demonstrated that the parties intended to cause public inconvenience, annoyance, or alarm, or that they wantonly created a risk thereof, and there was no evidence that would have enabled the officer to “conclusively know” that the arrestees were protected by their claim of self-defense. Frodge v. City of Newport, 501 Fed. Appx. 519, 2012 FED App. 1056N, 2012 U.S. App. LEXIS 20942 (6th Cir. Ky. 2012 ).

2.Disorderly conduct.

Unpublished decision: Trooper did not have probable cause to arrest pursuant to a failure to disperse statute or a disorderly conduct statute, and the arrestees’ rights were clearly established; therefore, the trooper was not entitled to qualified immunity, and the denial of the trooper’s motion for summary judgment was affirmed. Gardner v. Williams, 56 Fed. Appx. 700, 2003 U.S. App. LEXIS 2242 (6th Cir. Ky. 2003 ).

Opinions of Attorney General.

A passenger in a car would be guilty of disorderly conduct if he interfered with an officer who has stopped the car to give the driver a verbal warning or citation. OAG 75-8 .

Since a boat is a transportation facility and therefore is within the definition of “public place,” offensive conduct which occurs aboard a vessel on Kentucky waters with several passengers present constitutes disorderly conduct. OAG 76-667 .

Research References and Practice Aids

Treatises

Kentucky Instructions To Juries (Civil), 5th Ed., False Imprisonment, § 30.03.

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public Order, Safety and Morals, Part 2 Riot, Disorderly Conduct and Related Offenses, §§ 8.31 — 8.34.

525.070. Harassment.

  1. A person is guilty of harassment when, with intent to intimidate, harass, annoy, or alarm another person, he or she:
    1. Strikes, shoves, kicks, or otherwise subjects him to physical contact;
    2. Attempts or threatens to strike, shove, kick, or otherwise subject the person to physical contact;
    3. In a public place, makes an offensively coarse utterance, gesture, or display, or addresses abusive language to any person present;
    4. Follows a person in or about a public place or places;
    5. Engages in a course of conduct or repeatedly commits acts which alarm or seriously annoy such other person and which serve no legitimate purpose; or
    6. Being enrolled as a student in a local school district, and while on school premises, on school-sponsored transportation, or at a school-sponsored event:
      1. Damages or commits a theft of the property of another student;
      2. Substantially disrupts the operation of the school; or
      3. Creates a hostile environment by means of any gestures, written communications, oral statements, or physical acts that a reasonable person under the circumstances should know would cause another student to suffer fear of physical harm, intimidation, humiliation, or embarrassment.
    1. Except as provided in paragraph (b) of this subsection, harassment is a violation. (2) (a) Except as provided in paragraph (b) of this subsection, harassment is a violation.
    2. Harassment, as defined in paragraph (a) of subsection (1) of this section, is a Class B misdemeanor.

History. Enact. Acts 1974, ch. 406, § 217, effective January 1, 1975; 1996, ch. 345, § 3, effective July 15, 1996; 2008, ch. 125, § 4, effective July 15, 2008.

NOTES TO DECISIONS

Analysis

1.Constitutionality.

A conviction under subdivision (1) (b) of this section was reversed because of the unconstitutional overbreadth of the prohibition against “offensively coarse” utterances, gestures or displays or “abusive language,” and because of the absence of any state court decision narrowing the application of the statute so as to eliminate the potential for interference with rights guaranteed by U.S. Const., amend. 1. United States v. Sturgill, 563 F.2d 307, 1977 U.S. App. LEXIS 11273 (6th Cir. Ky. 1977 ).

As written, subdivision (1)(b) of this section is unconstitutionally vague and overbroad; this subdivision has no such measuring stick, so that, in a broad range of cases persons could be found guilty of its violation in circumstances that would infringe constitutional guarantees of free speech. Musselman v. Commonwealth, 705 S.W.2d 476, 1986 Ky. LEXIS 242 ( Ky. 1986 ).

2.Coarse or Abusive Language.

One person cannot escape the consequences of his commission of the offense of using abusive language by showing that the person to whom insulting language was used was at the same time guilty of a violation of the same offense. (Decided under prior law) Bruce v. Scully, 162 Ky. 296 , 172 S.W. 530, 1915 Ky. LEXIS 57 ( Ky. 1915 ).

The words “God damn sons-of-bitches,” as applied to others, are reasonably calculated to invoke violent resentment and constitute a “breach of the peace.” (Decided under prior law) Jones v. Commonwealth, 307 Ky. 286 , 210 S.W.2d 956, 1948 Ky. LEXIS 1093 (Ky. Ct. App. 1948).

Subdivision (1)(b) of this section as written punishes coarse or abusive language, per se; the court cannot add to it a phrase restricting it to language likely to cause violence. Musselman v. Commonwealth, 705 S.W.2d 476, 1986 Ky. LEXIS 242 ( Ky. 1986 ).

Former employee’s harassment claim failed because a supervisor’s two comments regarding a woman in heels and a dress and one hourglass gesture did not rise to the level of actionable harassment. Montell v. Diversified Clinical Servs., 969 F. Supp. 2d 798, 2013 U.S. Dist. LEXIS 120598 (E.D. Ky. 2013 ).

3.Standing.

Because KRS 446.070 allowed a private cause of action for damages to any person injured by the violation of any statute, and KRS 525.070 and 525.080 prohibited harassment and harassing communications, the court did not dismiss the harassment and intentional infliction of emotional distress claims alleged by plaintiff in connection with the alleged reporting of adverse credit information by the bank. Massey v. MBNA Am. Bank, N.A., 2005 U.S. Dist. LEXIS 28756 (W.D. Ky. Nov. 17, 2005).

4.Unlawful Imprisonment.

Actual or threatened physical contact made with the intent to harass so as to restrain another would constitute evidence that supports convictions for both harassment and unlawful imprisonment and, if the Commonwealth actually relies on and seeks to prove the defendant’s commission of the offense of harassment as the act, that accomplished the victim’s restraint, then it might be said that, under this unique set of facts, harassment is a lesser included offense of unlawful imprisonment. Hart v. Commonwealth, 768 S.W.2d 552, 1989 Ky. App. LEXIS 170 (Ky. Ct. App. 1989).

Harassment is not a lesser offense necessarily included in the offense of unlawful imprisonment in the first or second degree. Although evidence of actual or threatened physical force or contact by the accused certainly can be relied on to prove an element of each offense, proof of these offenses does not always involve such evidence. More importantly, both offenses of unlawful imprisonment require proof of the additional fact of substantial interference with liberty of another whereas the offense of harassment requires proof of the additional fact of intent to harass, annoy or alarm another person. Hart v. Commonwealth, 768 S.W.2d 552, 1989 Ky. App. LEXIS 170 (Ky. Ct. App. 1989).

6.Instructions.

Trial court did not err in failing to issue a harassment instruction because the evidence did not support one; the record was void of any evidence that defendant touched the victim and intended to harass or annoy her, and he denied touching the victim in any manner. Boone v. Commonwealth, 2013 Ky. App. LEXIS 152 (Ky. Ct. App. Oct. 18, 2013), review denied, ordered not published, 2014 Ky. LEXIS 407 (Ky. Aug. 13, 2014).

6.5Physical Contact.

County sheriff's refusal to return a gun owner's firearms did not violate the Second Amendment because the owner's Kentucky harassment conviction qualified as a misdemeanor crime of domestic violence because “physical contact” met the physical force element. Laubis v. Witt, 597 Fed. Appx. 827, 2015 U.S. App. LEXIS 594 (6th Cir. Ky. 2015 ).

7.Sufficiency of evidence.

Dismissal of a subdivision lot owner’s harassment counterclaim against the developer of the subdivision was appropriate when the developer sought to enforce restrictive covenants because the trial court found a lack of intent to annoy or alarm and a legitimate purpose. All of the communications between the residents of the subdivision were appropriate given the concerns of the residents, and all were directed toward the proper enforcement of the restrictions. Hensley v. Gadd, 560 S.W.3d 516, 2018 Ky. LEXIS 503 ( Ky. 2018 ).

Cited in:

Craft v. Rice, 671 S.W.2d 247, 1984 Ky. LEXIS 254 ( Ky. 1984 ); Singleton v. Commonwealth, 740 S.W.2d 159, 1986 Ky. App. LEXIS 1484 (Ky. Ct. App. 1986); Yates v. Commonwealth, 753 S.W.2d 874, 1988 Ky. App. LEXIS 56 (Ky. Ct. App. 1988).

Notes to Unpublished Decisions

1.Probable cause.

Unpublished decision: Where a juvenile was arrested after being found by a police officer randomly ringing doorbells at a condominium complex, allegedly trying to find her friend’s condominium, the officer did not violate her constitutional rights because the officer had probable cause to arrest her for disorderly conduct and harassment. Straub v. Kilgore, 100 Fed. Appx. 379, 2004 U.S. App. LEXIS 10668 (6th Cir. Ky. 2004 ).

Opinions of Attorney General.

A passenger in a car would be guilty of harassment if he interfered with an officer who has stopped the car to give the driver a verbal warning or citation. OAG 75-8 .

Since in defining a “public place” KRS 525.010 excludes rooms or apartments designed for actual residence, a private home does not become a public place because one of the owners summons police there and where an owner there uses offensive or abusive gestures to a policeman he may not be charged with harassment unless he uses language containing a threat to the physical well being of the officer in addition to merely commenting on his ancestry or family relationship. OAG 75-63 .

A peace officer, in whose presence a “violation” is committed, has the option of issuing the violator a citation or making a full custodial arrest. OAG 76-166 .

If a bicyclist is physically or vocally harassed by persons in a motor vehicle he could make a criminal complaint under this section. OAG 78-25 .

Research References and Practice Aids

Cross-References.

Challenge to duel, accepting and delivering challenge, KRS 437.030 .

Menacing, KRS 508.050 .

Kentucky Bench & Bar.

Davis and Davis, Recovery for Wrongful Deprivation of Child Custody: A Civil Remedy for Kentucky, Volume 51, No. 2, Spring 1987 Ky. Bench & B. 20.

Grandon, Recent Changes in Kentucky Laws Related to Domestic Violence, Winter 1998, Vol. 62, No. 1, Ky. Bench & Bar 10.

Chenoweth and Chenoweth, Education Law: I’m Going to Beat You Up!: Reporting Student Conduct Under “the Bullying Bill”, Vol. 72, No. 6, November 2008, Ky. Bench & Bar 10.

Kentucky Law Journal.

Kentucky Law Survey, Malone and Malone, Criminal Law, 69 Ky. L.J. 545 (1980-81).

Kentucky Law Survey, Fortune, Criminal Rules, 70 Ky. L.J. 395 (1981-82).

Kentucky Law Survey, Vinson, Torts, 72 Ky. L.J. 457 (1983-84).

Gormley and Hartman, The Kentucky Bill of Rights: A Bicentennial Celebration, 80 Ky. L.J. 1 (1990-91).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Police Officer’s Answer to Claim of Unlawful Arrest, Form 121.02.

Kentucky Instructions To Juries (Criminal), 5th Ed., Restraints and Assaults of Persons, Part 3 Assault, § 3.64.

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public Order, Safety and Morals, Part 2 Riot, Disorderly Conduct and Related Offenses, § 8.42.

525.080. Harassing communications.

  1. A person is guilty of harassing communications when, with intent to intimidate, harass, annoy, or alarm another person, he or she:
    1. Communicates with a person, anonymously or otherwise, by telephone, telegraph, mail, or any other form of electronic or written communication in a manner which causes annoyance or alarm and serves no purpose of legitimate communication;
    2. Makes a telephone call, whether or not conversation ensues, with no purpose of legitimate communication; or
    3. Communicates, while enrolled as a student in a local school district, with or about another school student, anonymously or otherwise, by telephone, the Internet, telegraph, mail, or any other form of electronic or written communication in a manner which a reasonable person under the circumstances should know would cause the other student to suffer fear of physical harm, intimidation, humiliation, or embarrassment and which serves no purpose of legitimate communication.
  2. Harassing communications is a Class B misdemeanor.

History. Enact. Acts 1974, ch. 406, § 218, effective January 1, 1975; 2008, ch. 125, § 5, effective July 15, 2008; 2016 ch. 99, § 1, effective July 15, 2016.

NOTES TO DECISIONS

1.Constitutionality.

This section does not violate the First Amendment of the United States Constitution because it does not concern face to face communication in a public place where confrontations could arise, but rather it relates to protecting one’s right to privacy; no individual whose intention is to annoy, alarm, or harass has the right to impose his ideas on an unwilling listener not in a public forum. Yates v. Commonwealth, 753 S.W.2d 874, 1988 Ky. App. LEXIS 56 (Ky. Ct. App. 1988).

This section is not unconstitutionally vague and overbroad, because it does not regulate speech but rather the intentional use of private communication to annoy, alarm, or harass the receiver, and the meaning of this section is clear and provides reasonable opportunity to know what actions are prohibited. Yates v. Commonwealth, 753 S.W.2d 874, 1988 Ky. App. LEXIS 56 (Ky. Ct. App. 1988).

2.Applicability.

Because KRS 446.070 allowed a private cause of action for damages to any person injured by the violation of any statute, and KRS 525.070 and 525.080 prohibited harassment and harassing communications, the court did not dismiss the harassment and intentional infliction of emotional distress claims alleged by plaintiff in connection with the alleged reporting of adverse credit information by the bank. Massey v. MBNA Am. Bank, N.A., 2005 U.S. Dist. LEXIS 28756 (W.D. Ky. Nov. 17, 2005).

3.Indictment.

An indictment under law that provided penalty for sending a threatening letter should have set out the letter, or its substance. (Decided under prior law) Commonwealth v. Patrick, 127 Ky. 473 , 105 S.W. 981, 32 Ky. L. Rptr. 343 , 1907 Ky. LEXIS 157 ( Ky. 1907 ).

4.Jurisdiction.

Where a threatening letter was written and placed in a post office in one county, and addressed to and received by the person threatened at his post office in another county, the courts of both counties had jurisdiction of the offense, as it was a violation to send such a letter or circulate, exhibit or post it. (Decided under prior law) Commonwealth v. Morton, 140 Ky. 628 , 131 S.W. 506, 1910 Ky. LEXIS 340 ( Ky. 1910 ).

5.Threatening Letter.

A threatening letter is any letter or writing that is calculated to alarm, disturb, intimidate or injure, without reference to whether it designates, describes or mentions any offense that has been committed by the person referred to, or contains any statement showing why it is written or posted. (Decided under prior law) Commonwealth v. Morton, 140 Ky. 628 , 131 S.W. 506, 1910 Ky. LEXIS 340 ( Ky. 1910 ).

Cited:

Kentucky Bar Ass’n v. Davis, 819 S.W.2d 317, 1991 Ky. LEXIS 183 ( Ky. 1991 ); Littrell v. Bosse, 581 S.W.3d 584, 2019 Ky. App. LEXIS 128 (Ky. Ct. App. 2019).

Research References and Practice Aids

Cross-References.

Emergency telephone calls, KRS 438.160 to 438.190 .

Kentucky Bench & Bar.

Chenoweth and Chenoweth, Education Law: I’m Going to Beat You Up!: Reporting Student Conduct Under “the Bullying Bill”, Vol. 72, No. 6, November 2008, Ky. Bench & Bar 10.

Kentucky Law Journal.

Kentucky Law Survey, Malone and Malone, Criminal Law, 69 Ky. L.J. 545 (1980-81).

Note: The Facebook Frontier: Responding to the Changing Face of Privacy on the Internet, 97 Ky. L.J. 541 (2008/2009).

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public Order, Safety and Morals, Part 2 Riot, Disorderly Conduct and Related Offenses, § 8.43.

525.085. Dissemination of personally identifying information.

  1. For the purposes of this section:
    1. “Dissemination” means electronically publishing, posting, or otherwise disclosing information to a public Internet site or public forum;
    2. “Household member” means a person who regularly resides in the household or who within the six (6) months preceding the conduct of the offense regularly resided in the household;
    3. “Immediate family member” means a parent, grandparent, spouse, child, stepchild, father-in-law, mother-in-law, son-in-law, daughter-in-law, sibling, brother-in-law, sister-in-law, or grandchild; and
    4. “Personally identifying information” means information that identifies or reasonably can be used to identify an individual, including but not limited to:
      1. Social Security number or other government-issued identifier;
      2. Date of birth;
      3. Home or physical address;
      4. Electronic-mail address or telephone number;
      5. Financial account number or credit or debit card number;
      6. Biometric, health, or medical data, or insurance information; or
      7. School or employment locations.
  2. A person is guilty of disseminating personally identifying information about another person when, with the intent to intimidate, abuse, threaten, harass, or frighten a person who resides in the Commonwealth, he or she:
    1. Intentionally disseminates the personally identifying information of the person or a person’s immediate family member or household member; and
    2. The dissemination would cause a reasonable person to be in fear of physical injury to himself or herself, or to his or her immediate family member or household member.
  3. This section shall apply to electronic communications originating within or accessible within the Commonwealth.
  4. Disseminating personally identifying information is a Class A misdemeanor, unless the dissemination results in:
    1. Physical injury to the victim or to a victim’s immediate family member or household member, in which case it is a Class D felony;
    2. Serious physical injury to the victim or to a victim’s immediate family member or household member, in which case it is a Class C felony; or
    3. Death of the victim or of a victim’s immediate family member or household member, in which case it is a Class B felony.
  5. Nothing in this section shall be construed to impose liability on a broadband Internet access service provider, a telecommunications service provider, an interconnected VoIP provider, or a mobile service provider as defined in 47 U.S.C. sec. 153 , a commercial mobile service provider as defined in 47 U.S.C. sec. 332(d) , or a cable operator as defined in 47 U.S.C. sec. 522 , when acting in its capacity as a provider of those services.

HISTORY: 2021 ch. 199, § 1, effective June 29, 2021.

525.090. Loitering.

  1. A person is guilty of loitering when he:
    1. Loiters or remains in a public place for the purpose of gambling with cards, dice or other gambling paraphernalia, except that the provisions of this section shall not apply if the person is participating in charitable gaming defined by KRS 238.505 ; or
    2. Loiters or remains in a public place for the purpose of unlawfully using a controlled substance; or
    3. Loiters or remains in or about a school, college or university building or grounds, not having any reason or relationship involving custody of or responsibility for a pupil or student or any other specific legitimate reason for being there and not having written permission from anyone authorized to grant the same; or
    4. Loiters or remains in any transportation facility, unless specifically authorized to do so, for the purpose of soliciting or engaging in any business, trade or commercial transactions involving the sale of merchandise or services.
  2. Loitering is a violation.

History. Enact. Acts 1974, ch. 406, § 219, effective January 1, 1975; 1980, ch. 267, § 8, effective July 15, 1980; 1984, ch. 102, § 2, effective July 13, 1984; 1994, ch. 66, § 18, effective March 16, 1994.

Opinions of Attorney General.

A peace officer, in whose presence a “violation” is committed, has the option of issuing the violator a citation or making a full custodial arrest. OAG 76-166 .

The adoption of a proposed loitering ordinance which would prohibit loitering for the purpose of engaging in “an unlawful drug transaction” is prohibited by KRS 67A.070 , because such an enactment would be in conflict with existing state legislation by attempting to redefine statutory crimes. OAG 91-27 .

Research References and Practice Aids

Treatises

Kentucky Instructions To Juries (Civil), 5th Ed., False Imprisonment, § 30.05.

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public Order, Safety and Morals, Part 2 Riot, Disorderly Conduct and Related Offenses, §§ 8.35, 8.36.

525.100. Public intoxication.

  1. A person is guilty of public intoxication when he appears in a public place manifestly under the influence of a controlled substance, or other intoxicating substance, excluding alcohol (unless the alcohol is present in combination with any of the above), not therapeutically administered, to the degree that he may endanger himself or other persons or property, or unreasonably annoy persons in his vicinity.
  2. Public intoxication is a Class B misdemeanor.

History. Enact. Acts 1974, ch. 406, § 220, effective January 1, 1975; 1986, ch. 336, § 9, effective July 1, 1986.

Compiler’s Notes.

This section was amended by Acts 1980, ch. 254, § 11, effective July 1, 1982; however, such amendment never took effect, as it was repealed by Acts 1982, ch. 312, § 15, effective July 1, 1982. Section 11 of Acts 1982, ch. 312 amended this section effective July 1, 1984, which date Acts 1984, ch. 205 attempted to change to July 15, 1986, but because of a technical error in the amendment the date became July 1, 1986. Acts 1986, ch. 336, § 12 repealed Acts 1980, ch. 254, Acts 1982, ch. 312 and Acts 1984, ch. 205, effective July 1, 1986. Therefore, this section is set out as enacted by Acts 1974, ch. 406, § 220, as amended by Acts 1986, ch. 312, § 9.

Section 13 of Acts 1986, ch. 336 read: “It is the intent of the General Assembly that the amendments and repealers of Acts 1980, Chapter 254 and Acts 1982, Chapter 312 not become effective and that the statutes affected thereby remain as not amended or not repealed, except as affected by this Act or by legislation other than Acts 1980, Chapter 254; Acts 1982, Chapter 312; and Acts 1984, Chapter 205, passed during 1980, 1982 and 1984.”

Legislative Research Commission Note.

Acts 1984, ch. 205, § 1 attempted to change the effective date of Acts 1982, ch. 312 to July 15, 1986; however, pursuant to KRS 446.270 , the effective date must be July 1, 1986.

Opinions of Attorney General.

Since there are two degrees of intoxication proscribed by KRS 244.020(2) (repealed) and this section and since OAG 75-680 indicates that this section does not repeal KRS 244.020(2) (repealed) by implication, the factual situation at the scene of the arrest and the degree of intoxication, either “manifestly under the influence” or simply “under the influence,” of the arrestee will determine which statute is appropriately chargeable by the arresting officer. OAG 76-29 .

For an arrest under this section the accused must appear “ . . . . . manifestly under the influence of alcohol . . . . . .,” i.e. the accused must demonstrate some aberrant behavior before an arrest is authorized. The accused must also be intoxicated to the extent that he “may” endanger himself, or other persons, etc.; however it is not necessary that the accused actually engage in some act which endangers himself or others. OAG 84-10 .

Where a police officer stops an automobile and arrests the driver for D.U.I., and the officer discovers that a passenger appears manifestly under the influence of alcohol to the extent that he may endanger himself or other persons, the passenger may be arrested even though he is not in the process of endangering himself or others, since the purpose of the arrest is to protect the accused and to prevent injury to others; this purpose would be defeated if the statute were interpreted to require the accused to place himself or others in danger before an arrest could occur. OAG 84-10 .

Research References and Practice Aids

Cross-References.

Boating while drunk, KRS 235.240 .

Drinking or being under influence of alcoholic beverages in a public place, KRS 244.990 .

Drunken driving, KRS 189.520 , 189.990 .

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public Order, Safety and Morals, Part 2 Riot, Disorderly Conduct and Related Offenses, § 8.37.

525.105. Desecration of venerated objects, first degree.

  1. A person is guilty of desecration of venerated objects in the first degree when, other than authorized by law, he intentionally excavates or disinters human remains for the purpose of commercial sale or exploitation of the remains themselves or of objects buried contemporaneously with the remains.
  2. Desecration of venerated objects in the first degree is a Class C felony.

History. Enact. Acts 1988, ch. 119, § 1, effective March 30, 1988; 2002, ch. 276, § 6, effective July 15, 2002.

NOTES TO DECISIONS

1.Double Jeopardy.

Defendant’s convictions for both desecration of venerable objects and theft by unlawful taking did not violate double jeopardy because the crimes were separate crimes that required proof of different elements. Theft by taking required defendant to actually take control of the objects he took from a grave while the crime of desecration of venerable objects was complete upon his excavation or disinterment of human remains with the intent to exploit commercially the remains themselves or objects buried with them. Terry v. Commonwealth, 253 S.W.3d 466, 2007 Ky. LEXIS 268 ( Ky. 2007 ).

For purposes of double jeopardy, the crimes of violating a grave and first-degree desecration of venerable objects did not constitute the same offense because in order to violate a grave, defendant had to mutilate the grave or the shrubbery, grounds, etc., immediately surrounding the grave, and by contrast, no mutilation requirement existed in the first-degree desecration of venerated objects statute. Terry v. Commonwealth, 253 S.W.3d 466, 2007 Ky. LEXIS 268 ( Ky. 2007 ).

For purposes of double jeopardy, the crimes of first-degree criminal mischief and first-degree desecration of venerable objects did not constitute the same offense because there was a $1,000 threshold monetary property damage requirement for criminal mischief in the first degree, but no property damage requirement for desecration of venerated objects. Terry v. Commonwealth, 253 S.W.3d 466, 2007 Ky. LEXIS 268 ( Ky. 2007 ).

Research References and Practice Aids

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public Order, Safety and Morals, Part 2 Riot, Disorderly Conduct and Related Offenses, § 8.44.

525.110. Desecration of venerated objects, second degree.

  1. A person is guilty of desecration of venerated objects in the second degree when he intentionally:
    1. Desecrates any public monument or object or place of worship; or
    2. Desecrates in a public place the national or state flag or other patriotic or religious symbol which is an object of veneration by the public or a substantial segment thereof.
  2. Desecration of venerated objects in the second degree is a Class A misdemeanor.

History. Enact. Acts 1974, ch. 406, § 221, effective January 1, 1975; 1988, ch. 119, § 2, effective March 30, 1988; 1992, ch. 420, § 3, effective July 14, 1992.

NOTES TO DECISIONS

1.Graves.

Where the defendant was the owner of a graveyard and allowed others to use rock from a wall inclosing the graveyard, and these third persons were not agents of the defendant, then the defendant was not guilty of any willful mutilation. (Decided under prior law) Masters v. Commonwealth, 145 Ky. 611 , 140 S.W. 1021, 1911 Ky. LEXIS 904 ( Ky. 1911 ).

Next of kin had right to recover damages for mental anguish for unwarranted interference with grave of deceased person as well as for an act which affected body interred therein, if either act was done maliciously or wantonly or by gross negligence. (Decided under prior law) R. B. Tyler Co. v. Kinser, 346 S.W.2d 306, 1961 Ky. LEXIS 305 ( Ky. 1961 ).

Research References and Practice Aids

Cross-References.

Criminal damage to property, KRS 512.010 to 512.080 .

Permitting cattle to run on grounds dedicated to religious purposes, KRS 259.200 .

United States flag, prohibited uses of, KRS 2.060 .

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public Order, Safety and Morals, Part 2 Riot, Disorderly Conduct and Related Offenses, §§ 8.45A, 8.45B.

525.113. Institutional vandalism.

  1. A person is guilty of institutional vandalism when he, because of race, color, religion, sexual orientation, or national origin of another individual or group of individuals, knowingly vandalizes, defaces, damages, or desecrates objects defined in KRS 525.110 .
  2. Institutional vandalism is a Class D felony.

History. Enact. Acts 1998, ch. 606, § 52, effective July 15, 1998.

Research References and Practice Aids

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public Order, Safety and Morals, Part 2 Riot, Disorderly Conduct and Related Offenses, § 8.45B.

525.115. Violating graves.

  1. A person is guilty of violating graves when he intentionally:
    1. Mutilates the graves, monuments, fences, shrubbery, ornaments, grounds, or buildings in or enclosing any cemetery or place of sepulture; or
    2. Violates the grave of any person by destroying, removing, or damaging the headstone or footstone, or the tomb over the enclosure protecting any grave; or
    3. Digs into or plows over or removes any ornament, shrubbery, or flower placed upon any grave or lot.
  2. The provisions of subsection (1) of this section shall not apply to ordinary maintenance and care of a cemetery nor the removal and relocation of graves pursuant to procedures authorized by and in accordance with applicable statutes.
  3. Violating graves is a Class D felony.
  4. The court shall order the defendant to restore the cemetery to its pre-damage condition.

History. Enact. Acts 1992, ch. 420, § 2, effective July 14, 1992; 2000, ch. 123, § 1, effective July 14, 2000; 2002, ch. 276, § 7, effective July 15, 2002.

NOTES TO DECISIONS

1.Damages.

Next of kin had right to recover damages for mental anguish for unwarranted interference with grave of deceased person as well as for an act which affected body interred therein, if either act was done maliciously or wantonly or by gross negligence. (Decided under prior law) R. B. Tyler Co. v. Kinser, 346 S.W.2d 306, 1961 Ky. LEXIS 305 ( Ky. 1961 ).

2.Double Jeopardy.

Defendant’s convictions for both first-degree criminal mischief and violating a grave did not violate double jeopardy. The crimes required proof of different elements as first-degree criminal mischief required proof of a pecuniary loss of $1,000 or more while the crime of violating a grave did not include a monetary damage requirement. Terry v. Commonwealth, 253 S.W.3d 466, 2007 Ky. LEXIS 268 ( Ky. 2007 ).

For purposes of double jeopardy, the crimes of violating a grave and first-degree desecration of venerable objects did not constitute the same offense because in order to violate a grave, defendant had to mutilate the grave or the shrubbery, grounds, etc., immediately surrounding the grave, and by contrast, no mutilation requirement existed in the first-degree desecration of venerated objects statute. Terry v. Commonwealth, 253 S.W.3d 466, 2007 Ky. LEXIS 268 ( Ky. 2007 ).

3.Intent.

Where the defendant was the owner of a graveyard and allowed others to use rock from a wall inclosing the graveyard, and these third persons were not agents of the defendant, then the defendant was not guilty of any willful mutilation. (Decided under prior law) Masters v. Commonwealth, 145 Ky. 611 , 140 S.W. 1021, 1911 Ky. LEXIS 904 ( Ky. 1911 ).

Cited:

Martinez v. Employers Ins. of Wausau, 1999 Ky. App. LEXIS 131 (Ky. Ct. App. 1999), rehearing denied, 1999 Ky. App. LEXIS 132 (Ky. Ct. App. 1999), rev’d, Emplrs Ins. of Wausau v. Martinez, 2001 Ky. LEXIS 95 ( Ky. 2001 ).

Research References and Practice Aids

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public Order, Safety and Morals, Part 2 Riot, Disorderly Conduct and Related Offenses, § 8.46.

525.120. Abuse of a corpse.

  1. A person is guilty of abuse of a corpse when except as authorized by law he intentionally treats a corpse in a way that would outrage ordinary family sensibilities. A person shall also be guilty of abuse of a corpse if that person enters into a contract and accepts remuneration for the preparation of a corpse for burial or the burial or cremation of a corpse and then deliberately fails to prepare, bury, or cremate that corpse in accordance with that contract.
  2. Abuse of a corpse is a Class D felony.

History. Enact. Acts 1974, ch. 406, § 222, effective January 1, 1975; 2000, ch. 490, § 1, effective July 14, 2000; 2002, ch. 276, § 8, effective July 15, 2002; 2019 ch. 60, § 1, effective June 27, 2019.

Legislative Research Commission Notes.

(6/27/2019). Section 2 of 2019 Ky. Acts ch. 60 states that the Act, which amended this statute, may be cited as Kristen's Law.

NOTES TO DECISIONS

Cited:

Smith v. Commonwealth, 722 S.W.2d 892, 1987 Ky. LEXIS 190 ( Ky. 1987 ).

Research References and Practice Aids

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public Order, Safety and Morals, Part 2 Riot, Disorderly Conduct and Related Offenses, §§ 8.47, 8.47A.

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Related to Sex and Pornography, Part 2 Rape, § 4.23.

525.125. Cruelty to animals in the first degree.

  1. As used in this section:
    1. “Dog” means a domesticated canid of the genus canis lupus familiaris; and
    2. “Dog fight” or “dog fighting” means any event that involves a fight conducted or to be conducted between at least two (2) dogs for purposes of sport, wagering, or entertainment, except that the term “dog fight” or “dog fighting” shall not be deemed to include any activity the purpose of which involves the use of one (1) or more dogs in hunting or taking another animal.
  2. The following persons are guilty of cruelty to animals in the first degree:
    1. Whenever a dog is knowingly caused to dog fight for pleasure or profit:
      1. The owner of the dog;
      2. The owner of the property on which the fight is conducted if the owner knows of the dog fight; and
      3. Anyone who participates in the organization of the dog fight; and
    2. Any person who knowingly owns, possesses, keeps, trains, sells, or otherwise transfers a dog for the purpose of dog fighting.
  3. Activities of dogs engaged in hunting, field trials, dog training, and other activities authorized either by a hunting license or by the Department of Fish and Wildlife Resources shall not constitute a violation of this section.
  4. Activities of dogs engaged in working or guarding livestock shall not constitute a violation of this section.
  5. Cruelty to animals in the first degree is a Class D felony.

History. Enact. Acts 1984, ch. 67, § 2, effective July 13, 1984; 1992, ch. 463, § 65, effective July 14, 1992; 2016 ch. 64, § 1, effective July 15, 2016.

Legislative Research Commission Note.

(3/30/90) The definition of “animal” contained in KRS 446.010(2) does not reflect the amendatory language contained in Senate Bill 263 of the 1980 Regular Session of the Kentucky General Assembly because the 1980 Senate Journal indicates that Senate Bill 263 was vetoed by Governor John Y. Brown, Jr., on April 9, 1980, and recommitted by action of the Senate to its Committee on Appropriations and Revenue on April 14, 1980. Senate Bill 263 proposed to change KRS 446.010(2) to read as follows: “‘Animal’ includes every warmblooded living creature except birds and human beings;”. By a letter dated March 16, 1990, the Attorney General has informally opined that Governor Brown’s veto of Senate Bill 263 was not timely; that letter has exhibits showing that the bill was received by the Governor on March 28, 1980, and that his veto was received by the Senate Clerk on April 10, 1980.

Opinions of Attorney General.

According to statutes and subject to license and regulations, dogs alone may be used to hunt, wound, and kill opossum and raccoon. Opossum and raccoon fighting against the dogs “may reasonably be expected to accomplish these acts.” So, participation in shakeout seasons as it is regulated by the department at 301 KAR 2:110, is statutorily authorized by KRS Chapter 150. OAG 91-43 .

Participation in the shakeout seasons is not illegal cruelty to animals under either this section or KRS 525.130 . OAG 91-43 .

Research References and Practice Aids

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public Order, Safety and Morals, Part 2 Riot, Disorderly Conduct and Related Offenses, §§ 8.48, 8.49.

525.130. Cruelty to animals in the second degree — Exemptions — Offense involving equines.

  1. A person is guilty of cruelty to animals in the second degree when except as authorized by law he intentionally or wantonly:
    1. Subjects any animal to or causes cruel or injurious mistreatment through abandonment, participates other than as provided in KRS 525.125 in causing it to fight for pleasure or profit (including, but not limited to being a spectator or vendor at an event where a four (4) legged animal is caused to fight for pleasure or profit), mutilation, beating, torturing any animal other than a dog or cat, tormenting, failing to provide adequate food, drink, space, or health care, or by any other means;
    2. Subjects any animal in his custody to cruel neglect; or
    3. Kills any animal other than a domestic animal killed by poisoning. This paragraph shall not apply to intentional poisoning of a dog or cat. Intentional poisoning of a dog or cat shall constitute a violation of this section.
  2. Nothing in this section shall apply to the killing of animals:
    1. Pursuant to a license to hunt, fish, or trap;
    2. Incident to the processing as food or for other commercial purposes;
    3. For humane purposes;
    4. For veterinary, agricultural, spaying or neutering, or cosmetic purposes;
    5. For purposes relating to sporting activities, including but not limited to horse racing at organized races and training for organized races, organized horse shows, or other animal shows;
    6. For bona fide animal research activities of institutions of higher education; or a business entity registered with the United States Department of Agriculture under the Animal Welfare Act or subject to other federal laws governing animal research;
    7. In defense of self or another person against an aggressive or diseased animal;
    8. In defense of a domestic animal against an aggressive or diseased animal;
    9. For animal or pest control; or
    10. For any other purpose authorized by law.
  3. Activities of animals engaged in hunting, field trials, dog training other than training a dog to fight for pleasure or profit, and other activities authorized either by a hunting license or by the Department of Fish and Wildlife shall not constitute a violation of this section.
  4. Cruelty to animals in the second degree is a Class A misdemeanor.
  5. If a person is convicted of or pleads guilty to an offense under subsection (1) of this section arising from the person’s treatment of an equine, the court may impose one (1) or both of the following penalties against the person, in addition to fines and imprisonment:
    1. An order that the person pay restitution for damage to the property of others and for costs incurred by others, including reasonable costs, as determined by agreement or by the court after a hearing, incurred in feeding, sheltering, veterinary treatment, and incidental care of any equine that was the subject of the offense resulting in conviction; or
    2. An order terminating or imposing conditions on the person’s right to possession, title, custody, or care of any equine that was the subject of the offense resulting in conviction.

If a person’s ownership interest in an equine is terminated by a judicial order under paragraph (b) of this subsection, the court may order the sale, conveyance, or other disposition of the equine that was the subject of the offense resulting in conviction.

HISTORY: Enact. Acts 1974, ch. 406, § 223, effective January 1, 1975; 1984, ch. 67, § 1, effective July 13, 1984; 1992, ch. 463, § 66, effective July 14, 1992; 2003, ch. 181, § 2, effective June 24, 2003; 2017 ch. 145, § 1, effective June 29, 2017.

Legislative Research Commission Note.

(3/30/90) The definition of “animal” contained in KRS 446.010(2) does not reflect the amendatory language contained in Senate Bill 263 of the 1980 Regular Session of the Kentucky General Assembly because the 1980 Senate Journal indicates that Senate Bill 263 was vetoed by Governor John Y. Brown, Jr., on April 9, 1980, and recommitted by action of the Senate to its Committee on Appropriations and Revenue on April 14, 1980. Senate Bill 263 proposed to change KRS 446.010(2) to read as follows: “‘Animal’ includes every warmblooded living creature except birds and human beings;”. By a letter dated March 16, 1990, the Attorney General has informally opined that Governor Brown’s veto of Senate Bill 263 was not timely; that letter has exhibits showing that the bill was received by the Governor on March 28, 1980, and that his veto was received by the Senate Clerk on April 10, 1980.

NOTES TO DECISIONS

1.Burden of Proof.

Defendant, who was charged with second degree cruelty to animals for having engaged in cockfighting activity, failed to meet his burden of proof that the Governor’s veto of a 1980 amendment to KRS 446.010 , which would have excepted birds from the definition of “animals,” was untimely and invalid. (Decided under prior law) Munn v. Commonwealth, 889 S.W.2d 49, 1994 Ky. App. LEXIS 146 (Ky. Ct. App. 1994).

2.Evidence.

The requirement of corroboration of accomplices applied to offense of injuring, poisoning or killing cattle. (Decided under prior law) Commonwealth v. Barton, 153 Ky. 465 , 156 S.W. 113, 1913 Ky. LEXIS 878 ( Ky. 1913 ).

Where the only evidence under an indictment for shooting a mare was that the defendant was seen driving the horses out of some corn after he had been hunting, this was not sufficient to sustain a conviction especially where the shots removed from the horse were of a different size than those used in the defendant’s gun. (Decided under prior law) Deaton v. Commonwealth, 203 Ky. 801 , 263 S.W. 347, 1924 Ky. LEXIS 1013 ( Ky. 1924 ).

Opinions of Attorney General.

As there is no specific ban on pony and horse pulling contests it would be for the courts to decide if they are actionable under a humane statute. OAG 74-541 .

It is the duty of the county dog warden or whoever is responsible for keeping animals in the dog pound to treat them in a humane manner which means giving them adequate food, water, space, etc., and any evidence of sheltered animals being mistreated in a cruel and inhumane manner should be presented to the local county or commonwealth attorney for possible prosecution. OAG 74-550 (opinion prior to 2003 amendment).

According to statutes and subject to license and regulations, dogs alone may be used to hunt, wound, and kill opossum and raccoon. Opossum and raccoon fighting against the dogs “may reasonably be expected to accomplish these acts.” So, participation in shakeout seasons as it is regulated by the department at 301 KAR 2:110, is statutorily authorized by KRS Chapter 150. OAG 91-43 (opinion prior to 2003 amendment).

Participation in the shakeout seasons is not illegal cruelty to animals under either KRS 525.125 or this section. OAG 91-43 .

Research References and Practice Aids

Cross-References.

Baby chicks, rabbits, dyeing or selling dyed, KRS 436.600 .

Destruction of dogs, regulation, KRS 258.235 , 258.245 .

Poisoning dog, KRS 258.245 .

Search warrants, enforcement of law by dog wardens and humane society agents, KRS 436.605 .

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public Order, Safety and Morals, Part 2 Riot, Disorderly Conduct and Related Offenses, §§ 8.50 — 8.52A.

525.135. Torture of dog or cat.

  1. As used in this section, unless the context otherwise requires, “torture” means the intentional infliction of or subjection to extreme physical pain or injury, motivated by an intent to increase or prolong the pain of the animal.
  2. A person is guilty of torture of a dog or cat when he or she without legal justification intentionally tortures a domestic dog or cat.
  3. Torture of a dog or cat is a Class A misdemeanor for the first offense and a Class D felony for each subsequent offense if the dog or cat suffers physical injury as a result of the torture, and a Class D felony if the dog or cat suffers serious physical injury or death as a result of the torture.
  4. Nothing in this section shall apply to the killing or injuring of a dog or cat:
    1. In accordance with a license to hunt, fish, or trap;
    2. For humane purposes;
    3. For veterinary, agricultural, spaying or neutering, or cosmetic purposes;
    4. For purposes relating to sporting activities including but not limited to training for organized dog or cat shows, or other animal shows in which a dog or a cat, or both, participate;
    5. For bona fide animal research activities, using dogs or cats, of institutions of higher education; or a business entity registered with the United States Department of Agriculture under the Animal Welfare Act or subject to other federal laws governing animal research;
    6. In defense of self or another person against an aggressive or diseased dog or cat;
    7. In defense of a domestic animal against an aggressive or diseased dog or cat;
    8. For animal or pest control; or
    9. For any other purpose authorized by law.
  5. Activities of animals engaged in hunting, field trials, dog training other than training a dog to fight for pleasure or profit, and other activities authorized either by a hunting license or by the Department of Fish and Wildlife Resources shall not constitute a violation of this section.
  6. The acts specified in this section shall not constitute cruelty to animals under KRS 525.125 or 525.130 .

History. Enact. Acts 2003, ch. 181, § 1, effective June 24, 2003; 2008, ch. 136, § 1, effective July 15, 2008.

Compiler’s Notes.

The Animal Welfare Act, referred to in (4)(e), may be found as 7 USCS § 2131 et seq.

Legislative Research Commission Note.

(6/24/2003). In subsection (4)(e) of this section, the redundant words “activities of” have been deleted before the phrase “bona fide animal research activities.”

Research References and Practice Aids

Cross-References.

Cruelty to animals in the first degree, KRS 525.125 .

Cruelty to animals in the second degree, KRS 525.130 .

525.137. Sexual crimes against an animal.

  1. As used in this section:
    1. “Animal” means any nonhuman creature; and
    2. “Sexual contact” means any act committed between a person and an animal for the purpose of sexual arousal, sexual gratification, abuse, or financial gain involving:
      1. Contact between the sex organs or anus of one and the mouth, sex organs, or anus of another;
      2. The insertion of any part of the animal’s body into the vaginal or anal opening of the person; or
      3. The insertion of any part of the body of a person or any object into the vaginal or anal opening of an animal without a bona fide veterinary or animal husbandry purpose.
  2. A person is guilty of sexual crimes against an animal if he or she:
    1. Engages in sexual contact with an animal;
    2. Advertises, solicits, offers, or accepts the offer of an animal, or possesses, purchases, or otherwise obtains an animal, with the intent that the animal be subject to sexual contact; or
    3. Causes, aids, or abets another person to engage in sexual contact with an animal.
  3. Sexual crimes against an animal is a Class D felony.
  4. Nothing in this section shall apply to:
    1. Accepted veterinary practices;
    2. Artificial insemination of an animal for reproductive purposes;
    3. Accepted animal husbandry practices, including grooming, raising, breeding, or assisting with the birthing process of animals or any other procedure that provides care for an animal; or
    4. Generally accepted practices related to the judging of breed conformation.
  5. In addition to the penalty imposed in subsection (3) of this section, the court shall order a person convicted of violating this section to:
    1. Relinquish custody of all animals under the person’s control. If the person convicted of violating this section is not the owner of the animal that was the subject of the violation, then the animal shall be returned to the owner of the animal. An animal returned to an owner under this section shall not be spayed or neutered prior to being returned;
    2. Not harbor, own, possess, or exercise control over any animal, reside in any household where animals are present, or work or volunteer in a place where the person has unsupervised access to animals for a minimum of five (5) years after completion of the imposed sentence;
    3. Attend an appropriate treatment program or obtain psychiatric or psychological counseling, at the person’s expense; and
    4. Reimburse the agency caring for the animal for reasonable costs incurred for the care and treatment of the animal from the date of impoundment until the disposition of the criminal proceeding.

HISTORY: 2019 ch. 184, § 1, effective June 27, 2019.

525.140. Obstructing a highway or other public passage.

  1. A person is guilty of obstructing a highway or other public passage when having no legal privilege to do so he, alone or with other persons, intentionally or wantonly renders any highway or public passage impassable without unreasonable inconvenience or hazard.
  2. No person shall be convicted under this section solely because of a gathering of persons to hear him speak or otherwise communicate or solely because of being a member of such a gathering.
  3. An order to disperse issued by a peace officer or other public servant engaged in executing or enforcing the law and addressed to a person whose speech or other lawful behavior attracts an obstructing audience shall not be deemed lawful if the obstruction can be readily remedied by police control of the size or location of the gathering.
  4. Obstructing a highway or other public passage is a Class B misdemeanor.

History. Enact. Acts 1974, ch. 406, § 224, effective January 1, 1975.

NOTES TO DECISIONS

1.Public Passage.

While the general public may have abandoned the public use of the road, the parties to this action, and the property owners whose lands adjoin the road, have not. The prescriptive easement for public use necessarily subsumed the private prescriptive use of the same road by the owners of the properties adjoining it. As to those property owners, the prescriptive easement survives. Jameison v. Eagle Rod & Gun Club, Inc., 2007 Ky. App. LEXIS 432 (Ky. Ct. App. Nov. 9, 2007).

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Indictment for Obstructing Road, Form 356.08.

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public Order, Safety and Morals, Part 2 Riot, Disorderly Conduct and Related Offenses, § 8.40.

525.145. Disrupting meetings and processions in the first degree.

  1. A person is guilty of disrupting meetings and processions in the first degree when, with intent to prevent or disrupt a funeral or burial, funeral home viewing of a deceased person, funeral procession, or funeral or memorial service for a deceased person, he or she does any act tending to obstruct or interfere with it physically or makes any utterance, gesture, or display designed to outrage the sensibilities of the group attending the occasion.
  2. Disrupting meetings and processions in the first degree is a Class A misdemeanor.

History. Enact. Acts 2006, ch. 50, § 3, effective March 27, 2006; 2006, ch. 51, § 3, effective March 27, 2006.

Legislative Research Commission Note.

(3/27/2006). This section was created by 2006 Ky. Acts ch. 50 and 51, which are identical and have been codified together.

Research References and Practice Aids

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public Order, Safety and Morals, Part 2 Riot, Disorderly Conduct and Related Offenses, § 8.41.

525.150. Disrupting meetings and processions in the second degree.

  1. A person is guilty of disrupting meetings and processions in the second degree when, with intent to prevent or disrupt a lawful meeting, procession, or gathering, he or she does any act tending to obstruct or interfere with it physically or makes any utterance, gesture, or display designed to outrage the sensibilities of the group.
  2. Disrupting meetings and processions in the second degree is a Class B misdemeanor.

History. Enact. Acts 1974, ch. 406, § 225, effective January 1, 1975; 2006, ch. 50, § 4, effective March 27, 2006; 2006, ch. 51, § 4, effective March 27, 2006.

Legislative Research Commission Note.

(3/27/2006). This section was amended by 2006 Ky. Acts chs. 50 and 51, which are identical and have been codified together.

NOTES TO DECISIONS

1.Church.

Where religious society was holding a meeting at its church in country, and officers of church appointed two members of its congregation to preserve order, the arrest by them of persons found selling whiskey in woods on adjacent premises was justified and they were not to be liable to such intruders in action for false arrest. (Decided under prior law) Rich v. Bailey, 123 Ky. 827 , 97 S.W. 747, 30 Ky. L. Rptr. 155 , 1906 Ky. LEXIS 220 (Ky. Ct. App. 1906).

Obscene, vulgar and indecent language used by a clergyman in a sermon constituted the offense of a breach of the peace under which he was prosecuted rather than the offense of disturbing public worship. (Decided under prior law) Delk v. Commonwealth, 166 Ky. 39 , 178 S.W. 1129, 1915 Ky. LEXIS 624 ( Ky. 1915 ) ( Ky. 1915 ).

2.Evidence.

Defendant chairman of a nonpolitical committee who requested speaker to refrain from political speech at a public celebration sponsored by that committee was not in violation of law that prohibited interference with public speakers. (Decided under prior law) Literell v. Commonwealth, 266 Ky. 235 , 98 S.W.2d 909, 1936 Ky. LEXIS 648 ( Ky. 1936 ).

3.Probable cause.

Protesters’ claims against state troopers, including false arrest, First Amendment retaliation, malicious prosecution, retaliatory arrest, and battery, all failed because the troopers had probable cause to arrest all of the protesters under the statute for disrupting a lawful meeting and failing to disperse after the protesters’ expressed intent to disrupt the meeting and the troopers’ knew of their intent. Hartman v. Thompson, 931 F.3d 471, 2019 FED App. 162P, 2019 U.S. App. LEXIS 21949 (6th Cir. Ky. 2019 ).

Opinions of Attorney General.

If, as chairman of the fiscal court, the county judge/executive directs a member of the fiscal court or the county attorney to desist from disorderly conduct, and such person fails to comply with the county judge/executive’s order, then the county judge/executive can make application to the Circuit Court to compel obedience by proceedings in Circuit Court for contempt; the county judge/executive could also ask such disorderly person to either desist from such bad conduct or leave the meeting room, and if the offender does not desist from engaging in such disorder and does not leave the meeting room, the chairman can have him removed by calling the sheriff’s officer or the county or city police. OAG 80-191 .

Research References and Practice Aids

Cross-References.

School teacher, abuse of by parent in presence of pupils prohibited, KRS 161.190.

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public Order, Safety and Morals, Part 2 Riot, Disorderly Conduct and Related Offenses, § 8.41.

525.155. Interference with a funeral.

  1. A person is guilty of interference with a funeral when, at any point in time between one (1) hour prior to the commencement of an event specified in this subsection and one (1) hour following its conclusion, he or she blocks, impedes, inhibits, or in any other manner obstructs or interferes with access into or from any building or parking lot of a building in which a funeral, wake, memorial service, or burial is being conducted, or any burial plot or the parking lot of the cemetery in which a funeral, wake, memorial service, or burial is being conducted.
  2. Interference with a funeral is a Class B misdemeanor.

History. Enact. Acts 2006, ch. 50, § 5, effective March 27, 2006; 2006, ch. 51, § 5, effective March 27, 2006; 2007, ch. 107, § 3, effective June 26, 2007.

Legislative Research Commission Note.

(6/26/2007). A reference to “paragraph (a) of this subsection” in 2007 Ky. Acts ch. 107, sec. 3, has been corrected in codification by the Reviser of Statutes under the authority of KRS 7.136 to read simply “this subsection” since the division of the subsection into paragraphs was eliminated.

(3/27/2006). This section was created by 2006 Ky. Acts ch. 50, sec. 5, and 2006 Ky. Acts ch. 51, sec. 5, which are identical and have been codified together.

525.160. Failure to disperse.

  1. A person is guilty of failure to disperse if he participates with two (2) or more persons in a course of disorderly conduct likely to cause substantial harm or serious inconvenience, annoyance or alarm, and intentionally refuses to disperse when ordered to do so by a peace officer or other public servant engaged in executing or enforcing the law.
  2. Failure to disperse is a Class B misdemeanor.

History. Enact. Acts 1980, ch. 49, § 14, effective July 15, 1980.

Research References and Practice Aids

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public Order, Safety and Morals, Part 2 Riot, Disorderly Conduct and Related Offenses, §§ 8.33, 8.34, 8.40.

Assaults on Service Animals

525.200. Assault on a service animal in the first degree — Definition.

  1. A person is guilty of assault on a service animal in the first degree when, without legal justification or lawful authority:
    1. He or she intentionally kills or causes serious physical injury to a service animal;
    2. He or she intentionally causes physical injury to a service animal by means of a deadly weapon or dangerous instrument; or
    3. He or she wantonly causes serious physical injury to a service animal by means of a deadly weapon or dangerous instrument.
  2. For the purposes of this section, “service animal” has the same meaning as in KRS 525.010 , except that “service animal” does not include assistance dogs as defined in KRS 525.010 (6)(h).
  3. Assault on a service animal in the first degree is a Class D felony.

HISTORY: Enact. Acts 1998, ch. 419, § 2, effective July 15, 1998; 2017 ch. 29, § 1, effective June 29, 2017.

Research References and Practice Aids

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public Order, Safety and Morals, Part 2 Riot, Disorderly Conduct and Related Offenses, § 8.52B.

525.205. Assault on a service animal in the second degree.

  1. A person is guilty of assault on a service animal in the second degree when he intentionally and without legal justification or lawful authority causes physical injury to a service animal.
  2. Assault on a service animal in the second degree is a Class B misdemeanor.

History. Enact. Acts 1998, ch. 419, § 3, effective July 15, 1998.

Research References and Practice Aids

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public Order, Safety and Morals, Part 2 Riot, Disorderly Conduct and Related Offenses, § 8.52C.

525.210. Duty status of service animal not a factor in application of KRS 525.200 and 525.205.

KRS 525.200 and 525.205 shall apply whether or not the service animal is on duty or off duty.

History. Enact. Acts 1998, ch. 419, § 4, effective July 15, 1998.

Research References and Practice Aids

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public Order, Safety and Morals, Part 2 Riot, Disorderly Conduct and Related Offenses, § 8.52B.

525.215. Defendant’s liability for damages upon conviction of assault on a service animal.

In any case in which a defendant is convicted of a violation of the provisions of KRS 525.200 or 525.205 , the defendant may be ordered to make restitution to the person or agency owning the animal for any veterinary bills, replacement costs of the animal if it is disabled or killed, and the salary of the animal handler for the period of time his services are lost to the agency or self-employment.

History. Enact. Acts 1998, ch. 419, § 5, effective July 15, 1998.

Research References and Practice Aids

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public Order, Safety and Morals, Part 2 Riot, Disorderly Conduct and Related Offenses, § 8.52B.

525.220. Bars and defenses to conviction of assault on a service animal.

No person shall be convicted of assault on a service animal when:

  1. He has also been convicted of a violation of KRS 525.125 , 525.130 , 512.020 , 512.030 , or 512.040 arising out of the same incident; or
  2. He has destroyed or treated a service animal that is injured, diseased, or suffering or that constitutes a hazard to public safety if not destroyed; or
  3. He has used physical force against the service animal in protection of himself or a third person; or
  4. He has used physical force without knowledge that the animal was a service animal.

History. Enact. Acts 1998, ch. 419, § 6, effective July 15, 1998.

Research References and Practice Aids

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public Order, Safety and Morals, Part 2 Riot, Disorderly Conduct and Related Offenses, §§ 8.52B, 8.52D.

CHAPTER 526 Eavesdropping and Related Offenses

526.010. Definition.

The following definition applies in this chapter, unless the context otherwise requires:

“Eavesdrop” means to overhear, record, amplify or transmit any part of a wire or oral communication of others without the consent of at least one (1) party thereto by means of any electronic, mechanical or other device.

History. Enact. Acts 1974, ch. 406, § 226, effective January 1, 1975.

NOTES TO DECISIONS

1.Evidence.

In a prosecution for the offense of bribing a witness, defendant’s Fourth Amendment rights were not violated by the admission of two tape-recorded conversations between the defendant and an informant, where the electronic surveillance was with the informant’s express consent, and where the informant and the police officers who monitored the conversations verified the tapes’ authenticity. Carrier v. Commonwealth, 607 S.W.2d 115, 1980 Ky. App. LEXIS 370 (Ky. Ct. App. 1980).

2.Evidence.

Since official proceedings had not been instituted against Defendant for the murder at the time of the taping of a wiretapped conversation, and he was not incarcerated, the phone call was not in violation of Defendant’s U.S. Const. amend. V or U.S. Const. amend. VI rights. Moreover, even though the phone conversation took place between the residence of defendant’s father in Nova Scotia, who consented to the recording, and defendant’s residence, then in Massachusetts, the activity was appropriate under KRS 526.010 . Major v. Commonwealth, 275 S.W.3d 706, 2009 Ky. LEXIS 342 ( Ky. 2009 ).

Cited:

Stringer v. Wal-Mart Stores, Inc., 151 S.W.3d 781, 2004 Ky. LEXIS 245 ( Ky. 2004 ), review denied, — S.W.3d —, 2005 Ky. LEXIS 447 (Ky. Jan. 20, 2005).

Opinions of Attorney General.

Where county procedure for tracing harassing phone calls required a complainant to sign an affidavit concerning the particulars of the phone calls to state that he would prosecute the person making the calls once the phone company had determined who was making them, and, after the affidavit has been signed by the complainant, the judge would sign an order and forward it to the telephone company to have the wiretap placed on the complainant’s telephone, the wiretap or pin register employed was not illegal since it was placed on the telephone by the telephone company at the request of the telephone subscriber. OAG 80-544 .

A person inadvertently hearing a conversation between persons that occurred on wireless phones from a radio receiver or on another wireless telephone has not violated KRS Chapter 526 since he would fall within the exception of KRS 526.070(1); however, when he records that information and passes it on to another without the consent of one of the parties to the original conversation, he has violated the eavesdropping statutes. OAG 84-310 .

Research References and Practice Aids

Kentucky Bench & Bar.

O’Roark, The Ethics of Civil Practice Investigations — Part I, Vol. 71, No. 5, Sept. 2007, Ky. Bench & Bar 31.

Kentucky Law Journal.

Kentucky Law Survey, Mobley, Torts, 70 Ky. L.J. 527 (1981-82).

Kentucky Law Survey, Fortune, Criminal Procedure, 73 Ky. L.J. 347 (1984-85).

Northern Kentucky Law Review.

Bales and Hamilton, Jr., Workplace Investigations in Kentucky, 27 N. Ky. L. Rev. 201 (2000).

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public Order, Safety and Morals, Part 1 Definitions, § 8.07.

526.020. Eavesdropping.

  1. A person is guilty of eavesdropping when he intentionally uses any device to eavesdrop, whether or not he is present at the time.
  2. Eavesdropping is a Class D felony.

History. Enact. Acts 1974, ch. 406, § 227, effective January 1, 1975.

NOTES TO DECISIONS

1.Applicability.

Kentucky has not enacted legislation authorizing electronic surveillance by state law-enforcement officials; such an operation by the Kentucky State Police, just as with any other person, is unlawful under this statute prohibiting eavesdropping. Basham v. Commonwealth, 675 S.W.2d 376, 1984 Ky. LEXIS 229 ( Ky. 1984 ), cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814, 1985 U.S. LEXIS 1383 (U.S. 1985).

2.Evidence.

In prosecution for first-degree murder since there was no evidence that tapes of telephone conversation between witnesses were obtained in violation of a constitutional right, the exclusionary rule cannot be used to prevent their introduction. Brock v. Commonwealth, 947 S.W.2d 24, 1997 Ky. LEXIS 18 ( Ky. 1997 ).

3.Wiretapping.

Motion to suppress evidence against defendants obtained by wiretapping was properly denied since evidence lawfully obtained under federal law is admissible in federal courts even though it may be a violation of state law. United States v. Votteller, 544 F.2d 1355, 1976 U.S. App. LEXIS 6306 (6th Cir. Ky. 1976 ).

Even though federal law does not preclude the states from enacting more restrictive wiretapping statutes of their own, the states cannot make illegal a wiretap conducted pursuant to a valid federal wiretap order. Thus, if the federal wiretap conformed to the requirements of the Federal Wiretap Statute (18 USCS §§ 2510-2520), the evidence was not obtained illegally and the “exclusionary rule” for suppression of evidence illegally obtained by police officers or prosecutors by means constitutionally impermissible is not involved. Basham v. Commonwealth, 675 S.W.2d 376, 1984 Ky. LEXIS 229 ( Ky. 1984 ), cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814, 1985 U.S. LEXIS 1383 (U.S. 1985).

Under KRS 503.040 , federal officers conducting an eavesdropping operation pursuant to a valid federal wiretap order are not in violation of state law. Basham v. Commonwealth, 675 S.W.2d 376, 1984 Ky. LEXIS 229 ( Ky. 1984 ), cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814, 1985 U.S. LEXIS 1383 (U.S. 1985).

Evidence obtained by federal authorities using a federal wiretap was properly not suppressed in a state prosecution since the actions of the federal authorities, pursuing a wholly federal investigation, were entirely lawful, and the record contained no hint of collusion between federal and state authorities seeking to avoid the limitations of the Kentucky Eavesdropping Statute. Basham v. Commonwealth, 675 S.W.2d 376, 1984 Ky. LEXIS 229 ( Ky. 1984 ), cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814, 1985 U.S. LEXIS 1383 (U.S. 1985).

The Kentucky State Police and state prosecutors could properly utilize information obtained by federal authorities pursuant to a federal wiretap order both to obtain a search warrant and as trial evidence in state court, even in light of this statute prohibiting wiretaps. Basham v. Commonwealth, 675 S.W.2d 376, 1984 Ky. LEXIS 229 ( Ky. 1984 ), cert. denied, 470 U.S. 1050, 105 S. Ct. 1749, 84 L. Ed. 2d 814, 1985 U.S. LEXIS 1383 (U.S. 1985).

Opinions of Attorney General.

Where county procedure for tracing harassing phone calls required a complainant to sign an affidavit concerning the particulars of the phone calls to state that he would prosecute the person making the calls once the phone company had determined who was making them, and, after the affidavit has been signed by the complainant, the judge would sign an order and forward it to the telephone company to have the wiretap placed on the complainant’s telephone, the wiretap or pin register employed was not illegal since it was placed on the telephone by the telephone company at the request of the telephone subscriber. OAG 80-544 .

A person inadvertently hearing a conversation between persons that occurred on wireless phones from a radio receiver or on another wireless telephone has not violated KRS Chapter 526 since he would fall within the exception of KRS 526.070(1); however, when he records that information and passes it on to another without the consent of one of the parties to the original conversation, he has violated the eavesdropping statutes. OAG 84-310 .

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Fortune, Criminal Procedure, 73 Ky. L.J. 347 (1984-85).

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public Order, Safety and Morals, Part 3 Offenses Against Privacy of Communications, § 8.53.

526.030. Installing eavesdropping device.

  1. A person is guilty of installing an eavesdropping device when he intentionally installs or places such a device in any place with the knowledge that it is to be used for eavesdropping.
  2. Installing an eavesdropping device is a Class D felony.

History. Enact. Acts 1974, ch. 406, § 228, effective January 1, 1975.

Research References and Practice Aids

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public Order, Safety and Morals, Part 3 Offenses Against Privacy of Communications, § 8.54.

526.040. Possession of eavesdropping device.

  1. A person is guilty of possession of an eavesdropping device when he possesses any electronic, mechanical or other device designed or commonly used for eavesdropping with intent to use that device to eavesdrop or knowing that another intends to use that device to eavesdrop.
  2. Possession of an eavesdropping device is a Class A misdemeanor.

History. Enact. Acts 1974, ch. 406, § 229, effective January 1, 1975.

NOTES TO DECISIONS

1.Wiretapping.

Motion to suppress evidence against defendants obtained by wiretapping was properly denied since evidence lawfully obtained under federal law is admissible in federal courts even though it may be in violation of state law. United States v. Votteller, 544 F.2d 1355, 1976 U.S. App. LEXIS 6306 (6th Cir. Ky. 1976 ).

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Fortune, Criminal Procedure, 73 Ky. L.J. 347 (1984-85).

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public Order, Safety and Morals, Part 3 Offenses Against Privacy of Communications, § 8.55.

526.050. Tampering with private communications.

  1. A person is guilty of tampering with private communications when knowing that he does not have the consent of the sender or receiver, he unlawfully:
    1. Opens or reads a sealed letter or other sealed private communication; or
    2. Obtains in any manner from an employee, officer or representative of a communications common carrier information with respect to the contents or nature of a communication.
  2. The provisions of this section do not apply to the censoring of sealed letters or sealed communications for security purposes in official detention or penal facilities.
  3. Tampering with private communications is a Class A misdemeanor.

History. Enact. Acts 1974, ch. 406, § 230, effective January 1, 1975.

Research References and Practice Aids

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public Order, Safety and Morals, Part 3 Offenses Against Privacy of Communications, §§ 8.56, 8.57.

526.060. Divulging illegally obtained information.

  1. A person is guilty of divulging illegally obtained information when he knowingly uses or divulges information obtained through eavesdropping or tampering with private communications or learned in the course of employment with a communications common carrier engaged in transmitting the message.
  2. Divulging illegally obtained information is a Class A misdemeanor.

History. Enact. Acts 1974, ch. 406, § 231, effective January 1, 1975.

NOTES TO DECISIONS

Cited:

United States v. Votteller, 544 F.2d 1355, 1976 U.S. App. LEXIS 6306 (6th Cir. 1976).

Research References and Practice Aids

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public Order, Safety and Morals, Part 3 Offenses Against Privacy of Communications, § 8.58.

526.070. Eavesdropping — Exceptions.

A person is not guilty under this chapter when he:

  1. Inadvertently overhears the communication through a regularly installed telephone party line or on a telephone extension but does not divulge it; or
  2. Is an employee of a communications common carrier who, while acting in the course of his employment, intercepts, discloses or uses a communication transmitted through the facilities of his employer for a purpose which is a necessary incident to the rendition of the service or to the protection of the rights or the property of the carrier of such communication, provided however that communications common carriers shall not utilize service observing or random monitoring except for mechanical or service quality control checks.

History. Enact. Acts 1974, ch. 406, § 233, effective January 1, 1975; 1976, ch. 230, § 1.

Opinions of Attorney General.

A person inadvertently hearing a conversation between persons that occurred on wireless phones from a radio receiver or on another wireless telephone has not violated KRS Chapter 526 since he would fall within the exception of subdivision (1) of this section; however, when he records that information and passes it on to another without the consent of one of the parties to the original conversation, he has violated the eavesdropping statutes. OAG 84-310 .

526.080. Forfeiture.

Any electronic, mechanical or other device designed or commonly used for eavesdropping which is possessed or used in violation of this chapter, is forfeited to the state and shall be disposed of in accordance with KRS 500.090 .

History. Enact. Acts 1974, ch. 406, § 233, effective January 1, 1975.

Research References and Practice Aids

Cross-References.

Disposal of property forfeited under Penal Code, KRS 500.090 .

CHAPTER 527 Offenses Relating to Firearms and Weapons

527.010. Definitions for chapter.

The following definitions apply in this chapter unless the context otherwise requires:

  1. “Booby trap device” shall have the same meaning as set forth in KRS 237.030 .
  2. “Deface” means to remove, deface, cover, alter, or destroy the manufacturer’s serial number or any other distinguishing number or identification mark.
  3. “Destructive device” shall have the same meaning as set forth in KRS 237.030 .
  4. “Firearm” means any weapon which will expel a projectile by the action of an explosive.
  5. “Handgun” means any pistol or revolver originally designed to be fired by the use of a single hand, or any other firearm originally designed to be fired by the use of a single hand.

History. Enact. Acts 1974, ch. 406, § 234, effective January 1, 1975; 1994, ch. 391, § 2, effective July 15, 1994.

NOTES TO DECISIONS

1.Firearm.

In a prosecution for possession of a firearm by a convicted felon under KRS 527.040 , though there was evidence that a gun defendant used in a robbery lacked a cylinder pin, the evidence was sufficient to establish that it was a “firearm” under KRS 527.010(4), as a witness testified that the gun could fire despite the missing pin. Thacker v. Commonwealth, 194 S.W.3d 287, 2006 Ky. LEXIS 174 ( Ky. 2006 ).

2.Presumption of Operability.

Because the rifle that defendant pawned was presumptively functional under KRS 527.010(4), and because there was no evidence calling that presumption into question, the Commonwealth was not obliged to establish that the rifle worked in defendant’s trial for possession of a firearm by a convicted felon under KRS 527.040(1); therefore, the trial court did not err by denying defendant’s motion for a directed verdict or by excluding the operability question from the jury instructions. Commonwealth v. Jones, 283 S.W.3d 665, 2009 Ky. LEXIS 27 ( Ky. 2009 ).

Cited:

Dale v. Haeberlin, 878 F.2d 930, 1989 U.S. App. LEXIS 9500 (6th Cir. 1989), cert. denied, 494 U.S. 1058, 110 S. Ct. 1528, 108 L. Ed. 2d 767, 1990 U.S. LEXIS 1643, 58 U.S.L.W. 3614 (1990).

Research References and Practice Aids

Treatises

Kentucky Instructions To Juries, 4th Ed., Controlled Substances, Part 4 Miscellaneous KRS 218A Offenses, § 9.35B.

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public Order, Safety and Morals, Part 1 Defenses, §§ 8.08 — 8.10.

527.020. Carrying concealed deadly weapon.

  1. A person is guilty of carrying a concealed weapon when he or she carries concealed a firearm or other deadly weapon on or about his or her person in violation of this section.
  2. Peace officers and certified court security officers, when necessary for their protection in the discharge of their official duties; United States mail carriers when actually engaged in their duties; and agents and messengers of express companies, when necessary for their protection in the discharge of their official duties, may carry concealed weapons on or about their person.
  3. The director of the Division of Law Enforcement in the Department of Fish and Wildlife Resources, conservation officers of the Department of Fish and Wildlife Resources, and policemen directly employed by state, county, city, or urban-county governments may carry concealed deadly weapons on or about their person at all times within the Commonwealth of Kentucky, when expressly authorized to do so by law or by the government employing the officer.
  4. Persons carrying concealed weapons in accordance with KRS 237.109 or licensed to carry a concealed deadly weapon pursuant to KRS 237.110 may carry a concealed firearm or other concealed deadly weapon on or about their persons at all times within the Commonwealth of Kentucky, if the firearm or concealed deadly weapon is carried in conformity with the requirements of KRS 237.109 or KRS 237.110 . Unless otherwise specifically provided by the Kentucky Revised Statutes or applicable federal law, no criminal penalty shall attach to carrying a concealed firearm or other deadly weapon at any location at which an unconcealed firearm or other deadly weapon may be constitutionally carried. No person or organization, public or private, shall prohibit a person from possessing a firearm, ammunition, or both, or other deadly weapon in his or her vehicle in compliance with the provisions of KRS 237.109, 237.110, and 237.115 . Any attempt by a person or organization, public or private, to violate the provisions of this subsection may be the subject of an action for appropriate relief or for damages in a Circuit Court or District Court of competent jurisdiction.
    1. The following persons, if they hold a license to carry a concealed deadly weapon pursuant to KRS 237.110 or 237.138 to 237.142 , may carry a firearm or other concealed deadly weapon on or about their persons at all times and at all locations within the Commonwealth of Kentucky, without any limitation other than as provided in this subsection: (5) (a) The following persons, if they hold a license to carry a concealed deadly weapon pursuant to KRS 237.110 or 237.138 to 237.142 , may carry a firearm or other concealed deadly weapon on or about their persons at all times and at all locations within the Commonwealth of Kentucky, without any limitation other than as provided in this subsection:
      1. A Commonwealth’s attorney or assistant Commonwealth’s attorney;
      2. A retired Commonwealth’s attorney or retired assistant Commonwealth’s attorney;
      3. A county attorney or assistant county attorney;
      4. A retired county attorney or retired assistant county attorney;
      5. A justice or judge of the Court of Justice;
      6. A retired or senior status justice or judge of the Court of Justice; and
      7. A retired peace officer who holds a concealed deadly weapon license issued pursuant to the federal Law Enforcement Officers Safety Act, 18 U.S.C. sec. 926 C, and KRS 237.138 to 237.142.
    2. The provisions of this subsection shall not authorize a person specified in this subsection to carry a concealed deadly weapon in a detention facility as defined in KRS 520.010 or on the premises of a detention facility without the permission of the warden, jailer, or other person in charge of the facility, or the permission of a person authorized by the warden, jailer, or other person in charge of the detention facility to give such permission. As used in this section, “detention facility” does not include courtrooms, facilities, or other premises used by the Court of Justice or administered by the Administrative Office of the Courts.
    3. A person specified in this section who is issued a concealed deadly weapon license shall be issued a license which bears on its face the statement that it is valid at all locations within the Commonwealth of Kentucky and may have such other identifying characteristics as determined by the Department of Kentucky State Police.
    1. Except as provided in this subsection, the following persons may carry concealed deadly weapons on or about their person at all times and at all locations within the Commonwealth of Kentucky: (6) (a) Except as provided in this subsection, the following persons may carry concealed deadly weapons on or about their person at all times and at all locations within the Commonwealth of Kentucky:
      1. An elected sheriff and full-time and part-time deputy sheriffs certified pursuant to KRS 15.380 to 15.404 when expressly authorized to do so by the unit of government employing the officer;
      2. An elected jailer and a deputy jailer who has successfully completed Department of Corrections basic training and maintains his or her current in-service training when expressly authorized to do so by the jailer; and
      3. The department head or any employee of a corrections department in any jurisdiction where the office of elected jailer has been merged with the office of sheriff who has successfully completed Department of Corrections basic training and maintains his or her current in-service training when expressly authorized to do so by the unit of government by which he or she is employed.
    2. The provisions of this subsection shall not authorize a person specified in this subsection to carry a concealed deadly weapon in a detention facility as defined in KRS 520.010 or on the premises of a detention facility without the permission of the warden, jailer, or other person in charge of the facility, or the permission of a person authorized by the warden, jailer, or other person in charge of the detention facility to give such permission. As used in this section, “detention facility” does not include courtrooms, facilities, or other premises used by the Court of Justice or administered by the Administrative Office of the Courts.
    1. A full-time paid peace officer of a government agency from another state or territory of the United States or an elected sheriff from another territory of the United States may carry a concealed deadly weapon in Kentucky, on or off duty, if the other state or territory accords a Kentucky full-time paid peace officer and a Kentucky elected sheriff the same rights by law. If the other state or territory limits a Kentucky full-time paid peace officer or elected sheriff to carrying a concealed deadly weapon while on duty, then that same restriction shall apply to a full-time paid peace officer or elected sheriff from that state or territory. (7) (a) A full-time paid peace officer of a government agency from another state or territory of the United States or an elected sheriff from another territory of the United States may carry a concealed deadly weapon in Kentucky, on or off duty, if the other state or territory accords a Kentucky full-time paid peace officer and a Kentucky elected sheriff the same rights by law. If the other state or territory limits a Kentucky full-time paid peace officer or elected sheriff to carrying a concealed deadly weapon while on duty, then that same restriction shall apply to a full-time paid peace officer or elected sheriff from that state or territory.
    2. The provisions of this subsection shall not authorize a person specified in this subsection to carry a concealed deadly weapon in a detention facility as defined in KRS 520.010 or on the premises of a detention facility without the permission of the warden, jailer, or other person in charge of the facility, or the permission of a person authorized by the warden, jailer, or other person in charge of the detention facility to give such permission. As used in this section, “detention facility” does not include courtrooms, facilities, or other premises used by the Court of Justice or administered by the Administrative Office of the Courts.
  5. A loaded or unloaded firearm or other deadly weapon shall not be deemed concealed on or about the person if it is located in any enclosed container, compartment, or storage space installed as original equipment in a motor vehicle by its manufacturer, including but not limited to a glove compartment, center console, or seat pocket, regardless of whether said enclosed container, storage space, or compartment is locked, unlocked, or does not have a locking mechanism. No person or organization, public or private, shall prohibit a person from keeping a loaded or unloaded firearm or ammunition, or both, or other deadly weapon in a vehicle in accordance with the provisions of this subsection. Any attempt by a person or organization, public or private, to violate the provisions of this subsection may be the subject of an action for appropriate relief or for damages in a Circuit Court or District Court of competent jurisdiction. This subsection shall not apply to any person prohibited from possessing a firearm pursuant to KRS 527.040 .
  6. The provisions of this section shall not apply to a person who carries a concealed deadly weapon on or about his or her person:
    1. If he or she is the owner of the property or has the permission of the owner of the property, on real property which he or she or his or her spouse, parent, grandparent, or child owns;
    2. If he or she is the lessee of the property or has the permission of the lessee of the property, on real property which he or she or his or her spouse, parent, grandparent, or child occupies pursuant to a lease; or
    3. If he or she is the sole proprietor of the business, on real property owned or leased by the business.
  7. Carrying a concealed weapon is a Class A misdemeanor, unless the defendant has been previously convicted of a felony in which a deadly weapon was possessed, used, or displayed, in which case it is a Class D felony.

History. Enact. Acts 1974, ch. 406, § 235, effective January 1, 1975; 1978, ch. 342, § 2, effective June 17, 1978; 1996, ch. 119, § 3, effective October 1, 1996; 2002, ch. 368, § 1, effective July 15, 2002; 2005, ch. 182, § 17, effective March 31, 2005; 2007, ch. 54, § 14, effective June 26, 2007; 2007, ch. 85, § 329, effective June 26, 2007; 2011, ch. 64, § 1, effective June 8, 2011; 2012, ch. 62, § 1, effective July 12, 2012; 2012, ch. 109, § 1, effective July 12, 2012; 2014, ch. 120, § 1, effective July 15, 2014; 2019 ch. 10, § 2, effective June 27, 2019.

NOTES TO DECISIONS

Analysis

1.Defenses.

Inoperability of the gun was an affirmative defense to a charge of carrying a concealed deadly weapon, and the accused bore the burden of proving the operability of the weapon at issue; a writ of prohibition was a proper means of correcting a trial court’s erroneous ruling on the burden of proof of weapon operability. Arnold v. Commonwealth, 109 S.W.3d 161, 2003 Ky. App. LEXIS 160 (Ky. Ct. App. 2003).

2.Glove Compartment.

Glove compartment exception in KRS 527.020(8) to the crime of carrying a concealed deadly weapon does not apply to any compartment in a vehicle; it applies only to the factory-installed compartment in the dash on the passenger’s side of the vehicle. Commonwealth v. Mohammad, 2004 Ky. App. LEXIS 268 (Ky. Ct. App. Sept. 17, 2004), aff'd, 202 S.W.3d 589, 2006 Ky. LEXIS 231 ( Ky. 2006 ).

The glove compartment exception in KRS 527.020(8) plainly and unambiguously applies only to regular, factory-installed glove compartments, and not to any other compartments inside a vehicle. Mohammad v. Commonwealth, 202 S.W.3d 589, 2006 Ky. LEXIS 231 ( Ky. 2006 ).

Words of KRS 527.020(8) are clear and unambiguous. It forbids a public organization, such as a university, from prohibiting the possession of a firearm in the glove compartment of a vehicle. Mitchell v. Univ. of Ky., 366 S.W.3d 895, 2012 Ky. LEXIS 47 ( Ky. 2012 ).

3.Termination of Employment.

University employee established that his discharge was contrary to a fundamental and well-defined public policy, i.e., the right to bear arms, as evidenced by the Kentucky Revised Statutes. Further, an explicit legislative statement prohibited the employee’s discharge, and the reason for the employee’s discharge was his exercise of a right conferred by well-established legislative enactments. Mitchell v. Univ. of Ky., 366 S.W.3d 895, 2012 Ky. LEXIS 47 ( Ky. 2012 ).

4.Search Incident to Arrest.

Officer had probable cause to arrest defendant for carrying a concealed weapon because a gun was placed underneath a toolbox in such a way that it could not be seen, and it was reasonable to assume that the weapon was not observable to those with whom defendant would have come into ordinary contact. The search and ultimate seizure of the gun and controlled substances found on defendant’s person constituted a valid search incident to arrest. Vega v. Commonwealth, 435 S.W.3d 621, 2013 Ky. LEXIS 463 ( Ky. 2013 ).

5.Jury Question.

Circuit court did not palpably err in denying defendant’s motion for a directed verdict on a charge of carrying a concealed deadly weapon, in violation of Ky. Rev. Stat. Ann. § 527.020(1), where the officers testified that the firearm was under defendant’s shirt and was not visible until he held up his arms after exiting a vehicle, and thus, whether the firearm was concealed was a fact issue for the jury. Sykes v. Commonwealth, 550 S.W.3d 60, 2018 Ky. App. LEXIS 180 (Ky. Ct. App. 2018).

Cited:

Bennett v. Commonwealth, 978 S.W.2d 322, 1998 Ky. LEXIS 118 ( Ky. 1998 ).

Notes to Unpublished Decisions

3.Termination of Employment.

Unpublished decision: Where former employee alleged he was illegally fired because of his lawful possession of a concealed firearm on his employer's property, the employee's actions were not protected because he removed his handgun from his vehicle and had a subordinate store the gun in his vehicle. Holly v. UPS Supply Chain Solutions, Inc., 680 Fed. Appx. 458, 2017 FED App. 0135N, 2017 U.S. App. LEXIS 3899 (6th Cir. Ky. 2017 ).

Opinions of Attorney General.

Jefferson County special law enforcement officers employed as security for the County’s Hall of Justice do not have arrest powers to execute all types of warrants in the Hall of Justice; moreover, even though KRS 61.926 designates special law enforcement officers as peace officers, this does not invest them with the broad authority of what might be termed “general law enforcement officers” for that designation expressly relates only to this section, regarding authority to carry concealed a deadly weapon on or about one’s person and such designation for purposes of this section, does not overcome or broaden the specific terms of authority set out in KRS 61.912 , 61.914 , and 61.920 giving such officers power to execute all types of warrants in the Hall of Justice. OAG 91-65 .

KRS 527.020 does not authorize deputy sheriffs to carry concealed deadly weapons without a permit out of their counties while on off-duty business. OAG 00-6 .

Research References and Practice Aids

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public Order, Safety and Morals, Part 4 Offenses Relating to Firearms and Destructive Devices, §§ 8.59A, 8.59B.

527.030. Defacing a firearm.

  1. A person is guilty of defacing a firearm when he intentionally defaces a firearm.
  2. Defacing a firearm is a Class A misdemeanor.

History. Enact. Acts 1974, ch. 406, § 236, effective January 1, 1975.

Research References and Practice Aids

Cross-References.

Obscuring identity of machine, KRS 514.120 .

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public Order, Safety and Morals, Part 4 Offenses Relating to Firearms and Destructive Devices, § 8.61.

527.040. Possession of firearm by convicted felon — Exceptions — Applicability to youthful offenders.

  1. A person is guilty of possession of a firearm by a convicted felon when he possesses, manufactures, or transports a firearm when he has been convicted of a felony, as defined by the laws of the jurisdiction in which he was convicted, in any state or federal court and has not:
    1. Been granted a full pardon by the Governor or by the President of the United States; or
    2. Been granted relief by the United States Secretary of the Treasury pursuant to the Federal Gun Control Act of 1968, as amended.
    1. Possession of a firearm by a convicted felon is a Class D felony unless the firearm possessed is a handgun in which case it is a Class C felony. (2) (a) Possession of a firearm by a convicted felon is a Class D felony unless the firearm possessed is a handgun in which case it is a Class C felony.
    2. If a felon is convicted of a criminal offense other than possession of a firearm by a convicted felon, and he or she possessed a firearm in commission of that offense, then the felon shall be penalized for violating this section one (1) class more severely if it is a second or subsequent violation of this section.
  2. The provisions of this section shall apply to any youthful offender convicted of a felony offense under the laws of this Commonwealth. The exceptions contained in KRS 527.100 prohibiting possession of a handgun by a minor shall not apply to this section.
  3. The provisions of this section with respect to handguns, shall apply only to persons convicted after January 1, 1975, and with respect to other firearms, to persons convicted after July 15, 1994.

HISTORY: Enact. Acts 1974, ch. 406, § 237, effective January 1, 1975; 1994, ch. 30, § 3, effective July 15, 1994; 1994, ch. 396, § 10, effective July 15, 1994; 2018 ch. 123, § 1, effective July 14, 2018.

Compiler’s Notes.

The federal Gun Control Act of 1968, referred to in (1)(b), may be found primarily as 18 USCS § 921 et seq.

NOTES TO DECISIONS

Analysis

1.Constitutionality.

A statute such as this section limiting the possession of firearms by persons who, by their past commission of serious felonies, have demonstrated a dangerous disregard for the law and thereby present a threat of further criminal activity is reasonable legislation in the interest of public welfare and safety and such regulation is constitutionally permissible as a reasonable and legitimate exercise of the police power. Eary v. Commonwealth, 659 S.W.2d 198, 1983 Ky. LEXIS 280 ( Ky. 1983 ).

Where defendant’s civil rights were restored by the Governor in a partial pardon pursuant to Ky. Const. §§ 145, 150 after defendant successfully completed probation on a felony offense, the restoration of rights did not restore defendant’s right to possess a firearm, as the pardon was not a full pardon under Ky. Const. § 77; thus, defendant was properly convicted of two (2) counts of possession of a firearm by a convicted felon in violation of KRS 527.040 . Cheatham v. Commonwealth, 131 S.W.3d 349, 2004 Ky. App. LEXIS 48 (Ky. Ct. App. 2004).

KRS 527.040 is not arbitrary or irrational and does not unduly infringe upon the right to bear arms which was reserved to the people through Ky. Const., § 1(7). Posey v. Commonwealth, 185 S.W.3d 170, 2006 Ky. LEXIS 53 (Ky.), cert. denied, 549 U.S. 842, 127 S. Ct. 85, 166 L. Ed. 2d 73, 2006 U.S. LEXIS 6540 (U.S. 2006).

2.Defenses.

Where the evidence was clear that defendant came into actual, physical custody and control of the deadly weapon at least two days prior to the altercation, and at such time, defendant could not have known there would be a subsequent altercation or the necessity of exercising the choice of self-defense, thus, he was precluded from the option provided by “choice of evils.” Duvall v. Commonwealth, 593 S.W.2d 884, 1979 Ky. App. LEXIS 510 (Ky. Ct. App. 1979).

3.Double Jeopardy.

It was not improper for state to prosecute defendant on both charge of possession of convicted felon under this section and on first-degree assault charge under KRS 508.010 even though a single course of conduct establishes the commission of both offenses because of KRS 505.020 ; and conviction for both crimes is not double jeopardy under Ky. Const., § 13 because neither offense is necessarily included within the other and each requires proof of an element not required by the other. Boulder v. Commonwealth, 610 S.W.2d 615, 1980 Ky. LEXIS 288 ( Ky. 1980 ), overruled, Dale v. Commonwealth, 715 S.W.2d 227, 1986 Ky. LEXIS 284 ( Ky. 1986 ).

No double jeopardy where defendant’s possession of the stolen firearm violated both statutes and each statute requires proof of a unique fact to establish guilt that the other statute does not require; KRS 514.110 requires proof that the firearm was stolen by any person and not just a felon, whereas, violation of this section occurs merely when a convicted felon possesses any firearm. Crowder v. Commonwealth, 23 S.W.3d 225, 1999 Ky. App. LEXIS 150 (Ky. Ct. App. 1999).

Constitutional and statutory double jeopardy provisions prohibited defendant's conviction for multiple counts of possession of a weapon by a convicted felon because they arose from a single course of conduct, the statute did not explicitly designate separate offenses for each firearm found in the possession of a convicted felon, and defendant's possession of two firearms constituted a single court of conduct. Hinchey v. Commonwealth, 432 S.W.3d 710, 2014 Ky. App. LEXIS 70 (Ky. Ct. App. 2014).

4.Due Process.

Where defendant was indicted for burglary, theft, and possession of a handgun by a convicted felon, his motion seeking to have his trial on the handgun charge several from the trial of the other charges should have been granted, on grounds that he would be unnecessarily prejudiced because, as an essential element of proving the handgun charge, the Commonwealth would be entitled to show a previous felony conviction which otherwise could not be introduced in chief during the guilt phase of the trial. Hubbard v. Commonwealth, 633 S.W.2d 67, 1982 Ky. LEXIS 249 ( Ky. 1982 ).

5.Elements.

The elements of this crime are (1) possession of a handgun (2) by a convicted felon; the words “and has not (a) been granted a full pardon by the governor or by the President of the United States” are not an element of the crime which must be proved before conviction can be sustained. Duvall v. Commonwealth, 593 S.W.2d 884, 1979 Ky. App. LEXIS 510 (Ky. Ct. App. 1979).

Where a defendant was charged with possession of a handgun after having pled guilty to a felony in a prior case but before the imposition of the sentence, the appellate court determined that once defendant’s guilty plea was accepted by the court, and he was found by the court to be guilty, he became a “convicted felon” for the purposes of this section. Grace v. Commonwealth, 915 S.W.2d 754, 1996 Ky. App. LEXIS 22 (Ky. Ct. App. 1996).

Though there was evidence that a gun defendant used in a robbery lacked a cylinder pin, the evidence was sufficient to establish that it was a “firearm” under KRS 527.040 and KRS 527.010(4), as a witness testified that the gun could fire despite the missing pin. Thacker v. Commonwealth, 194 S.W.3d 287, 2006 Ky. LEXIS 174 ( Ky. 2006 ).

Because the rifle that defendant pawned was presumptively functional under KRS 527.010(4), and because there was no evidence calling that presumption into question, the Commonwealth was not obliged to establish that the rifle worked in defendant’s trial for possession of a firearm by a convicted felon under KRS 527.040(1); therefore, the trial court did not err by denying defendant’s motion for a directed verdict or by excluding the operability question from the jury instructions. Commonwealth v. Jones, 283 S.W.3d 665, 2009 Ky. LEXIS 27 ( Ky. 2009 ).

6.Evidence.

Where the defendant admitted his possession of a handgun even though he was a convicted felon, the trial court properly admitted the testimony of one of the arresting police officers to the effect that the handgun was loaded when taken from the defendant, as it was relevant to the validity of his defense of justification. Baird v. Commonwealth, 709 S.W.2d 458, 1986 Ky. App. LEXIS 1102 (Ky. Ct. App. 1986).

Proof that a defendant sometimes resided where certain weapons were found allowed the jury to find his constructive possession of them, and the fact that he was arrested elsewhere did not preclude this finding. Johnson v. Commonwealth, 90 S.W.3d 39, 2002 Ky. LEXIS 228 ( Ky. 2002 ), overruled in part, McClanahan v. Commonwealth, 308 S.W.3d 694, 2010 Ky. LEXIS 98 ( Ky. 2010 ).

Defendant’s constructive possession of a shotgun could not be used to demonstrate his guilt, under KRS 527.040(4), of possession of a weapon by a convicted felon, but it was relevant, under KRE 401, to showing his possession of three (3) handguns, which did prove his guilt. Johnson v. Commonwealth, 90 S.W.3d 39, 2002 Ky. LEXIS 228 ( Ky. 2002 ), overruled in part, McClanahan v. Commonwealth, 308 S.W.3d 694, 2010 Ky. LEXIS 98 ( Ky. 2010 ).

Since Ky. Const. § 10 provides no greater protection than the federal Fourth Amendment, under Thornton v. United States, 541 U.S. 615, 124 S. Ct. 2127, 158 L. Ed. 2d 905, 2004 U.S. LEXIS 3681 (2004), the search of defendant’s car when he was arrested 50 feet away from it was a reasonable search because he was a “recent occupant” of the car, both in time and distance. Rainey v. Commonwealth, 197 S.W.3d 89, 2006 Ky. LEXIS 133 ( Ky. 2006 ), cert. denied, 549 U.S. 1117, 127 S. Ct. 1005, 166 L. Ed. 2d 713, 2007 U.S. LEXIS 132 (U.S. 2007), overruled in part, Arizona v. Gant, 556 U.S. 332, 129 S. Ct. 1710, 173 L. Ed. 2d 485, 2009 U.S. LEXIS 3120 (U.S. 2009), overruled in part, Rose v. Commonwealth, 322 S.W.3d 76, 2010 Ky. LEXIS 246 ( Ky. 2010 ).

In deciding on defendant’s motion to suppress a gun, which the police had taken from defendant’s vehicle after arresting him 50 feet away from it, the search of his vehicle and the seizure of his gun that was found in his vehicle were proper because he was a “recent occupant” of the vehicle in distance and space; the Fourth Amendment did not require police officers to gamble by approaching a suspect while he was still in his vehicle, as it was reasonable for them to ensure their safety by waiting until a suspect left the vehicle before approaching him. Rainey v. Commonwealth, 197 S.W.3d 89, 2006 Ky. LEXIS 133 ( Ky. 2006 ), cert. denied, 549 U.S. 1117, 127 S. Ct. 1005, 166 L. Ed. 2d 713, 2007 U.S. LEXIS 132 (U.S. 2007), overruled in part, Arizona v. Gant, 556 U.S. 332, 129 S. Ct. 1710, 173 L. Ed. 2d 485, 2009 U.S. LEXIS 3120 (U.S. 2009), overruled in part, Rose v. Commonwealth, 322 S.W.3d 76, 2010 Ky. LEXIS 246 ( Ky. 2010 ).

While there was no evidence of defendant’s temporal relationship to his car, meaning how long it was between the time he left the car and the time that police officers stopped and arrested him, and while the officers testified that they did not fear for their safety and they testified that defendant, who was in handcuffs, was so far from his car that it was unlikely for him to have accessed it, a search of his car after he had walked 50 feet away from it and had been arrested was lawful under the Fourth Amendment. The arresting officers had seen defendant speed into a housing complex parking lot and walk away, so that on the facts of the case, defendant was a “recent occupant’ of the car, and the police had a right to search it. Rainey v. Commonwealth, 197 S.W.3d 89, 2006 Ky. LEXIS 133 ( Ky. 2006 ), cert. denied, 549 U.S. 1117, 127 S. Ct. 1005, 166 L. Ed. 2d 713, 2007 U.S. LEXIS 132 (U.S. 2007), overruled in part, Arizona v. Gant, 556 U.S. 332, 129 S. Ct. 1710, 173 L. Ed. 2d 485, 2009 U.S. LEXIS 3120 (U.S. 2009), overruled in part, Rose v. Commonwealth, 322 S.W.3d 76, 2010 Ky. LEXIS 246 ( Ky. 2010 ).

Because defendant was the owner and operator of the vehicle, and a handgun was found under the seat where he was sitting, the evidence was sufficient to support the conviction of possession of a handgun by a convicted felon. Deboy v. Commonwealth, 214 S.W.3d 926, 2007 Ky. App. LEXIS 34 (Ky. Ct. App. 2007).

7.Instructions.

Where a defendant fails to produce evidence which would support him in choosing the commission of an otherwise unlawful act over other lawful means of protecting himself, the trial court is not required to instruct the jury on the choice of evils defense; consequently, where the convicted felon showed no direct threat of injury to himself or imminent peril necessitating the possession of a handgun but asserted only a general fear posed by a single threat communicated through a third person, the possession of the handgun over a two-month period was unlawful, and the trial court properly refused to give the tendered instruction on the choice of evils defense. Senay v. Commonwealth, 650 S.W.2d 259, 1983 Ky. LEXIS 247 ( Ky. 1983 ).

Where the defendant at trial admitted his possession of a handgun even though he had the status of a convicted felon, and he then sought to exonerate himself of that crime on the ground that his actions were justified under the provisions of subdivision (2)(b) of KRS 503.040 , a position which was at least partially corroborated by the testimony of a police officer, that evidence was sufficient to effectively raise the defense of justification, and the trial court erred in refusing to grant the defendant’s request for an instruction on that issue. Baird v. Commonwealth, 709 S.W.2d 458, 1986 Ky. App. LEXIS 1102 (Ky. Ct. App. 1986).

It was not improper for the trial court to instruct the jury that guilt of possession could be found if the Commonwealth proved that defendant was aware of the gun's presence in the home, and evidence that the loaded gun was found in a closet that contained numerous other items belonging to defendant, including his clothing and a wallet containing a driver's license that had only recently expired allowed the jury to find that defendant had constructive possession of the gun in the closet. Sheets v. Commonwealth, 2017 Ky. App. LEXIS 527 (Ky. Ct. App. Sept. 15, 2017, sub. op., 2017 Ky. App. Unpub. LEXIS 935 (Ky. Ct. App. Sept. 15, 2017).

Trial court did not err by failing to give the jury a no duty to retreat jury instruction because defendant was engaged in an unlawful activity when he shot the victim, namely being a felon in possession of a firearm. Curry v. Commonwealth, 620 S.W.3d 563, 2020 Ky. LEXIS 179 ( Ky. 2020 ).

8.Jurisdiction.

Defendant was entitled to a third trial with regard to his alleged sexual abuse of his wife’s daughter while the while was at work because the Commonwealth improperly joined a misdemeanor charge of failing to register as a sex offender under 2000 Ky. Acts 401 with a misdemeanor handgun charge, instead of retaining a felony sodomy charge and, therefore, the Circuit Court did not have jurisdiction to try the case and should have remanded the same to the District Court for disposition since the District Court had exclusive jurisdiction over misdemeanor cases. Dickerson v. Commonwealth, 174 S.W.3d 451, 2005 Ky. LEXIS 325 ( Ky. 2005 ).

9.Relief by Secretary of Treasury.

The provisions of subdivision (1)(b) of this section concerning relief by the secretary of the treasury under the gun control act are negative in nature, within the peculiar knowledge of the defendant himself, and the burden of proving that such relief had not been granted does not rest upon the Commonwealth. Eary v. Commonwealth, 659 S.W.2d 198, 1983 Ky. LEXIS 280 ( Ky. 1983 ).

10.Use of Convictions.

Where an accused has been previously convicted of the crime of possession of a handgun by a convicted felon, that conviction assumes the status of any other offense at a subsequent trial, and both the felony conviction which was the basis of the handgun offense and the handgun offense may be utilized under KRS 532.080 in the persistent felony phase of the trial. Jackson v. Commonwealth, 650 S.W.2d 250, 1983 Ky. LEXIS 244 ( Ky. 1983 ).

Where a defendant is convicted at his trial for possession of a handgun by a convicted felon and has been previously convicted of more than one prior felony, those convictions in excess of that for a single felony may be utilized for the purpose of persistent felony offender sentencing pursuant to KRS 532.080 . Eary v. Commonwealth, 659 S.W.2d 198, 1983 Ky. LEXIS 280 ( Ky. 1983 ).

Where the conviction of possession of a handgun by a convicted felon in violation of this section was specifically excluded from the persistent felony offender proceedings, the use of two prior felony convictions to establish the offense of possession of a handgun by a convicted felon did not preclude the use of those convictions to enhance the robbery sentence under KRS 532.080 . Dale v. Commonwealth, 715 S.W.2d 227, 1986 Ky. LEXIS 284 ( Ky. 1986 ), cert. denied, 481 U.S. 1004, 107 S. Ct. 1626, 95 L. Ed. 2d 200, 1987 U.S. LEXIS 1544 (U.S. 1987).

When a defendant entered a diversion program, his convicted felon status could have changed but, in committing a firearm crime, he was not program qualified and was a convicted felon for sentencing purposes. Thomas v. Commonwealth, 95 S.W.3d 828, 2003 Ky. LEXIS 7 ( Ky. 2003 ).

Although defendant ultimately had a prior felony conviction overturned, it was valid at the time he armed himself with a handgun in the instant matter and thus, the evidence supported his conviction for being a felon in possession of a handgun. Applegate v. Commonwealth, 577 S.W.3d 83, 2018 Ky. App. LEXIS 239 (Ky. Ct. App. 2018).

11.Sentencing.

Trial court did not err by sentencing defendant to a ten-year term for possession of a handgun by a convicted felon, as prohibited by KRS 527.040(2), because his right to due process was not denied by his parole officer’s testimony during the penalty phase of trial regarding the potential effect of parole and sentence credits on defendant’s sentence. The testimony comported with the aims of the truth-in-sentencing statute, KRS 532.055 , and was not unfair. Cox v. Commonwealth, 399 S.W.3d 431, 2013 Ky. LEXIS 228 ( Ky. 2013 ).

Cited:

Hayes v. Commonwealth, 625 S.W.2d 575, 1981 Ky. LEXIS 303 ( Ky. 1981 ); Marshall v. Commonwealth, 625 S.W.2d 581, 1981 Ky. LEXIS 306 ( Ky. 1981 ); Hubbard v. Commonwealth, 633 S.W.2d 67, 1982 Ky. LEXIS 249 ( Ky. 1982 ); Robards v. Rees, 789 F.2d 379, 1986 U.S. App. LEXIS 24622 (6th Cir. 1986); Collier v. Commonwealth, 713 S.W.2d 827, 1986 Ky. App. LEXIS 1204 (Ky. Ct. App. 1986); Jennings v. Rees, 800 F.2d 72, 1986 U.S. App. LEXIS 28988 (6th Cir. 1986); Clay v. Commonwealth, 818 S.W.2d 264, 1991 Ky. LEXIS 158 ( Ky. 1991 ); Coleman v. Commonwealth, 100 S.W.3d 745, 2002 Ky. LEXIS 247 ( Ky. 2002 ).

Notes to Unpublished Decisions

1.Use of Convictions.

Unpublished decision: Because defendant was convicted of multiple felonies in Kentucky from 1981 to 1986, the restoration of defendant’s civil rights did not preclude defendant from being charged with and convicted of being a felon in possession of a firearm under 18 U.S.C.S. §§ 922(g) and 924(a)(2), and the appellate court rejected defendant’s claim that defendant did not knowingly and voluntarily plead guilty to counts charged under §§ 922(g) and 924(a)(2). United States v. Fredell, 79 Fed. Appx. 799, 2003 U.S. App. LEXIS 22309 (6th Cir. Ky. 2003 ), cert. denied, 540 U.S. 1206, 124 S. Ct. 1477, 158 L. Ed. 2d 128, 2004 U.S. LEXIS 1464 (U.S. 2004).

Opinions of Attorney General.

A city policeman who has been convicted of a felony but who is granted a pardon and is subsequently rehired by the city council can carry a weapon provided the pardon granted him by the Governor contains a specific provision restoring his right to carry a firearm. OAG 76-264 .

Where the nominee to the office of jailer had had his civil rights and the right to possess a firearm restored by the Governor subsequent to a felony conviction, the officer-elect could legally carry firearms during his tenure as jailer without obtaining the approval of the U.S. Treasury Department. OAG 77-363 .

A letter from the Department of Treasury granting a convicted felon relief from the Federal Firearms Disability Act would be sufficient authorization to restore the felon’s right to carry a firearm. OAG 77-739 .

National Firearms Act weapons might fall within the purview of this section. OAG 91-153 .

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Read, Criminal Law, 72 Ky. L.J. 365 (1983-84).

Northern Kentucky Law Review.

2008 Criminal Law Issue: Note: Kentucky’s Statutory Collateral Consequences Arising From Felony Convictions: A Practitioner’s Guide, 35 N. Ky. L. Rev. 413 (2008).

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public Order, Safety and Morals, Part 4 Offenses Relating to Firearms and Destructive Devices, §§ 8.60, 8.60B.

527.050. Possession of defaced firearm.

  1. A person is guilty of possession of a defaced firearm when he knowingly possesses a defaced firearm unless he makes a report to the police or other appropriate government agency of such possession prior to arrest or authorization of a warrant by a court.
  2. Possession of a defaced firearm is a Class A misdemeanor.

History. Enact. Acts 1974, ch. 406, § 238, effective January 1, 1975.

Opinions of Attorney General.

This section prohibits possession of a defaced firearm in Kentucky, and such prohibition, while not specific to National Firearms Act weapons, would include National Firearms Act weapons. OAG 91-153 .

Research References and Practice Aids

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public Order, Safety and Morals, Part 4 Offenses Relating to Firearms and Destructive Devices, § 8.62.

527.060. Forfeiture.

Upon the conviction of any person for the violation of any law of this Commonwealth in which a deadly weapon was used, displayed or unlawfully possessed by such person the court shall order the weapon forfeited to the state and sold, destroyed or otherwise disposed of in accordance with KRS 500.090 .

History. Enact. Acts 1974, ch. 406, § 239, effective January 1, 1975.

Opinions of Attorney General.

Where an individual when arrested for drunken driving was carrying a concealed deadly weapon and was convicted of this crime under KRS 527.020 as well as convicted of drunken driving under KRS 189.520 , his possession of the weapon was an unlawful possession in the commission of the crime of carrying a concealed deadly weapon and the weapon is subject to forfeiture under KRS 500.090 and this section. OAG 75-381 .

A court may not lawfully order a forfeited firearm released to an individual police officer for his own use but may order it released to the local or state government. OAG 80-550 .

Since the disposal of all forfeited property is limited to those methods specified in KRS 500.090 and none of the disposal methods allow confiscated weapons to be traded as credit on the purchase of new weapons, such procedure could not legally be followed; the weapons would have to be sold at public auction duly advertised as provided in KRS Chapter 424, and the money derived therefrom that the city would be entitled to retain could then be used for the purchase of new weapons. OAG 83-354 .

Research References and Practice Aids

Cross-References.

Property forfeited, disposition of under Penal Code, KRS 500.090 .

527.070. Unlawful possession of a weapon on school property — Posting of sign — Exemptions.

  1. A person is guilty of unlawful possession of a weapon on school property when he knowingly deposits, possesses, or carries, whether openly or concealed, for purposes other than instructional or school-sanctioned ceremonial purposes, or the purposes permitted in subsection (3) of this section, any firearm or other deadly weapon, destructive device, or booby trap device in any public or private school building or bus, on any public or private school campus, grounds, recreation area, athletic field, or any other property owned, used, or operated by any board of education, school, board of trustees, regents, or directors for the administration of any public or private educational institution. The provisions of this section shall not apply to institutions of postsecondary or higher education.
  2. Each chief administrator of a public or private school shall display about the school in prominent locations, including, but not limited to, sports arenas, gymnasiums, stadiums, and cafeterias, a sign at least six (6) inches high and fourteen (14) inches wide stating:

    UNLAWFUL POSSESSION OF A WEAPON ON SCHOOL PROPERTY IN KENTUCKY IS A FELONY PUNISHABLE BY A MAXIMUM OF FIVE (5) YEARS IN PRISON AND A TEN THOUSAND DOLLAR ($10,000) FINE.

    Failure to post the sign shall not relieve any person of liability under this section.

  3. The provisions of this section prohibiting the unlawful possession of a weapon on school property shall not apply to:
    1. An adult who is not a pupil of any secondary school and who possesses a firearm, if the firearm is contained within a vehicle operated by the adult and is not removed from the vehicle, except for a purpose permitted herein, or brandished by the adult, or by any other person acting with expressed or implied consent of the adult, while the vehicle is on school property;
    2. Any pupils who are members of the reserve officers training corps or pupils enrolled in a course of instruction or members of a school club or team, to the extent they are required to carry arms or weapons in the discharge of their official class or team duties;
    3. Any peace officer or police officer authorized to carry a concealed weapon pursuant to KRS 527.020 ;
    4. Persons employed by the Armed Forces of the United States or members of the National Guard or militia when required in the discharge of their official duties to carry arms or weapons;
    5. Civil officers of the United States in the discharge of their official duties. Nothing in this section shall be construed as to allow any person to carry a concealed weapon into a public or private elementary or secondary school building;
    6. Any other persons, including, but not limited to, exhibitors of historical displays, who have been authorized to carry a firearm by the board of education or board of trustees of the public or private institution;
    7. A person hunting during the lawful hunting season on lands owned by any public or private educational institution and designated as open to hunting by the board of education or board of trustees of the educational institution;
    8. A person possessing unloaded hunting weapons while traversing the grounds of any public or private educational institution for the purpose of gaining access to public or private lands open to hunting with the intent to hunt on the public or private lands, unless the lands of the educational institution are posted prohibiting the entry; or
    9. A person possessing guns or knives when conducting or attending a “gun and knife show” when the program has been approved by the board of education or board of trustees of the educational institution.
  4. Unlawful possession of a weapon on school property is a Class D felony.

History. Enact. Acts 1994, ch. 391, § 1, effective July 15, 1994; 1996, ch. 119, § 4, effective October 1, 1996; 2019 ch. 111, § 1, effective June 27, 2019.

NOTES TO DECISIONS

1.Duty to Warn of Violation.

There is no duty imposed by this section to report to school officials alleged violations of KRS 527.070 . James v. Wilson, 95 S.W.3d 875, 2002 Ky. App. LEXIS 770 (Ky. Ct. App. 2002).

Cited:

Darden v. Commonwealth, 52 S.W.3d 574, 2001 Ky. LEXIS 135 ( Ky. 2001 ).

Opinions of Attorney General.

The fact that the legislature in enacting subsection (1) of this section has elected not to criminalize the carrying of those weapons on the property of institutions of postsecondary or higher education, does not preclude the governing boards of public institutions of higher education from otherwise controlling the possession of deadly weapons on their properties. OAG 96-40 .

Research References and Practice Aids

Northern Kentucky Law Review.

The Three R’s: Reading, Writing, and Rifles? How the Kentucky Supreme Court Lessened Penalties for Students Who Bring Guns to School in Darden v. Commonwealth, 29 N. Ky. L. Rev. 877 (2002).

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public Order, Safety and Morals, Part 4 Offenses Relating to Firearms and Destructive Devices, § 8.63A.

527.080. Using restricted ammunition during the commission of a crime — Exception.

  1. A person is guilty of using restricted ammunition during the commission of a crime when he commits any felony offense under this code and is armed at the time of the commission of the offense or in the immediate flight therefrom with a firearm loaded, as defined in KRS 237.060 , with armor-piercing ammunition as defined in KRS 237.060 or flanged ammunition as defined in KRS 237.060.
  2. Using restricted ammunition during the commission of a crime is:
    1. A Class D felony if no shot is fired;
    2. A Class C felony if a shot is fired and no person is killed or wounded thereby;
    3. A Class B felony if a shot is fired and a person other than the defendant or an accomplice of the defendant is wounded by the shot; and
    4. A Class A felony if a shot is fired and a person other than the defendant or an accomplice of the defendant is killed by the shot.
  3. The provisions of this section are intended to be a separate offense from the underlying crime, which shall be punished separately. If a person is convicted of this offense, his sentence shall be served consecutively to the sentence for the underlying offense.
  4. The provisions of this section shall not apply to any person who is justified in acting pursuant to the provisions of KRS Chapter 503.

History. Enact. Acts 1994, ch. 396, § 15, effective July 15, 1994; 1996, ch. 191, § 2, effective July 15, 1996.

Research References and Practice Aids

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public Order, Safety and Morals, Part 4 Offenses Relating to Firearms and Destructive Devices, §§ 8.63B — 8.63F.

527.090. Fraudulent firearm transaction.

  1. As used in this section:
    1. “Licensed dealer” means a person who is licensed pursuant to 18 U.S.C. sec. 923 and pursuant to any laws of this Commonwealth and engages in the business of dealing in firearms;
    2. “Materially false information” means information that portrays an illegal transaction as legal or a legal transaction as illegal; and
    3. “Private seller” means a person who sells or offers for sale any firearm.
  2. A person is guilty of fraudulent firearm transaction when he or she knowingly:
    1. Solicits, persuades, encourages, or entices a licensed dealer or private seller of firearms to transfer a firearm under circumstances which the person knows would violate the laws of this Commonwealth or the United States;
    2. Provides to a licensed dealer or private seller of firearms what the person knows to be materially false information with intent to deceive the dealer or seller about the legality of a transfer of a firearm; or
    3. Procures another to engage in conduct prohibited by this section.
  3. Fraudulent firearm transaction is a Class D felony.

History. Enact. Acts 2012, ch. 121, § 1, effective July 12, 2012.

Minors and Juveniles

527.100. Possession of handgun by minor.

  1. A person is guilty of possession of a handgun by a minor when, being under the age of eighteen (18) years, he possesses, manufactures, or transports a handgun as defined by KRS 527.010 , except when the person is:
    1. In attendance at a hunter’s safety course or a firearms safety course;
    2. Engaging in practice in the use of a firearm, or target shooting at an established firing range, or any other area where the discharge of a firearm is not prohibited;
    3. Engaging in an organized competition involving the use of a firearm, or participating in or practicing for a performance by a group organized under Section 501(c)(3) of the Internal Revenue Code or any successor thereto which uses firearms as a part of the performance;
    4. Hunting or trapping pursuant to a valid license issued to him pursuant to the statutes or administrative regulations of this Commonwealth;
    5. Traveling to or from any activity described in paragraphs (a) to (d) of this subsection with any unloaded handgun in his possession;
    6. On real property which is under the control of an adult and has the permission of that adult and his parent or legal guardian to possess a handgun; or
    7. At his residence and with the permission of his parent or legal guardian possesses a handgun and is justified under the principles of justification set forth in KRS Chapter 503 in using physical force or deadly physical force.
  2. For the purposes of subsection (1) of this section, a handgun is “loaded” if:
    1. There is a cartridge in the chamber of the handgun; or
    2. There is a cartridge in the cylinder of the handgun, if the handgun is a revolver; or
    3. There is a cartridge in the magazine of a semiautomatic handgun, if the magazine is attached to the handgun; or
    4. The handgun and the ammunition for the handgun, are carried on the person of one under the age of eighteen (18) years or are in such close proximity to him that he could readily gain access to the handgun and the ammunition and load the handgun.
  3. Possession of a handgun by a minor is a Class A misdemeanor for the first offense and a Class D felony for each subsequent offense.

History. Enact. Acts 1994, ch. 30, § 1, effective July 15, 1994.

Compiler’s Notes.

Section 501(c)(3) of the Internal Revenue Code, referred to in (1)(c), may be found as 26 USCS § 501(c)(3).

NOTES TO DECISIONS

1.Sufficiency of Evidence.

Evidence was sufficient to support a conviction for possession of a handgun by a minor where the defendant admitted that he was 17 years of age on the date in question, that he took possession of a .38 handgun shortly after arriving at a residence and that he retained possession of it until shortly before his apprehension. Taylor v. Commonwealth, 995 S.W.2d 355, 1999 Ky. LEXIS 73 ( Ky. 1999 ).

Cited:

T & M Jewelry, Inc. v. Hicks, 189 S.W.3d 526, 2006 Ky. LEXIS 102 ( Ky. 2006 ).

Opinions of Attorney General.

House Bill 359 (Acts 1994, ch. 30, § 1; codified as KRS 527.100 ) which restricts possession of handguns by minors is constitutional under both the Second Amendment to the Constitution of the United States and Ky. Const., § 7. OAG 94-14 .

Research References and Practice Aids

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public Order, Safety and Morals, Part 4 Offenses Relating to Firearms and Destructive Devices, §§ 8.63G — 8.63I.

527.110. Unlawfully providing handgun to juvenile or permitting juvenile to possess handgun.

  1. A person is guilty of unlawfully providing a handgun to a juvenile or permitting a juvenile to possesses a handgun when he:
    1. Intentionally, knowingly, or recklessly provides a handgun, with or without remuneration, in violation of KRS 527.040 , 527.100 , or 600.020 to any person he knows or has reason to believe is under the age of eighteen (18) years; or
    2. Is the parent or legal guardian of a juvenile and intentionally, knowingly, or recklessly provides a handgun to the juvenile or permits the juvenile to possess a handgun knowing that there is a substantial risk that the juvenile will use a handgun to commit a felony offense; or, with knowledge that the juvenile has been convicted of a crime of violence as defined in KRS 439.3401 or has been adjudicated a public offender of an offense which would constitute a crime of violence as defined in KRS 439.3401 , provides a handgun to that juvenile.
  2. Unlawfully providing a hand gun to a juvenile or permitting a juvenile to possess a handgun is a Class D felony.

History. Enact. Acts 1994, ch. 30, § 2, effective July 15, 1994.

NOTES TO DECISIONS

Cited:

T & M Jewelry, Inc. v. Hicks, 189 S.W.3d 526, 2006 Ky. LEXIS 102 ( Ky. 2006 ).

Research References and Practice Aids

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public Order, Safety and Morals, Part 4 Offenses Relating to Firearms and Destructive Devices, §§ 8.63H, 8.63I.

527.200. Use of a weapon of mass destruction in the first degree.

  1. A person is guilty of use of a weapon of mass destruction in the first degree when he or she intentionally, without lawful authority, places a weapon of mass destruction at any location in the Commonwealth and, as a result, any person other than the defendant is killed or receives serious physical injury.
  2. A weapon of mass destruction is used with lawful authority if it is used with the written permission of an agency of the Commonwealth or of a city, county, charter county, or urban-county government having jurisdiction over the use of destructive devices as defined in KRS 237.030 or the use of explosives.
  3. Use of a weapon of mass destruction in the first degree is a Class A felony unless a person other than the defendant is killed as a result, in which case it is a capital offense.

History. Enact. Acts 2001, ch. 113, § 4, effective June 21, 2001.

527.205. Use of a weapon of mass destruction in the second degree.

  1. A person is guilty of use of a weapon of mass destruction in the second degree when intentionally, without lawful authority, he or she:
    1. Places a weapon of mass destruction at any location in the Commonwealth and, as a result, any person other than the defendant receives physical injury; or
    2. Places a weapon of mass destruction on:
      1. The real property or any building of any public or private elementary or secondary school, vocational school, or institution of postsecondary education;
      2. A school bus or other vehicle owned, operated, or leased by a school;
      3. The real property or any building, public or private, that is the site of an official school-sanctioned function; or
      4. The real property or any building owned or leased by a government agency,

        and no person dies or receives any physical injury.

  2. A weapon of mass destruction is used with lawful authority if it is used with the written permission of an agency of the Commonwealth or of a city, county, charter county, or urban-county government having jurisdiction over the use of destructive devices as defined in KRS 237.030 or the use of explosives.
  3. Use of a weapon of mass destruction in the second degree is a Class B felony.

History. Enact. Acts 2001, ch. 113, § 5, effective June 21, 2001.

527.210. Use of a weapon of mass destruction in the third degree.

  1. Except as provided in KRS 527.205 , a person is guilty of use of a weapon of mass destruction in the third degree when intentionally, without lawful authority, he or she places a weapon of mass destruction at any location in the Commonwealth.
  2. A weapon of mass destruction is used with lawful authority if it is used with the written permission of an agency of the Commonwealth or of a city, county, charter county, or urban-county government having jurisdiction over the use of destructive devices as defined in KRS 237.030 or the use of explosives.
  3. Use of a weapon of mass destruction in the third degree is a Class C felony.

History. Enact. Acts 2001, ch. 113, § 6, effective June 21, 2001.

CHAPTER 528 Gambling

528.010. Definitions for chapter.

The following definitions apply in this chapter unless the context otherwise requires:

  1. “Advancing gambling activity” — A person “advances gambling activity” when, acting other than as a player, he engages in conduct that materially aids any form of gambling activity. The conduct shall include, but is not limited to, conduct directed toward the establishment of the particular game, contest, scheme, device, or activity involved; toward the acquisition or maintenance of premises, paraphernalia, equipment, or apparatus therefor; toward the solicitation or inducement of persons to participate therein; toward the actual conduct of the playing phases thereof; toward the arrangement of any of its financial or recording phases or toward any other phase of its operation. A person who gambles at a social game of chance on equal terms with other participants does not otherwise advance gambling activity by performing acts, without remuneration or fee, directed toward the arrangement or facilitation of the game as inviting persons to play, permitting the use of premises therefor and supplying equipment used therein;
  2. “Bookmaking” means advancing gambling activity by unlawfully accepting bets upon the outcome of future contingent events from members of the public as a business;
  3. “Charitable gaming” means games of chance conducted by charitable organizations licensed and regulated under the provisions of KRS Chapter 238;
    1. “Gambling” means staking or risking something of value upon the outcome of a contest, game, gaming scheme, or gaming device which is based upon an element of chance, in accord with an agreement or understanding that someone will receive something of value in the event of a certain outcome. A contest or game in which eligibility to participate is determined by chance and the ultimate winner is determined by skill shall not be considered to be gambling. (4) (a) “Gambling” means staking or risking something of value upon the outcome of a contest, game, gaming scheme, or gaming device which is based upon an element of chance, in accord with an agreement or understanding that someone will receive something of value in the event of a certain outcome. A contest or game in which eligibility to participate is determined by chance and the ultimate winner is determined by skill shall not be considered to be gambling.
    2. Gambling shall not mean charitable gaming which is licensed and regulated under the provisions of KRS Chapter 238;
  4. “Gambling device” means:
    1. Any so-called slot machine or any other machine or mechanical device an essential part of which is a drum or reel with insignia thereon, and which when operated may deliver, as a result of the application of an element of chance, any money or property, or by the operation of which a person may become entitled to receive, as the result of the application of an element of chance, any money or property;
    2. Any mechanical or electronic device permanently located in a business establishment, including a private club, that is offered or made available to a person to play or participate in a simulated gambling program in return for direct or indirect consideration, including but not limited to consideration paid for Internet access or computer time, or a sweepstakes entry, which when operated may deliver as a result of the application of an element of chance, any money or property, or by the operation of which a person may become entitled to receive, as the result of the application of an element of chance, any money or property; or
    3. Any other machine or any mechanical or other device, including but not limited to roulette wheels, gambling tables and similar devices, designed and manufactured primarily for use in connection with gambling and which when operated may deliver, as the result of the application of an element of chance, any money or property, or by the operation of which a person may become entitled to receive, as the result of the application of an element of chance, any money or property;
    4. But, the following shall not be considered gambling devices within this definition:
      1. Devices dispensing or selling combination or French pools on licensed, regular racetracks during races on said tracks;
      2. Devices dispensing or selling combination or French pools on historical races at licensed, regular racetracks as lawfully authorized by the Kentucky Horse Racing Commission;
      3. Electro-mechanical pinball machines specially designed, constructed, set up, and kept to be played for amusement only. Any pinball machine shall be made to receive and react only to the deposit of coins during the course of a game. The ultimate and only award given directly or indirectly to any player for the attainment of a winning score or combination on any pinball machine shall be the right to play one (1) or more additional games immediately on the same device at no further cost. The maximum number of free games that can be won, registered, or accumulated at one (1) time in operation of any pinball machine shall not exceed thirty (30) free games. Any pinball machine shall be made to discharge accumulated free games only by reactivating the playing mechanism once for each game released. Any pinball machine shall be made and kept with no meter or system to preserve a record of free games played, awarded, or discharged. Nonetheless, a pinball machine shall be a gambling device if a person gives or promises to give money, tokens, merchandise, premiums, or property of any kind for scores, combinations, or free games obtained in playing the pinball machine in which the person has an interest as owner, operator, keeper, or otherwise; or
      4. Devices used in the conduct of charitable gaming;
  5. “Lottery and gift enterprise” means:
    1. A gambling scheme in which:
      1. The players pay or agree to pay something of value for chances, represented and differentiated by numbers or by combinations of numbers or by some other media, one (1) or more of which are to be designated the winning ones; and
      2. The ultimate winner is to be determined by a drawing or by some other method based upon the element of chance; and
      3. The holders of the winning chances are to receive something of value; and
    2. A gift enterprise or referral sales plan which meets the elements of a lottery listed in paragraph (a) of this subsection is to be considered a lottery under this chapter;
  6. “Mutuel” or “the numbers games” means a form of lottery in which the winning chances or plays are not determined upon the basis of a drawing or other act on the part of persons conducting or connected with the scheme, but upon the basis of the outcome or outcomes of a future contingent event or events otherwise unrelated to the particular scheme;
  7. “Player” means a person who engages in any form of gambling solely as a contestant or bettor, without receiving or becoming entitled to receive any profit therefrom other than personal gambling winnings, and without otherwise rendering any material assistance to the establishment, conduct, or operation of the particular gambling activity. A person who engages in “bookmaking” as defined in subsection (2) of this section is not a “player.” The status of a “player” shall be a defense to any prosecution under this chapter;
  8. “Profiting from gambling activity” — A person “profits from gambling activity” when, other than as a player, he accepts or receives or agrees to accept or receive money or other property pursuant to an agreement or understanding with any person whereby he participates or is to participate in the proceeds of gambling activity;
  9. “Simulated gambling program” means any method intended to be used by a person playing, participating, or interacting with an electronic device that may, through the application of an element of chance, either deliver money or property or an entitlement to receive money or property; and
  10. “Something of value” means any money or property, any token, object, or article exchangeable for money or property, or any form of credit or promise directly or indirectly contemplating transfer of money or property or of any interest therein, or involving extension of a service, entertainment, or a privilege of playing at a game or scheme without charge.

History. Enact. Acts 1974, ch. 406, § 240, effective January 1, 1975; 1978, ch. 321, § 5, effective June 17, 1978; 1980, ch. 188, § 307; 1980, ch. 267, § 9, effective July 15, 1980; 1988, ch. 423, § 1, effective July 15, 1988; 1990, ch. 469, § 1, effective July 13, 1990; 1992, ch. 254, § 1, effective July 14, 1992; 1994, ch. 66, § 19, effective March 16, 1994; 2015 ch. 5, § 1, effective March 19, 2015.

Legislative Research Commission Notes.

(3/19/2015). 2015 Ky. 5 , 2 provides that the amendments to this statute made in 2015 Ky. Acts ch. 5, sec. 1 shall not “be construed as a recognition or finding concerning whether the operation of wagering on historical horse races constitutes a pari-mutuel form of wagering or concerning the legality of wagering on historical horse races, the devices upon which wagering on historical horse races is conducted, or the gaming system.”

(3/19/2015). Under the authority of KRS 7.136(1), the Reviser of Statutes has changed the internal numbering of this statute to place definitions in alphabetical order. No words were changed in this process.

NOTES TO DECISIONS

1.Constitutionality.

Even if the charitable gaming defense contained in KRS 528.010 violates the Kentucky Constitution, it would not render the entire Kentucky gambling statute invalid since such exception is separable from the rest of the statute. United States v. Ford, 184 F.3d 566, 1999 FED App. 0267P, 1999 U.S. App. LEXIS 17701 (6th Cir. Ky. 1999 ), cert. denied, 528 U.S. 1161, 120 S. Ct. 1175, 145 L. Ed. 2d 1083, 2000 U.S. LEXIS 1129 (U.S. 2000).

2.Gambling.

Where cockfighting spectators sought the release of seized funds after a farm owner pled guilty to conspiracy to promote gambling, the funds were properly forfeited because the spectators failed to establish that they were innocent owners of the money since the funds represented the money that each spectator put forth to have his rooster fight other roosters, and the money was used in the commission or furtherance of the gambling operation. Fall v. Commonwealth, 245 S.W.3d 812, 2008 Ky. App. LEXIS 22 (Ky. Ct. App. 2008).

3.Standing.

When associational standing is the chosen route, a writ petitioner must prove it represents at least one member with an injury in order to obtain relief; therefore, a petition for a writ of prohibition should not have been granted to several domain names and two gambling associations seeking to enjoin a forfeiture granted under KRS 528.010 because the associations lacked standing since they did not reveal the identity of any of the registrants that they purported to represent. Commonwealth ex rel. Brown v. Interactive Media Entm't & Gaming Ass'n, 306 S.W.3d 32, 2010 Ky. LEXIS 74 (Ky.), writ denied, 320 S.W.3d 692, 2010 Ky. LEXIS 237 ( Ky. 2010 ).

Property does not have a right to defend, nor does it have a judicially recognizable interest in a writ. Therefore, a writ of prohibition should not have been granted to several domain names seeking to enjoin their forfeiture since they lacked standing to proceed. Commonwealth ex rel. Brown v. Interactive Media Entm't & Gaming Ass'n, 306 S.W.3d 32, 2010 Ky. LEXIS 74 (Ky.), writ denied, 320 S.W.3d 692, 2010 Ky. LEXIS 237 ( Ky. 2010 ).

Opinions of Attorney General.

A shooting gallery type machine where player receives a set amount of time to shoot at moving targets and receives a like amount of time, a replay, upon accumulation of points is not a gambling device. OAG 75-41 .

A pinball machine which reacts to the deposit of a quarter, rather than a nickel or dime, departs from the excepting requirement in this section and is thus a gambling device. OAG 75-41 .

An electro-mechanical pinball machine which is made to receive and react to the deposit of a quarter ($0.25) for which a player receives three games, but otherwise conforms to the excepting specifications of this section is a gambling device. OAG 75-214 .

The promotion of a quiz game, wherein the purchasers of food and/or drink would thereby be entitled to participate in a contest for a prize awarded on the basis of ability to determine the correct answers to questions of general information, does not constitute a lottery since no element of chance is involved. OAG 75-349 .

Where a grocery store distributes tickets which, when turned in at certain specified times, wins for the ticket holder anywhere from $1.00 to $1000, the amount depending on chance, such is not a lottery where the player did not pay or agree to pay anything of value for the chances. OAG 76-6 .

A chain letter scheme constitutes a lottery and all those participating, to the extent they share in the proceeds and/or induce others to participate, could be held criminally liable for promoting gambling. OAG 76-157 .

A contest in a weekly publication which did not require participants to pay or agree to pay something of value as a precondition to eligibility for a prize would not be a lottery. OAG 77-345 .

Study by the Department of Fish and Wildlife Resources, Division of Fisheries, to secure certain biological data about black bass fish by tagging the black bass, giving the tag a monetary value and paying a specified cash award to any angler who turns a tag into the division did not involve participation by persons who would be risking or staking something of value upon the outcome of a game or contest and did not involve payment of something of value by the players (anglers) and thus did not constitute an unlawful gambling activity or an unlawful gambling scheme. OAG 78-263 .

A volunteer rescue squad, fire department or similar group could not legally sell raffle tickets where the prize would consist of a percentage of the money taken in on the raffle, since such a raffle constitutes a lottery and is illegal under Const., § 226 and under this chapter of Kentucky Revised Statutes. OAG 78-372 .

Table soccer tournaments, played for a cash prize, by those who pay an entry fee, do not run afoul of the anti-gambling statutes, since table soccer is a game of skill; as opposed to a game of chance. OAG 79-215 .

The 1980 amendment by ch. 267, which added subsection (10), is unconstitutional and is void ab initio insofar as that amendment seeks to exempt bingo and/or lotteries or gift enterprises of any form from the operation of the Penal Code, since absent an amendment of Ky. Const., § 226, the criminal sanctions imposed by this chapter are operative as to lotteries, gift enterprises and bingo games sponsored by and for charitable purposes; if the General Assembly wishes to legalize charitable bingo, the only method of doing so is to propose a constitutional amendment placing the question before the people of Kentucky. OAG 80-408 .

Although the 1980 amendment by ch. 267, which added subsection (10), is unconstitutional and void ab initio insofar as it seeks to legalize charitable bingo and other forms of charitable lotteries, the amendment act is not written in such a way as to indicate that the legislature would not have enacted a provision legalizing charitable “games of chance” without that portion of the act which sought to decriminalize bingo or other forms of lotteries or gift enterprises, therefore, this section, as amended, is constitutional and valid insofar as it decriminalizes charitable “games of chance” other than lotteries. OAG 80-409 .

There are games of chance which are not lotteries and which may be removed from the operation of the criminal sanctions of this chapter without violating Ky. Const., § 226; the only games of chance that are constitutionally forbidden are those in which the outcome is determined solely by chance, and since the card games of rook and draw poker both require some degree of skill to win, they are not lotteries and are not constitutionally forbidden; consequently, if the national federation of the blind of Kentucky can qualify for “charitable gaming status” it may legally conduct a card tournament. OAG 80-409 .

An institution of higher learning may not implement a fund raising scheme for booster club whereby patrons would be solicited to buy one or more memberships in the booster club at $25 each, where members would be eligible to participate in series of weekly drawings with various cash prizes, since the membership fees would constitute consideration for chances, the winners are determined by pure chance and a prize is awarded; accordingly, the scheme is a lottery and prohibited under Ky. Const., § 226 and this section. OAG 81-62 .

A licensee of the Department of Alcoholic Beverage Control, may offer at its licensed premises, (for a set fee paid to a tour operator) an activity in which games of chance are played with paper money, resulting in prizes being auctioned off for paper money, provided the paper money is furnished to the participants at no expense, since this would not constitute gambling as defined by subsection (3) of this section; however, if the cost of the activities is passed on to the participants in the form of a hidden increase in the initial overall tour cost, then the participants will have risked something of value by purchasing the paper, so that they are “gambling” under subsection (3) of this section; accordingly, the licensees’ license would have to be revoked pursuant to KRS 243.500 . OAG 81-139 .

Where a soft drink bottler sponsors a contest whereby a person can obtain bottle caps by purchasing the product, visiting one of eight bottling plants statewide or calling a toll-free telephone number, and win various prizes, including cash for specially marked caps, such a “flexible participation” scheme is not a lottery, since not all methods of obtaining bottle caps involve paying for them, which would be a prohibited scheme under subsection (5)(a)1 of this section; accordingly, the scheme is not prohibited by Ky. Const., § 226. OAG 81-146 .

Where an automobile company conducts an automobile giveaway on the premises of a supermarket which possesses wine and beer licenses, and the contest involves the contestant entering the supermarket premises to register for the contest (which requires no minimum purchase to enter) the contest would not be a gambling scheme under this section requiring revocation or suspension of the beer or wine license pursuant to this section, however, if the chance of winning the prize is part of an inducement to purchase the goods, the contest would violate Ky. Const., § 226 and subject the licenses to revocation or suspension. OAG 81-201 .

A promotional scheme by a hamburger chain which would entail the consumer receiving a sweepstakes ticket with the purchase of a certain type sandwich would not be a “lottery” in violation of Ky. Const., § 226 and this section, since consumers could also send a form available at the store to the parent corporation to receive a free sweepstakes ticket without making a purchase, or could send directly to a post office box for a ticket without making a purchase; thus, the consumer did not have to pay consideration in order to receive a ticket and the chance to win an award; however, in order not to violate KRS 367.170, any advertisement of the scheme, in addition to stating “no purchase necessary,” must also include all of the alternatives for participation in the scheme. OAG 81-259 .

A proposed fund raising raffle which would be conducted by a local charity, whereby a farm would be raffled off after the sale of 2,000 tickets at $100 per ticket, with the proceeds being applied first to the costs, liens and mortgages and the rest of the proceeds being divided between the farm owner and the charitable organization, would violate Ky. Const., § 226 prohibition against lotteries, since a raffle is the purest and simplest form of a lottery; moreover, the charitable organization would not be exempt from this prohibition, because subsection (10) of this section is unconstitutional and void ab initio, and, even if the section were constitutional, the participation of the farm owner would violate the exemption provided in subsection (10) of this section. OAG 81-290 .

Where a nonprofit corporation formed exclusively for charitable and educational purposes intended to raffle off a house by collecting donations of $100 or more, with each donor being eligible to win the house through a drawing and the excess of donations over the purchase price of the house being used exclusively for charitable purposes, the donation, which would be the only means of entering the contest, would constitute something of value within the meaning of subsection (5)(a)1 of this section; accordingly, since all of the elements of a lottery (a prize, an award thereof by chance and consideration) were present, the proposed raffle would be considered a lottery and the corporation could be subject to criminal penalties. OAG 81-352 .

The provision of subsection (1) of this section, to the effect that a person whose conduct is limited to providing the premises and supplying the equipment for a social game of chance does not advance gambling activity if he or she receives no remuneration or fee and gambles on equal terms with other participants, was intended only to give a player who merely wants to play the opportunity to arrange a game; the statute does not punish the arrangement of friendly social games. OAG 83-207 .

Permitting gambling is rendering material assistance to the establishment, conduct, or operation of gambling activity and, consequently, a person who is guilty of the offense of permitting gambling cannot successfully avail himself or herself of the “player” defense established by subsection (7) of this section. Furthermore, one who is guilty of promoting gambling, either by profiting from or advancing gambling activity, cannot protect himself or herself by claiming to be a player. OAG 83-207 .

Actual receipt of earnings is not a requisite of subsection (8) of this section; all that is necessary is an agreement or understanding that the actor will be entitled to a share of the proceeds. OAG 83-207 .

The three elements of a “lottery” are (1) prize, (2) an award thereof by chance, and (3) consideration, and a “punch board,” where an individual purchasing a punch had a chance to win money, fell squarely within this definition and was an illegal gambling device. OAG 84-187 .

A machine that has as its primary purpose the sale of a product for equivalent consideration, and additionally offers an opportunity to participate in a game of chance for prizes of value as a promotional scheme, is not a gambling device. A machine that sells a product that is merely incidental to the accompanying game of chance for prizes of value is a gambling device. The phone card sweepstakes machine at issue sells a product that is merely incidental to the accompanying game of chance for prizes, and is a gambling device in violation of KRS 528. OAG 10-007 .

Internet sweepstakes cafes constitute illegal lotteries, and the devices used in them constitute gambling devices. OAG 2015-05

Research References and Practice Aids

Cross-References.

Witnesses in investigation or prosecution for gambling, KRS 436.510 .

Kentucky Law Journal.

Note: Betting Against the House (and Senate): The Case for Legal, State-Sponsored Sports Wagering in a Post-PASPA World, 99 Ky. L.J. 163 (2010/2011).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Content for Gaming Law, § 351.00.

Palmore, Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public Order, Safety and Morals, Part 1 Definitions, §§ 8.15 — 8.21.

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public Order, Safety and Morals, Part 6 Gambling, §§ 8.78, 8.81.

528.020. Promoting gambling in the first degree.

  1. A person is guilty of promoting gambling in the first degree when he knowingly advances or profits from unlawful gambling activity by:
    1. Engaging in bookmaking to the extent that he employs or utilizes three (3) or more persons in a bookmaking activity and receives or accepts in any one (1) day bets totaling more than $500; or
    2. Receiving in connection with a lottery or mutuel scheme or enterprise:
      1. Money or written records from a person other than a player whose chances or plays are represented by such money or records; or
      2. More than $500 in any one (1) day of money played in the scheme or enterprise; or
    3. Setting up and operating a gambling device.
  2. Promoting gambling in the first degree is a Class D felony.

History. Enact. Acts 1974, ch. 406, § 241, effective January 1, 1975.

NOTES TO DECISIONS

1.Burden of Proof.

In prosecutions for gaming, burden of proving charges beyond reasonable doubt is upon state. (Decided under prior law) Dills v. Commonwealth, 287 Ky. 582 , 154 S.W.2d 543, 1941 Ky. LEXIS 582 ( Ky. 1941 ).

2.City Ordinances.

Ordinance to punish telegraph company for willful transmission of messages to known gambling places to enable them and their customers to bet on horse races was within police power of city. (Decided under prior law) Louisville v. Wehmhoff, 116 Ky. 812 , 76 S.W. 876, 79 S.W. 201, 25 Ky. L. Rptr. 1924 , 25 Ky. L. Rptr. 995 , 1903 Ky. LEXIS 250 ( Ky. 1903 ).

City ordinance making it unlawful to “possess” a gambling device and fixing as minimum penalty a fine of $100 described and set forth the same offense as was prohibited by law that prohibited operation of gambling machine, game or contrivance, and provided for penalty at less than that imposed by such law and was therefore violation of Ky. Const., § 168. (Decided under prior law) Newport v. Nier, 239 S.W.2d 491, 1951 Ky. LEXIS 902 ( Ky. 1951 ).

3.Elements.
4.— Aiding and Assisting in Setting up Machine.

One who sells to another a machine ordinarily used for betting is guilty of the offense of aiding and assisting in setting up a machine, provided the machine is actually set up, and that fact must be alleged to constitute a good indictment. (Decided under prior law) Commonwealth v. Lansdale, 98 Ky. 664 , 34 S.W. 17, 17 Ky. L. Rptr. 1245 , 1896 Ky. LEXIS 22 ( Ky. 1896 ).

5.— Beat-the-Dealer.

Operator of dice game called beat-the-dealer is operating “contrivance.” (Decided under prior law) Meader v. Commonwealth, 363 S.W.2d 219, 1962 Ky. LEXIS 278 ( Ky. 1962 ).

6.— Bingo.

Circumstantial evidence produced at trial was more than sufficient to support defendant’s conviction for promoting gambling by operating a bingo game for profit. Commonwealth v. Preece, 844 S.W.2d 385, 1992 Ky. LEXIS 167 ( Ky. 1992 ), cert. denied, 510 U.S. 816, 114 S. Ct. 66, 126 L. Ed. 2d 36, 1993 U.S. LEXIS 4983 (U.S. 1993).

7.— Black-Jack.

From the evidence, the jury had the right to infer that the defendant did receive compensation for operating a game of black-jack. (Decided under prior law) Meader v. Commonwealth, 363 S.W.2d 219, 1962 Ky. LEXIS 278 ( Ky. 1962 ).

8.— Craps.

A person is indictable for suffering a game of craps to be played on premises within his control, although he receives no compensation, percentage or commission for so permitting the game to be played. (Decided under prior law) Herr v. Commonwealth, 91 S.W. 666, 28 Ky. L. Rptr. 1131 (1906); Palmer v. Commonwealth, 240 Ky. 175 , 41 S.W.2d 936, 1931 Ky. LEXIS 361 ( Ky. 1931 ).

Owner’s intervening petition seeking to recover “crap tables” ought to be confiscated by the Commonwealth was in the nature of a civil action, and when the Commonwealth denied the allegations of the petition the burden shifted to the owner to prove his alleged cause of action. (Decided under prior law) Hickerson v. Commonwealth, 283 Ky. 81 , 140 S.W.2d 841, 1940 Ky. LEXIS 301 ( Ky. 1940 ).

Where detectives, listening outside a room, heard the rolling of dice and accompanying talk, and recognized the defendant’s voice, such facts were sufficient to indicate to the detectives that an offense was being committed in their presence, so that the detectives could properly make an arrest without a warrant. (Decided under prior law) Davis v. Commonwealth, 280 S.W.2d 714, 1955 Ky. LEXIS 192 ( Ky. 1955 ).

9.— Dog Races.

Defendants engaged in unlawful conduct when they conducted dog races within inclosed track wherein dogs were induced to race by a mechanical hare, and where wagers and conducted pools on the outcome of races were permitted. (Decided under prior law) Erlanger Kennel Club v. Daugherty, 213 Ky. 648 , 281 S.W. 826, 1926 Ky. LEXIS 588 ( Ky. 1926 ), aff'd, 275 U.S. 509, 48 S. Ct. 158, 72 L. Ed. 398, 1927 U.S. LEXIS 341 (U.S. 1927).

10.— Horse Racing at Regular Tracks.

Neither the selling nor buying of combination or French pools on any race track during the races thereon is illegal. (Decided under prior law) Grinstead v. Kirby, 110 S.W. 247, 33 Ky. L. Rptr. 287 (1908); State Racing Com. v. Latonia Agricultural Ass'n, 136 Ky. 173 , 123 S.W. 681, 1909 Ky. LEXIS 466 ( Ky. 1909 ).

Betting on horse races by pari-mutuel system did not constitute a lottery within the constitution. (Decided under prior law) Commonwealth v. Kentucky Jockey Club, 238 Ky. 739 , 38 S.W.2d 987, 1931 Ky. LEXIS 321 ( Ky. 1931 ).

11.Lottery.

A lottery grant is not, in any sense, a contract within the meaning of the constitution, but is simply a gratuity and license which the state under its police powers, and for the protection of the public morals, may at any time revoke, and forbid the further conduct of the lottery. (Decided under prior law) Douglas v. Kentucky, 168 U.S. 488, 18 S. Ct. 199, 42 L. Ed. 553, 1897 U.S. LEXIS 1742 (U.S. 1897).

Payment to a city of money for license to conduct a lottery is voluntarily made, and cannot be recovered, although license affords the licensee no protection. (Decided under prior law) Maysville v. Melton, 102 Ky. 72 , 42 S.W. 754, 19 Ky. L. Rptr. 1033 , 1897 Ky. LEXIS 58 ( Ky. 1897 ).

Law that prohibited the operation of lottery did not cover a popularity contest inaugurated by a newspaper publisher, whereby persons paying for subscriptions or advertising, received ballots in proportion to the amount paid, and participating merchants bought from such publisher and gave to customers ballots with their purchases, the person receiving the highest number of votes to receive an automobile. (Decided under prior law) Commonwealth v. Jenkins, 159 Ky. 80 , 166 S.W. 794, 1914 Ky. LEXIS 751 ( Ky. 1914 ).

Where parties sought to recover money under contracts on ground they were invalid due to prohibition of lotteries, their petitions should have been dismissed, since if contracts were lotteries plaintiffs were in pari delicto and had no standing in court, and if contracts were valid, the parties could not rescind, being voluntarily entered into. (Decided under prior law) Buckeye Garment Co. v. Hieatt, 177 Ky. 783 , 198 S.W. 21, 1917 Ky. LEXIS 650 ( Ky. 1917 ).

In a case that was reversed for procedural error it was intimated that where a tailor offers his customers chances to receive free suits of clothes at a weekly lottery this practice constituted a “lottery” or “gift enterprise.” (Decided under prior law) Worden v. Louisville, 279 Ky. 712 , 131 S.W.2d 923, 1939 Ky. LEXIS 330 ( Ky. 1939 ).

Action brought by merchant against city to obtain declaratory judgment as to validity of proposed lottery scheme was fatally defective for want of proper parties, since cities are not charged with enforcing lottery law and since city police, in enforcing lottery law, are acting as state officers, and making city defendant did not operate to make police defendants. (Decided under prior law) Worden v. Louisville, 279 Ky. 712 , 131 S.W.2d 923, 1939 Ky. LEXIS 330 ( Ky. 1939 ).

Const., § 226 and law prohibiting lotteries relate to a statewide public policy with the obligation for their enforcement resting exclusively upon state courts and enforcement officials, and a city is not obligated to enforce them any more than any other individual. (Decided under prior law) Worden v. Louisville, 279 Ky. 712 , 131 S.W.2d 923, 1939 Ky. LEXIS 330 ( Ky. 1939 ).

Purchaser of lottery ticket had cause of action against defendant who held automobile won in lottery even though statutes made lotteries illegal and imposed misdemeanor penalty upon purchaser of lottery ticket. (Decided under prior law) Hardy v. St. Matthew's Community Center, 240 S.W.2d 95, 1951 Ky. LEXIS 957 ( Ky. 1951 ).

Referral selling plan constituted a lottery. (Decided under prior law) Commonwealth v. Allen, 404 S.W.2d 464, 1966 Ky. LEXIS 304 ( Ky. 1966 ).

12.— Numbers Game.

Duplicate “numbers slips” were gambling devices or contrivances under law that prohibited operation of gambling machine, game or contrivance and could have been seized and destroyed under law that provided for seizing and destroying gambling implements. (Decided under prior law) Gilley v. Commonwealth, 312 Ky. 584 , 229 S.W.2d 60, 1950 Ky. LEXIS 714 ( Ky. 1950 ).

13.— Pinball Machines.

The determination of the Kentucky Court of Appeals concerning the characteristics of machines that were exempt from law that prohibited operation of gambling machine, game or contrivance was absolutely binding on the federal courts. (Decided under prior law) United States v. H. M. Branson Distributing Co., 398 F.2d 929, 1968 U.S. App. LEXIS 5886 (6th Cir. Ky. 1968 ).

Pinball machine was held to be gambling device under federal law was not enumerated as lawful in law that prohibited operation of gambling machine, game or contrivance. (Decided under prior law) United States v. Two Coin-Operated Pinball Machines, 241 F. Supp. 57, 1965 U.S. Dist. LEXIS 6314 (W.D. Ky. 1965 ), aff'd, 398 F.2d 929, 1968 U.S. App. LEXIS 5886 (6th Cir. Ky. 1968 ).

Pinball machine whereby player deposited a nickel in slot, received ten balls for playing, and whereby, if he won, was entitled to some amount in merchandise or other thing of value, held a “gambling machine,” notwithstanding there was a question of skill in operation of machine, where elements of hazard still remained. (Decided under prior law) Smith v. Harris, 267 Ky. 439 , 102 S.W.2d 385, 1936 Ky. LEXIS 772 ( Ky. 1936 ); Commonwealth v. Bowman, 267 Ky. 602 , 102 S.W.2d 382, 1936 Ky. LEXIS 771 ( Ky. 1936 ).

The fact that skill may have some effect upon the results of operating a pinball machine does not keep it from being a gambling contrivance, since the results depend far more on chance than on skill. (Decided under prior law) Steely v. Commonwealth, 291 Ky. 554 , 164 S.W.2d 977, 1942 Ky. LEXIS 255 ( Ky. 1942 ).

Where pinball machines were allegedly designed merely to reward winner with free games but machines required no skill on part of players and were found by jury in fact to be used by keeper and owner to pay winners at rate of nickel for each game won, machines were properly confiscated under law that provided for seizure and destruction of gambling implements regardless of proviso in law that prohibited operation of gambling machine, game or contrivance excepting machines which only gave a free game for the skill of the player. (Decided under prior law) Three One-Ball Pinball Machines v. Commonwealth, 249 S.W.2d 144, 1952 Ky. LEXIS 802 ( Ky. 1952 ).

Where proprietor paid players in cash for each free game won, his conduct violated law against operating a gambling machine. (Decided under prior law) Trowbridge v. Commonwealth, 369 S.W.2d 6, 1963 Ky. LEXIS 53 ( Ky. 1963 ).

Where the defendant claimed that the machine found under his control was exempt as a gambling device because the machine only paid off in free games, but a state police officer testified that a player could win 699 free games but that it would take him twenty (20) hours and thirty-three (33) minutes to play off 699 games, the testimony was sufficient to sustain the conviction. (Decided under prior law) Beets v. Commonwealth, 437 S.W.2d 496, 1969 Ky. LEXIS 440 ( Ky. 1969 ).

Where the evidence showed that the defendant was the club secretary and had charge of the clubroom activity, it was sufficient to sustain a conviction for operating a pinball machine found on the premises. (Decided under prior law) Beets v. Commonwealth, 437 S.W.2d 496, 1969 Ky. LEXIS 440 ( Ky. 1969 ).

14.— Punch Board.

A punch board containing holes which the player on purchase of a postcard, may punch and obtain certain articles of value corresponding to the numbers indicated on the board, was a gambling device. (Decided under prior law) Commonwealth v. Gritten, 180 Ky. 446 , 202 S.W. 884, 1918 Ky. LEXIS 80 ( Ky. 1918 ).

15.— Slot Machines.

A slot machine is a gambling device when the one who plays it stands to lose money, check or trade by a hazard or chance. It is not necessary that both parties should stand to lose in order to make or constitute a device a gambling one. (Decided under prior law) Allen v. Commonwealth, 178 Ky. 250 , 198 S.W. 896, 1917 Ky. LEXIS 716 ( Ky. 1917 ); Welch v. Commonwealth, 179 Ky. 125 , 200 S.W. 371, 1918 Ky. LEXIS 193 ( Ky. 1918 ).

A machine, which on deposit of a nickel in a slot always delivered gum, but sometimes delivered from two (2) to twenty (20) chips worth five cents ($0.5) each in merchandise, was a gambling machine. (Decided under prior law) Commonwealth v. Gritten, 180 Ky. 446 , 202 S.W. 884, 1918 Ky. LEXIS 80 ( Ky. 1918 ).

City had no authority to pass ordinance levying occupational tax on operators of slot machines and on bookmakers, since slot machines and horse race books are illegal, and therefore appellant had no cause of action to compel commissioners to enact such ordinance or require them to submit it to popular vote of the people. (Decided under prior law) Beierle v. Newport, 305 Ky. 477 , 204 S.W.2d 806, 1947 Ky. LEXIS 847 ( Ky. 1947 ).

16.Evidence.

A buyer of a lottery ticket, or any device in the nature of a lottery ticket, shall be a competent witness in any prosecution against the seller, and it is no exemption to said buyer that his testimony may incriminate himself, but such testimony cannot be used against him in any prosecution except perjury. (Decided under prior law) Boyd v. Commonwealth, 141 Ky. 247 , 132 S.W. 423, 1910 Ky. LEXIS 438 ( Ky. 1910 ).

Where defendant was identified as the person with whom prosecuting witness by long-distance phone calls placed “off-track” bets, the evidence was sufficient to show that defendant used a facility in interstate commerce, namely the telephone, to carry on the unlawful activity of off-track betting in violation of 18 USCS § 1952. (Decided under prior law) United States v. McMenama, 403 F.2d 969, 1968 U.S. App. LEXIS 4719 (6th Cir. Ky. 1968 ), cert. denied, 394 U.S. 974, 89 S. Ct. 1465, 22 L. Ed. 2d 753, 1969 U.S. LEXIS 1900 (U.S. 1969).

In prosecutions for gaming, general rules of evidence governing criminal prosecutions prevail. (Decided under prior law) Dills v. Commonwealth, 287 Ky. 582 , 154 S.W.2d 543, 1941 Ky. LEXIS 582 ( Ky. 1941 ).

In prosecution for operating a gambling game, it was reversible error to admit evidence seized under a search warrant supported by an affidavit which merely stated that “a boy by the name of Smith told this affiant (a police officer) that he purchased beer and whiskey on the premises at the above address (that of accused) and later played poker and lost $70” for failure of the affidavit to fix the time when the gambling occurred and to sufficiently identify the informant resulted in the lack of a sufficient basis upon which the official issuing the warrant could find probable cause for its issuance. (Decided under prior law) Owens v. Commonwealth, 309 Ky. 478 , 218 S.W.2d 49, 1949 Ky. LEXIS 745 ( Ky. 1949 ).

Evidence of mere possession of a machine used in betting is insufficient, as a matter of law, to sustain a conviction for operating a gambling machine. (Decided under prior law) Commonwealth v. Sloan, 310 Ky. 57 , 219 S.W.2d 966, 1949 Ky. LEXIS 841 ( Ky. 1949 ).

Where the only evidence presented was that defendant participated in game of cards it was insufficient to sustain conviction for setting up and operating a game of cards for compensation. (Decided under prior law) Bowling v. Commonwealth, 254 S.W.2d 913, 1953 Ky. LEXIS 614 ( Ky. 1953 ).

Testimony that intoxicating beverages and gambling devices in addition to the pinball machine were found on the premises was admissible as evidence showing scheme, plot and design as it would relate to the particular charge of setting up and operating the pinball machine. (Decided under prior law) Beets v. Commonwealth, 437 S.W.2d 496, 1969 Ky. LEXIS 440 ( Ky. 1969 ).

In a prosecution for keeping gambling devices, the introduction into evidence of a handgun was not so prejudicial to the substantive rights of the defendant as to warrant a reversal where the handgun was discovered in the same place as the gambling paraphernalia and was integral part of the scene where other incriminating evidence was found by the officers who forcibly entered premises licensed to traffic in alcoholic beverages. (Decided under prior law) Duke v. Commonwealth, 474 S.W.2d 885, 1971 Ky. LEXIS 128 ( Ky. 1971 ).

17.Forfeiture.

Chancellor will not interfere by injunction where the question is whether the machines seized by officers as gambling contrivances are in fact such under proper construction of the criminal laws, the question being one for the criminal courts. (Decided under prior law) Caille Co. v. Haager, 50 S.W. 244, 20 Ky. L. Rptr. 1889 (1899).

It was immaterial whether or not a gaming device which was sought to be confiscated was intended to be set up or operated within the territorial jurisdiction of the court. It was sufficient if the property be found within the jurisdiction of the officers and was intended to be used for gaming purposes at any place. (Decided under prior law) Hickerson v. Commonwealth, 283 Ky. 81 , 140 S.W.2d 841, 1940 Ky. LEXIS 301 ( Ky. 1940 ).

The setting up, operation or other use of a gaming device is not a prerequisite to a forfeiture of the device. (Decided under prior law) Hickerson v. Commonwealth, 283 Ky. 81 , 140 S.W.2d 841, 1940 Ky. LEXIS 301 ( Ky. 1940 ).

A seizure of money is not authorized by law unless the money is used as a stake or exhibit to allure persons to wager, hence money being counted and money in a box on another floor where there was nothing in the record to show any connection between “numbers slips” and the money was not subject to confiscation. (Decided under prior law) Gilley v. Commonwealth, 312 Ky. 584 , 229 S.W.2d 60, 1950 Ky. LEXIS 714 ( Ky. 1950 ).

In pleading guilty to permitting gambling on his premises, defendant did not admit guilt to the setting up and operating a game, consequently law that provided for the seizure and destruction of any gambling paraphernalia used for carrying on a prohibited game and for the seizure and forfeiture of all money staked or exhibited to allure persons to wager, was not applicable to authorize forfeiture of money seized on premises when defendant was arrested. (Decided under prior law) Gilley v. Commonwealth, 312 Ky. 584 , 229 S.W.2d 60, 1950 Ky. LEXIS 714 ( Ky. 1950 ).

Money found in a slot machine may be held with the machine and confiscated for the use of the commonwealth, and money found lying on a roulette wheel or a dice table may be seized and confiscated along with such gambling paraphernalia. (Decided under prior law) Gilley v. Commonwealth, 312 Ky. 584 , 229 S.W.2d 60, 1950 Ky. LEXIS 714 ( Ky. 1950 ).

Money must be used as a stake or an exhibit to allure persons to wager before it may be forfeited. (Decided under prior law) Gilley v. Commonwealth, 312 Ky. 584 , 229 S.W.2d 60, 1950 Ky. LEXIS 714 ( Ky. 1950 ).

Where police officers, having been informed that a handbook was in operation but without a search warrant, entered defendant’s premises by force and through opened door observed handbook in operation and, upon defendant’s admission that he was making book, arrested him and seized handbook equipment, in prosecution for receiving, making, transmitting or negotiating bets on horse races the equipment was incompetent as evidence because of unreasonable search and seizure, and since without this evidence there was not enough to take case to the jury, a peremptory instruction for acquittal should have been given. (Decided under prior law) Willoughby v. Commonwealth, 313 Ky. 291 , 231 S.W.2d 79, 1950 Ky. LEXIS 889 ( Ky. 1950 ).

18.Indictment.

An indictment was not bad for duplicity because it charged more than one of the offenses specified in law that prohibited operation of gambling machine, game or contrivance. (Decided under prior law) Miller v. Commonwealth, 117 Ky. 80 , 77 S.W. 682, 1903 Ky. LEXIS 281 ( Ky. 1903 ).

In a prosecution for setting up a faro bank, defendant could have been convicted, though the game played was baccarat, if the game is substantially the same as faro, and the court should have charged the game was faro if played according to its rules though modified in an immaterial particular. (Decided under prior law) Miller v. Commonwealth, 117 Ky. 80 , 77 S.W. 682, 1903 Ky. LEXIS 281 ( Ky. 1903 ).

The indictment must allege that the machine was such as was ordinarily used for gambling for money or property, and an indictment charging that accused suffered a slot machine, used in betting whereby money and other things may be won or lost, to be set up, was insufficient. (Decided under prior law) Commonwealth v. Schatzman, 118 Ky. 624 , 82 S.W. 238, 26 Ky. L. Rptr. 508 , 1904 Ky. LEXIS 81 ( Ky. 1904 ); Commonwealth v. Estes, 121 S.W. 423 ( Ky. 1909 ).

Where accusative part of indictment for keeping a gambling machine on premises alleged the premises in question were in defendant’s occupation and under his control, it was not necessary that such fact be alleged in descriptive part. (Decided under prior law) Commonwealth v. Schatzman, 118 Ky. 624 , 82 S.W. 238, 26 Ky. L. Rptr. 508 , 1904 Ky. LEXIS 81 ( Ky. 1904 ).

Indictment for operating a gambling machine must have alleged that machine, if it was one not mentioned in law that prohibited operation of gambling machine, game or contrivance was such as was ordinarily used for gambling. (Decided under prior law) Rader v. Commonwealth, 287 Ky. 282 , 152 S.W.2d 937, 1941 Ky. LEXIS 527 ( Ky. 1941 ).

In an indictment for receiving bets on unauthorized horse races, the trial court abused its discretion in requiring the Commonwealth to give to the defendants a bill of particulars naming the horses, the horse races, or names and addresses of persons wagering on horse races, or dates when or places where races were, since the defendants were indicted only for engaging “in the occupation” denounced by law that prohibited betting on or transmission of bets on horse races other than authorized Kentucky races. (Decided under prior law) Commonwealth v. Welch, 243 S.W.2d 909, 1951 Ky. LEXIS 1179 ( Ky. 1951 ).

Indictment that charged that in 1964 defendant “conducted, managed or promoted the business of the Gem Distributing Company, a lottery or gift enterprise” was sufficient to state facts charging offense of operating a lottery. (Decided under prior law) Commonwealth v. Allen, 404 S.W.2d 464, 1966 Ky. LEXIS 304 ( Ky. 1966 ).

Indictment charging that “defendant conducted, managed or promoted the business of Filter Queen of Louisville, Inc., a lottery or gift enterprise” was sufficient. (Decided under prior law) Commonwealth v. Campbell, 406 S.W.2d 730, 1966 Ky. LEXIS 214 ( Ky. 1966 ).

On appeal the defendant was not allowed to attack a specific discrepancy between the indictment and the instructions where at the trial court level the defendant’s objection only stated that the instructions were erroneous and that the court failed to give the whole law of the case. (Decided under prior law) Beets v. Commonwealth, 437 S.W.2d 496, 1969 Ky. LEXIS 440 ( Ky. 1969 ).

19.Instructions.

The defendant could not complain that the court did not give the whole law of the case where the court properly instructed in accordance with evidence heard and in the language of the statute. (Decided under prior law) Meader v. Commonwealth, 363 S.W.2d 219, 1962 Ky. LEXIS 278 ( Ky. 1962 ).

20.Joint Defendants.

In prosecution for setting up and operating a game of chance and aiding others in operating the game, introduction of those so aided, as witnesses against defendant, had the effect of exempting them from prosecution with defendant under joint indictment. (Decided under prior law) Freeman v. Commonwealth, 305 Ky. 221 , 203 S.W.2d 16, 1947 Ky. LEXIS 777 ( Ky. 1947 ).

Opinions of Attorney General.

The promotion of a quiz game, wherein the purchasers of food and/or drink would thereby be entitled to participate in a contest for a prize awarded on the basis of ability to determine the correct answers to questions of general information, does not constitute promoting gambling since the essential element of chance is not present. OAG 75-349 .

A chain letter scheme constitutes a lottery and all those participating, to the extent they share in the proceeds and/or induce others to participate, could be held criminally liable for promoting gambling. OAG 76-157 .

The installation of a “slot machine” by a grocery store to be used by each person buying groceries where each person shall have one pull of the slot machine, and upon hitting a jackpot, would receive whatever items they were purchasing free of charge would constitute promotion of gambling in the first degree. OAG 76-719 .

Greyhound dog racing and jai alai as wagering enterprises would be prohibited by this section. OAG 76-729 .

Research References and Practice Aids

Cross-References.

Lotteries and gift enterprises prohibited, Ky. Const., § 226.

Operation of gambling device or game of chance on state fairgrounds forbidden, KRS 247.155 .

Prohibitions of this chapter inapplicable at authorized race meetings, KRS 436.480 .

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public Order, Safety and Morals, Part 6 Gambling, §§ 8.75, 8.77, 8.79, 8.80, 8.82.

528.030. Promoting gambling in the second degree.

  1. A person is guilty of promoting gambling in the second degree when he knowingly advances or profits from unlawful gambling activity.
  2. Promoting gambling in the second degree is a Class A misdemeanor.

History. Enact. Acts 1974, ch. 406, § 242, effective January 1, 1975.

Opinions of Attorney General.

The proposed activity of arranging for and conducting “social bingo games” at the lodge of the Fraternal Order of Police from which neither the lodge nor any of the players would receive a “cut from the game” and all money contributed would be returned as winnings would constitute advancing gambling activity and would subject the lodge and/or its officers to prosecution for promoting gambling in the second degree. OAG 75-324 .

A chain letter scheme constitutes a lottery and all those participating, to the extent they share in the proceeds and/or induce others to participate, could be held criminally liable for promoting gambling. OAG 76-157 .

A distinction must be drawn between the person who possesses premises that he or she subsequently discovers are being used for gambling purposes and the person who provides or acquires premises for the establishment of gambling activity; the person who knowingly provides premises for gambling purposes is promoting gambling rather than merely permitting it. OAG 83-207 .

Permitting gambling is rendering material assistance to the establishment, conduct, or operation of gambling activity and, consequently, a person who is guilty of the offense of permitting gambling cannot successfully avail himself or herself of the “player” defense established by KRS 528.010(7). Furthermore, one who is guilty of promoting gambling, either by profiting from or advancing gambling activity, cannot protect himself or herself by claiming to be a player. OAG 83-207 .

Officers or agents of a private club who provide a table, cards, and a locked room, for the purpose of club members playing poker could be charged under this section where such officers or agents advance gambling activity. OAG 84-185 .

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Complaint to Recover Gambling Losses Against Operator of a Card Room, Form 351.07.

Kentucky Instructions To Juries (Criminal), 5th Ed., General Principles, Part 1 Matters of Substance, § 1.16.

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public Order, Safety and Morals, Part 6 Gambling, §§ 8.76, 8.78, 8.81.

528.040. Conspiracy to promote gambling.

  1. A person is guilty of conspiracy to promote gambling when he conspires to advance or profit from gambling activity.
  2. “Conspire” means to engage in activity constituting a criminal conspiracy as defined in KRS 506.040 .
  3. Conspiracy to promote gambling is a Class D felony.

History. Enact. Acts 1974, ch. 406, § 243, effective January 1, 1975.

NOTES TO DECISIONS

1.Forfeiture.

Where cockfighting spectators sought the release of seized funds after a farm owner pled guilty to conspiracy to promote gambling, the funds were properly forfeited because the spectators failed to establish that they were innocent owners of the money since the funds represented the money that each spectator put forth to have his rooster fight other roosters, and the money was used in the commission or furtherance of the gambling operation. Fall v. Commonwealth, 245 S.W.3d 812, 2008 Ky. App. LEXIS 22 (Ky. Ct. App. 2008).

2.Overt Act.

Where the defendant accepted wagers on sporting events in pursuance of the conspiracy, such acceptance of wagers was an overt act pursuant to this section; the fact that the overt act alleged was also the substantive offense was of no consequence to the conspiracy conviction. Commonwealth v. Speakes, 740 S.W.2d 941, 1987 Ky. LEXIS 262 ( Ky. 1987 ).

3.Separate Offenses.

The conspiracy to promote gambling does not merge into the substantive crime of promoting gambling in the second-degree. Commonwealth v. Speakes, 740 S.W.2d 941, 1987 Ky. LEXIS 262 ( Ky. 1987 ).

Research References and Practice Aids

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Complicity and Inchoate Offenses, Part 3 Inchoate Offenses, § 10.24.

Kentucky Instructions To Juries (Criminal), 5th Ed., General Principles, Part 1 Matters of Substance, § 1.16.

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public Order, Safety and Morals, Part 6 Gambling, § 8.84.

528.050. Possession of gambling records in the first degree.

  1. A person is guilty of possession of gambling records in the first degree when, with knowledge of the contents thereof, he possesses any writing, paper, instrument or article of a kind commonly used:
    1. In the operation or promotion of a bookmaking scheme or enterprise and constituting, reflecting or representing bets totaling more than $500; or
    2. In the operation, promotion or playing of a lottery or mutuel scheme or enterprise and constituting, reflecting or representing more than 500 plays or chances therein.
  2. It shall be a defense to any prosecution under this section that:
    1. The writing, paper, instrument or article possessed by the defendant constituted, reflected or represented bets of the defendant himself in a number not exceeding ten (10); or
    2. The writing, paper, instrument or article possessed by the defendant was neither used nor intended to be used in the operation or promotion of a bookmaking scheme or enterprise, or in the operation, promotion, or playing of a lottery or mutuel scheme or enterprise.
  3. Possession of gambling records in the first degree is a Class D felony.

History. Enact. Acts 1974, ch. 406, § 244, effective January 1, 1975.

Opinions of Attorney General.

Subsection (1)(b) of this section speaks of “operation, promotion or playing of a lottery or mutuel scheme;” an operation or scheme envisions something more than a single day of betting. OAG 79-222 .

To be liable for a felony as opposed to misdemeanor, the 500 plays or chances required by subsection (1)(b) of this section must occur in one of two ways: first, the 500 plays may be accumulated by counting up the number of different bets offered by the sports bookmaker at a single time, i.e., if a bettor could phone or enter a single establishment, and place wagers on anything from college basketball to the Albuquerque Greyhound Derby, the possessor would be liable under this section if the number of total unrelated wagers reached 500; second, one who possessed gambling records showing the chance, over a period of time, to place at least 500 bets, would also be liable. OAG 79-222 .

Research References and Practice Aids

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public Order, Safety and Morals, Part 6 Gambling, §§ 8.85 — 8.88.

528.060. Possession of gambling records in the second degree.

  1. A person is guilty of possession of gambling records in the second degree when, with knowledge of the contents thereof he possesses any writing, paper, instrument or articles of a kind commonly used:
    1. In the operation or promotion of a bookmaking scheme or enterprise; or
    2. In the operation, promotion or playing of a lottery or mutuel scheme or enterprise.
  2. It shall be a defense to any prosecution under this section that:
    1. The writing, paper, instrument, or article possessed by the defendant constituted, reflected, or represented bets of the defendant himself in a number not exceeding ten (10); or
    2. The writing, paper, instrument, or article possessed by the defendant was neither used nor intended to be used in the operation or promotion of a bookmaking scheme or enterprise, or in the operation, promotion, or playing of a lottery or mutuel scheme or enterprise.
  3. Possession of gambling records in the second degree is a Class A misdemeanor.

History. Enact. Acts 1974, ch. 406, § 245, effective January 1, 1975.

Research References and Practice Aids

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public Order, Safety and Morals, Part 6 Gambling, §§ 8.86, 8.88.

528.070. Permitting gambling.

  1. A person is guilty of permitting gambling when, having possession or control of premises which he knows are being used to advance gambling activity, he fails to halt or abate or attempt to halt or abate such use within a reasonable period of time.
  2. Permitting gambling is a Class B misdemeanor.

History. Enact. Acts 1974, ch. 406, § 246, effective January 1, 1975.

NOTES TO DECISIONS

1.Construction.

Defendants violated the prohibition against keeping a betting place when they conducted dog races within inclosed track wherein dogs were induced to race by a mechanical hare, and where wagers and conducted pools on the outcome of races were permitted. (Decided under prior law) Erlanger Kennel Club v. Daugherty, 213 Ky. 648 , 281 S.W. 826, 1926 Ky. LEXIS 588 ( Ky. 1926 ), aff'd, 275 U.S. 509, 48 S. Ct. 158, 72 L. Ed. 398, 1927 U.S. LEXIS 341 (U.S. 1927).

In pleading guilty to a violation of permitting gambling on his premises, defendant did not admit guilt to setting up and operating a game, consequently law that provided for the seizure and destruction of any gambling paraphernalia used for carrying on a game and for the seizure and forfeiture of all money staked or exhibited to allure persons to wager, was not applicable to authorize forfeiture of money seized on premises when defendant was arrested. (Decided under prior law) Gilley v. Commonwealth, 312 Ky. 584 , 229 S.W.2d 60, 1950 Ky. LEXIS 714 ( Ky. 1950 ).

2.Compensation.

A person is indictable for suffering a game of craps to be played on premises within his control, although he receives no compensation for so permitting the game to be played. (Decided under prior law) Herr v. Commonwealth, 91 S.W. 666, 28 Ky. L. Rptr. 1131 (1906).

3.Gaming Machines.

Where contrivance is not a keno or faro bank, or other gambling device, in order to sustain a conviction it must appear that the contrivance was such as is ordinarily used in gambling for money or property. (Decided under prior law) Commonwealth v. Schatzman, 118 Ky. 624 , 82 S.W. 238, 26 Ky. L. Rptr. 508 , 1904 Ky. LEXIS 81 ( Ky. 1904 ).

Slot machines and punch boards come within the meaning of gaming machines. (Decided under prior law) Commonwealth v. Gritten, 180 Ky. 446 , 202 S.W. 884, 1918 Ky. LEXIS 80 ( Ky. 1918 ).

Permitting operation of a gambling device covers suffering and permitting operation of a pinball machine on premises, notwithstanding there is some question of skill in operation of machine. (Decided under prior law) Commonwealth v. Bowman, 267 Ky. 602 , 102 S.W.2d 382, 1936 Ky. LEXIS 771 ( Ky. 1936 ).

A pinball machine which awards the successful player the privilege of replaying the machine without any additional deposit of money is a gambling contrivance. (Decided under prior law) Steely v. Commonwealth, 291 Ky. 554 , 164 S.W.2d 977, 1942 Ky. LEXIS 255 ( Ky. 1942 ).

4.Evidence.

Where police, on entering a bar on a call, observed a table with cards and money and four (4) players, it was unnecessary for the Commonwealth to prove money was won or lost, or that the accused had knowledge of the betting, at the specific moment of the observation. (Decided under prior law) Hahn v. Commonwealth, 453 S.W.2d 736, 1970 Ky. LEXIS 334 ( Ky. 1970 ).

Where the officers entered the barroom, a public place, in answer to a call for help and from the barroom witnessed a card game in an adjoining room, the “open view” search was reasonable and all the fruits of the search were admissible in evidence. (Decided under prior law) Hahn v. Commonwealth, 453 S.W.2d 736, 1970 Ky. LEXIS 334 ( Ky. 1970 ).

5.Indictment.

Where accusatory part of indictment alleged that the premises in question were in defendant’s occupation and under his control, it was not necessary to again allege this fact in descriptive part of the indictment. (Decided under prior law) Commonwealth v. Schatzman, 118 Ky. 624 , 82 S.W. 238, 26 Ky. L. Rptr. 508 , 1904 Ky. LEXIS 81 ( Ky. 1904 ).

An indictment following the language of the statute was not demurrable on ground it did not charge that the game was suffered or permitted with the knowledge of accused. (Decided under prior law) Bunnell v. Commonwealth, 99 S.W. 237, 30 Ky. L. Rptr. 491 (1907).

Indictment must allege that the machine was such as was ordinarily used for gaming for money or property, and an indictment charging accused with suffering a slot machine used in betting whereby money or other things may be won and lost was insufficient. (Decided under prior law) Jarboe v. Commonwealth, 127 Ky. 848 , 107 S.W. 227, 32 Ky. L. Rptr. 755 , 1908 Ky. LEXIS 24 ( Ky. 1908 ); Commonwealth v. Estes, 121 S.W. 423 ( Ky. 1909 ).

Where accusative part of indictment charged offense of “suffering a gaming machine on premises,” and descriptive part described it as a contrivance commonly known as a slot machine, and one ordinarily used for gambling for money and property, and alleged the suffering and permitting by defendant of conduct of said machine on premises of defendant, it was sufficient. (Decided under prior law) Allen v. Commonwealth, 178 Ky. 250 , 198 S.W. 896, 1917 Ky. LEXIS 716 ( Ky. 1917 ).

6.Injunction.

A nuisance which affects only the morals of a community can be enjoined as well as one affecting health or personal safety. (Decided under prior law) Respass v. Commonwealth, 131 Ky. 807 , 115 S.W. 1131 ( Ky. 1909 ).

A gambling house or pool room, where money or other things of value were bet and won or lost on horse races, and where tickets, pools, and chances on horse races run or to be run in the state, or in the United States and Canada, were bought and sold, was a public nuisance. (Decided under prior law) Respass v. Commonwealth, 131 Ky. 807 , 115 S.W. 1131 ( Ky. 1909 ).

Injunction against use of entire building for gambling purposes was proper, notwithstanding that there was no evidence that gambling had ever been conducted in parts of building rented for living quarters and for a fruit stand. (Decided under prior law) Miller v. Commonwealth, 306 Ky. 269 , 206 S.W.2d 958, 1947 Ky. LEXIS 1002 ( Ky. 1947 ); Montgomery v. Commonwealth, 306 Ky. 275 , 207 S.W.2d 27, 1947 Ky. LEXIS 1010 ( Ky. 1947 ).

Injunction enjoining use of building for gambling purposes was proper, where there was ample evidence that owner of building knew of gambling operations being carried on in the building by his son. (Decided under prior law) Miller v. Commonwealth, 306 Ky. 271 , 206 S.W.2d 959, 1947 Ky. LEXIS 1003 ( Ky. 1947 ).

Owners of building could be enjoined from permitting future use of building for gambling purposes, regardless of their previous lack of knowledge of gambling being conducted in the building, where knowledge of the gambling was made known to them through the evidence in the injunction suit. (Decided under prior law) Montgomery v. Commonwealth, 306 Ky. 275 , 207 S.W.2d 27, 1947 Ky. LEXIS 1010 ( Ky. 1947 ).

It was proper to enjoin owner of building from permitting use of building for gambling purposes, where evidence established that she knew or should have known of gambling operations being carried on by her lessees. (Decided under prior law) Hutchison v. Commonwealth, 306 Ky. 310 , 207 S.W.2d 327, 1947 Ky. LEXIS 1015 ( Ky. 1947 ).

7.Instructions.

Instruction failing to define “suffer and permit” to mean that the defendant must have suffered or permitted the game with knowledge that money or property was being bet, won or lost thereby, was error. (Decided under prior law) Bunnell v. Commonwealth, 99 S.W. 237, 30 Ky. L. Rptr. 491 (1907).

Where the table set up and exhibited was a crap table — a gambling device per se — and the evidence showed its being set up and exhibited on premises in the occupation of accused, refusal to define the phrase “suffer and permit” was not error. (Decided under prior law) Jarboe v. Commonwealth, 127 Ky. 848 , 107 S.W. 227, 32 Ky. L. Rptr. 755 , 1908 Ky. LEXIS 24 ( Ky. 1908 ).

Instruction not requiring jury to believe betting was with defendant’s knowledge held erroneous. (Decided under prior law) Allison v. Commonwealth, 221 Ky. 205 , 298 S.W. 680, 1927 Ky. LEXIS 691 ( Ky. 1927 ).

8.Knowledge.

Where gaming was conducted in a room in a hotel for several months, the room being frequented by from five (5) to thirty (30) persons each time, there were circumstances from which the jury may infer knowledge on part of those in charge of hotel, and verdict rendered on such evidence will be upheld. (Decided under prior law) Lancaster Hotel Co. v. Commonwealth, 149 Ky. 443 , 149 S.W. 942, 1912 Ky. LEXIS 678 ( Ky. 1912 ).

Where there had been numerous police raids on premises, and a great many arrests, all of which had received considerable newspaper notoriety, owners of building would be charged with knowledge of the use of the premises for gambling purposes. (Decided under prior law) Montgomery v. Commonwealth, 306 Ky. 275 , 207 S.W.2d 27, 1947 Ky. LEXIS 1010 ( Ky. 1947 ).

Where police, on entering a bar on a call, observed a table with cards and money and four (4) players, knowledge of betting on the premises under the licensee’s control could be inferred from the circumstances. (Decided under prior law) Hahn v. Commonwealth, 453 S.W.2d 736, 1970 Ky. LEXIS 334 ( Ky. 1970 ).

Where the “card room” was adjacent to and entered from the licensed premises, the evidence was sufficient to sustain the conclusion that the card room was under the licensee’s control. (Decided under prior law) Hahn v. Commonwealth, 453 S.W.2d 736, 1970 Ky. LEXIS 334 ( Ky. 1970 ).

9.Location.

A house where persons are permitted to habitually assemble and bet and win or lose money whether with each other or the owner, or whether on a horse race or turn of a playing card, is a gaming house in meaning of the law, and therefore a common nuisance. (Decided under prior law) Bollinger v. Commonwealth, 98 Ky. 574 , 35 S.W. 553, 17 Ky. L. Rptr. 1122 , 1896 Ky. LEXIS 35 ( Ky. 1896 ).

A railroad company may be punished for suffering gaming on a moving train under its control. (Decided under prior law) Louisville & N. R. Co. v. Commonwealth, 112 Ky. 635 , 66 S.W. 505, 23 Ky. L. Rptr. 1900 , 1902 Ky. LEXIS 205 ( Ky. 1902 ).

A house in which persons were permitted to gather and gamble in violation of law was a disorderly one, however quietly it was done. (Decided under prior law) Arenz v. Commonwealth, 125 Ky. 737 , 102 S.W. 238, 31 Ky. L. Rptr. 321 , 1907 Ky. LEXIS 327 ( Ky. 1907 ).

Opinions of Attorney General.

A distinction must be drawn between the person who possesses premises that he or she subsequently discovers are being used for gambling purposes and the person who provides or acquires premises for the establishment of gambling activity; the person who knowingly provides premises for gambling purposes is promoting gambling rather than merely permitting it. OAG 83-207 .

Permitting gambling is rendering material assistance to the establishment, conduct, or operation of gambling activity and, consequently, a person who is guilty of the offense of permitting gambling cannot successfully avail himself or herself of the “player” defense established by KRS 528.010(7). Furthermore, one who is guilty of promoting gambling, either by profiting from or advancing gambling activity, cannot protect himself or herself by claiming to be a player. OAG 83-207 .

Research References and Practice Aids

Cross-References.

Liability to owner or tenant of premises for gambling there without his consent, KRS 411.090 .

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public Order, Safety and Morals, Part 6 Gambling, § 8.89.

528.080. Possession of gambling device.

  1. A person is guilty of possession of a gambling device when, with knowledge of the character thereof, he manufactures, sells, transports, places or possesses a gambling device or conducts or negotiates any transaction affecting or designed to affect ownership, custody or use of any gambling device, believing that it is to be used in the advancement of unlawful gambling activity.
  2. Possession of a gambling device is a Class A misdemeanor.

History. Enact. Acts 1974, ch. 406, § 247, effective January 1, 1975.

Opinions of Attorney General.

The possession of antique slot machines and other coin-operated machines for the aesthetic and age value thereof with no intent on the part of the owners to use the machines for the advancement of gambling activity would not constitute a violation of this section. OAG 80-188 .

The possession of fully operational antique slot machines kept in the home with no intent by the owner to use the machines to promote or participate in gambling activities is not a violation of this section since belief or intent is an essential element of the crime. OAG 82-85 .

The buying, selling or trading of fully operational antique slot machines is not violative of this section as long as the person conducting such activity has no intent to use the machine and no belief that the machine will be used to advance or promote unlawful gambling activity. OAG 82-85 .

The manufacture and possession of gambling devices in Kentucky, solely for the purpose of sale in other jurisdictions where such devices are lawful, does not violate KRS 528.080 . OAG 2008-05 .

Research References and Practice Aids

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public Order, Safety and Morals, Part 6 Gambling, § 8.83.

528.090. Prima facie proof.

  1. Proof of possession of any gambling device or any gambling record specified in KRS 528.050 , 528.060 , and 528.080 is prima facie evidence of possession thereof with knowledge of its character or contents.
  2. In any prosecution under this chapter in which it is necessary to prove the occurrence of a sporting event, a published report of its occurrence in any daily newspaper, magazine or other periodically printed publication of general circulation or evidence that a description of some aspect of the event was written, printed or otherwise noted at the place in which a violation of this chapter is alleged to have been committed shall be admissible in evidence and shall constitute prima facie proof of the occurrence of the event.

History. Enact. Acts 1974, ch. 406, § 248, effective January 1, 1975.

Research References and Practice Aids

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., General Principles, Part 1 Matters of Substance, § 1.07.

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public Order, Safety and Morals, Part 6 Gambling, §§ 8.83, 8.86, 8.88.

528.100. Forfeiture.

Any gambling device or gambling record possessed or used in violation of this chapter is forfeited to the state, and shall be disposed of in accordance with KRS 500.090 , except that the provisions of this section shall not apply to charitable gaming activity as defined by KRS 528.010(3).

History. Enact. Acts 1974, ch. 406, § 249, effective January 1, 1975; 1980, ch. 267, § 10, effective July 15, 1980.

NOTES TO DECISIONS

1.Constitutionality.

Law that provided for seizure and destruction of gambling implements had no application to shipments in interstate commerce and was therefore constitutional. (Decided under prior law) Pace Mfg. Co. v. Milliken, 70 F. Supp. 740, 1947 U.S. Dist. LEXIS 2849 (D. Ky. 1947 ).

2.Civil Action.

Owner’s intervening petition seeking to recover “crap tables” sought to be confiscated by the Commonwealth was in the nature of a civil action, and when the Commonwealth denied the allegations of the petition the burden shifted to the owner to prove his alleged cause of action. (Decided under prior law) Hickerson v. Commonwealth, 283 Ky. 81 , 140 S.W.2d 841, 1940 Ky. LEXIS 301 ( Ky. 1940 ).

Where an action to condemn and forfeit machines intended to be used for purposes of gambling was erroneously tried as a criminal rather than a civil action, the error was not prejudicial to the owner of the machines, since the verdict required the agreement of all twelve jurors; whereas if it had been tried as a civil case, a verdict of nine or more would have been sufficient. (Decided under prior law) Sterling Novelty Co. v. Commonwealth, 271 S.W.2d 366, 1954 Ky. LEXIS 1043 ( Ky. 1954 ).

In a proceeding for the forfeiture of slot machines under law that provided for the seizure and destruction of gambling implements, where the machines were seized by the sheriff while they were being returned to their owner by federal officers who had illegally seized the machines, the question of whether the seizure was illegal could not be raised since a proceeding under such law is a civil action in rem and not a criminal proceeding. (Decided under prior law) Console Type Slot Machines v. Commonwealth, 273 S.W.2d 582, 1954 Ky. LEXIS 1192 ( Ky. 1954 ).

3.Contempt.

Court may not fine defendant for contempt for failure to produce slot machines. (Decided under prior law) Wilder v. Sampson, 279 Ky. 103 , 129 S.W.2d 1022, 1939 Ky. LEXIS 235 ( Ky. 1939 ).

As restraining order directing seizure of slot machines was for benefit of the Commonwealth, which was plaintiff in civil action in which it was issued, chief of county patrol and operator of resort who violated restraining order were guilty of civil and not criminal contempt. (Decided under prior law) Tucker v. Commonwealth, 299 Ky. 820 , 187 S.W.2d 291, 1945 Ky. LEXIS 795 ( Ky. 1945 ).

Failure of defendants to obey court order to produce slot machines which disappeared following their seizure was a continuing civil contempt. (Decided under prior law) Tucker v. Commonwealth, 299 Ky. 820 , 187 S.W.2d 291, 1945 Ky. LEXIS 795 ( Ky. 1945 ).

4.Gaming Device.

Duplicate “numbers slips” are gambling devices or contrivances and may be seized and destroyed. (Decided under prior law) Gilley v. Commonwealth, 312 Ky. 584 , 229 S.W.2d 60, 1950 Ky. LEXIS 714 ( Ky. 1950 ).

Where pinball machines were allegedly designed merely to reward winner with free games but machines required no skill on part of players and were found by jury to in fact have been used by keeper and owner to pay winners at rate of nickel for each game won, machines were properly confiscated under law that provided seizure and destruction of gambling implements regardless of proviso in another law that excepted machines which only gave a free game for the skill of the player. (Decided under prior law) Three One-Ball Pinball Machines v. Commonwealth, 249 S.W.2d 144, 1952 Ky. LEXIS 802 ( Ky. 1952 ).

Where the machines had been previously seized by federal officers but ordered returned because the seizure was illegal and police officers testified that machines of that type were used for gambling purposes there was sufficient evidence to uphold the finding that the machines were intended to be used for gambling. (Decided under prior law) Console Type Slot Machines v. Commonwealth, 273 S.W.2d 582, 1954 Ky. LEXIS 1192 ( Ky. 1954 ).

A bingo-type amusement machine with a multiple coin device and providing free games as prizes for which cash payoffs were given was determined to be a lottery and a gambling device regardless of the name it was called. (Decided under prior law) A. B. Long Music Co. v. Commonwealth, 429 S.W.2d 391, 1968 Ky. LEXIS 748 ( Ky. 1968 ).

It is for a jury to determine from the evidence whether or not a machine was intended for gambling. (Decided under prior law) A. B. Long Music Co. v. Commonwealth, 429 S.W.2d 391, 1968 Ky. LEXIS 748 ( Ky. 1968 ).

5.Interstate Commerce.

Where slot machines shipped C.O.D. by plaintiff from another state to Kentucky were refused by consignee and held in original unbroken packages by express agency pending plaintiff’s orders, such slot machines were moving in interstate commerce to which law that provided for seizure and destruction of gambling implements did not apply, and plaintiff was entitled to an injunction against county judge and sheriff enjoining them from seizing and destroying the slot machines. (Decided under prior law) Pace Mfg. Co. v. Milliken, 70 F. Supp. 740, 1947 U.S. Dist. LEXIS 2849 (D. Ky. 1947 ).

6.Money.

Money found in captured slot machines, and confiscated under authority of law that provided for seizure and destruction of gambling implements did not constitute a “forfeiture” within meaning of statutes allowing Commonwealth’s attorney, county attorney, and circuit clerk a percentage of fines “and forfeitures,” nor within meaning of statute giving county balance of fines “and forfeitures” imposed by county judge. (Decided under prior law) Miller v. Franklin County, 302 Ky. 652 , 195 S.W.2d 315, 1946 Ky. LEXIS 735 ( Ky. 1946 ).

Money found in a slot machine, when seized, may be held with the machine and confiscated for the use of the Commonwealth, because it has passed out of the ownership of the player, and money found lying on a roulette wheel or a dice table may be seized along with such gambling paraphernalia. (Decided under prior law) Gilley v. Commonwealth, 312 Ky. 584 , 229 S.W.2d 60, 1950 Ky. LEXIS 714 ( Ky. 1950 ).

Money is subject to seizure along with gambling devices, when the circumstances make it clearly apparent the money formed an integral part of the illegal gambling operation, but where previous to the seizure, money has been reclaimed or taken back into possession by the player, it cannot be seized. (Decided under prior law) Gilley v. Commonwealth, 312 Ky. 584 , 229 S.W.2d 60, 1950 Ky. LEXIS 714 ( Ky. 1950 ).

Where officer found defendant counting money when his premises were raided, and other money was found in a box elsewhere on the premises, in the absence of evidence showing a connection between the money and “numbers slips” found in safe, or that money was used as a stake or an exhibit to allure persons to wager, the money could not be forfeited to the Commonwealth. (Decided under prior law) Gilley v. Commonwealth, 312 Ky. 584 , 229 S.W.2d 60, 1950 Ky. LEXIS 714 ( Ky. 1950 ).

7.Prerequisites to Forfeiture.

It is immaterial whether or not a gaming device which is sought to be confiscated was intended to be set up or operated within the territorial jurisdiction of the court; it is sufficient if the property be found within the jurisdiction of the officers and is intended to be used for gaming purposes at any place. (Decided under prior law) Hickerson v. Commonwealth, 283 Ky. 81 , 140 S.W.2d 841, 1940 Ky. LEXIS 301 ( Ky. 1940 ).

The setting up, operation or other use of a gaming device is not a prerequisite to a forfeiture of the device. (Decided under prior law) Hickerson v. Commonwealth, 283 Ky. 81 , 140 S.W.2d 841, 1940 Ky. LEXIS 301 ( Ky. 1940 ).

8.Without Warrant.

Where officers entered public places of business where federal gambling licenses were displayed and where mechanical bingo machines were in open view and readily observable by an officer, the seizure of the machines without a warrant was not illegal. (Decided under prior law) A. B. Long Music Co. v. Commonwealth, 429 S.W.2d 391, 1968 Ky. LEXIS 748 ( Ky. 1968 ).

Opinions of Attorney General.

The 1980 amendment which added the provision “except that the provisions of this section shall not apply to charitable gaming activity as defined by KRS 528.010(10),” is unconstitutional and void ab initio insofar as it seeks to decriminalize bingo or other lotteries or gift enterprises operated by charitable or religious organizations or institutions; if the General Assembly wishes to legalize charitable bingo, the only method of doing so is to propose a constitutional amendment placing the question before the people of Kentucky. OAG 80-408 .

528.110. Horse races, messenger betting prohibited — Exception.

  1. Any person who, either for himself or as agent or employee of another, wagers money or anything of value on a horse race run or about to be run or advertised, posted or reported as being run at any race track in or out of this state, or who engages in the occupation of receiving, making, transmitting or negotiating, either in person or by messenger, telephone or telegraph, wagers on horse races run or about to be run or advertised, posted or reported as being run or about to be run at any race track in or out of the state, shall, except in the case of wagers made within the enclosure of a race track licensed by the Kentucky Horse Racing Commission during an authorized race meeting at that track, or an enclosure during regular meetings in which running, trotting or pacing races are being conducted by associations regularly organized for that purpose, be guilty of a Class A misdemeanor.
  2. In any prosecution under subsection (1) of this section, the state need not prove that the horse race upon which the wager was placed was actually run. Proof that the wager was made upon what purported to be or what was advertised, reported or understood to be a horse race shall be sufficient to establish a prima facie case for the state.

History. Enact. Acts 1976 (Ex. Sess.), ch. 31, § 1; 2004, ch. 191, § 52, effective July 13, 2004; 2010, ch. 24, § 1935, effective July 15, 2010.

NOTES TO DECISIONS

1.Wager at Track.

Where a messenger betting service, operating outside racetrack premises, accepts money to be wagered for a messenger fee based on the amount bet, and places the wager at a pari-mutuel window in an authorized racetrack enclosure, the wager is made at the track and the transaction is exempt from the prohibitions of this section. Thomas v. Commonwealth, 563 S.W.2d 491, 1978 Ky. App. LEXIS 484 (Ky. Ct. App. 1978).

Opinions of Attorney General.

This section makes it clear that only the racing association holding the race may accept wagers and such wagers must be made “within the enclosure” of the licensed track where the race is being held. OAG 82-4 .

Because services provided by a corporation which enables individuals to place bets on horse races from their home telephones or personal computers comply with the requirements of KRS 230.379 and 230.210(17), they do not contravene the prohibition on “messenger betting” contained in this section. OAG 04-005 .

528.120. Off-track acceptance of money for pari-mutuel wagering.

  1. No person, as a business or for any compensation, shall, directly or indirectly, accept any thing of value to be wagered or to be transmitted or delivered for wager to any pari-mutuel wagering enterprise, or participate in any such transmission.
  2. As used herein, “person” shall mean and include any individual, partnership, association, joint stock association or trust, corporation, or other business entity, whether incorporated or not.
  3. Any person violating any of the provisions of this section shall be guilty of a Class A misdemeanor.

History. Enact. Acts 1978, ch. 321, § 3, effective March 30, 1978.

528.130. Charitable gaming. [Repealed.]

Compiler’s Notes.

This section (Enacts Acts 1990, ch. 469, § 2, effective July 13, 1990; 1992, ch. 461, § 1, effective April 13, 1992) was repealed by Acts 1994, ch. 66, § 20, effective March 16, 1994. For present law see KRS 238.500 to 238.570 .

528.140. Registration of organization conducting charitable gaming required. [Repealed.]

Compiler’s Notes.

This section (Enacts Acts 1990, ch. 469, § 3, effective July 13, 1990; 1992, ch. 461, § 2, effective April 13, 1992) was repealed by Acts 1994, ch. 66, § 20, effective March 16, 1994. For present law see KRS 238.500 to 238.570 .

528.150. Effect of failure to comply with KRS 528.010, 528.130, and 528.140 — Fraud in registration — Suspension or revocation of registration. [Repealed.]

Compiler’s Notes.

This section (Enacts Acts 1992, ch. 461, § 3, effective April 13, 1992) was repealed by Acts 1994, ch. 66, § 20, effective March 16, 1994. For present law see KRS 238.500 to 238.570 .

CHAPTER 529 Prostitution Offenses

529.010. Definitions.

The following definitions apply in this chapter unless the context otherwise requires:

  1. “Abuse or threatened abuse of law or legal process” means the use or threatened use of a law or legal process, whether administrative, civil, or criminal, in any manner or for any purpose for which the law was not designed, in order to exert pressure on another person to cause that person to take some action or refrain from taking some action;
  2. “Advancing prostitution” — A person “advances prostitution” when acting other than as a prostitute or as a patron thereof, he or she knowingly causes or aids a person to engage in prostitution, procures or solicits patrons for prostitution, provides persons or premises for prostitution purposes, operates or assists in the operation of a house of prostitution or a prostitution enterprise, or engages in any conduct designed to institute, aid or facilitate an act or enterprise of prostitution;
  3. “Commercial sexual activity” means:
    1. Any sex act, for which anything of value is given to, promised to, or received by any person;
    2. Participation in the production of obscene material as set out in KRS Chapter 531; or
    3. Engaging in a sexually explicit performance;
  4. “Debt bondage” means the status or condition of a debtor arising from a pledge by the debtor of his or her personal services or of those of a person under his or her control as a security for the debt, if the value of those services as reasonably assessed is not applied toward the liquidation of the debt or the length and nature of those services are not respectively limited and defined;
  5. “Forced labor or services” means labor or services that are performed or provided by another person and that are obtained through force, fraud, or coercion;
  6. “Force, fraud, or coercion” includes but is not limited to:
    1. The use or threat of force against, abduction of, restraint, or serious harm of an individual;
    2. The abuse or threatened abuse of law or legal process;
    3. Facilitating, controlling, or threatening to control an individual’s access to a controlled substance;
    4. Knowingly destroying, concealing, removing, confiscating, or possessing, or attempting to destroy, conceal, remove, confiscate, or possess any actual or purported passport or other immigration documents or any other actual or purported governmental identification documents of the person or family member;
    5. Use of debt bondage; or
    6. The use of an individual’s physical or mental impairment when the impairment has a substantial adverse effect on the individual’s cognitive or volitional function;
  7. “Human trafficking” refers to criminal activity whereby one (1) or more persons are subjected to engaging in:
    1. Forced labor or services; or
    2. Commercial sexual activity through the use of force, fraud, or coercion, except that if the trafficked person is under the age of eighteen (18), the commercial sexual activity need not involve force, fraud, or coercion;
  8. “Human trafficking victims fund” is the fund created in KRS 529.140 ;
  9. “Labor” means work of economic or financial value;
  10. “Minor” means a person under the age of eighteen (18) years;
  11. “Profiting from prostitution” — A person “profits from prostitution” when acting other than as a prostitute receiving compensation for personally rendered prostitution services, he or she knowingly accepts or receives or agrees to accept or receive money or other property pursuant to an agreement or understanding with any person whereby he or she participates or is to participate in proceeds of prostitution activity;
  12. “Serious harm” means any harm, whether physical or nonphysical, including psychological, financial, or reputational harm, that is sufficiently serious to compel a reasonable person to perform or to continue performing commercial sexual activity in order to avoid incurring that harm;
  13. “Services” means an ongoing relationship between a person and the actor in which the person performs activities under the supervision of or for the benefit of the actor;
  14. “Sexual conduct” means sexual intercourse or any act of sexual gratification involving the sex organs;
  15. “Sexually explicit performance” means a performance of sexual conduct involving:
    1. Acts of masturbation, homosexuality, lesbianism, bestiality, sexual intercourse, or deviant sexual intercourse, actual or simulated;
    2. Physical contact with, or willful or intentional exhibition of, the genitals;
    3. Flagellation or excretion for the purpose of sexual stimulation or gratification; or
    4. The exposure, in an obscene manner, of the unclothed or apparently unclothed human male or female genitals, pubic area, or buttocks, or the female breast, whether or not subsequently obscured by a mark placed thereon, or otherwise altered, in any resulting motion picture, photograph, or other visual representation, exclusive of exposure portrayed in matter of a private, family nature not intended for distribution outside the family; and
  16. “Victim of human trafficking” is a person who has been subjected to human trafficking.

History. Enact. Acts 1974, ch. 406, § 250, effective January 1, 1975; 2007, ch. 19, § 4, effective June 26, 2007; 2013, ch. 25, § 7, effective June 25, 2013; 2020 ch. 75, § 6, effective July 15, 2020.

NOTES TO DECISIONS

1.Advancing Prostitution.

Evidence that defendant owned and operated an unlicensed spa, that she decided whom to hire and fire, and that prostitution activity by two (2) or more prostitutes occurred at the spa, was sufficient to support a finding that defendant was “advancing prostitution” as defined in KRS 529.010(1). Hood v. Commonwealth, 230 S.W.3d 596, 2007 Ky. App. LEXIS 182 (Ky. Ct. App. 2007).

Cited:

United States v. O’Dell, 671 F.2d 191, 1982 U.S. App. LEXIS 21734 (6th Cir. 1982); Chambers v. Commonwealth, 723 S.W.2d 868, 1986 Ky. App. LEXIS 1467 (Ky. Ct. App. 1986).

Research References and Practice Aids

Kentucky Bench & Bar.

Hunt, Human Trafficking: A Primer for Kentucky Lawyers. Vol. 73, No. 4, July 2009, Ky. Bench & Bar, 17.

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Related to Sex and Pornography, Part 1 Definitions, §§ 4.08 — 4.10.

529.020. Prostitution.

  1. Except as provided in KRS 529.120 , a person is guilty of prostitution when he engages or agrees or offers to engage in sexual conduct with another person in return for a fee.
  2. Prostitution is a Class B misdemeanor.

History. Enact. Acts 1974, ch. 406, § 251, effective January 1, 1975; 2013, ch. 25, § 12, effective June 25, 2013.

NOTES TO DECISIONS

Analysis

1.Engaging in Prostitution.

Since ordinary use of the term “engaging in prostitution” does not contemplate that a man can commit that act, one engaging in sexual intercourse with a prostitute does not commit prostitution and does not become an accomplice of the prostitute. (Decided under prior law) Eisner v. Commonwealth, 375 S.W.2d 825, 1964 Ky. LEXIS 439 ( Ky. 1964 ).

2.Search.

A mere invitation by defendant, subsequently convicted for operating a disorderly house, to “come in” in response to knock on door by officers did not constitute an invitation to and permission to make a search of the entire house, thus officer’s search without search warrant was illegal and admission of evidence obtained thereby was reversible error. (Decided under prior law) Adams v. Commonwealth, 313 Ky. 298 , 231 S.W.2d 55, 1950 Ky. LEXIS 879 ( Ky. 1950 ).

3.Separate Trials.

Where alleged prostitute, alleged operator of a house of prostitution, and alleged owner of the property where the offenses allegedly took place, were charged with separate and distinct offenses alleged prostitute was entitled to a separate trial as a matter of right. (Decided under prior law) Shawhan v. Commonwealth, 318 S.W.2d 541, 1958 Ky. LEXIS 142 ( Ky. 1958 ); Schweinefuss v. Commonwealth, 318 S.W.2d 544, 1958 Ky. LEXIS 143 ( Ky. 1958 ); Eisner v. Commonwealth, 318 S.W.2d 546, 1958 Ky. LEXIS 144 (Ky. 1958).

Notes to Unpublished Decisions

1.“Sexual conduct.”

Unpublished decision: Defendant’s payment of money to a victim in exchange for the victim’s agreement to insert his fist into defendant’s anus did not violate KRS 529.020 because § 529.020 proscribes engaging in “sexual conduct” with another person in return for a fee, and for purposes of KRS ch. 529, “sexual conduct” is defined as “sexual intercourse or any act of sexual gratification involving the sex organs.” Neither a fist nor an anus is a sex organ. Hillard v. Commonwealth, 158 S.W.3d 758, 2005 Ky. LEXIS 38 ( Ky. 2005 ).

Research References and Practice Aids

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Complicity and Inchoate Offenses, Part 3 Inchoate Offenses, § 10.25.

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Related to Sex and Pornography, Part 7 Prostitution, §§ 4.61 — 4.63.

529.030. Promoting prostitution in the first degree. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1974, ch. 406, § 252, effective January 1, 1975; 1978, ch. 219, § 1, effective June 17, 1978; 1986, ch. 289, § 3, effective July 15, 1986) was repealed by Acts 2007, ch. 19, § 17, effective June 26, 2007. For comparable provisions, see KRS 529.040 .

529.040. Promoting prostitution.

  1. A person is guilty of promoting prostitution when he knowingly advances or profits from prostitution.
  2. Promoting prostitution is a Class A misdemeanor unless the person managed, supervised, controlled, or owned, either alone or in association with others, a house of prostitution or a prostitution business or enterprise involving prostitution activity by two (2) or more prostitutes, in which case it is a Class D felony.

History. Enact. Acts 1974, ch. 406, § 253, effective January 1, 1975; 1986, ch. 289, § 4, effective July 15, 1986; 2007, ch. 19, § 7, effective June 26, 2007.

NOTES TO DECISIONS

1.In General.

The pandering law was designed to prevent financial gain from prostitution. (Decided under prior law) Adams v. Commonwealth, 313 Ky. 298 , 231 S.W.2d 55, 1950 Ky. LEXIS 879 ( Ky. 1950 ).

2.Defenses.

In a prosecution for taking or directing a female under 16 (now 18) years of age to a house for the purpose of prostitution or lewdness, the fact that such female consented or went willingly to the house in question for the forbidden purposes or willingly indulged in such purposes after arriving at such house does not constitute a defense. (Decided under prior law) Hunt v. Commonwealth, 225 Ky. 292 , 8 S.W.2d 379, 1928 Ky. LEXIS 753 ( Ky. 1928 ).

3.Due Process.

Convictions of three defendants on a joint trial of the offense of keeping a house of ill fame were reversed on the ground that the court was without jurisdiction to try them as they had never been arrested or served with process and were not before the court. (Decided under prior law) Thiem v. Commonwealth, 269 S.W.2d 195, 1954 Ky. LEXIS 953 ( Ky. 1954 ).

Where the appellant and three other persons were convicted under the charge of keeping a house of ill fame, the decision of the Court of Appeals affirming the conviction was conclusive as to the appellant’s contentions, raised in a habeas corpus proceeding, that the testimony of the investigating officer was inadmissible and that the Circuit Court did not have jurisdiction to try him. (Decided under prior law) Ex parte Mote, 275 S.W.2d 48, 1955 Ky. LEXIS 340 ( Ky. 1955 ).

RCr 6.18 and RCr 9.12 authorize the joinder of the offense of pandering and the offense of aiding and abetting prostitution and the joint trial thereof. (Decided under prior law) Schweinefuss v. Commonwealth, 395 S.W.2d 370, 1965 Ky. LEXIS 143 ( Ky. 1965 ), overruled in part, St. Clair v. Commonwealth, 140 S.W.3d 510, 2004 Ky. LEXIS 44 ( Ky. 2004 ).

Where the Commonwealth attorney indicated his belief in the defendant’s guilt, that he believed the defendant had lied, and that the defendant was inferably guilty of another crime for which he had not been charged, the conviction would not be reversed, since there was overwhelming evidence for conviction and such comments were in accord with present Kentucky standards, but such references can certainly result in reversal in future cases. Elswick v. Commonwealth, 574 S.W.2d 916, 1978 Ky. App. LEXIS 636 (Ky. Ct. App. 1978).

4.Elements.

In prosecution for keeping a disorderly house it is not necessary to show that the house was kept for pecuniary profit or gain. (Decided under prior law) Adams v. Commonwealth, 313 Ky. 298 , 231 S.W.2d 55, 1950 Ky. LEXIS 879 ( Ky. 1950 ).

The offenses of pandering and keeping a disorderly house are two separate offenses, so that the trial court properly overruled the defendant’s plea in bar and abatement and of former jeopardy on trial for keeping a disorderly house after she had been acquitted of pandering. (Decided under prior law) Adams v. Commonwealth, 313 Ky. 298 , 231 S.W.2d 55, 1950 Ky. LEXIS 879 ( Ky. 1950 ).

To be guilty of pandering it must be proven that a person has procured another for the purpose of prostitution and a consideration received for such procurement. (Decided under prior law) Adams v. Commonwealth, 313 Ky. 298 , 231 S.W.2d 55, 1950 Ky. LEXIS 879 ( Ky. 1950 ).

It was not essential to prove the crime of pandering that the accused should receive the money directly from the prostitute, since it is sufficient that the money was paid to a third person for the defendant at his direction or request. (Decided under prior law) Harris v. Commonwealth, 285 S.W.2d 489, 1955 Ky. LEXIS 77 ( Ky. 1955 ).

Hotel owner was criminally liable where his agent was in full charge of renting rooms in the hotel if such agent was acting within the scope of her authority in renting rooms to couples she knew, or had reasonable grounds to believe were unmarried, or if the owner had reasonable grounds to believe that the agent was renting rooms for the purpose of prostitution even though the owner had instructed the agent not to rent rooms to unmarried couples. (Decided under prior law) Hopkins v. Commonwealth, 298 S.W.2d 695, 1957 Ky. LEXIS 388 ( Ky. 1957 ).

5.Evidence.
6.— Admissibility.

Testimony of arresting officers relative to the bad reputation of the premises and that the accused’s reputation for immorality and prostitution was bad was admissible during a trial for operating a disorderly house. (Decided under prior law) Adams v. Commonwealth, 313 Ky. 298 , 231 S.W.2d 55, 1950 Ky. LEXIS 879 ( Ky. 1950 ).

In prosecution of hotel owner for running a house of prostitution, it was not incompetent for the prosecuting attorney to ask the owner if he did not “smell a rat” when couples left his hotel in the middle of the night. (Decided under prior law) Hopkins v. Commonwealth, 298 S.W.2d 695, 1957 Ky. LEXIS 388 ( Ky. 1957 ).

In prosecution of hotel owner for running a house of prostitution, prosecuting attorney could refer to owner’s hotel as a “festering sore and a cancerous sore in the heart of Hopkinsville” since this was a conclusion the prosecutor could logically draw from the evidence. (Decided under prior law) Hopkins v. Commonwealth, 298 S.W.2d 695, 1957 Ky. LEXIS 388 ( Ky. 1957 ).

In prosecution of hotel owner for keeping a house of ill fame, the trial court committed reversible error in allowing the prosecuting attorney to take the stand and relate an instance when a girl had stolen some money from a soldier in owner’s hotel, and to testify that he had warned the owner that he would get in trouble if he did not clean up his hotel, even though the court admonished the jury that the prosecuting attorney’s testimony was to be considered only for the purpose of contradicting the owner’s testimony that he did not remember the conversation with the prosecuting attorney. (Decided under prior law) Hopkins v. Commonwealth, 298 S.W.2d 695, 1957 Ky. LEXIS 388 ( Ky. 1957 ).

In prosecution of hotel owner for keeping a house of ill fame, prosecuting attorney could have proved the general reputation of owner’s hotel, but he could not introduce evidence of other specific acts relating to other crimes committed by owner. (Decided under prior law) Hopkins v. Commonwealth, 298 S.W.2d 695, 1957 Ky. LEXIS 388 ( Ky. 1957 ).

7.— Prejudicial.

The inflammatory nature of questions pertaining to the identity of a prostitute’s patrons outweighs the probative value of such questions to test the veracity of the prostitute in her testimony against one charged with promoting prostitution under this section. Elswick v. Commonwealth, 574 S.W.2d 916, 1978 Ky. App. LEXIS 636 (Ky. Ct. App. 1978).

8.— Sufficient.

Evidence was sufficient to sustain conviction for pandering where the testimony of the prosecuting witness was substantially corroborated by the defendant’s testimony except as to whether or not the defendant received one half the prosecuting witness’s earnings as a prostitute. (Decided under prior law) Smith v. Commonwealth, 285 Ky. 273 , 147 S.W.2d 701, 1941 Ky. LEXIS 373 ( Ky. 1941 ).

In prosecution for pandering, evidence was sufficient to corroborate testimony of accomplices employed by the defendant where such evidence related to relevant and material facts, such as the presence of the prostitutes at the defendant’s place of business plying their vocation. (Decided under prior law) Harris v. Commonwealth, 285 S.W.2d 489, 1955 Ky. LEXIS 77 ( Ky. 1955 ).

In prosecution against hotel owner for owning and running a house of prostitution, evidence upon owner’s guilt was sufficient for jury, but the court should have submitted to the jury the question of whether or not owner’s agent who rented rooms to two couples knew whether or not either couple were unmarried and were obtaining the rooms for the purpose of prostitution, and whether defendant owner had knowledge or reason to believe his rooms were being rented for such purpose. (Decided under prior law) Hopkins v. Commonwealth, 298 S.W.2d 695, 1957 Ky. LEXIS 388 ( Ky. 1957 ).

Evidence that defendant owned and operated an unlicensed spa, that she decided whom to hire and fire, and that prostitution activity by two (2) or more prostitutes occurred at the spa, was sufficient to support defendant’s conviction under KRS 529.040(1). Hood v. Commonwealth, 230 S.W.3d 596, 2007 Ky. App. LEXIS 182 (Ky. Ct. App. 2007).

9.— Insufficient.

Evidence that witness went on automobile trips on invitation by accused, and bought gasoline for accused’s car on such occasions, and had immoral relations with a girl on such rides, was insufficient to sustain a conviction for pandering. (Decided under prior law) Barrett v. Commonwealth, 295 Ky. 553 , 175 S.W.2d 8, 1943 Ky. LEXIS 299 ( Ky. 1943 ).

10.Information or Indictment.

An indictment for pandering must aver that the accused received and appropriated the earnings of a prostitute; an allegation of appropriation “without lawful consideration” was defective. (Decided under prior law) Keser v. Commonwealth, 210 Ky. 383 , 275 S.W. 886, 1925 Ky. LEXIS 684 ( Ky. 1925 ).

Where the charge is of an isolated instance of pandering, the Commonwealth may be required, if it can, to furnish facts and circumstances whereby the identity of the prostitute may be established in order that the defendant may adequately prepare his defense. (Decided under prior law) Harris v. Commonwealth, 285 S.W.2d 489, 1955 Ky. LEXIS 77 ( Ky. 1955 ).

Where indictment for pandering stated that the names of the women involved were unknown to the grand jury, but it was proved that the defendant had kept detailed and personal accounts with the prostitutes who shared their illicit earnings with him, the trial court properly overruled the defendant’s motion for a bill of particulars seeking to learn the names of the women, the amounts of money received from them and the times and place where he was alleged to have committed the crime of pandering. (Decided under prior law) Harris v. Commonwealth, 285 S.W.2d 489, 1955 Ky. LEXIS 77 ( Ky. 1955 ).

Warrant, which charged defendant with offense of “operating a house of ill fame,” was sufficient to allege an offense. (Decided under prior law) Hopkins v. Commonwealth, 298 S.W.2d 695, 1957 Ky. LEXIS 388 ( Ky. 1957 ).

Charge of setting up and operating a house of prostitution adequately charged offense of keeping or setting up a house of ill fame, brothel or bawdy house. (Decided under prior law) Schweinefuss v. Commonwealth, 318 S.W.2d 544, 1958 Ky. LEXIS 143 ( Ky. 1958 ).

Warrant and supporting affidavit, charging owner of house in which prostitution was allegedly committed with prostitution and every other offense denounced by law that prohibited prostitution did not meet requirement that indictment may charge only one offense. (Decided under prior law) Eisner v. Commonwealth, 318 S.W.2d 546, 1958 Ky. LEXIS 144 ( Ky. 1958 ).

Since the maximum penalty that could be imposed upon a defendant under law that prohibited prostitution was a jail sentence and fine without being subjected to confinement at hard labor, the offense denounced by such law was not an infamous crime which required an indictment instead of merely an information before trial. (Decided under prior law) Eisner v. Commonwealth, 375 S.W.2d 825, 1964 Ky. LEXIS 439 ( Ky. 1964 ).

11.Instructions.

In prosecution for common-law offense of keeping a disorderly house, defendant was not prejudiced by instructions conforming to statutory penalty, in view of fact that statutory penalty was less than one prescribed for common-law offense. (Decided under prior law) Baker v. Commonwealth, 252 S.W.2d 53, 1952 Ky. LEXIS 984 ( Ky. 1952 ).

Instruction describing the place where the offense of pandering was allegedly committed as a house of prostitution was not erroneous as invading the province of the jury, since the evidence undeniably showed that said place was a house of prostitution, and because the defendant was not charged with maintaining such a place, but with accepting and appropriating money without lawful consideration from prostitutes. (Decided under prior law) Harris v. Commonwealth, 285 S.W.2d 489, 1955 Ky. LEXIS 77 ( Ky. 1955 ).

Where defendant was tried on charge of setting up and operating a house of prostitution, the trial court erred in instructing the jury to find the defendant guilty if they believed from the evidence beyond a reasonable doubt that he violated other separate and distinct offenses denounced by law that prohibited various forms of prostitution. (Decided under prior law) Schweinefuss v. Commonwealth, 318 S.W.2d 544, 1958 Ky. LEXIS 143 ( Ky. 1958 ).

12.Separate Offenses.

The offenses of pandering and keeping a disorderly house are two separate offenses, so that the trial court properly overruled the defendant’s plea in bar and abatement and of former jeopardy on trial for keeping a disorderly house after she had been acquitted of pandering. (Decided under prior law) Adams v. Commonwealth, 313 Ky. 298 , 231 S.W.2d 55, 1950 Ky. LEXIS 879 ( Ky. 1950 ).

Research References and Practice Aids

Cross-References.

Abatement of houses of prostitution, KRS 233.010 to 233.150 , 233.990 .

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Related to Sex and Pornography, Part 7 Prostitution, §§ 4.65 — 4.72.

529.050. Promoting prostitution in the third degree. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1974, ch. 406, § 254, effective January 1, 1975) was repealed by Acts 2007, ch. 19, § 17, effective June 26, 2007. For comparable provisions, see KRS 529.040 .

529.060. Corroboration.

  1. No person shall be convicted of prostitution solely on the uncorroborated testimony of a patron.
  2. No person shall be convicted of promoting prostitution solely on the uncorroborated testimony of a person whose prostitution activity he is alleged to have advanced or from whose prostitution activity he is alleged to have profited.

History. Enact. Acts 1974, ch. 406, § 255, effective January 1, 1975.

NOTES TO DECISIONS

1.In General.

The question of corroboration in a promoting prostitution case is one of law for the trial court to determine, and once corroboration has been sufficiently established, it is unnecessary to give an instruction on the issue of corroboration; rather, the jury is instructed to determine if it believes beyond a reasonable doubt that the defendant committed the offense charged. Allen v. Commonwealth, 997 S.W.2d 483, 1998 Ky. App. LEXIS 147 (Ky. Ct. App. 1998).

2.Construction.

Promoting prostitution is not the same offense as “prostitution” within the meaning of subsection (1) of this section. Elswick v. Commonwealth, 574 S.W.2d 916, 1978 Ky. App. LEXIS 636 (Ky. Ct. App. 1978).

3.Testimony of Police Officer.

Where a police officer testified that the defendant offered her sexual services for $20 and a tape recording he made was entered into evidence, the evidence was sufficient to convict defendant for prostitution, since, in his capacity as a police officer gathering evidence of a crime, the officer was not a patron or accomplice; accordingly, his testimony did not have to be corroborated under subsection (1) of this section. Thompson v. Commonwealth, 621 S.W.2d 36, 1981 Ky. App. LEXIS 286 (Ky. Ct. App. 1981).

Research References and Practice Aids

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Miscellaneous Guilt Phase Instructions, § 2.05.

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Related to Sex and Pornography, Part 7 Prostitution, §§ 4.64 — 4.66, 4.69, 4.71, 4.73.

529.070. Permitting prostitution.

  1. A person is guilty of permitting prostitution when, having possession or control of premises which he knows or has reasonable cause to know are being used for prostitution purposes, he fails to make reasonable and timely effort to halt or abate such use.
  2. Permitting prostitution is a Class B misdemeanor.

History. Enact. Acts 1974, ch. 406, § 256, effective January 1, 1975.

Research References and Practice Aids

Cross-References.

Abatement of houses of prostitution, KRS 233.010 to 233.150 , 233.990 .

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Related to Sex and Pornography, Part 7 Prostitution, § 4.74.

529.080. Loitering for prostitution purposes.

  1. Except as provided in KRS 529.120 , a person is guilty of loitering for prostitution purposes when he loiters or remains in a public place for the purpose of engaging or agreeing or offering to engage in prostitution.
  2. Loitering for prostitution purposes is a:
    1. Violation for the first offense;
    2. Class B misdemeanor for the second offense and for each subsequent offense.

History. Enact. Acts 1984, ch. 102, § 1, effective July 13, 1984; 2013, ch. 25, § 13, effective June 25, 2013.

529.090. Person convicted required to submit to screening for HIV infection — Prostitution or procuring prostitution with knowledge of sexually transmitted disease or HIV.

  1. Any person convicted of prostitution or procuring another to commit prostitution under the provisions of KRS 529.020 shall be required to undergo screening for human immunodeficiency virus infection under direction of the Cabinet for Health and Family Services and, if infected, shall submit to treatment and counseling as a condition of release from probation, community control, or incarceration. Notwithstanding the provisions of KRS 214.420 , the results of any test conducted pursuant to this subsection shall be made available by the Cabinet for Health and Family Services to medical personnel, appropriate state agencies, or courts of appropriate jurisdiction to enforce the provisions of this chapter.
  2. Any person who commits prostitution and who, prior to the commission of the crime, had tested positive for a sexually transmitted disease and knew or had been informed that he had tested positive for a sexually transmitted disease pursuant to KRS 214.410 and that he could possibly communicate such disease to another person through sexual activity is guilty of a Class A misdemeanor. A person may be convicted and sentenced separately for a violation of this subsection and for the underlying crime of prostitution.
  3. Any person who commits, offers, or agrees to commit prostitution by engaging in sexual activity in a manner likely to transmit the human immunodeficiency virus and who, prior to the commission of the crime, had tested positive for human immunodeficiency virus and knew or had been informed that he had tested positive for human immunodeficiency virus and that he could possibly communicate the disease to another person through sexual activity is guilty of a Class D felony. A person may be convicted and sentenced separately for a violation of this subsection and for the underlying crime of prostitution.
  4. Any person convicted of procuring another to commit prostitution in a manner likely to transmit the human immunodeficiency virus and who, prior to the commission of the crime, had tested positive for human immunodeficiency virus and knew or had been informed that he had tested positive for human immunodeficiency virus and that he could possibly communicate the disease to another person through sexual activity is guilty of a Class D felony.

History. Enact. Acts 1990, ch. 443, § 48, effective July 13, 1990; 1992, ch. 427, § 1, effective July 14, 1992; 1998, ch. 426, § 609, effective July 15, 1998; 2005, ch. 99, § 657, effective June 20, 2005.

Research References and Practice Aids

Northern Kentucky Law Review.

Braden, Aids: Dealing With the Plague, 19 N. Ky. L. Rev. 277 (1992).

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Related to Sex and Pornography, Part 7 Prostitution, §§ 4.62, 4.63.

529.100. Human trafficking.

  1. A person is guilty of human trafficking when the person intentionally subjects one (1) or more persons to engage in:
    1. Forced labor or services; or
    2. Commercial sexual activity through the use of force, fraud, or coercion, except that if the person is under the age of eighteen (18), the commercial sexual activity need not involve force, fraud, or coercion.
    1. Human trafficking is a Class C felony unless it involves serious physical injury to a trafficked person, in which case it is a Class B felony. (2) (a) Human trafficking is a Class C felony unless it involves serious physical injury to a trafficked person, in which case it is a Class B felony.
    2. If the victim of human trafficking is under eighteen (18) years of age, the penalty for the offense shall be one (1) level higher than the level otherwise specified in this section.

History. Enact. Acts 2007, ch. 19, § 5, effective June 26, 2007; 2020 ch. 75, § 7, effective July 15, 2020.

Research References and Practice Aids

Kentucky Bench & Bar.

Hunt, Human Trafficking: A Primer for Kentucky Lawyers. Vol. 73, No. 4, July 2009, Ky. Bench & Bar, 17.

529.110. Promoting human trafficking.

  1. A person is guilty of promoting human trafficking when the person intentionally:
    1. Benefits financially or receives anything of value from knowing participation in human trafficking; or
    2. Recruits, entices, harbors, transports, provides, or obtains by any means, or attempts to recruit, entice, harbor, transport, provide, or obtain by any means, another person, knowing that the person will be subject to human trafficking.
  2. Promoting human trafficking is a Class D felony unless a victim of the trafficking is under eighteen (18), in which case it is a Class C felony.

History. Enact. Acts 2007, ch. 19, § 6, effective June 26, 2007.

Research References and Practice Aids

Kentucky Bench & Bar.

Hunt, Human Trafficking: A Primer for Kentucky Lawyers. Vol. 73, No. 4, July 2009, Ky. Bench & Bar, 17.

529.120. Treatment of minor suspected of prostitution offense.

  1. Notwithstanding KRS 529.020 or 529.080 , if it is determined after a reasonable period of custody for investigative purposes, that the person suspected of prostitution or loitering for prostitution is under the age of eighteen (18), then the minor shall not be prosecuted for an offense under KRS 529.020 or 529.080 .
  2. A law enforcement officer who takes a minor into custody under subsection (1) of this section shall immediately make a report to the Cabinet for Health and Family Services pursuant to KRS 620.030 . Pursuant to KRS 620.040 , the officer may take the minor into protective custody.
  3. The Cabinet for Health and Family Services shall commence an investigation into child dependency, neglect, or abuse pursuant to KRS 620.029 .

History. Enact. Acts 2013, ch. 25, § 11, effective June 25, 2013.

529.130. Human trafficking victims service fee.

Any person convicted of an offense in KRS 529.100 or 529.110 shall be ordered to pay, in addition to any other fines, penalties, or applicable forfeitures, a human trafficking victims service fee of not less than ten thousand dollars ($10,000) to be remitted to the fund created in KRS 529.140 .

History. Enact. Acts 2013, ch. 25, § 8, effective June 25, 2013; 2020 ch. 75, § 8, effective July 15, 2020.

529.140. Human trafficking victims fund.

  1. The “human trafficking victims fund,” referred to in this section as the “fund,” is created as a separate revolving fund within the Office of the Attorney General.
  2. The fund shall consist of proceeds from assets seized and forfeited pursuant to KRS 529.150 , proceeds from the fee in KRS 529.130 , grants, contributions, appropriations, and any other moneys that may be made available for purposes of the fund.
  3. Moneys in the fund shall be distributed to agencies serving victims of human trafficking, including but not limited to law enforcement agencies, prosecutorial agencies, and victim service agencies. The Office of the Attorney General shall promulgate administrative regulations to develop procedures for distributing funds pursuant to this section. The administrative regulations shall require that:
    1. The Office of the Attorney General use funds received to maintain programs for the prevention of human trafficking, provide education, training, or public outreach programs about human trafficking, and conduct human trafficking investigations. The Office of the Attorney General may recoup costs for conducting any programs or trainings; and
    2. The Cabinet for Health and Family Services use funds received to serve minor victims of human trafficking under KRS 620.029 .
  4. Notwithstanding KRS 45.229 , any moneys remaining in the fund at the close of the fiscal year shall not lapse but shall be carried forward into the succeeding fiscal year to be used for the purposes set forth in this section.
  5. Any interest earnings on moneys in the fund shall become a part of the fund and shall not lapse to the general fund.
  6. Moneys in the fund are hereby appropriated for the purposes set forth in this section.

History. Enact. Acts 2013, ch. 25, § 9, effective June 25, 2013; 2020 ch. 75, § 9, effective July 15, 2020.

529.150. Forfeiture of property used in connection with human trafficking — Distribution of proceeds.

  1. All property used in connection with or acquired as a result of a violation of KRS 529.100 or 529.110 shall be subject to forfeiture under the same terms, conditions, and defenses and using the same process as set out in KRS 218A.405 to 218A.460 , with the exception of the distribution of proceeds, which shall be distributed as required in this section.
  2. Proceeds from the assets seized and forfeited shall be distributed as follows:
    1. Fifty percent (50%) shall be paid to the human trafficking victims fund;
    2. Forty-two and one-half percent (42.5%) shall be paid to the law enforcement agency or agencies that seized the property, to be used for direct law enforcement purposes; and
    3. Seven and one-half percent (7.5%) shall be paid to the Office of the Attorney General or, in the alternative, to the Prosecutors Advisory Council for deposit on behalf of the Commonwealth’s attorney or county attorney who has participated in the forfeiture proceeding, as determined by the court pursuant to KRS 218A.420(9). Notwithstanding KRS Chapter 48, these funds shall be exempt from any state budget reduction acts.

The moneys identified in this subsection are intended to supplement any funds otherwise appropriated to the recipient and shall not supplant other funding of any recipient.

History. Enact. Acts 2013, ch. 25, § 10, effective June 25, 2013.

529.160. Expungement of records relating to violation of chapter when person charged or convicted was a victim of human trafficking at time of offense — Motion — Finding — Presumption.

  1. When a person is charged or convicted under this chapter, or with an offense which is not a violent crime as defined in KRS 17.165 , and the person’s participation in the offense is determined to be the direct result of being a victim of human trafficking, the person may make a motion in the court in which the charges were filed to expunge all records of the offense.
  2. The motion shall be filed no sooner than sixty (60) days following the date the final judgment was entered by the court in which the charges were filed.
    1. A motion filed under this section, any hearing conducted on the motion, and any relief granted are governed by KRS 431.076 , 431.078 , and 431.079 unless otherwise provided in this section. (3) (a) A motion filed under this section, any hearing conducted on the motion, and any relief granted are governed by KRS 431.076 , 431.078 , and 431.079 unless otherwise provided in this section.
    2. For the purposes of expungement under KRS 431.076, a finding by the court that the person’s participation in the offense was a direct result of being a victim of human trafficking shall deem the charges as dismissed with prejudice.
    3. No official determination or documentation is required to find that the person’s participation in the offense was a direct result of being a victim of human trafficking, but documentation from a federal, state, local, or tribal governmental agency indicating that the defendant was a victim at the time of the offense shall create a presumption that the defendant’s participation in the offense was a direct result of being a victim.

History. Enact. Acts 2014, ch. 70, § 1, effective July 15, 2014.

529.170. Being victim of human trafficking is affirmative defense to violation of chapter.

A person charged under this chapter, or charged with an offense which is not a violent crime as defined in KRS 17.165 , may assert being a victim of human trafficking as an affirmative defense to the charge.

History. Enact. Acts 2014, ch. 70, § 2, effective July 15, 2014.

529.180. Conditions that are not a defense in prosecution involving commercial sexual activity.

In any prosecution under KRS 529.100 or 529.110 involving commercial sexual activity, it shall not be a defense that:

  1. The defendant was unaware of the minor’s actual age;
  2. A minor consented to engage in commercial sexual activity;
  3. The intended victim of the offense is a law enforcement officer posing as a minor as part of a criminal investigation or operation;
  4. The solicitation was unsuccessful, the conduct was not engaged in, or the law enforcement officer could not engage in the solicited offense; or
  5. The victim is charged with an offense.

HISTORY: 2015 ch. 122, § 3, effective June 24, 2015; 2020 ch. 75, § 10, effective July 15, 2020.

CHAPTER 530 Family Offenses

530.010. Bigamy — Defense.

  1. A person is guilty of bigamy when he:
    1. Purports to marry another person knowing he has a husband or wife or knowing the other person has a husband or wife; or
    2. Cohabits in this state after a bigamous marriage in another state.
  2. It shall be a defense to bigamy that the accused believed he was legally eligible to remarry.
  3. Bigamy is a Class D felony.

History. Enact. Acts 1974, ch. 406, § 257, effective January 1, 1975.

NOTES TO DECISIONS

1.In General.

The general rule that one cannot maintain suit to have his marriage set aside on ground that it was contracted through his own fraud, does not apply to a bigamous marriage, which is void. (Decided under prior law) Rose v. Rose, 274 Ky. 208 , 118 S.W.2d 529, 1938 Ky. LEXIS 246 ( Ky. 1938 ).

2.Elements.

The crime denounced herein is committed by the act of marrying another person, when the party has a living husband or wife, and is not committed by the party guilty of a bigamous marriage, thereafter, residing with the other party to the marriage as a husband or as a wife. (Decided under prior law) Kinser v. Commonwealth, 181 Ky. 727 , 205 S.W. 951, 1918 Ky. LEXIS 622 ( Ky. 1918 ).

In order to make out the offense of bigamy, the Commonwealth must establish a valid first marriage and then the second marriage. (Decided under prior law) Tharp v. Commonwealth, 241 Ky. 828 , 45 S.W.2d 480, 1932 Ky. LEXIS 10 ( Ky. 1932 ).

Remarriage by undivorced wife is bigamous. (Decided under prior law) Louisville & N. R. Co. v. Turner, 290 Ky. 602 , 162 S.W.2d 219, 1942 Ky. LEXIS 470 ( Ky. 1942 ).

3.— Absence for Five (5) Years.

Absence of prior spouse for more than five (5) years without being heard from precludes conviction for bigamy. (Decided under prior law) Andrews v. Kopper Coal Co., 290 Ky. 278 , 161 S.W.2d 52, 1942 Ky. LEXIS 396 ( Ky. 1942 ).

4.Evidence.

Proof that the marriages were performed by duly authorized persons is unnecessary to support conviction, where licenses were produced with certificates attached by persons performing ceremonies, and neighbors and defendant herself testified as to marriages and cohabitation. (Decided under prior law) Rice v. Commonwealth, 105 S.W. 123, 31 Ky. L. Rptr. 1354 (1907).

In bigamy prosecution, the trial court erred in allowing parol evidence of first wife’s decree of divorce. (Decided under prior law) Tharp v. Commonwealth, 241 Ky. 828 , 45 S.W.2d 480, 1932 Ky. LEXIS 10 ( Ky. 1932 ).

In prosecution for bigamy, where Commonwealth proved that defendant had entered into two marriages, the second taking place while the first wife was still living, it was unnecessary for Commonwealth to prove that first wife was not legally married to someone else at time of her marriage to defendant, or that her marriage to defendant had not been terminated by divorce or annulment before date of defendant’s second marriage, such matters being matters of defense which defendant would have burden to prove. (Decided under prior law) Carroll v. Commonwealth, 304 Ky. 741 , 202 S.W.2d 404, 1947 Ky. LEXIS 715 ( Ky. 1947 ).

5.Indictment.

An indictment alleging that the defendant did unlawfully and feloniously marry L, when his first wife M, to whom he was legally married on a certain date, was alive, was good, without an averment that defendant had not been divorced from his first wife. (Decided under prior law) Rogers v. Commonwealth, 68 S.W. 14, 24 Ky. L. Rptr. 119 (1902).

Minor variances in name in indictment and license of person married is not material. (Decided under prior law) Rice v. Commonwealth, 105 S.W. 123, 31 Ky. L. Rptr. 1354 (1907).

A mistake as to year of commission of crime, in setting out its date, subsequent to indictment, was not misleading where it was alleged crime was committed before finding of indictment. (Decided under prior law) Rose v. Rose, 274 Ky. 208 , 118 S.W.2d 529, 1938 Ky. LEXIS 246 ( Ky. 1938 ).

Research References and Practice Aids

Cross-References.

Death, presumption of after seven (7) years’ absence, KRS 422.130 .

Dower rights in event of bigamy, KRS 392.100 .

Marriages prohibited and declared void, KRS 402.020 .

Kentucky Law Journal.

Bratt, A Primer on Kentucky Intestacy Laws, 82 Ky. L.J. 29 (1993-94).

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public Order, Safety and Morals, Part 8 Family Offenses, §§ 8.97, 8.98.

Petrilli, Kentucky Family Law, Capacity of Parties to Marry, § 4.7.

Petrilli, Kentucky Family Law, Forms, Family Offenses, Form 4.2.

530.020. Incest.

  1. A person is guilty of incest when he or she has sexual intercourse or deviate sexual intercourse, as defined in KRS 510.010 , with a person whom he or she knows to be an ancestor, descendant, uncle, aunt, brother, or sister. The relationships referred to herein include blood relationships of either the whole or half blood without regard to legitimacy, relationship of parent and child by adoption, relationship of stepparent and stepchild, and relationship of step-grandparent and step-grandchild.
    1. Incest is a Class C felony if the act is committed by consenting adults. (2) (a) Incest is a Class C felony if the act is committed by consenting adults.
    2. Incest is a Class B felony if committed:
      1. By forcible compulsion as defined in KRS 510.010(2); or
      2. On a victim who is:
        1. Less than eighteen (18) years of age; or
        2. Incapable of consent because he or she is physically helpless or mentally incapacitated.
    3. Incest is a Class A felony if:
      1. Committed on a victim less than twelve (12) years of age; or
      2. The victim receives serious physical injury.

History. Enact. 1974, ch. 406, § 258, effective January 1, 1975; 1994, ch. 251, § 1, effective July 15, 1994; 2006, ch. 182, § 37, effective July 12, 2006; 2012, ch. 148, § 4, effective April 18, 2012.

NOTES TO DECISIONS

1.Double Jeopardy.

The offense of detaining a woman against her will is not a degree of the offense of incest. (Decided under prior law) Breeding v. Commonwealth, 190 Ky. 207 , 227 S.W. 151, 1921 Ky. LEXIS 411 ( Ky. 1921 ).

Where the defendant’s convictions and sentences for both rape and incest resulted from a single act of sexual intercourse with his ten (10) year old daughter, the imposition of both sentences for the single act violated the defendant’s constitutional guarantee against double jeopardy; accordingly, the conviction and sentence for rape would be affirmed, while the conviction and sentence for incest would be set aside. Hamilton v. Commonwealth, 659 S.W.2d 201, 1983 Ky. LEXIS 272 ( Ky. 1983 ), cert. denied, 468 U.S. 1217, 104 S. Ct. 3587, 82 L. Ed. 2d 885, 1984 U.S. LEXIS 2833 (U.S. 1984), overruled in part, Commonwealth v. Burge, 947 S.W.2d 805, 1996 Ky. LEXIS 82 ( Ky. 1997 ).

Where defendant forced his daughters to engage in sex with him repeatedly over a 10-year period, defendant’s convictions of both rape and incest did not violate his Fifth Amendment protection against double jeopardy because he was convicted of both offenses for engaging in multiple acts of sexual intercourse with his daughters and because his acts did not constitute a single continuing offense. Even if the Commonwealth had only proved that defendant engaged in sexual intercourse with each of his daughters on one occasion, however, his Fifth Amendment protection against double jeopardy still would not have been violated because the test for determining whether a defendant can be convicted of more than one crime arising out of a single act is whether each charge requires proof of a fact that the other does not, and the crimes of rape and incest each required proof of a fact that the other did not; specifically, rape required proof of age, whereas incest did not, but required proof of relationship, which rape did not. Johnson v. Commonwealth, 292 S.W.3d 889, 2009 Ky. LEXIS 209 ( Ky. 2009 ).

When defendant’s conviction for class A felony incest was reversed, double jeopardy did not bar a retrial because (1) the supreme court found sufficient evidence supported defendant’s conviction, and (2) a penalty phase jury found, albeit not beyond a reasonable doubt, that the victim was under the age of 12 when the crime occurred. Rodriguez v. Commonwealth, 2013 Ky. LEXIS 390 (Ky. Apr. 25, 2013).

2.Elements.

In prosecution for incest three (3) things must be established: First, the relationship of father and child; second, that the father knew of the existence of this relationship, and the third, that he had sexual intercourse with the child. (Decided under prior law) Cecil v. Commonwealth, 140 Ky. 717 , 131 S.W. 781, 1910 Ky. LEXIS 353 ( Ky. 1910 ).

A daughter may be guilty of incest by carnally knowing her father, but it would have to arise from a free and voluntary participation in the act. (Decided under prior law) McCreary v. Commonwealth, 163 Ky. 206 , 173 S.W. 351, 1915 Ky. LEXIS 197 ( Ky. 1915 ).

An accused was not guilty unless he actually begot the child, and knew himself to be her parent, though child was born to defendant’s wife four (4) months after marriage. (Decided under prior law) Maxey v. Commonwealth, 225 Ky. 663 , 9 S.W.2d 1001, 1928 Ky. LEXIS 844 ( Ky. 1928 ).

Fixing of date of the act is not necessary element of offense of incest. (Decided under prior law) Browning v. Commonwealth, 351 S.W.2d 499, 1961 Ky. LEXIS 166 ( Ky. 1961 ).

3.— Half-Sister.

One who carnally knows his half-sister is as much guilty of incest as though she were a sister of the full blood. (Decided under prior law) Burdue v. Commonwealth, 144 Ky. 428 , 138 S.W. 296, 1911 Ky. LEXIS 624 ( Ky. 1911 ).

4.— Stepchildren.

Kentucky incest statute, KRS 530.020 , prohibited sexual intercourse between a stepparent and a stepchild; defendant’s incest convictions based on acts of sexual intercourse with his stepdaughter were affirmed. Dennis v. Commonwealth, 156 S.W.3d 759, 2004 Ky. App. LEXIS 222 (Ky. Ct. App. 2004).

Defendant was improperly convicted of incest under KRS 530.020(1) because the plain language of § 530.020(1) did not apply to a step-grandparent/step-grandchild relationship; the “step” relationship within the statutory language itself only referred to the relationship between a stepparent and a stepchild. Bradford v. Commonwealth, 345 S.W.3d 245, 2011 Ky. App. LEXIS 109 (Ky. Ct. App. 2011).

Defendant’s conviction of incest under former language of KRS 530.020 was upheld because, although the charges were based on defendant’s sexual contact with his adult stepdaughter, the term “stepchild” encompassed both an adult and minor child of one’s wife or husband, and there was no legal authority that the general assembly intended for incest under KRS 530.020 to be limited to relationships with children under age 18. Raines v. Commonwealth, 379 S.W.3d 152, 2012 Ky. App. LEXIS 17 (Ky. Ct. App. 2012).

5.Evidence.

Under an indictment for incest committed by defendant, a conviction is authorized upon the testimony of the daughter alone, as she cannot be regarded as an accomplice. (Decided under prior law) Whittaker v. Commonwealth, 95 Ky. 632 , 27 S.W. 83, 16 Ky. L. Rptr. 173 , 1894 Ky. LEXIS 75 ( Ky. 1894 ); Craig v. Commonwealth, 190 Ky. 198 , 226 S.W. 1074, 1921 Ky. LEXIS 406 ( Ky. 1921 ); Browning v. Commonwealth, 351 S.W.2d 499, 1961 Ky. LEXIS 166 ( Ky. 1961 ).

Where accused’s daughter testified positively as to acts of intercourse, evidence that daughter could have contracted venereal disease through intercourse with others could only affect the credibility of her testimony, and could not constitute a defense in and of itself. (Decided under prior law) Williams v. Commonwealth, 281 Ky. 70 , 281 Ky. 79 , 134 S.W.2d 983, 1939 Ky. LEXIS 12 ( Ky. 1939 ).

Court properly struck out from accused’s affidavit which was read to jury, his averments that certain absent witnesses would have testified that his reputation for veracity was good, since such reputation was not attacked, and that reputation of two persons who were not introduced as witnesses was bad, but properly retained statements as to his good reputation for morality and bad reputation of his daughter for veracity and morality. (Decided under prior law) Caudell v. Commonwealth, 287 Ky. 145 , 151 S.W.2d 1038, 1941 Ky. LEXIS 487 ( Ky. 1941 ).

Defendant’s convictions for sodomy and incest, allegedly perpetrated against his infant children, required reversal because of the prejudicial effect of the erroneous admission of testimony by a social worker concerning what was denominated as a child sexual abuse accommodation syndrome; the admission of such evidence was erroneous because there was no medical testimony that the syndrome is a generally accepted medical concept, and because the testimony had no substantial relevance with regard to the issue of defendant’s guilt or innocence. (Decided under prior law) Mitchell v. Commonwealth, 777 S.W.2d 930, 1989 Ky. LEXIS 91 ( Ky. 1989 ).

6.— Similar Offenses.

Where different commissions of incest are in evidence Commonwealth must elect upon which one it will prosecute, and the evidence of other similar offenses can only be considered as corroborating the testimony of the principal offense and the court must so instruct the jury. (Decided under prior law) Smith v. Commonwealth, 109 Ky. 685 , 60 S.W. 531, 22 Ky. L. Rptr. 1349 , 1901 Ky. LEXIS 31 ( Ky. 1901 ).

Testimony by the defendant’s daughters that he had intercourse with them “on numerous occasions” was admissible to show a course of conduct. (Decided under prior law) Keeton v. Commonwealth, 459 S.W.2d 612, 1970 Ky. LEXIS 145 ( Ky. 1970 ).

Where prosecutrix alleged improper activities between herself and defendant more than ten (10) years prior to activities for which he was being prosecuted, such evidence was admissible to prove a lustful and incestuous disposition on his part in a prosecution for incest. (Decided under prior law) Messmear v. Commonwealth, 472 S.W.2d 682, 1971 Ky. LEXIS 208 ( Ky. 1971 ).

7.— Sufficient.

Testimony of the prosecutrix which was corroborated to a great extent by her brother who shared her room was sufficient to sustain a conviction. (Decided under prior law) Williams v. Commonwealth, 281 Ky. 70 , 281 Ky. 79 , 134 S.W.2d 983, 1939 Ky. LEXIS 12 ( Ky. 1939 ).

Evidence sustained verdict for incest committed with infant daughter, where her testimony bore ring of truth and was corroborated by testimony of eyewitness to act, despite accused’s assertion of “frame up,” and notwithstanding abhorrent nature of crime militates against its commission by a normal man. (Decided under prior law) Caudell v. Commonwealth, 287 Ky. 145 , 151 S.W.2d 1038, 1941 Ky. LEXIS 487 ( Ky. 1941 ).

Evidence was sufficient to sustain conviction for incest where there was some corroboration, although not required, of the testimony of the prosecuting witness. (Decided under prior law) Clements v. Commonwealth, 384 S.W.2d 299, 1964 Ky. LEXIS 82 ( Ky. 1964 ).

Although defendant in incest prosecution admitted that the prosecuting witness was born in wedlock, the prosecuting witness’s statement that the defendant was her father, coupled with the defendant’s statement that his former wife, while carrying the child, had told him the real father was a tenant living on their farm, was sufficient to permit the issue of blood relationship to be submitted to the jury. (Decided under prior law) Cooper v. Commonwealth, 374 S.W.2d 481, 1964 Ky. LEXIS 373 ( Ky. 1964 ).

Evidence was sufficient to support defendant’s conviction for Class A felony incest; defendant admitted in a taped confession to having vaginal intercourse with the victim, who testified that defendant began having sexual intercourse with her when she was eight years old and continued to do so until he was arrested. Rodriguez v. Commonwealth, 396 S.W.3d 916, 2013 Ky. LEXIS 98 ( Ky. 2013 ).

Sufficient evidence supported defendant’s conviction for class A felony incest, under KRS 530.020 , because, (1) despite defendant’s contrary subsequent testimony, defendant confessed to having intercourse with defendant’s daughter, and (2) the victim said the intercourse began when the victim was eight years old. Rodriguez v. Commonwealth, 2013 Ky. LEXIS 390 (Ky. Apr. 25, 2013).

8.Instructions.

Generally, it is sufficient for the instruction in an incest case to be substantially in the words of the statute. (Decided under prior law) Cooper v. Commonwealth, 374 S.W.2d 481, 1964 Ky. LEXIS 373 ( Ky. 1964 ).

An instruction that definitely stated that the victim was the daughter of the accused eliminated the issue as to parentage and was erroneous. (Decided under prior law) Cooper v. Commonwealth, 374 S.W.2d 481, 1964 Ky. LEXIS 373 ( Ky. 1964 ).

Defendant’s due process rights were violated during his trial for incest, rape, and sodomy involving his minor stepdaughters because the Class B felony sentence was applied to his incest convictions under a jury instruction that covered behavior both before and after the amendment of the statute. Miller v. Commonwealth, 391 S.W.3d 857, 2013 Ky. LEXIS 10 ( Ky. 2013 ).

Due to error in the jury instruction, it was uncertain whether the jury convicted defendant of Class A felony incest for acts occurring before the amendment of the incest statute, after its amendment but before the victim turned twelve, or after the victim turned twelve. Thus, it could not be said that the jury’s verdict was unanimous. Rodriguez v. Commonwealth, 396 S.W.3d 916, 2013 Ky. LEXIS 98 ( Ky. 2013 ).

Defendant’s conviction for class A felony incest was reversed because defendant was denied the right to a unanimous verdict, as (1) guilt phase jury instructions did not require the jury to find the victim’s age at the time of the crime, so defendant could be convicted, under the instructions given, of class A felony incest when defendant could only be convicted of class C felony incest, due to a statutory amendment, or of class B felony incest, if the crime occurred after the victim turned 12. Rodriguez v. Commonwealth, 2013 Ky. LEXIS 390 (Ky. Apr. 25, 2013).

Cited:

Wilfong v. Commonwealth, 175 S.W.3d 84, 2004 Ky. App. LEXIS 353 (Ky. Ct. App. 2004), review denied, — S.W.3d —, 2005 Ky. LEXIS 1006 (Ky. Nov. 16, 2005), review denied, 2005 Ky. LEXIS 352 ( Ky. 2005 ); Bullitt v. Commonwealth, 595 S.W.3d 106, 2019 Ky. LEXIS 543 ( Ky. 2019 ).

Opinions of Attorney General.

It cannot be that this section was intended to punish illicit intercourse between father and daughter if the daughter was born in lawful wedlock and not punish such intercourse where the daughter was born out of lawful wedlock. OAG 79-416 .

The difference between KRS 402.010 and this section is that the criminal statute is designed to protect against blood relationships and the adoption and stepparent situation, while the marriage statute covers only the blood relationships. OAG 79-416 .

There is nothing in this section suggesting that marriage is a defense. OAG 79-416 .

This section extends the prohibited relationships to include not only blood and half blood relationships but the marriage relationship of stepparent and stepchild and the affinity or nonaffinity relationship of parent and child by adoption. OAG 79-416 .

Research References and Practice Aids

Cross-References.

Accusation of incest, civil action for, KRS 411.040 .

Incestuous marriage, criminal liability of parties to, KRS 402.990 .

Prohibited degrees of relationship for marriage, KRS 402.010 .

Kentucky Law Journal.

Roach, Rule of Men, 81 Ky. L.J. 483 (1992-93).

Northern Kentucky Law Review.

Royce and Waits, The Crime of Incest, 5 N. Ky. L. Rev. 191 (1978).

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public Order, Safety and Morals, Part 8 Family Offenses, §§ 8.99 — 8.99D.

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Related to Sex and Pornography, Part 2 Rape, § 4.23.

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Related to Sex and Pornography, Part 6 First-Degree Unlawful Transaction with a Minor, § 4.59B.

Petrilli, Kentucky Family Law, Forms, Family Offenses, Form 4.5.

530.030. Concealing birth of infant.

  1. A person is guilty of concealing the birth of an infant when he conceals the corpse of a newborn child with intent to conceal the fact of its birth or to prevent a determination of whether it was born dead or alive.
  2. Concealing the birth of an infant is a Class A misdemeanor.

History. Enact. Acts 1974, ch. 406, § 259, effective January 1, 1975.

NOTES TO DECISIONS

1.Elements.

The gravamen of the crime is concealment of birth. (Decided under prior law) Bays v. Commonwealth, 289 Ky. 116 , 158 S.W.2d 158, 1942 Ky. LEXIS 512 ( Ky. 1942 ); Hutsell v. Commonwealth, 243 S.W.2d 898, 1951 Ky. LEXIS 1175 ( Ky. 1951 ).

The gist of the offense is the concealment of the birth of the child by the mother so that it cannot be determined whether the child was born dead or alive and it is not material on the question of guilt whether it was born living; it must be shown that the child was a bastard and its body concealed and dead when found; the criminal intent is implicit in the act. (Decided under prior law) Perry v. Commonwealth, 295 Ky. 317 , 174 S.W.2d 422, 1943 Ky. LEXIS 230 ( Ky. 1943 ).

2.Evidence.

The evidence was insufficient to sustain a conviction of concealing the birth of a bastard where there was a total failure to show that defendant, upon the occasion in question, or any time shortly theretofore, gave birth to any child. (Decided under prior law) Wilson v. Commonwealth, 215 Ky. 759 , 286 S.W. 1061, 1926 Ky. LEXIS 794 ( Ky. 1926 ).

In prosecution for concealing the birth of a bastard, evidence that unmarried woman had previously given birth to an illegitimate child was not competent to impeach defendant or to discredit her as a witness and was error prejudicial to defendant. (Decided under prior law) Hutsell v. Commonwealth, 243 S.W.2d 898, 1951 Ky. LEXIS 1175 ( Ky. 1951 ).

3.Instructions.

In prosecution for murder for death of baby where defendant who was convicted of manslaughter gave birth to child which she put into trash can placing the can in her bedroom closet where her mother later discovered the body, the court did not err by not giving an instruction on the crime of concealing the birth of an infant since there was absolutely no probable evidence that the baby was born dead and while defendant may have believed that the baby was dead, the evidence did not show that it was dead at birth and the fact that concealing the birth of an infant is not a lesser included offense of murder/homicide as different facts and elements are required to prove each crime. Cheser v. Commonwealth, 904 S.W.2d 239, 1994 Ky. App. LEXIS 151 (Ky. Ct. App. 1994), overruled in part, Walker v. Commonwealth, 127 S.W.3d 596, 2004 Ky. LEXIS 42 ( Ky. 2004 ).

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context Parent and Child, § 256.00.

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public Order, Safety and Morals, Part 8 Family Offenses, § 8.100.

530.040. Abandonment of minor.

  1. A person is guilty of abandonment of a minor when, as a parent, guardian or other person legally charged with the care or custody of a minor, he deserts the minor in any place under circumstances endangering his life or health and with intent to abandon him.
  2. Abandonment of a minor is a Class D felony.

History. Enact. Acts 1974, ch. 406, § 260, effective January 1, 1975.

NOTES TO DECISIONS

1.Defenses.

In prosecution for desertion or abandonment of infant children in a destitute condition, there must be a good faith showing on defendant’s part that he was afflicted so as to prevent him from doing any work or that he made an effort to earn a livelihood for his family. (Decided under prior law) Brinson v. Commonwealth, 307 Ky. 291 , 210 S.W.2d 936, 1948 Ky. LEXIS 724 ( Ky. 1948 ).

2.Elements.

A parent who leaves the child in the custody of the other parent is not guilty of abandoning such child. (Decided under prior law) Richie v. Commonwealth, 64 S.W. 979, 23 Ky. L. Rptr. 1237 , 1901 Ky. LEXIS 598 (Ky. Ct. App. 1901).

Abandonment must contain two essential ingredients: separation from the child and failure to supply its needs. Mere absence from child does not constitute the offense, but it begins with and continues during the child’s dependence. (Decided under prior law) Commonwealth v. Donovan, 187 Ky. 779 , 220 S.W. 1081, 1920 Ky. LEXIS 204 ( Ky. 1920 ); Miller v. Commonwealth, 225 Ky. 576 , 9 S.W.2d 706, 1928 Ky. LEXIS 818 ( Ky. 1928 ).

Law that provided penalty for abandonment did not include a bastard child so as to make the putative father liable for its desertion. (Decided under prior law) Commonwealth v. Ray, 196 Ky. 203 , 244 S.W. 415, 1922 Ky. LEXIS 482 ( Ky. 1922 ); Hibbard v. Commonwealth, 250 Ky. 431 , 63 S.W.2d 480, 1933 Ky. LEXIS 710 ( Ky. 1933 ).

Leaving a child with its mother, who has property or income to support it, was not a violation of law that provided a penalty for abandonment. (Decided under prior law) Cox v. Commonwealth, 280 Ky. 94 , 132 S.W.2d 739, 1939 Ky. LEXIS 75 ( Ky. 1939 ).

If child has been properly cared for by mother, father should not be convicted for abandoning child and leaving him in destitute condition. (Decided under prior law) Rawlins v. Commonwealth, 343 S.W.2d 827, 1961 Ky. LEXIS 442 ( Ky. 1961 ).

3.— Court Awarded Custody.

Where child was taken from the parent by an order of the court and entrusted to the other parent, there was no desertion or abandonment of child by the parent from whose custody the child was taken. (Decided under prior law) Osborne v. Commonwealth, 241 Ky. 345 , 43 S.W.2d 990, 1931 Ky. LEXIS 67 ( Ky. 1931 ).

4.— Residence.

It is common knowledge that persons do not have to be in the same state as their children to abandon them. (Decided under prior law) Squadroni v. Smith, 349 S.W.2d 700, 1961 Ky. LEXIS 62 ( Ky. 1961 ).

Children become deserted and abandoned wherever they may be when support ceases. (Decided under prior law) Squadroni v. Smith, 349 S.W.2d 700, 1961 Ky. LEXIS 62 ( Ky. 1961 ).

5.— Stepparent.

Stepfather who gave his name to wife’s child by former husband, and who received and accepted child into his home, and maintained him in the same way as he did the other children, assumed a relation in loco parentis to the boy, as respects whether wife deserted her child when she left him with his stepfather. (Decided under prior law) Brummitt v. Commonwealth, 357 S.W.2d 37, 1962 Ky. LEXIS 110 ( Ky. 1962 ).

6.Evidence.

Offense of child desertion contemplates a course of conduct, that is, a failure to provide extending over a period of time and culminating in act of desertion, and time is not a material ingredient of the offense, and, hence, prosecution is not required to prove that offense charged was committed on exact day named in indictment, and it is sufficient to prove that offense was committed prior to finding of indictment. (Decided under prior law) Smith v. Commonwealth, 322 S.W.2d 711, 1959 Ky. LEXIS 320 ( Ky. 1959 ).

Evidence was insufficient to sustain conviction of father for abandoning his infant children where the evidence failed to disclose that any marriage ever existed between the defendant and the mother of the children. (Decided under prior law) Mathis v. Commonwealth, 324 S.W.2d 826, 1959 Ky. LEXIS 393 ( Ky. 1959 ).

Where children had been properly cared for by the mother and the father did not leave the family home until he was jailed for 39 days and placed under a restraining order and peace bond for six (6) months on the complaint of his wife, evidence was insufficient to support father’s conviction for abandoning children. (Decided under prior law) Rawlins v. Commonwealth, 343 S.W.2d 827, 1961 Ky. LEXIS 442 ( Ky. 1961 ).

Since abandonment contemplates a course of conduct and since by its nature the offense is rarely committed on a single day, time is not a material ingredient of the offense. (Decided under prior law) Gregory v. Commonwealth, 444 S.W.2d 265, 1969 Ky. LEXIS 207 ( Ky. 1969 ).

7.Indictment.

Indictment for abandonment need not allege that the children deserted were legitimate children, as presumption is they are legitimate, and burden was on accused to show the contrary. (Decided under prior law) Gee v. Commonwealth, 263 Ky. 808 , 94 S.W.2d 17, 1936 Ky. LEXIS 261 ( Ky. 1936 ).

Cited:

Hafley v. McCubbins, 590 S.W.2d 892, 1979 Ky. App. LEXIS 491 (Ky. Ct. App. 1979); Knox v. Commonwealth, 735 S.W.2d 711, 1987 Ky. LEXIS 229 ( Ky. 1987 ).

Research References and Practice Aids

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public Order, Safety and Morals, Part 8 Family Offenses, § 8.101.

Petrilli, Kentucky Family Law, Forms, Family Offenses, Form 4.5.

Petrilli, Kentucky Family Law, Support of the Family, § 16.16.

530.050. Nonsupport and flagrant nonsupport.

  1. A person is guilty of nonsupport:
    1. When he or she persistently fails to provide support which he or she can reasonably provide and which the person knows he or she has a duty to provide to a minor, a child adjudged mentally disabled, an indigent spouse, or indigent parent; or
    2. Upon a finding that a defendant obligor, subject to court order to pay any amount for the support of a minor child, is delinquent in meeting the full obligation established by the court order, and has been delinquent for a period of at least two (2) months duration.
  2. A person is guilty of flagrant nonsupport when he or she persistently fails to provide support which he or she can reasonably provide and which the person knows he or she has a duty to provide by virtue of a court or administrative order to a minor, a child adjudged mentally disabled, an indigent spouse, or indigent parent, and the failure results in:
    1. An arrearage of not less than two thousand five hundred dollars ($2,500); or
    2. Six (6) consecutive months without payment of support; or
    3. The dependent having been placed in destitute circumstances. For the purposes of this paragraph, it shall be prima facie evidence that a dependent has been placed in destitute circumstances if the dependent is a recipient of public assistance as defined in KRS 205.010 .
  3. A person has a duty to provide support for an indigent spouse, a minor child or children, or a child or children adjudged mentally disabled and, for purposes of this section, is presumed to know of that duty.
  4. Any person who is eighteen (18) years of age or over, residing in this state and having in this state a parent who is destitute of means of subsistence and unable because of old age, infirmity, or illness to support himself or herself, has a duty to provide support for such parent and, for purposes of this section, is presumed to know of that duty.
  5. Nonsupport is a Class A misdemeanor. For a second offense, the person shall receive a minimum sentence of seven (7) days in jail. For a third or any subsequent offense, the person shall receive a minimum sentence of thirty (30) days in jail.
  6. Flagrant nonsupport is a Class D felony.

History. Enact. Acts 1974, ch. 406, § 261, effective January 1, 1975; 1976, ch. 361, § 1; 1982, ch. 141, § 136, effective July 1, 1982; 1984, ch. 144, § 18, effective July 13, 1984; 1988, ch. 411, § 30, effective July 15, 1988; 2021 ch. 51, § 1, effective June 29, 2021.

Compiler’s Notes.

This section was amended by § 148 of Acts 1980, ch. 396, which would have taken effect July 1, 1982; however, Acts 1982, ch. 141, § 146, effective July 1, 1982, repealed Acts 1980, ch. 396.

NOTES TO DECISIONS

1.Constitutionality.

Law that required support of indigent parents did not violate Ky. Const., § 59. (Decided under prior law) Wood v. Wheat, 226 Ky. 762 , 11 S.W.2d 916, 1928 Ky. LEXIS 164 ( Ky. 1928 ).

This section does not offend Ky. Const., § 18 for it does not seek to impose a punishment for a debt, but to redress the intentional financial abandonment of one’s legal responsibilities. Waddell v. Commonwealth, 893 S.W.2d 376, 1995 Ky. App. LEXIS 37 (Ky. Ct. App. 1995).

The prosecution of the defendant for flagrant nonsupport, following a proceeding in which a civil court revoked a conditionally discharged sentence and imposed jail confinement for contempt for failing to pay child support, did not violate the prohibition against double jeopardy. Dunagan v. Commonwealth, 31 S.W.3d 928, 2000 Ky. LEXIS 139 ( Ky. 2000 ).

2.Defenses.
3.— Illegitimacy.

Nonsupport relates to the support of a legitimate child and has no application to a bastard child so as to limit the liability of a putative father for payment of support of an illegitimate child. (Decided under prior law) Hunt v. Commonwealth, 265 S.W.2d 37, 1954 Ky. LEXIS 712 ( Ky. 1954 ).

Where it is alleged accused is father, presumption is that children are his legitimate children and therefore illegitimacy is a defense and burden is on accused to establish it by proof. (Decided under prior law) Neal v. Commonwealth, 303 S.W.2d 903, 1957 Ky. LEXIS 273 ( Ky. 1957 ); Turner v. Commonwealth, 315 S.W.2d 619, 1958 Ky. LEXIS 329 ( Ky. 1958 ); Mathis v. Commonwealth, 324 S.W.2d 826, 1959 Ky. LEXIS 393 ( Ky. 1959 ).

Where defendant, during trial on child desertion, did not contend children were not his, did not testify on his own behalf to deny marriage or legitimacy of children or deny that he had abandoned them as charged, defendant was not entitled to instruction bearing on legitimacy of children. (Decided under prior law) Neal v. Commonwealth, 303 S.W.2d 903, 1957 Ky. LEXIS 273 ( Ky. 1957 ).

Affidavit of deputy county court clerk in which parties were supposedly married to effect that no record of marriage appeared in that county was of negative character and was not a certified copy of public records and court did not err in failing to permit its introduction in evidence showing that defendant and mother of the children he was indicted for deserting were not legally married. (Decided under prior law) Turner v. Commonwealth, 315 S.W.2d 619, 1958 Ky. LEXIS 329 ( Ky. 1958 ).

In prosecution for willful desertion of four (4) infant children when the evidence concerning the validity of the solemnization of a marriage was conflicting, it was not error for the court to instruct that if the jury believed that some form of ceremony took place between the prosecutrix and the defendant from which the prosecutrix believed that she was married to the defendant, the defendant could be found guilty without regard to their actual marital status, since KRS 402.070 provides that marriages are not invalid for want of authority to solemnize them if either party believes that they have been lawfully married. (Decided under prior law) Turner v. Commonwealth, 315 S.W.2d 619, 1958 Ky. LEXIS 329 ( Ky. 1958 ).

4.— Physical, Mental or Financial Condition.

Where parent performed his duties willingly and in good faith, but because of extreme poverty, large number of children and deficient business ability, failed to properly support children, a conviction will not be upheld. (Decided under prior law) Brock v. Commonwealth, 206 Ky. 621 , 268 S.W. 315, 1925 Ky. LEXIS 1019 ( Ky. 1925 ).

Father who, being willing and able to support child, was prevented by illness or other circumstances from supporting, or prevented by those having child’s custody, was not guilty of child desertion. (Decided under prior law) Webb v. Commonwealth, 237 Ky. 141 , 35 S.W.2d 14, 1931 Ky. LEXIS 567 ( Ky. 1931 ).

If the father is physically or mentally unable to earn support for his children, he is not criminally liable for child desertion. (Decided under prior law) Cox v. Commonwealth, 280 Ky. 94 , 132 S.W.2d 739, 1939 Ky. LEXIS 75 ( Ky. 1939 ).

In prosecution for child desertion the burden was upon the father to show that he was physically unable to support his children and his testimony alone was not sufficient to meet the burden of proof. (Decided under prior law) Meek v. Commonwealth, 309 Ky. 370 , 217 S.W.2d 961, 1949 Ky. LEXIS 717 ( Ky. 1949 ).

After a prima facie case, a showing that the children were abandoned was made, the sufficiency of the excuse that the accused was prevented from providing for his children because of his physical, mental or financial condition was properly for the jury. (Decided under prior law) Turner v. Commonwealth, 315 S.W.2d 619, 1958 Ky. LEXIS 329 ( Ky. 1958 ).

Physical disability and financial inability have been recognized as defenses to prosecution for nonsupport, but the burden is on the defendant to establish his defense. (Decided under prior law) Rogers v. Commonwealth, 321 S.W.2d 779, 1959 Ky. LEXIS 286 ( Ky. 1959 ).

5.Due Process.

Misconduct on the part of the Commonwealth’s attorney, in his opening statement to the jury, in stating that mother accused of child desertion was not divorced and was found living with another man constituted reversible error. (Decided under prior law) Brummitt v. Commonwealth, 357 S.W.2d 37, 1962 Ky. LEXIS 110 ( Ky. 1962 ).

6.Elements.

To constitute abandonment, the prosecution must prove that the parent left the children in indigent and destitute circumstances, or that they thereafter became subject to such circumstances. (Decided under prior law) West v. Commonwealth, 194 Ky. 536 , 240 S.W. 52, 1922 Ky. LEXIS 198 ( Ky. 1922 ).

If a child should be left with its mother and the mother had property or income to support the child, the desertion of it by the father would not constitute a desertion of the child leaving it in indigent or destitute circumstances. (Decided under prior law) Webb v. Commonwealth, 237 Ky. 141 , 35 S.W.2d 14, 1931 Ky. LEXIS 567 ( Ky. 1931 ).

Generally, stepfather is under no legal obligation to support child of his wife by former marriage, however, stepfather who voluntarily takes such child into his family as a member of his household places himself in loco parentis and assumes obligation to maintain and support child if child has no income of his own, and the relationship is substantially the same as that of parent and child. (Decided under prior law) Brummitt v. Commonwealth, 357 S.W.2d 37, 1962 Ky. LEXIS 110 ( Ky. 1962 ).

Where a father was led by the child’s mother to believe that the mother did not want contributions from him to support the child, his failure to pay anything for the support of the child did not make him guilty of unreasonably neglecting his child. (Decided under prior law) Lane v. Commonwealth, 371 S.W.2d 16, 1963 Ky. LEXIS 88 ( Ky. 1963 ).

Failure of a divorced husband to make child support payments in accordance with the terms of the divorce judgment can be punished as a crime. (Decided under prior law) Bradley v. Commonwealth, 380 S.W.2d 211, 1964 Ky. LEXIS 282 ( Ky. 1964 ).

Subsection (2) requires that the Commonwealth produce evidence in a flagrant nonsupport case that the defendant can “reasonably provide” support; however, the statute does not require that the Commonwealth produce evidence that the defendant is employed; rather, it is sufficient if the Commonwealth establishes that the defendant has the financial resources to provide support or has the ability to earn income and that the extent of this ability would not make his support obligation unreasonable; the defendant then has the burden of proving he cannot provide support. Warren v. Commonwealth, 2000 Ky. App. LEXIS 65 (Ky. Ct. App. June 16, 2000).

KRS 530.050 requires the Commonwealth to prove, beyond a reasonable doubt, that the defendant can reasonably provide the support ordered. Schoenbachler v. Commonwealth, 95 S.W.3d 830, 2003 Ky. LEXIS 14 ( Ky. 2003 ).

As KRS 530.050(2) neither explicitly nor implicitly labels the “which he can reasonably provide” language a “defense,” nor provides that the defendant may prove his inability to provide the support in exculpation of his conduct, the ability to provide support is an element of the offense of flagrant nonsupport, and the Commonwealth thus bears the burden of proof as to that element. Schoenbachler v. Commonwealth, 95 S.W.3d 830, 2003 Ky. LEXIS 14 ( Ky. 2003 ).

Father, a Tennessee resident, had a duty pursuant to KRS 530.050 to pay child support pursuant to a Tennessee order, where the mother and children had moved to Kentucky; it was undisputed that he failed to provide support to his children who, at all times relevant, lived in Kentucky. Kentucky had jurisdiction to hear his case, and a person could violate a Kentucky law without violating a Kentucky order. Cleveland v. Commonwealth, 173 S.W.3d 626, 2005 Ky. App. LEXIS 194 (Ky. Ct. App. 2005).

7.Evidence.

Institution of prosecution against the children, followed by assumption of the statutory duty to support indigent parents by one child, is sufficient notice to the others that contribution will be required. (Decided under prior law) Wood v. Wheat, 226 Ky. 762 , 11 S.W.2d 916, 1928 Ky. LEXIS 164 ( Ky. 1928 ).

Evidence was insufficient to convict defendant of child desertion where he was married in 1932 but never lived with his wife, in 1934 his wife, who lived with her mother, had a child and defendant’s father furnished her with $5 before the child was born to buy clothes for the child, which she used for that purpose, but defendant did not know of the birth of the child. (Decided under prior law) Clark v. Commonwealth, 262 Ky. 576 , 90 S.W.2d 998, 1936 Ky. LEXIS 65 ( Ky. 1936 ).

In a prosecution of father for nonsupport, question of whether the earnings of mother were sufficient to provide for children was for the jury. (Decided under prior law) Gee v. Commonwealth, 263 Ky. 808 , 94 S.W.2d 17, 1936 Ky. LEXIS 261 ( Ky. 1936 ).

Where one child furnishes the necessaries to his parent, all of the parent’s children are relieved from prosecution for failure to furnish the necessaries, but, if the child furnishing them is to hold the other children for a portion of the amount furnished, he must give them notice and afford them an equal opportunity to furnish or contribute to the furnishing of the support. (Decided under prior law) Engle v. Terrell, 281 Ky. 88 , 134 S.W.2d 980, 1939 Ky. LEXIS 11 ( Ky. 1939 ).

Where evidence of prosecuting witness that children had been deserted and were destitute was a mere conclusion and was not supported by any facts showing how the children were treated and such evidence was controverted by testimony of other witnesses, such evidence was insufficient to establish violation of law that provided penalty for abandonment and nonsupport of a child. (Decided under prior law) Cox v. Commonwealth, 280 Ky. 94 , 132 S.W.2d 739, 1939 Ky. LEXIS 75 ( Ky. 1939 ); Robinson v. Commonwealth, 311 Ky. 256 , 223 S.W.2d 899, 1949 Ky. LEXIS 1108 ( Ky. 1949 ).

Where defendant, who was convicted of child neglect for failure to provide support, submitted evidence on motion for new trial which showed that prosecuting witness was probably mistaken as to payments defendant made, court should have granted new trial. (Decided under prior law) Smallwood v. Commonwealth, 314 Ky. 622 , 236 S.W.2d 904, 1951 Ky. LEXIS 713 ( Ky. 1951 ).

In child desertion case where there was evidence that tended to establish that defendant had abandoned his children under ages of 16 years, leaving them in destitute or indigent circumstances, the question of appellant’s guilt was properly submitted to jury. (Decided under prior law) Coleman v. Commonwealth, 283 S.W.2d 169, 1955 Ky. LEXIS 282 ( Ky. 1955 ).

Evidence that mother was unable to support children without outside help, and that they were living with the wife’s father and mother, was sufficient to sustain verdict of guilty in prosecution of their father for nonsupport. (Decided under prior law) Rogers v. Commonwealth, 321 S.W.2d 779, 1959 Ky. LEXIS 286 ( Ky. 1959 ).

Where, five (5) days after their mother was admitted to a hospital by one child, that child had her attorney write each other child and ask them to indicate their willingness to bear their proportionate share of the hospital expense, this did not constitute sufficient notice to make the other children liable for such expenses because it did not afford them an opportunity to provide the services and supply the needs of their mother, which they might have done at less expense. (Decided under prior law) Woods v. Ashland Hospital Corp., 340 S.W.2d 594, 1960 Ky. LEXIS 54 ( Ky. 1960 ).

Evidence authorized submission of question of defendant’s guilt of child desertion to the jury where she left her eight (8) year old child by a former marriage with its stepfather who was a mine laborer dependent wholly upon his daily wages for a living and who had two (2) younger children of his own. (Decided under prior law) Brummitt v. Commonwealth, 357 S.W.2d 37, 1962 Ky. LEXIS 110 ( Ky. 1962 ).

8.Instructions.

Where indictment charged father with deserting or abandoning child and leaving it destitute, and instructions were given relative to law regarding offense of failure to comply with conditions of divorce judgment, conviction against father was reversed because instructions should follow substantially the language of the indictment. (Decided under prior law) Cornett v. Commonwealth, 251 S.W.2d 466, 1952 Ky. LEXIS 921 ( Ky. 1952 ).

In child desertion case where two (2) of children were of school age and three (3) of the children were under school age, instruction that authorized conviction for failure to provide for education of the children was not prejudicial. (Decided under prior law) Coleman v. Commonwealth, 283 S.W.2d 169, 1955 Ky. LEXIS 282 ( Ky. 1955 ).

9.Revocation of Probation.

When a person commits the offense of flagrant nonsupport, he or she causes the party entitled to receive child support to incur expenses because of that criminal act. Money owed for past due child support constitutes “restitution” within the meaning of KRS 532.350 . As such, before probation or conditional discharge may be revoked based on a failure to pay child support, the requirements of Bearden v. Georgia, 461 U.S. 660, 103 S. Ct. 2064, 76 L. Ed. 2d 221, 1983 U.S. LEXIS 39 (1983), must be met. Gamble v. Commonwealth, 293 S.W.3d 406, 2009 Ky. App. LEXIS 74 (Ky. Ct. App. 2009).

In proceedings to revoke defendant’s conditional discharge for flagrant nonsupport under KRS 530.050 , while defendant argued that his due process rights under the 14th Amendment and Ky. Const. §§ 1, 2, and 11 were violated as the Circuit Court refused to consider possible alternative punishments, no legal authority existed that required the Circuit Court to consider alternative forms of punishment when revoking probation or conditional discharge for failure to pay child support. Marshall v. Commonwealth, 2008 Ky. App. LEXIS 253 (Ky. Ct. App. Aug. 8, 2008).

Revocation of defendant’s probation for flagrant nonsupport under KRS 530.050(2) was proper as although the Bearden standard for the failure to pay restitution under KRS 532.350(1)(a) applied to revocation proceedings for the failure to pay child support, and the trial court was required to inquire into the reasons defendant failed to pay, the trial court was unable to do so because defendant refused to testify under the Fifth Amendment, U.S. Const. amend. V. Gamble v. Commonwealth, 293 S.W.3d 406, 2009 Ky. App. LEXIS 74 (Ky. Ct. App. 2009).

10.— Findings of Fact

Defendant’s due process rights under the 14th Amendment and Ky. Const. §§ 1, 2, and 11 were violated by the Circuit Court’s failure to make findings of fact specifying the evidence relied upon to support its decision to revoke defendant’s conditional discharge for flagrant nonsupport under KRS 530.050 . Marshall v. Commonwealth, 2008 Ky. App. LEXIS 253 (Ky. Ct. App. Aug. 8, 2008).

11.Revocation of Pretrial Diversion.

Trial court lacked authority to effectively revoke defendant’s Class D Felony Pretrial Diversion for flagrant non-support five days after defendant’s three-year pretrial diversion period expired because the Commonwealth of Kentucky never filed a motion to revoke under KRS 533.256(1) within the pretrial diversion period. Tucker v. Commonwealth, 295 S.W.3d 455, 2009 Ky. App. LEXIS 177 (Ky. Ct. App. 2009).

12.Support of Children.

The fact that friends and relations may prevent the deserted child from suffering or want is no defense to the delinquent father who was charged with desertion of child, leaving him in destitute or indigent circumstances. (Decided under prior law) Ragsdale v. Commonwealth, 195 Ky. 750 , 243 S.W. 1056, 1922 Ky. LEXIS 430 ( Ky. 1922 ); Williams v. Commonwealth, 276 S.W.2d 454, 1955 Ky. LEXIS 423 ( Ky. 1955 ).

The entire amount collected from the guilty parent for support of children constitutes a trust fund for the maintenance of the indigent children and neither the parent having custody of them, nor supervisor of parents, is authorized to burden that fund with an attorney’s fee. (Decided under prior law) Bonner v. Goodloe, 205 Ky. 555 , 266 S.W. 62, 1924 Ky. LEXIS 178 ( Ky. 1924 ).

While acceptance by wife of custody of children after a decree of divorce makes her primarily liable for their support and maintenance, it does not absolve father from his parental obligation. (Decided under prior law) Parks v. Parks, 209 Ky. 127 , 272 S.W. 419, 1925 Ky. LEXIS 442 ( Ky. 1925 ).

The duty of a parent toward his children is a continuing one and acquittal for failure to perform that duty in one year will not excuse defendant from performing it in subsequent years. (Decided under prior law) Miller v. Commonwealth, 225 Ky. 576 , 9 S.W.2d 706, 1928 Ky. LEXIS 818 ( Ky. 1928 ).

Parent does not have to provide for “education” of child only two and one half (2 1/2) years old at time of trial. (Decided under prior law) Webb v. Commonwealth, 237 Ky. 141 , 35 S.W.2d 14, 1931 Ky. LEXIS 567 ( Ky. 1931 ).

Where pension of soldier was paid by the United States government to guardian for support of children, soldier was not entitled to credit for such payments on support bond. (Decided under prior law) Coffey v. Helm, 242 Ky. 596 , 47 S.W.2d 70, 1932 Ky. LEXIS 332 ( Ky. 1932 ).

If father deserts child and its support is cast upon its grandparents, or others, the child is in “destitute or indigent circumstances” so far as the father is concerned, and he is guilty of child desertion. (Decided under prior law) Black v. Commonwealth, 259 Ky. 169 , 82 S.W.2d 321, 1935 Ky. LEXIS 298 ( Ky. 1935 ).

Forbearance to prosecute offense of failure to support child did not constitute a consideration for promise of father to support child. (Decided under prior law) Early v. Bradfield's Ex'x, 266 Ky. 395 , 99 S.W.2d 190, 1936 Ky. LEXIS 675 ( Ky. 1936 ).

In prosecution for child desertion, fact that mother had received some assistance from charity toward the support of the child was not sufficient to sustain the charges against the father, in the absence of any evidence as to the amount of such outside assistance. (Decided under prior law) Cox v. Commonwealth, 280 Ky. 94 , 132 S.W.2d 739, 1939 Ky. LEXIS 75 ( Ky. 1939 ).

Father was not guilty of deserting year-old child in destitute circumstances, where at time of alleged desertion mother owned home and collected $32 overdue wages of father, which was sufficient to provide for child between time of alleged desertion and returning of indictment, and where father left cow which could supply milk for child, and mother could have used his store charge account. (Decided under prior law) Miller v. Commonwealth, 284 Ky. 70 , 143 S.W.2d 854, 1940 Ky. LEXIS 438 ( Ky. 1940 ).

Although a child is abandoned by his father, the father is not liable if the child or his mother have independent and sufficient means of support, but there is liability and guilt even though the child is being provided for or is receiving support from sources other than a parent. (Decided under prior law) Brummitt v. Commonwealth, 357 S.W.2d 37, 1962 Ky. LEXIS 110 ( Ky. 1962 ).

Where the husband failed to make his child support payments but the mother worked and her parents supplemented the children’s support, it was a jury question whether the children were in “destitute or indigent circumstances.” (Decided under prior law) Thompson v. Commonwealth, 461 S.W.2d 375, 1970 Ky. LEXIS 625 ( Ky. 1970 ).

Defendant, charged with flagrant nonsupport waived any infirmity in the Commonwealth’s proof by his plea of guilty, for although the plea was conditional, it was conditioned only upon the right to appeal from the trial court’s ruling in a jurisdictional issue. Waddell v. Commonwealth, 893 S.W.2d 376, 1995 Ky. App. LEXIS 37 (Ky. Ct. App. 1995).

Evidence was sufficient to establish flagrant nonsupport, notwithstanding that the Commonwealth did not establish that the defendant could reasonably provide support, where the Commonwealth provided evidence that the defendant had a $30.00 per week support obligation and that he was $3,720.00 in arrears and, during the defendant’s case in chief, his mother testified that, absent his bad habits, “he can work.” Warren v. Commonwealth, 2000 Ky. App. LEXIS 65 (Ky. Ct. App. June 16, 2000).

Jury’s verdict was not clearly unreasonable, nor was the trial court’s failure to direct a verdict of acquittal, as the evidence was sufficient to support defendant’s conviction of flagrant nonsupport under KRS 530.050 where: (1) defendant admittedly had a shoulder injury; (2) defendant could perform number of compensable tasks; and (3) defendant had, at times, had money to pay child support, but paid other expenses instead. Schoenbachler v. Commonwealth, 95 S.W.3d 830, 2003 Ky. LEXIS 14 ( Ky. 2003 ).

Attorney was suspended for 90 days for admittedly being significantly in arrears on his child-support obligations and by failing to pay his child support as ordered, which failure to comply to such an extent constituted the crime of flagrant non-support. Ky. Bar Ass'n v. Morgan, 465 S.W.3d 447, 2015 Ky. LEXIS 1765 ( Ky. 2015 ).

13.Support of Parent.

Law that required support of indigent parents did not render children liable to the state hospital under KRS 203.080 (repealed) for services rendered their parent. (Decided under prior law) Whalin v. Whalin's Adm'r, 266 Ky. 209 , 98 S.W.2d 501, 1936 Ky. LEXIS 636 ( Ky. 1936 ).

Neither a man who owned a $1,500 farm nor a woman who held a dower interest in the farm were destitute within the meaning of law that required support of indigent parents. (Decided under prior law) Engle v. Terrell, 281 Ky. 88 , 134 S.W.2d 980, 1939 Ky. LEXIS 11 ( Ky. 1939 ).

Law that required support of indigent parents contemplated care of a personal nature rather than professional care furnished by others, and thus did not cover hospital bills. (Decided under prior law) Woods v. Ashland Hospital Corp., 340 S.W.2d 594, 1960 Ky. LEXIS 54 ( Ky. 1960 ).

The inability to pay hospital bills did not condemn one as being destitute and indigent within the purview of law that required support of indigent parents. (Decided under prior law) Woods v. Ashland Hospital Corp., 340 S.W.2d 594, 1960 Ky. LEXIS 54 ( Ky. 1960 ).

A person with a substantial amount of unexpended capital cannot be classified as destitute or place himself in a necessitous circumstance by simply electing to preserve the principal of his estate; thus a person with an estate of over $16,000, which produced an income of $533, was not destitute. (Decided under prior law) Louisville Trust Co. v. Saunders, 374 S.W.2d 510, 1964 Ky. LEXIS 383 ( Ky. 1964 ).

Where it was evident from the record that the sole basis for denial of caretaker benefits was section 4909 of the operation manual of the Bureau of Social Insurance and not a weighing of the need of and resources available to the appellant’s mother including resources available from the appellant, and where section 4909 was not promulgated as required by KRS Chapter 13 (repealed), it had no effect and therefore could not be used as an independent basis for denying benefits. Vincent v. Conn, 593 S.W.2d 99, 1979 Ky. App. LEXIS 503 (Ky. Ct. App. 1979).

14.Venue.

Where the nonsupport first occurred in Jefferson County but the wife was taken to Knox County by her father at the husband’s instigation where the nonsupport continued, Knox County was a proper venue for prosecution. (Decided under prior law) Gregory v. Commonwealth, 444 S.W.2d 265, 1969 Ky. LEXIS 207 ( Ky. 1969 ).

Cited:

Wade v. Bondurant, 625 S.W.2d 847, 1981 Ky. LEXIS 308 ( Ky. 1981 ); Knox v. Commonwealth, 735 S.W.2d 711, 1987 Ky. LEXIS 229 ( Ky. 1987 ).

Opinions of Attorney General.

Since the purposes of the uniform enforcement of support act (KRS 407.010 , now repealed) was to provide a civil method of enforcing support obligations across jurisdictional dividing lines, it would be improper for a county attorney to convert the proceeding into a criminal one by utilizing the verified petition of nonsupport as the basis for initiation of a prosecution for nonsupport under this section. OAG 75-295 .

In order to enforce a child support order a custodial parent can make a choice as to whether to proceed in terms of a civil remedy or whether to seek prosecution. OAG 76-336 .

It would be improper to seek a warrant in the District Court under this section for nonsupport where an indictment has been returned by the grand jury and the matter is presently pending before the Circuit Court. OAG 78-479 .

The failure to pay child support on a per month or per week basis, depending upon the support order, does not constitute separate offenses, since the language of the statute provides for a violation whether one persistently fails to provide support, i.e., more than once. OAG 78-479 .

KRS 500.060(1)(a) or (e) authorize a court in this state to exercise jurisdiction over a Kentucky resident who fails to provide support to his children even though the children reside outside of Kentucky. OAG 91-152 .

The order to pay support does not have to have been issued by a Kentucky court. OAG 91-152 .

Research References and Practice Aids

Cross-References.

Uniform Interstate Family Support Act, KRS Ch. 407.

Stepparent for support furnished child, liability of, KRS 205.310 .

Kentucky Bench & Bar.

Davies, Children Born Out of Wedlock: Their Time Has Come, Volume 49, No. 2, April 1985 Ky. Bench & B. 10.

Hicks, Postminority Support for College Expenses A Moral and Legal Dilemma, Vol. 60, No. 4, Fall 1996, Ky. Bench & Bar 34.

Kentucky Law Journal.

West, Criminal Law, 74 Ky. L.J. 403 (1985-86).

Bratt, A Primer on Kentucky Intestacy Laws, 82 Ky. L.J. 29 (1993-94).

Northern Kentucky Law Review.

Schneider, A Kentucky Study of Will Provisions: Implications for Intestate Succession Law, 13 N. Ky. L. Rev. 409 (1987).

Schneider, Recommendations for Improving Kentucky’s Inheritance Laws, 22 N. Ky. L. Rev. 317 (1995).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Content Parent and Child, § 256.00.

Kentucky Instructions To Juries (Criminal), 5th Ed., General Principles, Part 1 Matters of Substance, § 1.16.

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public Order, Safety and Morals, Part 8 Family Offenses, §§ 8.102 —8.105.

Petrilli, Kentucky Family Law, Custody of Children, § 26.2.

Petrilli, Kentucky Family Law, Illegitimacy and Paternity Proceedings, § 31.8.

Petrilli, Kentucky Family Law, 1991 Supp., Marriage in General, § 1.2.

Petrilli, Kentucky Family Law, Status of Wife, § 11.2.

Petrilli, Kentucky Family Law, Support of Children (On Dissolution), § 27.13.

Petrilli, Kentucky Family Law, Support of the Family, §§ 16.1, 16.8, 16.16, 16.18.

Petrilli, Kentucky Family Law, Forms, Support of Minors, Form 6.1.

530.060. Endangering welfare of minor.

  1. A parent, guardian or other person legally charged with the care or custody of a minor is guilty of endangering the welfare of a minor when he fails or refuses to exercise reasonable diligence in the control of such child to prevent him from becoming a neglected, dependent or delinquent child.
  2. Endangering the welfare of a minor is a Class A misdemeanor.

History. Enact. Acts 1974, ch. 406, § 262, effective January 1, 1975.

NOTES TO DECISIONS

1.Duty to Disclose Conviction.

A thirty (30) day suspension from the practice of law, pending a favorable character and fitness review, was the proper penalty for attorney’s failure to disclose on his application for bar admission a prior conviction for endangering the welfare of a minor, where the conviction was sealed under former KRS 208.275(4) (now KRS 610.330(4)), and where attorney exercised diligence in attempting to ascertain his duty to report the conviction. Kentucky Bar Ass'n v. Guidugli, 967 S.W.2d 587, 1998 Ky. LEXIS 52 ( Ky. 1998 ).

Opinions of Attorney General.

The words “from becoming” as used in subsection (1) of this section clearly indicate that the child need not already have been determined to be either neglected, dependent or delinquent before a parent can be legally charged with endangering the welfare of a minor. OAG 77-520 .

The juvenile session of the district court of each county has exclusive jurisdiction alone to consider charges under this section or KRS 530.070 . OAG 77-544 .

The term “person legally charged with the care or custody of a minor” embraces not only a person, other than a parent or guardian, designated by the courts, but also embraces some person, other than a parent or guardian, to whom the parents have agreed to relinquish control and custody of their child, but not in conflict with an existing court order; thus Kentucky is not one of those states holding that an agreement by parents to transfer custody of their child to another is against public policy. OAG 83-83 .

A person, other than a parent or guardian, who voluntarily assumes the care and custody of a minor by an agreement, formal or informal, temporary or longer, with the parents of the child and prior to the court’s having an opportunity to pass on a custody issue, may be found guilty of endangering the welfare of the child if he does not exercise reasonable diligence in controlling the child to prevent the child from becoming a neglected, dependent or delinquent child. OAG 83-83 .

Contrary to the 1974 commentary to this section which stated that, in order to sustain a conviction, there must be a prior judicial finding of neglect, dependency or delinquency of the child, the office of attorney general takes the view that under the literal wording of the statute the offense takes place where the person in charge endangers the welfare of the child through improper control (lack of reasonable diligence) such as to expose the child to the potential danger of becoming a neglected, dependent or delinquent child; the obvious legislative policy is to encourage the proper and diligent raising of the child in order to prevent an ultimate or final social disaster, namely, the child’s finally becoming a neglected, dependent or delinquent child. OAG 83-83 .

“Endanger” means to expose to danger, to leave defenseless or unprotected, to put into jeopardy and clearly means an exposure to potential harm, not the actual harm which may or may not take place. OAG 83-83 .

Research References and Practice Aids

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public Order, Safety and Morals, Part 8 Family Offenses, § 8.106.

Petrilli, Kentucky Family Law, Custody of Children, § 26.2.

Petrilli, Kentucky Family Law, Illegitimacy and Paternity Proceedings, § 31.8.

Petrilli, Kentucky Family Law, Juvenile Court, §§ 32.14, 32.31.

530.064. Unlawful transaction with a minor in the first degree.

  1. A person is guilty of unlawful transaction with a minor in the first degree when he or she knowingly induces, assists, or causes a minor to engage in:
    1. Illegal sexual activity; or
    2. Illegal controlled substances activity other than activity involving marijuana or salvia, as defined in KRS 218A.010 ; Except those offenses involving minors in KRS Chapter 531 and in KRS 529.100 where that offense involves commercial sexual activity.
  2. Unlawful transaction with a minor in the first degree is a:
    1. Class C felony if the minor so used is less than eighteen (18) years old at the time the minor engages in the prohibited activity;
    2. Class B felony if the minor so used is less than sixteen (16) years old at the time the minor engages in the prohibited activity; and
    3. Class A felony if the minor so used incurs physical injury thereby.

History. Enact. Acts 1986, ch. 289, § 5, effective July 15, 1986; 1998, ch. 606, § 184, effective July 15, 1998; 2006, ch. 182, § 38, effective July 12, 2006; 2007, ch. 19, § 13, effective June 26, 2007; 2010, ch. 149, § 16, effective April 13, 2010; 2010, ch. 160, § 16, effective April 26, 2010; 2011, ch. 45, § 14, effective March 16, 2011; 2012, ch. 108, § 16, effective April 11, 2012; 2016 ch. 135, § 11, effective April 27, 2016.

NOTES TO DECISIONS

Analysis

1.Attempt.

Defendant’s verbal attempts to induce three (3) young boys to engage in sexual activity were sufficient to support a conviction for attempt to commit an unlawful transaction with a minor; because the underlying statute criminalizes “inducement,” mere words are a substantial step toward the offense and can therefore constitute an attempt. Young v. Commonwealth, 968 S.W.2d 670, 1998 Ky. LEXIS 82 ( Ky. 1998 ), overruled in part, Matthews v. Commonwealth, 163 S.W.3d 11, 2005 Ky. LEXIS 161 ( Ky. 2005 ).

Defendant believed he was dealing with a thirteen-year-old child, which was sufficient for purposes of KRS 506.010 ; any sexual activity between a forty-three year old man and a thirteen-year-old girl would have been illegal, such that the requirements of KRS 530.064 had been met. Stone v. Commonwealth, 2010 Ky. App. LEXIS 3 (Ky. Ct. App. Jan. 8, 2010).

When (1) defendant pled guilty to criminal attempt to commit first-degree unlawful transaction with a minor, under KRS 530.064(2)(a) and 506.010 (4)(d) and was placed on probation, on the condition that defendant participate in any recommended treatment, (2) it was recommended that defendant participate in a sex offender treatment program that lasted three years, and (3) the Court of Appeals reversed the trial court’s extension of defendant’s term of probation, the trial court could not revoke defendant’s probation on remand and had to deem defendant finally discharged because (1) the probation period could not exceed two years, under KRS 533.020(4), (2) defendant was not convicted of a sex crime, as criminal attempt was a separate, inchoate offense under KRS 506.010 , and only felony attempts at offenses listed in KRS 17.500(8)(a) were sex crimes under KRS 17.500(8)(b), so defendant was not statutorily required to complete sex offender treatment as a condition of probation, (3) defendant did not request or agree to an extension of defendant’s probation when accepting a plea bargain, as defendant only had to complete recommended counseling, was not told treatment would take more than two years, and, when treatment lasted more than two years, this did not trump the statutory length of misdemeanor probation in violation of the separation of powers in Ky. Const. §§ 27 and 28, (4) probation was unlawfully extended after probation expired, and (5) defendant did not violate probation. Miller v. Commonwealth, 391 S.W.3d 801, 2013 Ky. LEXIS 6 ( Ky. 2013 ).

2.Lesser Included Offenses.

Since the only element that distinguishes unlawful transaction with a minor in the first degree from sexual abuse in the first degree is the victim’s willing participation in the illegal conduct, sexual abuse in the first degree is a lesser included offense of unlawful transaction with a minor in the first degree. The trial court properly instructed the jury on sexual abuse in the first degree as a lesser included offense of unlawful transaction with a minor in the first degree where the minor victim testified to incidents that constituted sexual abuse, but where the victim did not testify to having consented or participated in the sexual activities. Combs v. Commonwealth, 193 S.W.3d 267, 2006 Ky. LEXIS 105 (Ky.), op. withdrawn, 198 S.W.3d 574, 2006 Ky. LEXIS 252 ( Ky. 2006 ).

Evidence showed that (1) a fictitious person, who had been created by volunteers of a not-for-profit organization which collaborated with law enforcement to catch internet child-predators, that defendant believed was 13 years old willingly participated in the sexually explicit chats, as well as in scheduling to meet defendant, and conversed with defendant over the telephone, and (2) defendant wanted to induce the 13-year-old to willingly engage in sexual activity, but no evidence was presented to show that defendant subjected the 13-year-old to sexual touching without her consent under KRS 510.010 ; thus, the evidence did not support an instruction on attempted sexual abuse in the second degree under KRS 510.120 as a lesser-included offense to attempted unlawful transaction with a minor in the first degree under KRS 506.010 and 530.064 . Therefore, the trial court did not err by declining to give a lesser-included offense instruction to the jury. Quist v. Commonwealth, 338 S.W.3d 778, 2010 Ky. App. LEXIS 93 (Ky. Ct. App. 2010).

3.Sufficiency of Evidence.

Since consent or participation is a required element of unlawful transaction with a minor in the first degree in violation of KRS 530.064(1), (2)(b), there was insufficient evidence to support defendant’s conviction where the minor did not testify that she consented or participated in the sexual contact. Combs v. Commonwealth, 193 S.W.3d 267, 2006 Ky. LEXIS 105 (Ky.), op. withdrawn, 198 S.W.3d 574, 2006 Ky. LEXIS 252 ( Ky. 2006 ).

In an attempted unlawful transaction with a minor in the first degree case, the evidence showed that (1) defendant made initial contact with a fictitious person, who had been created by volunteers of a not-for-profit organization which collaborated with law enforcement to catch internet child-predators, that defendant believed was 13 years old, (2) the fictitious person’s profile identified her as a 13-year-old girl, (3) defendant initiated sexually explicit chats with the fictitious 13-year-old girl, (4) he suggested meeting in-person, (5) he spoke on the telephone with a person he believed to be the 13 year old girl, and (6) he drove to what he believed to be the fictitious 13-year-old girl’s house to meet her; the fact that he was invited to come inside the fictitious 13-year-old girl’s house did not provide sufficient evidence of inducement or encouragement, in light of all the evidence, because going inside was not required to complete the crime. Thus, the trial court did not err by denying defendant’s request to instruct the jury on the defense of entrapment. Quist v. Commonwealth, 338 S.W.3d 778, 2010 Ky. App. LEXIS 93 (Ky. Ct. App. 2010).

Evidence of sexually explicit internet chats and telephone conversations between defendant and a fictitious 13-year-old girl, who had been created by volunteers of a not-for-profit organization that collaborated with law enforcement to catch internet child-predators, was sufficient for a jury to find, beyond a reasonable doubt, that defendant believed he was communicating with a 13-year-old girl, which was sufficient to support his conviction for attempted unlawful transaction with a minor in the first degree under KRS 506.010 and 530.064 and to deny his motion for a directed verdict. Quist v. Commonwealth, 338 S.W.3d 778, 2010 Ky. App. LEXIS 93 (Ky. Ct. App. 2010).

In an attempted unlawful transaction with a minor in the first degree case under KRS 506.010 and 530.064 , the trial court did not err in denying defendant’s motion for a directed verdict because (1) the Commonwealth presented evidence of the sexually explicit chats defendant engaged in with a fictitious person that he believed was 13 years old, and (2) evidence was presented that he drove to what he believed to be the residence of the 13-year-old girl in order to meet her; based on the evidence, it was not clearly unreasonable for a jury to determine that defendant intended to engage in illegal sexual activities and completed a substantial step in pursuing that intention. Quist v. Commonwealth, 338 S.W.3d 778, 2010 Ky. App. LEXIS 93 (Ky. Ct. App. 2010).

4.“Illegal sexual activity.”

Defendant was properly convicted of first-degree unlawful transaction with a minor, under KRS 530.064(1), for having sex with a minor because the statute did not require that the minor be induced to commit a crime as the “illegal sexual activity” proscribed by the statute was not limited to sexual activity committed by a minor victim that was illegal for the minor to commit and for which the minor could be sanctioned, as any overlap between the statute and other statutes prohibiting sexual abuse of a minor spoke to the wide diversity of sexual conduct the statutes were meant to regulate, leaving to prosecutorial and grand jury discretion the fitting of any charge to the conduct alleged. Hale v. Commonwealth, 396 S.W.3d 841, 2013 Ky. LEXIS 90 ( Ky. 2013 ).

Unlawful transaction with a minor pursuant to KRS 530.064 is not limited to instances where a defendant has induced a minor to commit a crime, but applies as well to inducements to engage in sexual activity made illegal by the minor’s incapacity to consent to the activity. Hale v. Commonwealth, 396 S.W.3d 841, 2013 Ky. LEXIS 90 ( Ky. 2013 ).

Cited in:

Bullitt v. Commonwealth, 595 S.W.3d 106, 2019 Ky. LEXIS 543 ( Ky. 2019 ).

Notes to Unpublished Decisions

Analysis

1.Sufficiency of Evidence.

Unpublished decision: Evidence was sufficient for a jury to believe beyond a reasonable doubt that defendant committed the offense of unlawful transaction with a minor in the first degree in violation of KRS 530.064(1) where the evidence showed that the minor victim stuck his fist in defendant’s anus at defendant’s request. Hillard v. Commonwealth, 158 S.W.3d 758, 2005 Ky. LEXIS 38 ( Ky. 2005 ).

2.“Illegal sexual activity.”

Unpublished decision: “Fisting” constitutes “illegal sexual activity,” as prohibited by KRS 530.064 , and is embraced by the provision of KRS 510.130(1)(a), which provides that a person commits the offense of sexual abuse in the third degree when he subjects another person to “sexual conduct” without the latter’s consent. “Sexual conduct,” as defined in KRS 510.010(7), includes any touching of the sexual “or other intimate parts” of a person done for the purpose of gratifying either party’s sexual desire. Hillard v. Commonwealth, 158 S.W.3d 758, 2005 Ky. LEXIS 38 ( Ky. 2005 ).

Research References and Practice Aids

Kentucky Bench & Bar.

Hunt, Human Trafficking: A Primer for Kentucky Lawyers. Vol. 73, No. 4, July 2009, Ky. Bench & Bar, 17.

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public Order, Safety and Morals, Part 8 Family Offenses, §§ 8.108, 8.111, 8.114 — 8.116.

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Related to Sex and Pornography, Part 2 Rape, § 4.23.

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Related to Sex and Pornography, Part 6 First-Degree Unlawful Transaction with a Minor, §§ 4.58, 4.59A, 4.59B.

530.065. Unlawful transaction with a minor in the second degree.

  1. A person is guilty of unlawful transaction with a minor in the second degree when he knowingly induces, assists, or causes a minor to engage in illegal controlled substances activity involving marijuana, illegal gambling activity, or any other criminal activity constituting a felony.
  2. Unlawful transaction with a minor in the second degree is a Class D felony.

History. Enact. Acts 1984, ch. 382, § 20, effective July 13, 1984; 1986, ch. 289, § 6, effective July 15, 1986; 1998, ch. 606, § 185, effective July 15, 1998; 2013, ch. 26, § 3, effective March 19, 2013; 2016 ch. 135, § 12, effective April 27, 2016.

NOTES TO DECISIONS

1.Construction.

The phrase “constituting a felony,” as used in subsection (1), does not modify all three (3) types of acts prohibited by the statute; instead, it modifies only the noun immediately preceding it, namely “criminal activity.” Smith v. Commonwealth, 41 S.W.3d 458, 2001 Ky. App. LEXIS 35 (Ky. Ct. App. 2001).

2.Evidence.

Evidence supported a conviction where the defendant, a school bus driver, allowed four (4) of his teenaged passengers to remain on the bus instead of attending school and then took the students to his own house, where he provided them with beer and marijuana. Smith v. Commonwealth, 41 S.W.3d 458, 2001 Ky. App. LEXIS 35 (Ky. Ct. App. 2001).

Research References and Practice Aids

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public Order, Safety and Morals, Part 8 Family Offenses, §§ 8.108, 8.111, 8.116.

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Related to Sex and Pornography, Part 6 First-Degree Unlawful Transaction with a Minor, §§ 4.59B, 4.60.

530.070. Unlawful transaction with a minor in the third degree.

  1. A person is guilty of unlawful transaction with a minor in the third degree when:
    1. Acting other than as a retail licensee, he knowingly sells, gives, purchases or procures any alcoholic or malt beverage in any form to or for a minor. The defendant may prove in exculpation that the sale was induced by the use of false, fraudulent, or altered identification papers or other documents and that the appearance and character of the purchaser were such that his age could not have been ascertained by any other means and that the purchaser’s appearance and character indicated strongly that he was of legal age to purchase alcoholic beverages. This subsection does not apply to a parent or guardian of the minor;
    2. He knowingly induces, assists, or causes a minor to engage in any other criminal activity;
    3. He knowingly induces, assists or causes a minor to become a habitual truant; or
    4. He persistently and knowingly induces, assists or causes a minor to disobey his parent or guardian.
  2. Unlawful transaction with a minor in the third degree is a Class A misdemeanor.

History. Enact. Acts 1974, ch. 406, § 263, effective January 1, 1975; 1978, ch. 219, § 11, effective June 17, 1978; 1984, ch. 382, § 21, effective July 13, 1984; 1986, ch. 289, § 7, effective July 15, 1986.

NOTES TO DECISIONS

Analysis

1.In General.

Department of Alcoholic Beverage Control officer’s arrest for supplying alcohol to a minor in violation of this section, which arrest was found to be defective for failing to comply with KRS 431.005 , as officer did not witness each element of the offense, did not support an action under 42 USCS § 1983, because § 1983 action depended only on whether the officer had probable cause for the arrest under the Fourth Amendment of the U.S. Constitution.Pyles v. Raisor, 60 F.3d 1211, 1995 FED App. 0228P, 1995 U.S. App. LEXIS 20249 (6th Cir. Ky. 1995 ).

A finding of malicious prosecution by a school administrator against a father was reversed because the administrator alleged in his criminal complaint merely that the father had failed to send the child to school, not that he had induced the child to engage in sexual activity; the sexual misconduct charges were rather filed by the County Attorney. Collins v. Williams, 10 S.W.3d 493, 1999 Ky. App. LEXIS 94 (Ky. Ct. App. 1999).

2.Instructions.

In the prosecution of a mother for unlawful transaction with a minor in the third degree as a result of her children’s habitual truancy, the failure of the court to include a formal definition of the term “habitual truancy” was harmless error as “truant” was a term of common usage which the jury could be expected to understand without a formal definition and the jury did not evidence any lack of understanding of the term “habitual truant.” Commonwealth v. Hager, 35 S.W.3d 377, 2000 Ky. App. LEXIS 121 (Ky. Ct. App. 2000).

Cited:

Board of Education v. Wood, 717 S.W.2d 837, 1986 Ky. LEXIS 306 ( Ky. 1986 ).

Notes to Unpublished Decisions

1.Negligence per se.

Unpublished decision: Neither a national social fraternity nor individual local chapter members were negligent per se under KRS 530.070 and § 244.085 in connection with the death of a college student by a drunk fraternity member because there was no evidence that the national fraternity knowingly induced, assisted, or caused the drunk member to possess alcohol, and none of the members of the fraternity gave the drunk member alcohol. Shaheen v. Yonts, 394 Fed. Appx. 224, 2010 FED App. 0581N, 2010 U.S. App. LEXIS 18461 (6th Cir. Ky. 2010 ).

Opinions of Attorney General.

In a prosecution of an adult under this section, it is not necessary to establish that the minor involved has committed delinquent acts, has been adjudged a delinquent, or has been charged with a crime but only that the adult has committed any of the prohibited acts of this section. OAG 75-330 .

An adult who permits a juvenile to operate a motor vehicle without an operator’s license may be proceeded against directly under KRS 186.620 or under this section in juvenile court for having an unlawful transaction with a minor and it is not necessary that the juvenile have been proceeded against in juvenile court. OAG 75-563 .

A charge under subsection (1)(c) of this section requires proof of habitual truancy that is not required to be proved to establish a charge under KRS 159.990(1) and therefore a parent or legal guardian could be charged and punished under KRS 159.990(1) and also under this section and a prosecution under one of these sections would not be a bar to a prosecution under the other. OAG 77-514 .

Not only can the director of pupil personnel be directed to institute proceedings charging the parents of a child who has been habitually truant from public schools and the parents of a child who has been attending an unapproved private or parochial school under subsection (1) (c) of this section, but he can also be directed by the local superintendent, the local board of education, or the State Board of Education to institute proceedings under such subsection against those individuals in charge of the public or parochial school the child is attending and the burden of proof would be to show beyond a reasonable doubt that the individual or individuals in charge of the unapproved school “knowingly induced, assisted or caused” the child attending such school to become habitually truant from the public common schools. OAG 77-514 .

A minor may be charged with unlawful transaction with another minor under this section. OAG 82-624 .

Even though confidentiality of proceedings against a juvenile is the rule when the matter is to be adjudicated under the provisions of KRS 208.060 (repealed), if a juvenile charged with violating this section would desire a trial by jury, KRS 208.020(6) (repealed) mandates that a trial by jury be provided. OAG 82-624 .

Violation of this section is a Class A misdemeanor; however, a juvenile adjudicated beyond a reasonable doubt of having committed an unlawful transaction with a minor must be dealt with by the juvenile court under KRS 208.200 (repealed), which may include subsections (4), (5) and (6) if the child adjudicated of violating this section is 16 years of age or older. OAG 82-624 .

A parent, legal guardian, or other person exercising custodial control or supervision may be charged with the misdemeanor of unlawful transaction with a minor pursuant to this section if the situation of habitual truancy of the child develops. OAG 87-40 .

KRS 244.080 appears to be directed more toward retail businesses, while this section appears to be directed toward private persons acting in their private capacities. OAG 91-51 .

Research References and Practice Aids

Cross-References.

Distribution of obscene matter to and by minors, KRS 531.030 , 531.040 .

Pawnbrokers not to receive articles from minors, KRS 226.030 .

Sale of alcoholic beverages to minors by retailer, KRS 244.080 .

Northern Kentucky Law Review.

Comments, Separation of Church and State: Education and Religion in Kentucky, 6 N. Ky. L. Rev. 125 (1979).

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context Parent and Child, § 256.00.

Kentucky Instructions To Juries (Criminal), 5th Ed., Controlled Substances, Part 5 Alcoholic Beverages, § 9.39.

Kentucky Instructions To Juries (Criminal), 5th Ed., General Principles, Part 1 Matters of Substance, §§ 1.03, 1.16.

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public Order, Safety and Morals, Part 8 Family Offenses, §§ 8.108 — 8.113.

Petrilli, Kentucky Family Law, Illegitimacy and Paternity Proceedings, § 31.8.

Petrilli, Kentucky Family Law, Juvenile Court, §§ 32.14, 32.31.

530.080. Endangering the welfare of an incompetent person.

  1. A person is guilty of endangering the welfare of an incompetent person when he knowingly acts in a manner which results in an injury to the physical or mental welfare of a person who is unable to care for himself because of mental illness or intellectual disability.
  2. Endangering the welfare of an incompetent person is a Class A misdemeanor.

History. Enact. Acts 1974, ch. 406, § 264, effective January 1, 1975; 1988, ch. 283, § 15, effective July 15, 1988; 2012, ch. 146, § 131, effective July 12, 2012.

NOTES TO DECISIONS

Cited:

Bartley v. Commonwealth, 400 S.W.3d 714, 2013 Ky. LEXIS 291 ( Ky. 2013 ).

Research References and Practice Aids

Cross-References.

Sexual offenses against incompetent persons, KRS 510.010 to 510.140 .

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public Order, Safety and Morals, Part 8 Family Offenses, § 8.107.

CHAPTER 531 Pornography

531.010. Definitions.

As used in this chapter:

  1. “Distribute” means to transfer possession of, whether with or without consideration.
  2. “Matter” means any book, magazine, newspaper, or other printed or written material or any picture, drawing, photograph, motion picture, live image transmitted over the Internet or other electronic network, or other pictorial representation or any statue or other figure, or any recording transcription or mechanical, chemical or electrical reproduction or any other articles, equipment, machines, or materials.
  3. “Obscene” means:
    1. To the average person, applying contemporary community standards, the predominant appeal of the matter, taken as a whole, is to prurient interest in sexual conduct; and
    2. The matter depicts or describes the sexual conduct in a patently offensive way; and
    3. The matter, taken as a whole, lacks serious literary, artistic, political, or scientific value.
  4. “Private erotic matter” means an obscene visual image, including a photograph, film, video recording, or digital reproduction, of an identifiable person, depicting sexual conduct or the exposure of uncovered human genitals, buttocks, or nipple of the female breast. A person may be identifiable from the image itself or from information distributed in connection with the visual image.
  5. “Sexual conduct” means acts of masturbation, homosexuality, lesbianism, bestiality, sexual intercourse, or deviant sexual intercourse; or physical contact with the genitals, flagellation, or excretion for the purpose of sexual stimulation or gratification.

HISTORY: Enact. Acts 1974, ch. 406, § 265, effective January 1, 1975; 2009, ch. 100, § 3, effective June 25, 2009; 2018 ch. 50, § 1, effective July 14, 2018.

NOTES TO DECISIONS

1.Constitutionality.

Although the definition of obscenity contained in former obscenity law did not explicitly require that the material be utterly without redeeming social value, it conformed to the definition of obscenity approved by U.S. Supreme Court and was constitutional on its face. (Decided under prior law) Cambist Films, Inc. v. Tribell, 293 F. Supp. 407, 1968 U.S. Dist. LEXIS 8099 (E.D. Ky. 1968 ).

Former obscenity law was not constitutionally infirm by reason of its failure to require that material be “utterly without redeeming social value” before falling within its proscription. (Decided under prior law) Smith v. Commonwealth, 465 S.W.2d 918, 1971 Ky. LEXIS 470 ( Ky. 1971 ); Hayes v. Commonwealth, 470 S.W.2d 601, 1971 Ky. LEXIS 278 ( Ky. 1971 ).

The former obscenity law was not unconstitutional under the First and Fourteenth Amendments to the U.S. Constitution since the defendant was forewarned in sufficiently specific terms that the depiction of actual sexual conduct in the film “Deep Throat” was proscribed as hard core pornography. (Decided under prior law) Western Corp. v. Commonwealth, 558 S.W.2d 605, 1977 Ky. LEXIS 540 ( Ky. 1977 ).

2.Construction.

Even though the constitutional standards defining obscenity were not literally incorporated into the former obscenity law, those standards are to be implied whenever the statute is applied. (Decided under prior law) Smith v. Commonwealth, 465 S.W.2d 918, 1971 Ky. LEXIS 470 ( Ky. 1971 ).

Under the former obscenity law, each proven occurrence of the showing of an obscene motion picture was a separate violation of law and was punishable as such. (Decided under prior law) Western Corp. v. Commonwealth, 558 S.W.2d 605, 1977 Ky. LEXIS 540 ( Ky. 1977 ).

3.Destruction of Obscene Material.

Under the former statute, the trial judge properly ordered the destruction of an obscene film after the accused theater owner was convicted of violating the obscenity law. (Decided under prior law) Western Corp. v. Commonwealth, 558 S.W.2d 605, 1977 Ky. LEXIS 540 ( Ky. 1977 ).

4.Freedom of Speech and Press.

Conviction for offering obscene literature for sale affirmed by Kentucky Court of Appeals was reversed as offending the First and Fourteenth Amendments of the federal Constitution. (Decided under prior law) Austin v. Commonwealth, 386 S.W.2d 270, 1965 Ky. LEXIS 498 ( Ky. 1965 ), rev'd, 386 U.S. 767, 87 S. Ct. 1414, 18 L. Ed. 2d 515, 1967 U.S. LEXIS 1571 (U.S. 1967).

5.Indictment.

Indictment must set out the writing on which the indictment is founded, unless lost or destroyed or in possession of accused, or is too obscene to be perpetuated as a record of the court, in which case the indictment must so allege. (Decided under prior law) Kinnaird v. Commonwealth, 134 Ky. 575 , 121 S.W. 489, 1909 Ky. LEXIS 422 ( Ky. 1909 ).

Indictment charging defendant with offense of having in his possession with intent to sell, lend, give away or show obscene magazines of an indecent character in violation of former obscenity statute charged but one offense. (Decided under prior law) King v. Commonwealth, 313 Ky. 741 , 233 S.W.2d 522, 1950 Ky. LEXIS 977 ( Ky. 1950 ).

6.Newspapers.

However clean and pure the matter contained in a newspaper may generally be, yet, if it should in a single issue print an indecent or filthy article, it would be subject to indictment. (Decided under prior law) Commonwealth v. Herald Pub. Co., 128 Ky. 424 , 108 S.W. 892, 32 Ky. L. Rptr. 1293 , 1908 Ky. LEXIS 79 ( Ky. 1908 ).

The same strict rule should not be applied to a daily newspaper as to printed publication in form of books or pamphlets wholly or in greater part devoted to treatment of lewd or scandalous subjects, or to single or isolated articles designed to call public attention to indecent transactions. (Decided under prior law) Commonwealth v. Herald Pub. Co., 128 Ky. 424 , 108 S.W. 892, 32 Ky. L. Rptr. 1293 , 1908 Ky. LEXIS 79 ( Ky. 1908 ).

7.Obscene.

The dissemination of a particular work which is alleged to be obscene should be completely undisturbed until an independent determination of obscenity has been made by a judicial officer, including an adversary hearing. (Decided under prior law) Cambist Films, Inc. v. Tribell, 293 F. Supp. 407, 1968 U.S. Dist. LEXIS 8099 (E.D. Ky. 1968 ).

Where publication is of such character as to raise a doubt in the mind of an ordinary upright, well-balanced person as to whether it is obscene or indecent within meaning of former obscenity statute, the question should be submitted to jury. (Decided under prior law) King v. Commonwealth, 313 Ky. 741 , 233 S.W.2d 522, 1950 Ky. LEXIS 977 ( Ky. 1950 ).

The court properly overruled the defendant’s motion for a directed verdict of acquittal at the close of the prosecution’s evidence where the court determined as a matter of law that the publication demonstrated on its face that it possessed no redeeming social value. (Decided under prior law) Smith v. Commonwealth, 465 S.W.2d 918, 1971 Ky. LEXIS 470 ( Ky. 1971 ).

Magazines containing photographs of females in various states of undress with primary emphasis in each photograph upon the naked female pubic area were obscene. (Decided under prior law) Hayes v. Commonwealth, 470 S.W.2d 601, 1971 Ky. LEXIS 278 ( Ky. 1971 ).

The movie, “Deep Throat,” which contained repeated scenes of actual sexual intercourse, anal sodomy, fellatio and cunnilingus, had no serious literary, artistic, political or scientific value and was therefore obscene and violative of contemporary community standards. (Decided under prior law) Western Corp. v. Commonwealth, 558 S.W.2d 605, 1977 Ky. LEXIS 540 ( Ky. 1977 ).

8.— Contemporary Standards.

There was no need for a prior adversary hearing in the area to determine contemporary standards applied by the average person in the community. (Decided under prior law) Smith v. Commonwealth, 465 S.W.2d 918, 1971 Ky. LEXIS 470 ( Ky. 1971 ).

Opinions of Attorney General.

The general assembly has, by enacting KRS Chapter 531, preempted the field of legislation on pornography and the fiscal courts cannot enact pornography or obscenity laws. OAG 81-417 .

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Ashdown, Criminal Law, 64 Ky. L.J. 337 (1975-76).

Notes, The Civil Rights Pornography Ordinances — An Examination Under the First Amendment, 73 Ky. L.J. 1081 (1984-85).

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Related to Sex and Pornography, Part 1 Definitions, §§ 4.11 — 4.13A.

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Related to Sex and Pornography, Part 8 Obscenity, §§ 4.82, 4.83, 4.84E.

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Related to Sex and Pornography, Part 9 Sexual Exploitation of Minors, §§ 4.93, 4.96E, 4.98.

531.020. Distribution of obscene matter.

  1. A person is guilty of distribution of obscene matter when, having knowledge of its content and character, he:
    1. Sends or causes to be sent into this state for sale or distribution; or
    2. Brings or causes to be brought into this state for sale or distribution; or
    3. In this state, he:
      1. Prepares, or
      2. Publishes, or
      3. Prints, or
      4. Exhibits, or
      5. Distributes, or
      6. Offers to distribute, or
      7. Has in his possession with intent to distribute, exhibit or offer to distribute,

        any obscene matter.

  2. Distribution of obscene matter is a Class B misdemeanor unless the defendant has in his possession more than one unit of material coming within the provisions of this chapter, in which case it shall be a Class A misdemeanor.

History. Enact. Acts 1974, ch. 406, § 266, effective January 1, 1975.

NOTES TO DECISIONS

1.Civil Actions.

Permanent injunction of defendants from violating former obscenity laws was proper as a civil remedy for abating the use of property as a nuisance, but permanently enjoining defendants from engaging in business of selling movies or written materials in Louisville or Jefferson County was error. (Decided under prior law) Hall v. Commonwealth, 505 S.W.2d 166, 1974 Ky. LEXIS 764 ( Ky. 1974 ).

2.Evidence.

Evidence that accused had in his possession with intent to sell, lend, or show magazines containing numerous photographs of men, women and children working, playing and eating together in the nude was sufficient to take case to jury and to support conviction for violation of former obscenity statute. (Decided under prior law) King v. Commonwealth, 313 Ky. 741 , 233 S.W.2d 522, 1950 Ky. LEXIS 977 ( Ky. 1950 ).

3.Instructions.

An instruction to the jury that it must find beyond a reasonable doubt that the accused “had knowledge” of the obscenity of the material before any finding of guilt could be had was as favorable to the defendant as required. (Decided under prior law) Smith v. Commonwealth, 465 S.W.2d 918, 1971 Ky. LEXIS 470 ( Ky. 1971 ).

The court did not have to instruct the jury that it must find the matter utterly lacking in redeeming social value as a prerequisite to conviction where the court had already made such a determination as a matter of law. (Decided under prior law) Smith v. Commonwealth, 465 S.W.2d 918, 1971 Ky. LEXIS 470 ( Ky. 1971 ).

The trial judge’s failure to instruct on the required element of knowledge, which is a part of the statutorily created offense, was an error. (Decided under prior law) Keene v. Commonwealth, 516 S.W.2d 852, 1974 Ky. LEXIS 176 ( Ky. 1974 ).

4.Private Letters.

Law that provided any person who with knowledge of contents or character sold, gave away or showed obscene material or drew, printed or uttered such material did not apply to a letter sent by one to another and intended to be private and personal. (Decided under prior law) Kinnaird v. Commonwealth, 134 Ky. 575 , 121 S.W. 489, 1909 Ky. LEXIS 422 ( Ky. 1909 ).

5.Qualified Immunity.

In suit for malicious prosecution, abuse of process and defamation, federal postal inspector, state police detective and Commonwealth prosecutor were entitled to qualified immunity from liability as the broad range of reasonable professional judgment was not exceeded by their actions with respect to an investigation of couple’s activities involving child pornography where mother had sent a postcard depicting her daughter seated on father’s lap with her dress arranged so that her unclothed genital area was clearly visible. Greene v. Reeves, 80 F.3d 1101, 1996 FED App. 0114P, 1996 U.S. App. LEXIS 6603 (6th Cir. Ky. 1996 ).

Cited:

Heflin v. Commonwealth, 689 S.W.2d 621, 1985 Ky. App. LEXIS 722 (Ky. Ct. App. 1985); Paducah v. Investment Entertainment, Inc., 791 F.2d 463, 1986 U.S. App. LEXIS 25403 (6th Cir. 1986).

Research References and Practice Aids

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Related to Sex and Pornography, Part 8 Obscenity, §§ 4.75 — 4.78, 4.82.

531.030. Distribution of obscene matter to minors.

  1. A person is guilty of distribution of obscene material to minors when, knowing a person to be a minor, or having possession of such facts that he should reasonably know that such person is a minor, and with knowledge of the content and character of the material, he knowingly:
    1. Sends or causes to be sent; or
    2. Exhibits; or
    3. Distributes, or offers to distribute,

      obscene material to a minor.

  2. Distribution of obscene materials to minors is a Class A misdemeanor unless the defendant has previously been convicted of violation of this section or of KRS 531.020 , in which case it shall be a Class D felony.

History. Enact. Acts 1974, ch. 406, § 267, effective January 1, 1975.

Research References and Practice Aids

Cross-References.

Unlawful transactions with minors, KRS 530.070 .

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Related to Sex and Pornography, Part 8 Obscenity, § 4.81.

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Related to Sex and Pornography, Part 9 Sexual Exploitation of Minors, § 4.98.

531.040. Using minors to distribute obscene material.

  1. A person is guilty of using minors to distribute obscene material when knowing a person to be a minor, or having possession of such facts that he should reasonably know such person is a minor, and knowing of the content and character of the material, he knowingly:
    1. Hires; or
    2. Employs; or
    3. Uses, a minor to do or assist in doing any of the acts prohibited by KRS 531.020 .
  2. Using minors to distribute obscene material is a Class A misdemeanor unless the defendant has previously been convicted of violation of this section or KRS 531.030 , in which case it shall be a Class D felony.

History. Enact. Acts 1974, ch. 406, § 268, effective January 1, 1975.

Research References and Practice Aids

Cross-References.

Unlawful transactions with minors, KRS 530.070 .

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Related to Sex and Pornography, Part 8 Obscenity, § 4.82.

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Related to Sex and Pornography, Part 9 Sexual Exploitation of Minors, § 4.98.

531.050. Advertising obscene material.

  1. A person is guilty of advertising obscene material when, having knowledge of its content and character thereof, he writes or creates advertising or solicits anyone to publish such advertising or otherwise promotes the sale or distribution of obscene matter.
  2. Advertising obscene material is a Class B misdemeanor.

History. Enact. Acts 1974, ch. 406, § 269, effective January 1, 1975.

Research References and Practice Aids

Cross-References.

Motion picture rating, inclusion in any motion picture advertising placed or accepted, KRS 436.575 .

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Related to Sex and Pornography, Part 8 Obscenity, § 4.83.

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Related to Sex and Pornography, Part 9 Sexual Exploitation of Minors, § 4.97.

531.060. Promoting sale of obscenity.

  1. A person is guilty of promoting sale of obscenity when he knowingly, as a condition to a sale, allocation, consignment, or delivery for resale of any paper, magazine, book, periodical, publication or other merchandise, requires that the purchaser or consignee receive any matter reasonably believed by the purchaser or consignee to be obscene, or he denies or threatens to deny a franchise, revokes or threatens to revoke, or imposes any penalty, financial or otherwise, by reason of the failure of any person to accept such matter, or by reason of the return of such matter.
  2. Promoting sale of obscenity is a Class B misdemeanor for the first offense, a Class A misdemeanor for the second offense, and a Class D felony for each subsequent offense.

History. Enact. Acts 1974, ch. 406, § 270, effective January 1, 1975.

Research References and Practice Aids

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Related to Sex and Pornography, Part 8 Obscenity, §§ 4.84A — 4.84E.

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Related to Sex and Pornography, Part 9 Sexual Exploitation of Minors, § 4.96E.

531.070. Exemptions.

The prohibitions and penalties imposed in this chapter shall not extend to persons having a bona fide scientific, educational, governmental, or other similar justification for conduct which would, except for such justification, be criminal under this chapter.

History. Enact. Acts 1974, ch. 406, § 271, effective January 1, 1975.

531.080. Special verdict.

  1. The jury, or the court, if a jury trial is waived, shall render a general verdict, and shall also render a special verdict as to whether the matter named in the charge is obscene. The special verdict or findings on the issue of obscenity may be: “We find the  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  (title or description of matter) to be obscene,” or, “We find the  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  (title or description of matter) not to be obscene,” as they may find each item is or is not obscene.
  2. Whenever a person is tried for distribution of matter portraying a sexual performance by a minor, the jury, or the court, if a jury trial is waived, shall render a special verdict as to whether the matter named in the charge portrays a sexual performance by a minor. The special verdict or findings on the issue of whether or not the matter portrays a sexual performance by a minor may be: “We find the  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  (title or description of matter) to portray a sexual performance by a minor,” or, “We find the  . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .  (title or description of matter) not to portray a sexual performance by a minor,” as they may find each item to portray or not to portray a sexual performance by a minor.
  3. Upon the conviction of the accused, the court may, when the conviction becomes final, order any matter or advertisement, in respect whereof the accused stands convicted, and which remains in the possession or under the control of the Attorney General, Commonwealth’s attorney, county attorney, city attorney or their authorized assistants, or any law enforcement agency, to be destroyed, and the court may cause to be destroyed any such material in its possession or under its control.

History. Enact. Acts 1974, ch. 406, § 272, effective January 1, 1975; 1978, ch. 219, § 8, effective June 17, 1978.

Research References and Practice Aids

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Related to Sex and Pornography, Part 8 Obscenity, §§ 4.76, 4.79, 4.81 — 4.83.

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Related to Sex and Pornography, Part 9 Sexual Exploitation of Minors, §§ 4.93, 4.94, 4.96E, 4.97 — 4.99.

531.090. Voyeurism.

  1. A person is guilty of voyeurism when:
    1. He or she intentionally:
      1. Uses or causes the use of any camera, videotape, photooptical, photoelectric, or other image recording device for the purpose of observing, viewing, photographing, filming, or videotaping the sexual conduct, genitals, an undergarment worn without being publicly visible, or nipple of the female breast of another person without that person’s consent; or
      2. Uses the unaided eye or any device designed to improve visual acuity for the purpose of observing or viewing the sexual conduct, genitals, an undergarment worn without being publicly visible, or nipple of the female breast of another person without that person’s consent; or
      3. Enters or remains unlawfully in or upon the premises of another for the purpose of observing or viewing the sexual conduct, genitals, an undergarment worn without being publicly visible, or nipple of the female breast of another person without the person’s consent; and
    2. The other person is in a place where a reasonable person would believe that his or her sexual conduct, genitals, undergarments, or nipple of the female breast will not be observed, viewed, photographed, filmed, or videotaped without his or her knowledge.
  2. The provisions of subsection (1) of this section shall not apply to:
    1. A law enforcement officer during a lawful criminal investigation; or
    2. An employee of the Department of Corrections, the Department of Juvenile Justice, a private prison, a local jail, or a local correctional facility whose actions have been authorized for security or investigative purposes.
  3. Unless objected to by the victim or victims of voyeurism, the court on its own motion or on motion of the Commonwealth’s attorney shall:
    1. Order the sealing of all photographs, film, videotapes, or other images that are introduced into evidence during a prosecution under this section or are in the possession of law enforcement, the prosecution, or the court as the result of a prosecution under this section; and
    2. At the conclusion of a prosecution under this section, unless required for additional prosecutions, order the destruction of all of the photographs, film, videotapes, or other images that are in possession of law enforcement, the prosecution, or the court.
  4. Voyeurism is a Class A misdemeanor.

History. Enact. Acts 2002, ch. 336, § 1, effective July 15, 2002; 2014, ch. 72, § 1, effective July 15, 2014.

NOTES TO DECISIONS

1.Lesser Included Offenses.

Trial court’s denial of defendant’s request to instruct the jury on voyeurism, under KRS 531.090(1), as a lesser included offense of burglary under KRS 511.020(1), was not error, as voyeurism was not a lesser included offense of burglary where proof of the fact that defendant entered or remained unlawfully for the purpose of viewing another individual’s body or sexual conduct was not a required element of burglary. Morgan v. Commonwealth, 189 S.W.3d 99, 2006 Ky. LEXIS 12 ( Ky. 2006 ), overruled, Shane v. Commonwealth, 243 S.W.3d 336, 2007 Ky. LEXIS 262 ( Ky. 2007 ), overruled in part, Roe v. Commonwealth, 2015 Ky. LEXIS 2080 (Ky. Sept. 24, 2015).

Research References and Practice Aids

Caldwell’s Kentucky Form Book, 5th Ed., Complaint for Intrusion — Hidden Camera, Form 128.01.

531.100. Video voyeurism.

  1. A person is guilty of video voyeurism when he or she intentionally:
    1. Uses or causes the use of any camera, videotape, photooptical, photoelectric, or other image recording device for the purpose of observing, viewing, photographing, filming, or videotaping the sexual conduct, genitals, or nipple of the female breast of another person without that person’s consent; and
    2. Uses or divulges any image so obtained for consideration; or
    3. Distributes any image so obtained by live or recorded visual medium, electronic mail, the Internet, or a commercial on-line service.
  2. Video voyeurism is a Class D felony.

History. Enact. Acts 2002, ch. 149, § 1, effective July 15, 2002.

531.105. Application of KRS 531.100.

The provisions of KRS 531.100 shall not apply to the transference of prohibited images by a telephone company, a cable television company or any of its affiliates, an Internet provider, or a commercial on-line service provider, or to the carrying, broadcasting, or performing of related activities in providing telephone, cable television, Internet, or commercial on-line services.

History. Enact. Acts 2002, ch. 149, § 2, effective July 15, 2002.

531.110. Sealing and destruction of images in cases of video voyeurism.

Unless objected to by the victim or victims of the video voyeurism, the court, on its own motion, or on motion of the attorney for the Commonwealth shall:

  1. Order all photographs, film, videotapes, or other images that are introduced into evidence or are in the possession of law enforcement, the prosecution, or the court to be sealed; and
  2. At the conclusion of the case, unless required for additional prosecutions, order all of the photographs, film, videotapes, or other images that are in the possession of law enforcement, the prosecution, or the court to be destroyed.

History. Enact. Acts 2002, ch. 149, § 3, effective July 15, 2002.

531.120. Distribution of sexually explicit images without consent.

  1. A person is guilty of distribution of sexually explicit images without consent when:
    1. He or she intentionally distributes to any third party private erotic matter without the written consent of the person depicted, and does so with the intent to profit, or to harm, harass, intimidate, threaten, or coerce the person depicted; and
    2. The disclosure would cause a reasonable person to suffer harm.
  2. This section shall not apply to:
    1. Images involving voluntary nudity or sexual conduct in public, commercial settings, or in a place where a person does not have a reasonable expectation of privacy;
    2. Disclosures made in the public interest, including the reporting of unlawful conduct, or lawful and common practices of law enforcement, criminal reporting, corrections, legal proceedings, or medical treatment;
    3. Disclosures of materials that constitute a matter of public concern; or
    4. Internet service providers or telecommunications services, or interactive computer services, as defined in 47 U.S.C. sec. 230(f)(2) , for content solely provided by another person.
  3. A person who maintains an Internet Web site, online service, online application, or mobile application that distributes private erotic matter shall remove any such image if requested by a person depicted, and shall not solicit or accept a fee or other consideration to remove the visual image.
  4. Distribution of sexually explicit images without consent is a Class A misdemeanor for the first offense and a Class D felony for each subsequent offense, unless the person distributes the private erotic matter for profit or gain, in which case it is a Class D felony for the first offense and a Class C felony for each subsequent offense.
  5. In this section, “consent” means the consent to transmission of images to a specific recipient or recipients. Consent to the creation of the visual image does not, by itself, constitute consent to the distribution of the visual image.
  6. Notwithstanding KRS 17.500 to 17.580 , a conviction under this section shall not result in the offender being deemed a registrant or being required to register as a sex offender.

HISTORY: 2018 ch. 50, § 2, effective July 14, 2018.

Sexual Exploitation of Minors

531.300. Definitions for KRS 531.080 and 531.310 to 531.370.

As used in KRS 531.080 and 531.310 to 531.370 :

  1. “Distribute” means to transfer possession of, whether with or without consideration;
  2. “Matter” means any book, magazine, newspaper, or other printed or written material or any picture, drawing, photograph, motion picture, live image transmitted over the Internet or other electronic network, or other pictorial representation or any statue or other figure, or any recording transcription or mechanical, chemical or electrical reproduction or any other articles, equipment, machines, or materials;
  3. “Obscene” means the predominate appeal of the matter taken as a whole is to a prurient interest in sexual conduct involving minors;
  4. “Sexual conduct by a minor” means:
    1. Acts of masturbation, homosexuality, lesbianism, beastiality, sexual intercourse, or deviant sexual intercourse, actual or simulated;
    2. Physical contact with, or willful or intentional exhibition of the genitals;
    3. Flagellation or excretion for the purpose of sexual stimulation or gratification; or
    4. The exposure, in an obscene manner, of the unclothed or apparently unclothed human male or female genitals, pubic area or buttocks, or the female breast, whether or not subsequently obscured by a mark placed thereon, or otherwise altered, in any resulting motion picture, photograph or other visual representation, exclusive of exposure portrayed in matter of a private, family nature not intended for distribution outside the family;
  5. “Performance” means any play, motion picture, photograph or dance. Performance also means any other visual representation exhibited before an audience;
  6. “Sexual performance” means any performance or part thereof which includes sexual conduct by a minor; and
  7. “Promote” means to prepare, publish, print, procure or manufacture, or to offer or agree to do the same.

History. Enact. Acts 1978, ch. 219, § 2, effective June 17, 1978; 1986, ch. 439, § 6, effective July 15, 1986; 2009, ch. 100, § 4, effective June 25, 2009.

NOTES TO DECISIONS

1.Constitutionality.

This section, when read as a whole and coupled with a reference to any standard dictionary, should provide the ordinary person of common sense a clear enough indication of the type of acts prohibited; accordingly, this section is not sufficiently vague or overbroad so as to violate Ky. Const., §§ 8 and 11, or the U.S. Const., Amends. 1 and 14. Payne v. Commonwealth, 623 S.W.2d 867, 1981 Ky. LEXIS 286 ( Ky. 1981 ), cert. denied, 456 U.S. 909, 102 S. Ct. 1758, 72 L. Ed. 2d 167, 1982 U.S. LEXIS 1573 (U.S. 1982).

Because the prohibition against “sexual conduct by a minor” is directed at forbidding child pornography, the state is not required to limit that prohibition to obscene conduct, as defined in Miller v. California, 413 U.S. 15, 93 S. Ct. 2607, 37 L. Ed. 2d 419, 1973 U.S. LEXIS 149 (1973); thus, the definition of “obscene” in subsection (3) is constitutional under the First Amendment. Logston v. Commonwealth, 973 S.W.2d 70, 1998 Ky. App. LEXIS 2 (Ky. Ct. App. 1998).

Language of KRS 531.300(4)(b) provides adequate notice to a person of ordinary intelligence of what conduct is prohibited and, thus, is not void for vagueness. Purcell v. Commonwealth, 149 S.W.3d 382, 2004 Ky. LEXIS 286 ( Ky. 2004 ).

While KRS 531.300(4)(b) was not unconstitutional “as applied” to a defendant charged with taking nude photos of a friend’s 13-year-old son, it was facially overbroad because its very existence could cause others not before the court to refrain from constitutionally protected speech or expression. Purcell v. Commonwealth, 149 S.W.3d 382, 2004 Ky. LEXIS 286 ( Ky. 2004 ).

KRS 531.300(4)(b) does not contain an exemption, as does KRS 531.300(4)(d), for visual reproductions of a private, family nature not intended for distribution outside the family, nor does it contain an exemption, as do other state statutes, for visual reproductions that are created with the permission of the child’s parents and are not obscene, lewd, or designed for the purpose of sexual stimulation of the viewer. It facially criminalizes every instance in which a child is photographed while willfully and intentionally exhibiting his or her genitals, and since mere nudity enjoys First Amendment protection, KRS 531.300(4)(b) as written is facially overbroad and, thus, unconstitutional; however, that does not require the Supreme Court of Kentucky to invalidate the statute. Purcell v. Commonwealth, 149 S.W.3d 382, 2004 Ky. LEXIS 286 ( Ky. 2004 ).

KRS 531.300(4)(b) defining “sexual conduct by a minor” is a willful or intentional exhibition of the genitals only when such exhibition is lewd. Under that construction, the statute does not suffer from unconstitutional overbreadth. Purcell v. Commonwealth, 149 S.W.3d 382, 2004 Ky. LEXIS 286 ( Ky. 2004 ).

2.Purpose.

The primary purpose of the Kentucky statute relating to sexual exploitation of minors (this section to KRS 531.370 ) is clearly to protect children from the conduct of being used in a sexual performance. Payne v. Commonwealth, 623 S.W.2d 867, 1981 Ky. LEXIS 286 ( Ky. 1981 ), cert. denied, 456 U.S. 909, 102 S. Ct. 1758, 72 L. Ed. 2d 167, 1982 U.S. LEXIS 1573 (U.S. 1982).

Legislative intent was to exclude from KRS 531.300(4)(b) those situations where a defendant filmed or photographed a nude child without the child’s knowledge. If the child is unaware that his or her genitals are being photographed, there is no offense under KRS Chapter 531 unless the photograph is obscene as defined in KRS 531.300(3); but if the child intentionally poses for a nude “performance,” whether voluntarily or whether induced or forced, the element of obscenity is not required because in that instance, it is the abuse of the child, not the obscenity, that is the primary evil to be proscribed. Purcell v. Commonwealth, 149 S.W.3d 382, 2004 Ky. LEXIS 286 ( Ky. 2004 ).

3.Sexual Conduct by a Minor.

Former subdivisions (3)(a) and (3)(c), together with subdivision (3)(b), must be considered in determining whether the exhibition of male or female genitals or nudity constitutes “sexual conduct by a minor”; accordingly, in a prosecution based on the defendant’s act of videotaping a sexual performance by boys under the age of 16, the exhibition or exposure of the unclothed human male or female genitals, pubic area or buttocks, or the female breast, as included in subdivisions (4)(b) and (4)(d), was obscene and sexual conduct under the statute. (Decided prior to the 1986 amendment)Payne v. Commonwealth, 623 S.W.2d 867, 1981 Ky. LEXIS 286 ( Ky. 1981 ), cert. denied, 456 U.S. 909, 102 S. Ct. 1758, 72 L. Ed. 2d 167, 1982 U.S. LEXIS 1573 (U.S. 1982).

To the extent that KRS 531.310 or KRS 531.320 read in conjunction with subsection (4)(b) of this section might be said to make a crime of the depiction of mere nudity of a minor, it would certainly run afoul of the First Amendment. However, if the definition of “sexual conduct by a minor” is unconstitutional only because it includes “willful or intentional exhibition of the genitals,” there is no reason why the remainder of the statutory definition should not stand and KRS 531.310 and KRS 531.320 be interpreted accordingly. Mattingly v. Commonwealth, 878 S.W.2d 797, 1993 Ky. App. LEXIS 183 (Ky. Ct. App. 1993).

KRS 531.300(4)(b) requires that the “willful or intentional exhibition of the genitals” be in a lewd manner in order to constitute sexual conduct by a minor; thus, a defendant can be convicted under subparagraph (b) if the exhibition of the genitals by the minor was volitional and in a lewd manner, and a defendant can be convicted under subparagraph (d) regardless of whether the exposure is volitional, but only if the exposure was in an obscene manner. Purcell v. Commonwealth, 149 S.W.3d 382, 2004 Ky. LEXIS 286 ( Ky. 2004 ).

In a trial for violations of KRS 531.310 , the requirements of KRS 531.300(4)(a) and (b) were satisfied when the two (2) child victims testified that defendant would put a dog toy down the children’s underwear, hold the children down and watch a dog get the toy out; the dog toy and the dog’s mouth came in contact with the skin in their private areas. Jenkins v. Commonwealth, 275 S.W.3d 226, 2008 Ky. App. LEXIS 377 (Ky. Ct. App. 2008).

4.— Private, Family Nature.

Conviction of defendant for use of a minor in a sexual performance, arising from a series of photographs and videotapes of a 13-year-old girl which he took at his residence in the presence of the child’s mother, would be reversed where although the child wore lingerie in most of the photographs, she did not pose nude, and there was nothing in the photographs that rose to the level of “hard core” pornography or other patently offensive conduct. Bach v. Commonwealth, 703 S.W.2d 489, 1985 Ky. App. LEXIS 693 (Ky. Ct. App. 1985).

Defendant mother was not entitled to a directed verdict of acquittal on the charges of complicity to use a minor in a sexual performance. The youngest child testified that her mother slapped her when told of the attempted rape and was present when the girls were forced to disrobe by the stepfather. Defendant mother argued that there was no sexual performance, and even so, the acts were a private family matter pursuant to the exception created by this section. This argument failed because stepfather’s act of ordering the girls to disrobe and ripping off their clothing met the statutory element contained in KRS 531.310 of “employs, consents to, authorizes or induces a minor.” There was a willful or intentional exhibition of the genitals. This exposure was not a private family situation. The acts were obscene and appealed to stepfather’s prurient interest in sexual conduct involving minors. Gilbert v. Commonwealth, 838 S.W.2d 376, 1991 Ky. LEXIS 155 ( Ky. 1991 ).

5.Obscene.

KRS 531.310 is not unconstitutionally vague simply because the definition of the word “obscene” set out in this section contains the word “prurient” but does not further define that word. Mattingly v. Commonwealth, 878 S.W.2d 797, 1993 Ky. App. LEXIS 183 (Ky. Ct. App. 1993).

General Assembly amended the definition of “obscene” in KRS 531.300(3) to require only that the predominate appeal of the matter taken as a whole is to a prurient interest in sexual conduct involving minors and replaced the requirement of “obscene exhibition of the genitals” in KRS 531.300(4)(b) with “willful or intentional exhibition of the genitals”; this new definition clearly satisfies the requirement of “adequate definition” with respect to KRS 531.300(4)(d). Purcell v. Commonwealth, 149 S.W.3d 382, 2004 Ky. LEXIS 286 ( Ky. 2004 ).

6.Performance.

Because deviate and exploitive behavior of defendant was that which legislature sought to prohibit and because for the purposes of subsection (5) of this section an audience may consist of one person and exposing one’s genitals is a visual representation, conviction of defendant under KRS 531.310 for using a minor in a sexual performance was affirmed where defendant had offered money to minor to accompany him to men’s room to expose his genitals while defendant masturbated. Alcorn v. Commonwealth, 910 S.W.2d 716, 1995 Ky. App. LEXIS 125 (Ky. Ct. App. 1995).

Undeveloped film fell within the definition of a photograph for purposes of proving sexual performance. Baker v. Commonwealth, 103 S.W.3d 90, 2003 Ky. LEXIS 98 ( Ky. 2003 ).

Because KRS 531.300(4)(d) specifically includes a “photograph” as an “exposure;” and because a photograph is also a “performance,” a nude photograph defendant took of a 13-year-old boy could constitute promoting a sexual performance that includes sexual conduct by a minor as defined under subsection (4)(b). Purcell v. Commonwealth, 149 S.W.3d 382, 2004 Ky. LEXIS 286 ( Ky. 2004 ).

Commonwealth presented enough evidence for a reasonable jury to conclude beyond a reasonable doubt that the photograph in question was a willful and intentional lewd exhibition of a 13-year-old boy’s genitals. Momentarily ignoring the Commonwealth’s theory that defendant produced the photograph to satisfy his own allegedly homosexual prurient interest, defendant’s own theory was that he took the photograph to satisfy the prurient interests of two (2) adult females who desired to have sexual intercourse with the boy; thus either way, the photograph could be found to be lewd when considering the six (6) factors test adopted by Kentucky: 1) whether the focal point of the visual depiction is the child’s genitalia or pubic area; 2) whether the setting of the visual depiction is sexually suggestive, i.e., in a place or pose generally associated with sexual activity; 3) whether the child is depicted in an unnatural pose, or in inappropriate attire, considering the age of the child; 4) whether the child is fully or partially clothed, or nude; 5) whether the visual depiction suggests sexual coyness or a willingness to engage in sexual activity; 6) whether the visual depiction is intended or designed to elicit a sexual response in the viewer. Purcell v. Commonwealth, 149 S.W.3d 382, 2004 Ky. LEXIS 286 ( Ky. 2004 ).

Although a nude photograph that defendant took of a 13-year-old boy could be found to be lewd when considering the six (6) factors test adopted by Kentucky: 1) whether the focal point of the visual depiction is the child’s genitalia or pubic area; 2) whether the setting of the visual depiction is sexually suggestive, i.e., in a place or pose generally associated with sexual activity; 3) whether the child is depicted in an unnatural pose, or in inappropriate attire, considering the age of the child; 4) whether the child is fully or partially clothed, or nude; 5) whether the visual depiction suggests sexual coyness or a willingness to engage in sexual activity; 6) whether the visual depiction is intended or designed to elicit a sexual response in the viewer), defendant was entitled to a new trial because the jury did not have an opportunity to make that finding. Purcell v. Commonwealth, 149 S.W.3d 382, 2004 Ky. LEXIS 286 ( Ky. 2004 ).

7.Sexual Performance.

Conviction of defendant for use of a minor in a sexual performance, arising from a series of photographs and videotapes of a 13-year-old girl which he took at his residence in the presence of the child’s mother, would be reversed where although the child wore lingerie in most of the photographs, she did not pose nude, and there was nothing in the photographs that rose to the level of “hard core” pornography or other patently offensive conduct. Bach v. Commonwealth, 703 S.W.2d 489, 1985 Ky. App. LEXIS 693 (Ky. Ct. App. 1985).

Defendants were not entitled to a directed verdict on complicity charges of the use of a minor in a sexual performance, since they could participate and also be an audience under KRS 531.300 and 531.310 ; in addition to committing sex acts, each defendant also watched sex acts performed by others, which was the essence of pornography. Woodard v. Commonwealth, 219 S.W.3d 723, 2007 Ky. LEXIS 91 ( Ky. 2007 ).

Cited:

Clark v. Commonwealth, 267 S.W.3d 668, 2008 Ky. LEXIS 181 ( Ky. 2008 ); Cayton v. Commonwealth, 580 S.W.3d 553, 2019 Ky. App. LEXIS 35 (Ky. Ct. App. 2019).

Research References and Practice Aids

Kentucky Law Journal.

Article: The Jurisdictional Entrapment Defense: An Analytic Framework for Claims of Manufactured Jurisdiction in Child Exploitation Prosecutions, 98 Ky. L.J. 103 (2009/2010).

Northern Kentucky Law Review.

Armstrong & Gillig, Responding to Child Sexual Abuse and Exploitation: The Kentucky Approach, 16 N. Ky. L. Rev. 17 (1988).

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Related to Sex and Pornography, Part 1 Definitions, §§ 4.13A, 4.15 — 4.21.

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Related to Sex and Pornography, Part 9 Sexual Exploitation of Minors, §§ 4.87, 4.99.

531.305. Treatment in criminal or civil proceeding or property or material portraying child pornography or a sexual performance by a minor.

  1. In a criminal or civil proceeding, any property or material that portrays child pornography or a sexual performance by a minor as defined in this chapter shall remain secured or locked in the care, custody, and control of a law enforcement agency, or the prosecutor. Any property or material that portrays child pornography or a sexual performance by a minor shall not be filed with or stored by the court unless introduced as an exhibit for trial. Storage of trial court exhibits portraying child pornography or a sexual performance by a minor shall be in accordance with a court order.
  2. Notwithstanding any other law or rule of court, a court shall deny, in any proceeding, any request by the defendant to copy, photograph, duplicate, or otherwise reproduce any property or material that portrays a sexual performance by a minor or constitutes child pornography so long as law enforcement, the prosecutor, or the court, if the matter was introduced as an exhibit at trial, makes the property or material reasonably available to the defendant.
  3. For the purposes of this section, property or material shall be deemed reasonably available to the defendant if the prosecutor provides ample opportunity at a designated facility for the inspection, viewing, and examination of the property or material that portrays a sexual performance by a child or constitutes child pornography by the defendant, his or her attorney, or any individual whom the defendant uses as an expert during either the discovery process or a court proceeding.

HISTORY: 2018 ch. 23, § 1, effective July 14, 2018.

531.310. Use of a minor in a sexual performance.

  1. A person is guilty of the use of a minor in a sexual performance if he employs, consents to, authorizes or induces a minor to engage in a sexual performance.
  2. Use of a minor in a sexual performance is:
    1. A Class C felony if the minor so used is less than eighteen (18) years old at the time the minor engages in the prohibited activity;
    2. A Class B felony if the minor so used is less than sixteen (16) years old at the time the minor engages in the prohibited activity; and
    3. A Class A felony if the minor so used incurs physical injury thereby.

History. Enact. Acts 1978, ch. 219, § 3, effective June 17, 1978; 1986, ch. 289, § 8, effective July 15, 1986.

NOTES TO DECISIONS

1.Constitutionality.

The courts clearly distinguish between those statutes prohibiting the promotion and distribution of materials portraying a sexual performance by a minor and those statutes protecting a minor from actual use in a sexual performance, and the latter conduct does not give rise to the same special free speech protection given to the film or other media; accordingly, where defendant was convicted of using minors in sexual performances which he photographed and videotaped, any deterrent effect on legitimate expression was not sufficiently real or substantial to make this section facially invalid. Payne v. Commonwealth, 623 S.W.2d 867, 1981 Ky. LEXIS 286 ( Ky. 1981 ), cert. denied, 456 U.S. 909, 102 S. Ct. 1758, 72 L. Ed. 2d 167, 1982 U.S. LEXIS 1573 (U.S. 1982).

The prohibition of the use of a minor in a sexual manner under this section as interpreted through its definitional counterpart in former subdivision (3)(b) of KRS 531.300 , is not vague and overbroad in violation of Ky. Const., §§ 8 and 11 or U.S. Const., Amends. 1 and 14, since KRS 531.300 , when read as a whole and coupled with a reference to any standard dictionary, should provide the ordinary person of common sense a clear enough indication of the type of acts prohibited. (Decided prior to the 1986 amendment of KRS 531.300) Payne v. Commonwealth, 623 S.W.2d 867, 1981 Ky. LEXIS 286 ( Ky. 1981 ), cert. denied, 456 U.S. 909, 102 S. Ct. 1758, 72 L. Ed. 2d 167, 1982 U.S. LEXIS 1573 (U.S. 1982).

This section is not unconstitutionally vague simply because the definition of the word “obscene” set out in KRS 531.300 contains the word “prurient” but does not further define that word. Mattingly v. Commonwealth, 878 S.W.2d 797, 1993 Ky. App. LEXIS 183 (Ky. Ct. App. 1993).

Because the prohibition against “sexual conduct by a minor” is directed at forbidding child pornography, the state is not required to limit that prohibition to obscene conduct, as defined in Miller v. California, 413 U.S. 15, 93 S. Ct. 2607, 37 L. Ed. 2d 419, 1973 U.S. LEXIS 149 (1973); thus, the definition of “obscene” in 531.300(3) is constitutional under the First Amendment. Logston v. Commonwealth, 973 S.W.2d 70, 1998 Ky. App. LEXIS 2 (Ky. Ct. App. 1998).

2.— Presumptions.

Where a defendant videotaped and photographed sexual performances by boys under the age of 16, his conviction under this section would not be reversed, even though based on the conclusive presumption of subsection (3) of KRS 510.020 that a person less than 16 years of age cannot consent to a sexual act, since such presumption does not violate Ky. Const., § 11 or U.S. Const., Amend. 14. Payne v. Commonwealth, 623 S.W.2d 867, 1981 Ky. LEXIS 286 ( Ky. 1981 ), cert. denied, 456 U.S. 909, 102 S. Ct. 1758, 72 L. Ed. 2d 167, 1982 U.S. LEXIS 1573 (U.S. 1982).

3.Applicability.

Secret videotapes made by defendant of a twelve (12) year-old girl changing clothes appealed to defendant’s “prurient interest,” and were therefore “obscene,” so that defendant’s conduct constituted a violation of this section. Logston v. Commonwealth, 973 S.W.2d 70, 1998 Ky. App. LEXIS 2 (Ky. Ct. App. 1998).

The statute does not apply to instances where one actively participates in sexual conduct with the minor. Allen v. Commonwealth, 997 S.W.2d 483, 1998 Ky. App. LEXIS 147 (Ky. Ct. App. 1998).

Defendants were not entitled to a directed verdict on complicity charges of the use of a minor in a sexual performance. The court found that they could participate and also be an audience under KRS 531.300 and 531.310 ; in addition to committing sex acts, each defendant also watched sex acts performed by others, which was the essence of pornography. Woodard v. Commonwealth, 219 S.W.3d 723, 2007 Ky. LEXIS 91 ( Ky. 2007 ).

4.Construction.

“Consent to” or “authorize” as used in this section does not require an affirmative act to cause the minor to participate; to employ or to induce a minor to engage in the performance of sexual acts would necessitate such an affirmative act. Holbrook v. Commonwealth, 662 S.W.2d 484, 1984 Ky. App. LEXIS 439 (Ky. Ct. App. 1984).

To the extent that KRS 531.300 (4)(b) or KRS 531.320 read in conjunction with this section might be said to make a crime of the depiction of mere nudity of a minor, it would certainly run afoul of the First Amendment. However, if the definition of “sexual conduct by a minor” is unconstitutional only because it includes “willful or intentional exhibition of the genitals,” there is no reason why the remainder of the statutory definition should not stand and KRS 531.300 and KRS 531.320 be interpreted accordingly. Mattingly v. Commonwealth, 878 S.W.2d 797, 1993 Ky. App. LEXIS 183 (Ky. Ct. App. 1993).

This section is violated if a defendant “employs, consents to, authorizes or induces a minor to engage in a sexual performance”. Thus, it appears to proscribe conduct by a defendant whose conscious objective is to bring about or facilitate by consent the sexual performance of a minor; the culpable mental state for violation of this section is intent. Mattingly v. Commonwealth, 878 S.W.2d 797, 1993 Ky. App. LEXIS 183 (Ky. Ct. App. 1993).

A customer who participates in sexual conduct with a minor is not an “audience,” as that word is used in the definition of “performance.” Allen v. Commonwealth, 997 S.W.2d 483, 1998 Ky. App. LEXIS 147 (Ky. Ct. App. 1998).

In a trial for violations of KRS 531.310 , the requirements of KRS 531.300(4)(a) and (b) were satisfied when the two (2) child victims testified that defendant would put a dog toy down the children’s underwear, hold the children down and watch a dog get the toy out. Jenkins v. Commonwealth, 275 S.W.3d 226, 2008 Ky. App. LEXIS 377 (Ky. Ct. App. 2008).

5.Defenses.

The willingness of minor to engage in sexual activity with defendant is not a defense to the crime, as the statute is designed to protect minors from exploitation regardless of whether their participation is voluntary; indeed, “employs, consents to, authorizes or induces” all imply the possibility of voluntary participation by a minor, as the idea of force or coercion is not ordinarily conveyed by those words. Holbrook v. Commonwealth, 662 S.W.2d 484, 1984 Ky. App. LEXIS 439 (Ky. Ct. App. 1984).

Grandfather accused of using his granddaughter in a sexual performance was not entitled to a jury instruction on the defense of consent, because a minor’s purported consent was not a defense under the statute. Baker v. Commonwealth, 103 S.W.3d 90, 2003 Ky. LEXIS 98 ( Ky. 2003 ).

6.Double Jeopardy.

Defendants were not placed in double jeopardy when they were charged with sodomy and rape along with the use of a minor in a sexual performance under KRS 531.310 . The charge of sodomy and rape required direct participation, while the use of a minor in a sexual performance required passive observation. Woodard v. Commonwealth, 219 S.W.3d 723, 2007 Ky. LEXIS 91 ( Ky. 2007 ).

Defendant’s conviction for both the use of a minor in a sexual performance (KRS 531.310 ) and promotion of a sexual performance with a minor (KRS 531.320 ) violated double jeopardy as they failed the Blockburger test; the convictions arose out of a single course of conduct and one offense did not require proof of a fact which the other did not. Therefore, defendant’s conviction for promoting a sexual performance by a minor was vacated. Clark v. Commonwealth, 267 S.W.3d 668, 2008 Ky. LEXIS 181 ( Ky. 2008 ).

7.Evidence.

The admission into evidence of a videotape of boys under 16 years of age performing sexual acts and 20 photographs of nude boys, which were competent to show design and pattern in a prosecution for the use of a minor in a sexual performance, did not violate U.S. Const., Amends. 6 and 14 or Ky. Const., § 11. Payne v. Commonwealth, 623 S.W.2d 867, 1981 Ky. LEXIS 286 ( Ky. 1981 ), cert. denied, 456 U.S. 909, 102 S. Ct. 1758, 72 L. Ed. 2d 167, 1982 U.S. LEXIS 1573 (U.S. 1982).

The fact that defendant was an actor in a movie in which he engaged in sexual acts with a minor is evidence of consent, and his direction of the movie and control of the film apparatus was abundant evidence of “authorization.” Holbrook v. Commonwealth, 662 S.W.2d 484, 1984 Ky. App. LEXIS 439 (Ky. Ct. App. 1984).

Conviction of defendant for use of a minor in a sexual performance, arising from a series of photographs and videotapes of a 13-year-old girl which he took at his residence in the presence of the child’s mother, would be reversed where although the child wore lingerie in most of the photographs, she did not pose nude, and there was nothing in the photographs that rose to the level of “hard core” pornography or other patently offensive conduct. Bach v. Commonwealth, 703 S.W.2d 489, 1985 Ky. App. LEXIS 693 (Ky. Ct. App. 1985).

Defendant mother was not entitled to a directed verdict of acquittal on the charges of complicity to use a minor in a sexual performance. The youngest child testified that her mother slapped her when told of the attempted rape and was present when the girls were forced to disrobe by the stepfather. Defendant mother argued that there was no sexual performance, and even so, the acts were a private family matter pursuant to the exception created by KRS 531.300 . This argument failed because stepfather’s act of ordering the girls to disrobe and ripping off their clothing meets the statutory element of “employs, consents to, authorizes or induces a minor,” contained in this section. There was a willful or intentional exhibition of the genitals. This exposure was not a private family situation. The acts were obscene and appealed to stepfather’s prurient interest in sexual conduct involving minors. Gilbert v. Commonwealth, 838 S.W.2d 376, 1991 Ky. LEXIS 155 ( Ky. 1991 ).

Because deviate and exploitive behavior of defendant was that which legislature sought to prohibit and because for the purposes of KRS 531.300(5) an audience may consist of one person and exposing one’s genitals is a visual representation, conviction of defendant under this section for using a minor in a sexual performance was affirmed where defendant had offered money to minor to accompany him to men’s room to expose his genitals while defendant masturbated. Alcorn v. Commonwealth, 910 S.W.2d 716, 1995 Ky. App. LEXIS 125 (Ky. Ct. App. 1995).

Roll of undeveloped film with defendant’s young granddaughter in suggestive poses was more than adequate evidence sufficient to establish that defendant used the granddaughter in a sexual performance, since the plain language of the statute did not require a finished product, so he was not entitled to a jury instruction on the lesser-included offense of possession of materials portraying a sexual performance by a minor. Baker v. Commonwealth, 103 S.W.3d 90, 2003 Ky. LEXIS 98 ( Ky. 2003 ).

Defendant was not entitled to a directed verdict on two (2) counts of using a minor in a sexual performance and two (2) counts of promoting a sexual performance by a minor, because defendant’s intent could have been inferred from the fact that defendant suspected that defendant’s friend was interested in pornography and allowed defendant’s daughter to be videotaped while naked on a four-wheeler. Little v. Commonwealth, 272 S.W.3d 180, 2008 Ky. LEXIS 241 ( Ky. 2008 ), modified, 2009 Ky. LEXIS 21 (Ky. Jan. 22, 2009).

Defendant was entitled to a new trial after he was convicted of a violation of KRS 531.310 because evidence that defendant had pornography and sex toys, went to strip clubs, and used marijuana was improperly admitted when it was not relevant to the motive and intent of defendant to commit improper sexual acts with the children. Jenkins v. Commonwealth, 275 S.W.3d 226, 2008 Ky. App. LEXIS 377 (Ky. Ct. App. 2008).

8.Instructions.

It was not error for a trial court to not instruct the jury on an attempted violation of KRS 531.310 because the only evidence concerning the incident showed either that it did not happen or that it was completed and no attempt instruction was necessary. Jenkins v. Commonwealth, 275 S.W.3d 226, 2008 Ky. App. LEXIS 377 (Ky. Ct. App. 2008).

Defendant, who was charged with use of a minor in a sexual performance, was not entitled to a lesser-included offense charge on unlawful use of electronic means to induce a minor to engage in sexual or other prohibited activities because the latter crime required proof of use of electronic means which the former crime did not require, so the latter crime was not a lesser-included offense of the former. Durrant v. Commonwealth, 2015 Ky. App. LEXIS 112 (Ky. Ct. App. July 24, 2015), review denied, ordered not published, 2016 Ky. LEXIS 267 (Ky. June 8, 2016).

Cited in:

Bullitt v. Commonwealth, 595 S.W.3d 106, 2019 Ky. LEXIS 543 ( Ky. 2019 ).

Research References and Practice Aids

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Related to Sex and Pornography, Part 2 Rape, § 4.23.

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Related to Sex and Pornography, Part 9 Sexual Exploitation of Minors, §§ 4.85 — 4.87.

531.320. Promoting a sexual performance by a minor.

  1. A person is guilty of promoting a sexual performance by a minor when, knowing the character and content thereof, he produces, directs or promotes any performance which includes sexual conduct by a minor.
  2. Promoting a sexual performance by a minor is:
    1. A Class C felony if the minor involved in the sexual performance is less than eighteen (18) years old at the time the minor engages in the prohibited activity;
    2. A Class B felony if the minor involved in the sexual performance is less than sixteen (16) years old at the time the minor engages in the prohibited activity; and
    3. A Class A felony if the minor involved in the sexual performance incurs physical injury thereby.

History. Enact. Acts 1978, ch. 219, § 4, effective June 17, 1978; 1986, ch. 289, § 9, effective July 15, 1986.

NOTES TO DECISIONS

1.Construction.

To the extent that KRS 531.310 or KRS 531.300 (4)(b) read in conjunction with this section might be said to make a crime of the depiction of mere nudity of a minor, it would certainly run afoul of the First Amendment. However, if the definition of “sexual conduct by a minor” is unconstitutional only because it includes “willful or intentional exhibition of the genitals,” there is no reason why the remainder of the statutory definition should not stand and KRS 531.310 and KRS 531.300 be interpreted accordingly. Mattingly v. Commonwealth, 878 S.W.2d 797, 1993 Ky. App. LEXIS 183 (Ky. Ct. App. 1993).

Language “willful and intentional exhibition” in KRS 531.320(1) obviously refers to the conduct of the victim, not the defendant. Purcell v. Commonwealth, 149 S.W.3d 382, 2004 Ky. LEXIS 286 ( Ky. 2004 ).

2.Double Jeopardy.

Defendant’s conviction for both the use of a minor in a sexual performance (KRS 531.310 ) and promotion of a sexual performance with a minor (KRS 531.320 ) violated double jeopardy as they failed the Blockburger test; the convictions arose out of a single course of conduct and one offense did not require proof of a fact which the other did not. Therefore, defendant’s conviction for promoting a sexual performance by a minor was vacated. Clark v. Commonwealth, 267 S.W.3d 668, 2008 Ky. LEXIS 181 ( Ky. 2008 ).

3.Intent.

Defendant was not entitled to a directed verdict on two (2) counts of using a minor in a sexual performance and two (2) counts of promoting a sexual performance by a minor, because defendant’s intent could have been inferred from the fact that defendant suspected that defendant’s friend was interested in pornography and allowed defendant’s daughter to be videotaped while naked on a four-wheeler. Little v. Commonwealth, 272 S.W.3d 180, 2008 Ky. LEXIS 241 ( Ky. 2008 ), modified, 2009 Ky. LEXIS 21 (Ky. Jan. 22, 2009).

4.Qualified Immunity.

In suit for malicious prosecution, abuse of process and defamation, federal postal inspector, state police detective and Commonwealth prosecutor were entitled to qualified immunity from liability as the broad range of reasonable professional judgment was not exceeded by their actions with respect to an investigation of couple’s activities involving child pornography where mother had sent a postcard depicting her daughter seated on father’s lap with her dress arranged so that her unclothed genital area was clearly visible. Greene v. Reeves, 80 F.3d 1101, 1996 FED App. 0114P, 1996 U.S. App. LEXIS 6603 (6th Cir. Ky. 1996 ).

Cited in:

Bullitt v. Commonwealth, 595 S.W.3d 106, 2019 Ky. LEXIS 543 ( Ky. 2019 ).

Research References and Practice Aids

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Related to Sex and Pornography, Part 9 Sexual Exploitation of Minors, §§ 4.88 — 4.90.

531.330. Presumption as to minority.

  1. For purposes of KRS 529.040 where the offense involves commercial sexual activity and for the purposes of KRS 530.070 , 531.080 , and 531.300 to 531.370 , any person who appears to be under the age of eighteen (18), or under the age of sixteen (16), shall be presumed to be under the age of eighteen (18), or under the age of sixteen (16), as the case may be.
  2. In any prosecution under KRS 529.040 where the offense involves commercial sexual activity by a minor and in any prosecution under KRS 530.070 , 531.080 , and 531.300 to 531.370 , the defendant may prove in exculpation that he in good faith reasonably believed that the person involved in the performance was not a minor.
  3. The presumption raised in subsection (1) of this section may be rebutted by any competent evidence.

HISTORY: Enact. Acts 1978, ch. 219, § 5, effective June 17, 1978; 2007, ch. 19, § 14, effective June 26, 2007; 2015 ch. 122, § 4, effective June 24, 2015.

NOTES TO DECISIONS

1.Constitutionality.

Statute regarding person’s status as a minor, KRS 531.330 , for purposes of distribution of child pornography, was not unconstitutionally vague or overbroad as the statute did not criminalize otherwise constitutionally-protected conduct or fail to give adequate notice or guidelines to an accused; the statute established an evidentiary presumption and burden shifting analysis that courts were directed to use when the accused was prosecuted under other statutes. Hause v. Commonwealth, 83 S.W.3d 1, 2001 Ky. App. LEXIS 926 (Ky. Ct. App. 2001).

Research References and Practice Aids

Kentucky Bench & Bar.

Hunt, Human Trafficking: A Primer for Kentucky Lawyers. Vol. 73, No. 4, July 2009, Ky. Bench & Bar, 17.

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., General Principles, Part 1 Matters of Substance, §§ 1.03, 1.07.

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Related to Sex and Pornography, Part 7 Prostitution, §§ 4.69, 4.70.

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Related to Sex and Pornography, Part 9 Sexual Exploitation of Minors, §§ 4.91, 4.100.

531.335. Possession or viewing of matter portraying a sexual performance by a minor — Applicability.

  1. A person is guilty of possession or viewing of matter portraying a sexual performance by a minor when, having knowledge of its content, character, and that the sexual performance is by a minor, he or she:
    1. Knowingly has in his or her possession or control any matter which visually depicts an actual sexual performance by a minor person; or
    2. Intentionally views any matter which visually depicts an actual sexual performance by a minor person.
  2. The provisions of subsection (1)(b) of this section:
    1. Shall only apply to the deliberate, purposeful, and voluntary viewing of matter depicting sexual conduct by a minor person and not to the accidental or inadvertent viewing of such matter;
    2. Shall not apply to persons viewing the matter in the course of a law enforcement investigation or criminal or civil litigation involving the matter; and
    3. Shall not apply to viewing the matter by a minor or the minor’s parents or guardians, or to school administrators investigating violations of subsection (1)(b) of this section.
  3. Possession or viewing of matter portraying a sexual performance by a minor is:
    1. A Class D felony if the person knows that the minor portrayed is less than eighteen (18) years old at the time of the sexual performance; and
    2. A Class C felony if the person knows that the minor portrayed is less than twelve (12) years old at the time of the sexual performance.

History. Enact. Acts 1992, ch. 201, § 1, effective July 14, 1992; 2006, ch. 182, § 39, effective July 12, 2006; 2013, ch. 41, § 5, effective June 25, 2013; 2021 ch. 87, § 1, effective June 29, 2021.

NOTES TO DECISIONS

1.Evidence.

Roll of undeveloped film with defendant's young granddaughter in suggestive poses was more than adequate evidence sufficient to establish that defendant used the granddaughter in a sexual performance, since the plain language of the statute did not require a finished product, so he was not entitled to a jury instruction on the lesser-included offense of possession of materials portraying a sexual performance by a minor. Baker v. Commonwealth, 103 S.W.3d 90, 2003 Ky. LEXIS 98 ( Ky. 2003 ).

Evidence relating to the still images was insufficient to sustain defendant's convictions for 67 counts of possession of matter portraying a sexual performance by a minor because the evidence showed only that he might have known that he had still images of child pornography on his computer and a conviction could not be based purely on speculation. Crabtree v. Commonwealth, 455 S.W.3d 390, 2014 Ky. LEXIS 609 ( Ky. 2014 ).

Defendant's convictions for 67 counts of possession of matter portraying a sexual performance by a minor were proper with regard to the videos because, that he might not have downloaded the videos for sexual gratification did not matter as that fact did not undermine the mental state that established the crime and the filenames were obviously indicative of child pornography. Even if the files had been returned in an innocent search, their filenames were a clear giveaway of their contents. Crabtree v. Commonwealth, 455 S.W.3d 390, 2014 Ky. LEXIS 609 ( Ky. 2014 ).

File names clearly establishing the subject of the photographs on several of the floppy disks as being child pornography, that the defendant’s wife found the disks where defendant kept many of his personal belonging including computer equipment, and testimony that defendant was the only person who went in the basement where the disks were found was sufficient to support defendant’s conviction for felony possession or viewing of matter portraying a sexual performance by a minor. Steele v. Commonwealth, 568 S.W.3d 387, 2019 Ky. App. LEXIS 13 (Ky. Ct. App. 2019).

Evidence was sufficient to convict defendant of multiple counts of possession of materials portraying a sexual performance by a minor under KRS 531.335(1) as defendant confessed to looking at child pornography and, in order to be located in the thumbcache, the images had to have appeared on his computer screen; thus, defendant was not entitled to a directed verdict under RCr P. 10.24. Crabtree v. Commonwealth, -- S.W.3d --, 2012 Ky. App. LEXIS 137 (Ky. Ct. App. 2012).

2.Defenses.

Innocent possession is a proper defense to a charge of possession of child pornography and if the evidence supports it, an instruction on the defense should be given. Crabtree v. Commonwealth, 455 S.W.3d 390, 2014 Ky. LEXIS 609 ( Ky. 2014 ).

3.Jury Instructions.

On appeal from his convictions for 67 counts of possession of matter portraying a sexual performance by a minor, the trial court did not err in declining to give the jury additional instructions on the meaning of knowing possession because it would only need further instruction as to the meaning of “knowing” if there had been evidence of inadvertent or accidental possession of the child-pornography videos and there was no such evidence. Crabtree v. Commonwealth, 455 S.W.3d 390, 2014 Ky. LEXIS 609 ( Ky. 2014 ).

Cited in:

Bullitt v. Commonwealth, 595 S.W.3d 106, 2019 Ky. LEXIS 543 ( Ky. 2019 ).

Research References and Practice Aids

Northern Kentucky Law Review.

Lotz, A Survey of Criminal Law Statutes Enacted in 1992, 20 N. Ky. L. Rev. 745 (1993).

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Related to Sex and Pornography, Part 1 Definitions, § 4.18.

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Related to Sex and Pornography, Part 9 Sexual Exploitation of Minors, § 4.99.

531.340. Distribution of matter portraying a sexual performance by a minor.

  1. A person is guilty of distribution of matter portraying a sexual performance by a minor when, having knowledge of its content and character, he or she:
    1. Sends or causes to be sent into this state for sale or distribution; or
    2. Brings or causes to be brought into this state for sale or distribution; or
    3. In this state, he or she:
      1. Exhibits for profit or gain; or
      2. Distributes; or
      3. Offers to distribute; or
      4. Has in his or her possession with intent to distribute, exhibit for profit or gain or offer to distribute, any matter portraying a sexual performance by a minor.
  2. Any person who has in his or her possession more than one (1) unit of material coming within the provision of KRS 531.300(2) shall be rebuttably presumed to have such material in his or her possession with the intent to distribute it.
  3. Distribution of matter portraying a sexual performance by a minor is:
    1. A Class D felony for the first offense, and a Class C felony for each subsequent offense, if the person knows that the minor portrayed is less than eighteen (18) years old at the time of the sexual performance; and
    2. A Class C felony for the first offense, and a Class B felony for each subsequent offense, if the person knows that the minor portrayed is less than twelve (12) years old at the time of the sexual performance.

History. Enact. Acts 1978, ch. 219, § 6, effective June 17, 1978; 1992, ch. 201, § 2, effective July 14, 1992; 2006, ch. 182, § 40, effective July 12, 2006; 2021 ch. 87, § 2, effective June 29, 2021.

NOTES TO DECISIONS

1.Constitutionality.

Statute prohibiting distribution of matter portraying a sexual performance by a minor, KRS 531.340 , was not unconstitutionally overbroad as the law did not criminalize constitutionally-protected conduct, especially since the Commonwealth was required to prove the sexual performance by the minor was by a real person and not merely a computer-generated image. Hause v. Commonwealth, 83 S.W.3d 1, 2001 Ky. App. LEXIS 926 (Ky. Ct. App. 2001).

2.Compliance.

Defendant’s act of downloading three child-porn videos in a single day qualified for a separate conviction for each video. As a result, each count to which defendant voluntarily pleaded guilty allowed for a separate conviction because, while all three convictions arose from actions that took place on defendant’s single computer within one day, each video which defendant downloaded resulted in a criminal act. Commonwealth v. Daughtery, 617 S.W.3d 813, 2021 Ky. LEXIS 22 ( Ky. 2021 ).

Research References and Practice Aids

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Related to Sex and Pornography, Part 8 Obscenity, § 4.76.

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Related to Sex and Pornography, Part 9 Sexual Exploitation of Minors, §§ 4.93, 4.98.

531.350. Promoting sale of material portraying a sexual performance by a minor.

  1. A person is guilty of promoting sale of material portraying a sexual performance by a minor when he knowingly, as a condition to a sale, allocation, consignment, or delivery for resale of any paper, magazine, book, periodical, publication or other merchandise, requires that the purchaser or consignee receive any matter portraying a sexual performance by a minor, or he denies or threatens to deny a franchise, revokes or threatens to revoke, or imposes any penalty, financial or otherwise, by reason of the failure of any person to accept such matter, or by reason of the return of such matter.
  2. Promoting sale of matter portraying a sexual performance by a minor is a Class A misdemeanor for the first offense, a Class D felony for the second offense, and a Class C felony for each subsequent offense.

History. Enact. Acts 1978, ch. 219, § 7, effective June 17, 1978.

Research References and Practice Aids

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Related to Sex and Pornography, Part 8 Obscenity, § 4.84E.

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Related to Sex and Pornography, Part 9 Sexual Exploitation of Minors, §§ 4.96A — 4.96E.

531.360. Advertising material portraying a sexual performance by a minor.

  1. A person is guilty of advertising material portraying a sexual performance by a minor when, having knowledge of its content and character thereof, he or she writes or creates advertising or solicits anyone to publish such advertising or otherwise promotes the sale or distribution of matter portraying a sexual performance by a minor.
  2. Advertising material portraying a sexual performance by a minor is a Class D felony for the first offense and a Class C felony for each subsequent offense.

History. Enact. Acts 1978, ch. 219, § 9, effective June 17, 1978; 2006, ch. 182, § 41, effective July 12, 2006.

Research References and Practice Aids

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Related to Sex and Pornography, Part 8 Obscenity, § 4.83.

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Related to Sex and Pornography, Part 9 Sexual Exploitation of Minors, § 4.97.

531.370. Using minors to distribute material portraying a sexual performance by a minor.

  1. A person is guilty of using minors to distribute material portraying a sexual performance by a minor when knowing a person to be a minor, or having possession of such facts that he should reasonably know such person is a minor, and knowing of the content and character of the material, he knowingly:
    1. Hires; or
    2. Employs; or
    3. Uses, a minor to do or assist in doing any of the acts prohibited by KRS 531.340 .
  2. Using minors to distribute material portraying a sexual performance by a minor is a Class D felony unless the defendant has previously been convicted of violation of this section or KRS 531.030 , in which case it shall be a Class C felony.

History. Enact. Acts 1978, ch. 219, § 10, effective June 17, 1978.

Research References and Practice Aids

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Related to Sex and Pornography, Part 8 Obscenity, § 4.82.

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Related to Sex and Pornography, Part 9 Sexual Exploitation of Minors, § 4.98.

CHAPTER 532 Classification and Designation of Offenses — Authorized Disposition

532.005. Chapters 532, 533 and 534 to apply to crimes outside provisions of the Penal Code.

KRS Chapters 532, 533 and 534 apply to all classes of crimes committed outside the provisions of the Penal Code.

History. Enact. Acts 1976, ch. 183, § 6.

NOTES TO DECISIONS

1.Maximum Fines.

Although the statutory maximum for fines for offenses outside of the penal code is $500, a larger fine, where specified, is allowed. Commonwealth v. Schindler, 685 S.W.2d 544, 1984 Ky. LEXIS 298 ( Ky. 1984 ).

The maximum fine provided for the offense of failing to render aid and assistance after an accident in violation of KRS 189.580(1) is $2,000, rather than the $500 maximum as set for a Class A misdemeanor. Commonwealth v. Schindler, 685 S.W.2d 544, 1984 Ky. LEXIS 298 ( Ky. 1984 ).

Opinions of Attorney General.

Infractions of a county planning and zoning ordinance passed pursuant to KRS 100.201 to 100.347 and requiring building permits and certificates of occupancy, which are punishable under KRS 100.991 , are violations and not felonies and, under KRS 500.080 , the statute of limitations is one (1) year, which begins to run, with regard to a building permit infraction, upon the completion of the structural improvement or alterations and, with regard to a certificate of occupancy infraction, on the last day of occupancy, since each day of occupancy is a separate offense. OAG 75-632 .

This section, effective June 19, 1976, eliminated the exception set out in KRS 534.040(2) for offenses defined outside the code, thereby limiting the fine for a violation of KRS 189.580(1) to a maximum of $500. OAG 78-457 .

532.007. Commonwealth’s sentencing policy.

It is the sentencing policy of the Commonwealth of Kentucky that:

  1. The primary objective of sentencing shall be to maintain public safety and hold offenders accountable while reducing recidivism and criminal behavior and improving outcomes for those offenders who are sentenced;
  2. Reduction of recidivism and criminal behavior is a key measure of the performance of the criminal justice system;
  3. Sentencing judges shall consider:
    1. Beginning July 1, 2013, the results of a defendant’s risk and needs assessment included in the presentence investigation; and
    2. The likely impact of a potential sentence on the reduction of the defendant’s potential future criminal behavior;
  4. All supervision and treatment programs provided for defendants shall utilize evidence-based practices to reduce the likelihood of future criminal behavior; and
  5. All supervision and treatment programs shall be evaluated at regular intervals to measure and ensure reduction of criminal behavior by defendants in the criminal justice system.

History. Enact. Acts 2011, ch. 2, § 1, effective June 8, 2011.

532.010. Classification of offenses.

Felonies are classified, for the purpose of sentencing, into five (5) categories:

  1. Capital offenses;
  2. Class A felonies;
  3. Class B felonies;
  4. Class C felonies; and
  5. Class D felonies.

History. Enact. Acts 1974, ch. 406, § 273, effective January 1, 1975.

NOTES TO DECISIONS

1.Murder.

Murder is to be prosecuted as a capital offense pursuant to statute. The fact that the Commonwealth did not allege or offer to prove any of the aggravating circumstances that would authorize the imposition of aggravated punishment did not transform the offense of capital murder into a Class A felony. Berry v. Commonwealth, 782 S.W.2d 625, 1990 Ky. LEXIS 7 ( Ky. 1990 ), overruled in part, Chestnut v. Commonwealth, 250 S.W.3d 288, 2008 Ky. LEXIS 113 ( Ky. 2008 ).

2.— Enhancement.

A persistent felony offender enhancement is not permissible following a conviction for murder. Murder is a capital crime and is not subject to such enhancement. Berry v. Commonwealth, 782 S.W.2d 625, 1990 Ky. LEXIS 7 ( Ky. 1990 ), overruled in part, Chestnut v. Commonwealth, 250 S.W.3d 288, 2008 Ky. LEXIS 113 ( Ky. 2008 ).

A sentence imposed upon conviction for murder is not subject to persistent felony offender enhancement. Offutt v. Commonwealth, 799 S.W.2d 815, 1990 Ky. LEXIS 44 ( Ky. 1990 ).

3.Sentence.

Trial court did not err in failing to instruct the jury that the sentence could not be modified by the judge; Ky. Rev. Stat. Ann. § 532.010 classifies capital offenses as felonies for sentencing purposes, and thus, sentencing in non-aggravated capital cases is governed in part by Ky. Rev. Stat. Ann. § 532.060 and is, therefore, subject to modification by the trial court pursuant to Ky. Rev. Stat. Ann. § 532.070 . Smith v. Commonwealth, 454 S.W.3d 283, 2015 Ky. LEXIS 12 ( Ky. 2015 ).

Appeal of a circuit court order denying a Ky. Rev. Stat. Ann. § 532.010 motion was dismissed where appellant neither named the warden or the Department of Corrections in the notice of appeal nor served either with notice, and thus, he had failed to name an indispensable party. Woods v. Commonwealth, 599 S.W.3d 894, 2020 Ky. App. LEXIS 34 (Ky. Ct. App. 2020).

Cited:

Gregory v. Commonwealth, 557 S.W.2d 439, 1977 Ky. App. LEXIS 838 (Ky. Ct. App. 1977); Cole v. Commonwealth, 609 S.W.2d 371, 1980 Ky. App. LEXIS 390 (Ky. Ct. App. 1980); Hamilton v. Commonwealth, 754 S.W.2d 870, 1988 Ky. App. LEXIS 72 (Ky. Ct. App. 1988); George v. Seabold, 909 F.2d 157, 1990 U.S. App. LEXIS 12169 (6th Cir. 1990); Cooper v. Commonwealth, 902 S.W.2d 833, 1995 Ky. App. LEXIS 35 (Ky. Ct. App. 1995).

Research References and Practice Aids

Cross-References.

Felonies and misdemeanors defined, KRS 431.060 .

Northern Kentucky Law Review.

Lotz, A Survey of Criminal Law Statutes Enacted in 1992, 20 N. Ky. L. Rev. 745 (1993).

532.020. Designation of offenses.

  1. Any offense defined outside this code for which a law outside this code provides a sentence to a term of imprisonment in the state for:
    1. At least one (1) but not more than five (5) years shall be deemed a Class D felony;
    2. At least five (5) but not more than ten (10) years shall be deemed a Class C felony;
    3. At least ten (10) but not more than twenty (20) years shall be deemed a Class B felony;
    4. For at least twenty (20) but not more than fifty (50) years or for life shall be deemed a Class A felony.
  2. Any offense defined outside this code for which a law outside this code provides a sentence to a definite term of imprisonment with a maximum which falls between ninety (90) days and twelve (12) months shall be deemed a Class A misdemeanor.
  3. Any offense defined outside this code for which a law outside this code provides a sentence to a definite term of imprisonment with a maximum of less than ninety (90) days shall be deemed a Class B misdemeanor.
  4. Any offense defined outside this code for which a law outside this code provides a sentence to a fine only or to any other punishment, whether in combination with a fine or not, other than death or imprisonment shall be deemed a violation.

History. Enact. Acts 1974, ch. 406, § 274, effective January 1, 1975; 1976 (Ex. Sess.), ch. 15, § 2, effective December 22, 1976; 1980, ch. 309, § 5, effective July 15, 1980; 1998, ch. 606, § 74, effective July 15, 1998.

NOTES TO DECISIONS

1.Conviction of Attorney.

Because a felony mail fraud conviction entered against an attorney amounted to an offense which put in issue whether the attorney had the moral fitness to continue to practice law under SCR 3.165(1)(c), that attorney was temporarily suspended from the practice of law. Inquiry Comm'n v. Combs, 250 S.W.3d 319, 2008 Ky. LEXIS 97 ( Ky. 2008 ).

2.Mandatory Sentencing.

Where the mandatory sentencing procedures were not followed in a prosecution for robbery, the case would be remanded for proper sentencing. Mishler v. Commonwealth, 556 S.W.2d 676, 1977 Ky. LEXIS 525 ( Ky. 1977 ).

3.— Enhancement.

Since a fourth conviction for driving under the influence was considered to be a felony offense punishable by imprisonment of one to five years under KRS 189A.010(5)(d) and KRS 532.020(1)(a), and since driving while under the influence of intoxicants presented a serious potential risk that the driver would cause physical injury to another person, under the sentencing system established by the guidelines, defendant’s fourth conviction within a five-year period for driving under the influence should be considered a “crime of violence” that subjected defendant to sentencing as a career offender. United States v. Veach, 455 F.3d 628, 2006 FED App. 0266P, 2006 U.S. App. LEXIS 19283 (6th Cir. Ky. 2006 ).

4.Punitive damages.

Where appellant was charged with four counts of first-degree sodomy in violation of KRS 510.070 , he could have been sentenced to prison for at least twenty, but not more than fifty, years, or for life, on each count under KRS 532.020(1)(d). In the victim’s tort suit for compensatory and punitive damages, the circuit court’s award of $6,000,000 in punitive damages was not constitutionally excessive given the severity of the penalty the circuit court could have imposed on the original charges. R.O. v. A.C., 384 S.W.3d 185, 2012 Ky. App. LEXIS 53 (Ky. Ct. App. 2012).

Cited:

Rudolph v. Commonwealth, 564 S.W.2d 1, 1977 Ky. LEXIS 580 ( Ky. 1977 ), cert. denied, Rudolph v. Kentucky, 439 U.S. 1004, 99 S. Ct. 616, 58 L. Ed. 2d 680, 1978 U.S. LEXIS 4141 (1978), overruled, Woods v. Commonwealth, 793 S.W.2d 809, 1990 Ky. LEXIS 67 ( Ky. 1990 ), overruled in part, Woods v. Commonwealth, 793 S.W.2d 809, 1990 Ky. LEXIS 67 ( Ky. 1990 ); Cooper v. Commonwealth, 577 S.W.2d 34, 1979 Ky. App. LEXIS 372 (Ky. Ct. App. 1979); United States v. Robinson, 763 F.2d 778, 1985 U.S. App. LEXIS 31315 (6th Cir. 1985); Dunn v. Commonwealth, 703 S.W.2d 874, 1985 Ky. LEXIS 297 ( Ky. 1985 ); Hamilton v. Commonwealth, 754 S.W.2d 870, 1988 Ky. App. LEXIS 72 (Ky. Ct. App. 1988); Commonwealth v. Lundergan, 847 S.W.2d 729, 1993 Ky. LEXIS 50 ( Ky. 1993 ); United States v. Epley, 52 F.3d 571, 1995 U.S. App. LEXIS 9137 (6th Cir. 1995); Williams v. Commonwealth, 233 S.W.3d 206, 2007 Ky. App. LEXIS 326 (Ky. Ct. App. 2007); Grider v. Commonwealth, 404 S.W.3d 859, 2013 Ky. LEXIS 229 ( Ky. 2013 ); Smith v. Commonwealth, 2015 Ky. LEXIS 12 (Feb. 19, 2015).

Opinions of Attorney General.

Subsections (10) and (17) of KRS 500.080 specifically exempt traffic infractions from the general language of subsection (4) of this section. OAG 74-675 .

Research References and Practice Aids

Cross-References.

Felonies and misdemeanors defined, KRS 431.060 .

Kentucky Law Journal.

Note: Cost Conscious Justice: The Case for Wholly-Informed Discretionary Sentencing in Kentucky, 100 Ky. L.J. 391 (2011/2012).

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Controlled Substances, Part 5 Alcoholic Beverages, § 9.36E.

Kentucky Instructions To Juries (Criminal), 5th Ed., Penalty Phase Instructions, Part 2 Capital Offenses, § 12.04A.

532.025. Presentence hearings — Use of juvenile court records — Aggravating or mitigating circumstances — Instruction to jury.

    1. Upon conviction of a defendant in cases where the death penalty may be imposed, a hearing shall be conducted. In such hearing, the judge shall hear additional evidence in extenuation, mitigation, and aggravation of punishment, including the record of any prior criminal convictions and pleas of guilty or pleas of nolo contendere of the defendant, or the absence of any prior conviction and pleas; provided, however, that only such evidence in aggravation as the state has made known to the defendant prior to his trial shall be admissible. Subject to the Kentucky Rules of Evidence, juvenile court records of adjudications of guilt of a child for an offense that would be a felony if committed by an adult shall be admissible in court at any time the child is tried as an adult, or after the child becomes an adult, at any subsequent criminal trial relating to that same person. Juvenile court records made available pursuant to this section may be used for impeachment purposes during a criminal trial and may be used during the sentencing phase of a criminal trial; however, the fact that a juvenile has been adjudicated delinquent of an offense that would be a felony if the child had been an adult shall not be used in finding the child to be a persistent felony offender based upon that adjudication. Release of the child’s treatment, medical, mental, or psychological records is prohibited unless presented as evidence in Circuit Court. Release of any records resulting from the child’s prior abuse and neglect under Title IV-E or IV-B of the Federal Social Security Act is also prohibited. The judge shall also hear argument by the defendant or his counsel and the prosecuting attorney, as provided by law, regarding the punishment to be imposed. The prosecuting attorney shall open and the defendant shall conclude the argument. In cases in which the death penalty may be imposed, the judge when sitting without a jury shall follow the additional procedure provided in subsection (2) of this section. Upon the conclusion of the evidence and arguments, the judge shall impose the sentence or shall recess the trial for the purpose of taking the sentence within the limits prescribed by law. If the trial court is reversed on appeal because of error only in the presentence hearing, the new trial which may be ordered shall apply only to the issue of punishment; (1) (a) Upon conviction of a defendant in cases where the death penalty may be imposed, a hearing shall be conducted. In such hearing, the judge shall hear additional evidence in extenuation, mitigation, and aggravation of punishment, including the record of any prior criminal convictions and pleas of guilty or pleas of nolo contendere of the defendant, or the absence of any prior conviction and pleas; provided, however, that only such evidence in aggravation as the state has made known to the defendant prior to his trial shall be admissible. Subject to the Kentucky Rules of Evidence, juvenile court records of adjudications of guilt of a child for an offense that would be a felony if committed by an adult shall be admissible in court at any time the child is tried as an adult, or after the child becomes an adult, at any subsequent criminal trial relating to that same person. Juvenile court records made available pursuant to this section may be used for impeachment purposes during a criminal trial and may be used during the sentencing phase of a criminal trial; however, the fact that a juvenile has been adjudicated delinquent of an offense that would be a felony if the child had been an adult shall not be used in finding the child to be a persistent felony offender based upon that adjudication. Release of the child’s treatment, medical, mental, or psychological records is prohibited unless presented as evidence in Circuit Court. Release of any records resulting from the child’s prior abuse and neglect under Title IV-E or IV-B of the Federal Social Security Act is also prohibited. The judge shall also hear argument by the defendant or his counsel and the prosecuting attorney, as provided by law, regarding the punishment to be imposed. The prosecuting attorney shall open and the defendant shall conclude the argument. In cases in which the death penalty may be imposed, the judge when sitting without a jury shall follow the additional procedure provided in subsection (2) of this section. Upon the conclusion of the evidence and arguments, the judge shall impose the sentence or shall recess the trial for the purpose of taking the sentence within the limits prescribed by law. If the trial court is reversed on appeal because of error only in the presentence hearing, the new trial which may be ordered shall apply only to the issue of punishment;
    2. In all cases in which the death penalty may be imposed and which are tried by a jury, upon a return of a verdict of guilty by the jury, the court shall resume the trial and conduct a presentence hearing before the jury. Such hearing shall be conducted in the same manner as presentence hearings conducted before the judge as provided in paragraph (a) of this subsection, including the record of any prior criminal convictions and pleas of guilty or pleas of nolo contendere of the defendant. Upon the conclusion of the evidence and arguments, the judge shall give the jury appropriate instructions, and the jury shall retire to determine whether any mitigating or aggravating circumstances, as defined in subsection (2) of this section, exist and to recommend a sentence for the defendant. Upon the findings of the jury, the judge shall fix a sentence within the limits prescribed by law.
  1. In all cases of offenses for which the death penalty may be authorized, the judge shall consider, or he shall include in his instructions to the jury for it to consider, any mitigating circumstances or aggravating circumstances otherwise authorized by law and any of the following statutory aggravating or mitigating circumstances which may be supported by the evidence:
    1. Aggravating circumstances:
      1. The offense of murder or kidnapping was committed by a person with a prior record of conviction for a capital offense, or the offense of murder was committed by a person who has a substantial history of serious assaultive criminal convictions;
      2. The offense of murder or kidnapping was committed while the offender was engaged in the commission of arson in the first degree, robbery in the first degree, burglary in the first degree, rape in the first degree, or sodomy in the first degree;
      3. The offender by his act of murder, armed robbery, or kidnapping knowingly created a great risk of death to more than one (1) person in a public place by means of a weapon of mass destruction, weapon, or other device which would normally be hazardous to the lives of more than one (1) person;
      4. The offender committed the offense of murder for himself or another, for the purpose of receiving money or any other thing of monetary value, or for other profit;
      5. The offense of murder was committed by a person who was a prisoner and the victim was a prison employee engaged at the time of the act in the performance of his duties;
      6. The offender’s act or acts of killing were intentional and resulted in multiple deaths;
      7. The offender’s act of killing was intentional and the victim was a state or local public official or police officer, sheriff, or deputy sheriff engaged at the time of the act in the lawful performance of his duties; and
      8. The offender murdered the victim when an emergency protective order or a domestic violence order was in effect, or when any other order designed to protect the victim from the offender, such as an order issued as a condition of a bond, conditional release, probation, parole, or pretrial diversion, was in effect.
    2. Mitigating circumstances:
      1. The defendant has no significant history of prior criminal activity;
      2. The capital offense was committed while the defendant was under the influence of extreme mental or emotional disturbance even though the influence of extreme mental or emotional disturbance is not sufficient to constitute a defense to the crime;
      3. The victim was a participant in the defendant’s criminal conduct or consented to the criminal act;
      4. The capital offense was committed under circumstances which the defendant believed to provide a moral justification or extenuation for his conduct even though the circumstances which the defendant believed to provide a moral justification or extenuation for his conduct are not sufficient to constitute a defense to the crime;
      5. The defendant was an accomplice in a capital offense committed by another person and his participation in the capital offense was relatively minor;
      6. The defendant acted under duress or under the domination of another person even though the duress or the domination of another person is not sufficient to constitute a defense to the crime;
      7. At the time of the capital offense, the capacity of the defendant to appreciate the criminality of his conduct to the requirements of law was impaired as a result of mental illness or an intellectual disability or intoxication even though the impairment of the capacity of the defendant to appreciate the criminality of his conduct or to conform the conduct to the requirements of law is insufficient to constitute a defense to the crime; and
      8. The youth of the defendant at the time of the crime.
  2. The instructions as determined by the trial judge to be warranted by the evidence or as required by KRS 532.030(4) shall be given in charge and in writing to the jury for its deliberation. The jury, if its verdict be a recommendation of death, or imprisonment for life without benefit of probation or parole, or imprisonment for life without benefit of probation or parole until the defendant has served a minimum of twenty-five (25) years of his sentence, shall designate in writing, signed by the foreman of the jury, the aggravating circumstance or circumstances which it found beyond a reasonable doubt. In nonjury cases, the judge shall make such designation. In all cases unless at least one (1) of the statutory aggravating circumstances enumerated in subsection (2) of this section is so found, the death penalty, or imprisonment for life without benefit of probation or parole, or the sentence to imprisonment for life without benefit of probation or parole until the defendant has served a minimum of twenty-five (25) years of his sentence, shall not be imposed.

History. Enact. Acts 1976 (Ex. Sess.), ch. 15, § 2, effective December 22, 1976; 1984, ch. 110, § 1, effective July 13, 1984; 1986, ch. 358, § 3, effective July 15, 1986; 1988, ch. 283, § 16, effective July 15, 1988; 1996, ch. 358, § 7, effective July 15, 1997; 1998, ch. 606, § 72, effective July 15, 1998; 2001, ch. 113, § 8, effective June 21, 2001; 2012, ch. 146, § 132, effective July 12, 2012.

Compiler’s Notes.

Titles IV-E and IV-B of the federal Social Security Act, referred to in (1)(a), may be found as 42 USCS § 670 et seq. and 42 USCS § 620 et seq., respectively.

NOTES TO DECISIONS

Analysis

1.Constitutionality.

This section is not in violation of the Eighth and Fourteenth Amendments of the United States Constitution.Kordenbrock v. Scroggy, 680 F. Supp. 867, 1988 U.S. Dist. LEXIS 1309 (E.D. Ky. 1988 ), aff'd, 889 F.2d 69, 1989 U.S. App. LEXIS 16478 (6th Cir. Ky. 1989 ), rev'd, 919 F.2d 1091, 1990 U.S. App. LEXIS 20424 (6th Cir. Ky. 1990 ).

There is neither a historical nor a modern societal consensus forbidding the imposition of capital punishment on any person who murders at 16 or 17 years of age, and such punishment does not offend the constitutional prohibition against cruel and unusual punishment. Stanford v. Kentucky, 492 U.S. 361, 109 S. Ct. 2969, 106 L. Ed. 2d 306, 1989 U.S. LEXIS 3195 (U.S. 1989), overruled in part, Roper v. Simmons, 543 U.S. 551, 125 S. Ct. 1183, 161 L. Ed. 2d 1, 2005 U.S. LEXIS 2200 (U.S. 2005).

Because Kentucky’s death penalty statute is modeled after the Georgia death penalty statute and the Georgia statute has consistently been held to be constitutional by the U.S. Supreme Court, defendant’s argument that Kentucky’s death penalty statute is unconstitutional was without merit. McQueen v. Scroggy, 99 F.3d 1302, 1996 FED App. 0349P, 1996 U.S. App. LEXIS 28677 (6th Cir. Ky. 1996 ), cert. denied, 520 U.S. 1257, 117 S. Ct. 2422, 138 L. Ed. 2d 185, 1997 U.S. LEXIS 3496 (U.S. 1997), overruled, Abdur'Rahman v. Bell (In re Abdur'Rahman), 392 F.3d 174, 2004 FED App. 0428P, 2004 U.S. App. LEXIS 25609 (6th Cir. Tenn. 2004).

The death penalty statute is not unconstitutional on its face. Skaggs v. Parker, 27 F. Supp. 2d 952, 1998 U.S. Dist. LEXIS 21264 (W.D. Ky. 1998 ), rev’d, 230 F.3d 876, 2000 U.S. App. LEXIS 27066 (6th Cir.) (6th Cir. Ky. 2000 ).

In a death penalty case, appellant’s argument that KRS 532.025(3) impinged on a constitutional right was rejected because there was no constitutional right to jury sentencing. Windsor v. Commonwealth, 413 S.W.3d 568, 2010 Ky. LEXIS 312 ( Ky. 2010 ).

KRS 532.025(2)(a)(6) does not violate the Eighth Amendment where the aggravating factor of multiple deaths winnows the group of defendants eligible for the death penalty and reasonably determines that a defendant who kills more than once was more culpable than a defendant who kills only once. Bowling v. Parker, 2012 U.S. Dist. LEXIS 88222 (E.D. Ky. June 26, 2012).

2.Purpose.

The purpose of this section is to allow evidence of all relevant and pertinent information so that the jury can make an informed decision concerning the appropriate sentence in a particular case. Templeman v. Commonwealth, 785 S.W.2d 259, 1990 Ky. LEXIS 26 ( Ky. 1990 ).

3.Double Jeopardy.

A trial of the penalty phase following a deadlocked jury does not violate either the federal or state constitutional prohibitions against double jeopardy. Retrial under these circumstances does not constitute double jeopardy under KRS 505.030 , which permits retrial upon proper termination. Skaggs v. Commonwealth, 1985 Ky. LEXIS 304 (Ky. May 23, 1985).

The fact that two murders were committed by defendant in the course of robbery assigned to the defendant a particular status, placing him within the category of persons against whom the death penalty might be imposed according to statute, and the penalty imposed upon the murder convictions was not a second sentence upon the convictions for armed robbery and did not constitute double jeopardy. Sanders v. Commonwealth, 801 S.W.2d 665, 1990 Ky. LEXIS 93 ( Ky. 1990 ), cert. denied, 502 U.S. 831, 112 S. Ct. 107, 116 L. Ed. 2d 76, 1991 U.S. LEXIS 4767 (U.S. 1991).

This section does not require that the defendant be punished for the same offense twice but only requires that the aggravating circumstances be used to determine whether the crime of murder should receive the death penalty. If the aggravating circumstance cannot be proved, then the penalty of death cannot be imposed. Simply because the aggravating circumstances duplicates one of the underlying offenses does not mean that the defendant is being punished twice for the same offense. The underlying offenses were only factors to be considered as to whether the punishment for murder should be death. Defendant was not subjected to double jeopardy or multiple punishment for the same offense. Wilson v. Commonwealth, 836 S.W.2d 872, 1992 Ky. LEXIS 84 ( Ky. 1992 ), cert. denied, 507 U.S. 1034, 113 S. Ct. 1857, 123 L. Ed. 2d 479, 1993 U.S. LEXIS 2856 (U.S. 1993), overruled in part, St. Clair v. Roark, 10 S.W.3d 482, 1999 Ky. LEXIS 148 ( Ky. 1999 ); Humphrey v. Commonwealth, 836 S.W.2d 865, 1992 Ky. LEXIS 87 ( Ky. 1992 ).

Imposition of two death penalty sentences by application of the same aggravating factor, i.e., multiple deaths, did not violate the constitutional proscription against double jeopardy. Tamme v. Commonwealth, 973 S.W.2d 13, 1998 Ky. LEXIS 46 ( Ky. 1998 ), cert. denied, 525 U.S. 1153, 119 S. Ct. 1056, 143 L. Ed. 2d 61, 1999 U.S. LEXIS 1229 (U.S. 1999).

In light of controlling Double Jeopardy Clause precedent, after a defendant’s first trial concludes with a verdict fixing his punishment at life imprisonment without the possibility of parole, defendant has been acquitted of the aggravating factors permitting the imposition of the death penalty, and the Commonwealth is precluded from seeking the death penalty a second time when defendant’s conviction is reversed on appeal and the case is remanded for a new trial. Brown v. Commonwealth, 313 S.W.3d 577, 2010 Ky. LEXIS 148 ( Ky. 2010 ).

4.Procedure.

From the beginning of the trial in a capital case there are four (4) successive inquiries leading to final confirmation of the death sentence: first is a trial on the question of guilt or innocence; then if the defendant is found guilty the court is required to resume the trial and conduct a presentence hearing, at which the same jury hears evidence of aggravating and mitigating circumstances, determines whether any of those circumstances exist, and recommends a sentence; thirdly, whatever may be the jury’s recommendation, “upon the findings of the jury, the judge shall fix a sentence within the limits prescribed by law”; lastly, if the death sentence is imposed, it must be reviewed by the Supreme Court “on the record.” Ex parte Farley, 570 S.W.2d 617, 1978 Ky. LEXIS 390 ( Ky. 1978 ).

This section does not require that the judge specify in advance what aggravating and mitigating circumstances he or she will consider. Bevins v. Commonwealth, 712 S.W.2d 932, 1986 Ky. LEXIS 252 ( Ky. 1986 ), cert. denied, 479 U.S. 1070, 107 S. Ct. 963, 93 L. Ed. 2d 1010, 1987 U.S. LEXIS 531 (U.S. 1987).

5.—Sentencing Phase.

The sentencing phase of the bifurcated trial is not in any way a proceeding in which there is a conviction, thus RCr 9.62 (abolished), requiring corroboration of an accomplice’s testimony, does not apply in the sentencing phase. Smith v. Commonwealth, 599 S.W.2d 900, 1980 Ky. LEXIS 223 ( Ky. 1980 ).

In all criminal proceedings where the death penalty is sought, the trial judge must conduct a bifurcated proceeding; the first proceeding is the guilt or innocence phase and the second is the sentencing phase, and all evidence introduced in the first phase of the trial is admissible in the latter phase; new or additional evidence, when proposed to be used in aggravation, is that evidence which is required to be made known to the accused prior to the sentencing phase of the trial. Smith v. Commonwealth, 599 S.W.2d 900, 1980 Ky. LEXIS 223 ( Ky. 1980 ).

In the event the sentencing phase of a trial is required to be before a new and different jury, then there may be some justification or excuse to cause the evidence used on the first phase to be brought to the attention of the jury on the second phase of the trial, it not having had the advantage of having heard the evidence on which the jury predicated its verdict of guilty. Smith v. Commonwealth, 599 S.W.2d 900, 1980 Ky. LEXIS 223 ( Ky. 1980 ).

Where the issue of parole was already injected into the sentencing process, and this information corrected an otherwise misleading description of a sentencing choice available to the jury, it was not improper to give the jury parole information, of which both the defendant and the counsel were aware, even though it was a death penalty case. Francis v. Commonwealth, 752 S.W.2d 309, 1988 Ky. LEXIS 38 ( Ky. 1988 ).

The jury is entitled to consider the record together with all the other evidence before it in making a sentencing determination, and a prior criminal record is precisely the type of information that the jury should have in making its determination as to sentence. Francis v. Commonwealth, 752 S.W.2d 309, 1988 Ky. LEXIS 38 ( Ky. 1988 ).

In any case in which the death penalty is sought, the capital penalty sentencing phase pursuant to this section should be conducted before the truth-in-sentencing hearing under KRS 532.055(2) and the persistent felony offender proceeding per KRS 532.080 are held. Francis v. Commonwealth, 752 S.W.2d 309, 1988 Ky. LEXIS 38 ( Ky. 1988 ).

It was not reversible error for the trial judge to hold a persistent felony offender hearing prior to the sentencing phase of capital murder, where the defendant introduced evidence concerning his own record in the guilt phase. Francis v. Commonwealth, 752 S.W.2d 309, 1988 Ky. LEXIS 38 ( Ky. 1988 ).

The imposition of the death sentence for kidnapping and a death sentence for murder was improper pursuant to the existing law of Kentucky which states that murder and kidnapping merge at the enhancement stage. A defendant can be convicted and punished for both offenses, but not sentenced to death for kidnapping if he is also sentenced to death for murder. Wilson v. Commonwealth, 836 S.W.2d 872, 1992 Ky. LEXIS 84 ( Ky. 1992 ), cert. denied, 507 U.S. 1034, 113 S. Ct. 1857, 123 L. Ed. 2d 479, 1993 U.S. LEXIS 2856 (U.S. 1993), overruled in part, St. Clair v. Roark, 10 S.W.3d 482, 1999 Ky. LEXIS 148 ( Ky. 1999 ).

Supreme court affirmed death penalty and admission of gruesome victim photographs to prove heinousness aggravator in penalty phase and stated that heinous brutality committed upon a victim by a defendant by its nature revealed evidence that was inflammatory; the prosecution, in proving its case in the penalty phase, was limited by the bare facts of the crime, which could be dreadful; the prosecution has a right to prove its case even where the defendant pleaded guilty; and moreover, it was imperative that a capital sentencer consider all the evidence bearing upon the defendant’s character, record, and circumstances of his crime. Johnson v. Commonwealth, 103 S.W.3d 687, 2003 Ky. LEXIS 21 (Ky.), cert. denied, 540 U.S. 986, 124 S. Ct. 470, 157 L. Ed. 2d 379, 2003 U.S. LEXIS 8075 (U.S. 2003).

In the penalty phase of a capital murder case, the trial judge did not err by requiring allocution prior to the closing argument of the Commonwealth. The timing of the allocution did not violate KRS 532.025 (a) and did not allow a de facto examination of defendant. Furnish v. Commonwealth, 2006 Ky. LEXIS 233 (Ky. Sept. 21, 2006).

6.—Standards.

The necessary standards for guidance of the jury in a capital case do not extend beyond pointing to the main circumstances of aggravation or mitigation that should be weighed and weighed against each other when they are presented in a concrete case and they do not and should not include what has happened to other defendants in other cases, at other times and in other places. Ex parte Farley, 570 S.W.2d 617, 1978 Ky. LEXIS 390 ( Ky. 1978 ).

KRS 532.025(3) requires that the sentencing jury or judge find beyond a reasonable doubt that at least one aggravating circumstance exists before a capital sentence may be imposed. There is no requirement in the plain language of the statute that the sentencing jury or judge must also make a determination beyond a reasonable doubt that capital punishment is appropriate; Kentucky’s capital sentencing scheme does not require the jury to find that death is the appropriate penalty beyond a reasonable doubt. Windsor v. Commonwealth, 2010 Ky. LEXIS 210 (Ky. Aug. 26, 2010).

7.—Deadlocked Jury.

In the absence of findings by the jury where the jury is deadlocked, the trial judge has no authority to fix any sentence. Skaggs v. Commonwealth, 1985 Ky. LEXIS 304 (Ky. May 23, 1985).

There is no confusion or uncertainty as to what course should be followed when the jury deadlocks during the penalty phase of a capital case. The failure of a jury to reach a verdict results in a mistrial and permits the matter to be retried. Skaggs v. Commonwealth, 1985 Ky. LEXIS 304 (Ky. May 23, 1985).

A trial of the penalty phase following a deadlocked jury does not violate either the federal or state constitutional prohibitions against double jeopardy. Retrial under these circumstances does not constitute double jeopardy under KRS 505.030 , which permits retrial upon proper termination. Skaggs v. Commonwealth, 1985 Ky. LEXIS 304 (Ky. May 23, 1985).

8.Aggravating Circumstances.

An unlawful entry into a building while armed, with an intent to commit a crime, is a substantially aggravated circumstance to be considered by a jury in determining the appropriate punishment for homicide. McClellan v. Commonwealth, 715 S.W.2d 464, 1986 Ky. LEXIS 274 ( Ky. 1986 ), cert. denied, 479 U.S. 1057, 107 S. Ct. 935, 93 L. Ed. 2d 986, 1987 U.S. LEXIS 379 (U.S. 1987).

A trial judge, in the exercise of discretion in determining whether to follow the recommendation of the jury, may examine all the circumstances of the case; thus, it was not error for the trial court to consider nonstatutory aggravators when sentencing the defendant to death. Tamme v. Commonwealth, 759 S.W.2d 51, 1988 Ky. LEXIS 58 ( Ky. 1988 ).

The literal language of the last sentence in subsection (3) of this section is in apparent conflict with the statute’s general purpose to allow the jury to consider aggravating circumstances not listed in subsection (2). Harris v. Commonwealth, 793 S.W.2d 802, 1990 Ky. LEXIS 25 ( Ky. 1990 ), cert. denied, 499 U.S. 924, 111 S. Ct. 1319, 113 L. Ed. 2d 252, 1991 U.S. LEXIS 1524 (U.S. 1991), overruled in part, St. Clair v. Commonwealth, 451 S.W.3d 597, 2014 Ky. LEXIS 341 ( Ky. 2014 ).

The reference in subsection (3) of this section to “statutory aggravating circumstances enumerated in subsection 2” is a reference to all of subsection (2), not merely to that portion which lists specific aggravating circumstances, and therefore includes “any other aggravating circumstances.” Harris v. Commonwealth, 793 S.W.2d 802, 1990 Ky. LEXIS 25 ( Ky. 1990 ), cert. denied, 499 U.S. 924, 111 S. Ct. 1319, 113 L. Ed. 2d 252, 1991 U.S. LEXIS 1524 (U.S. 1991), overruled in part, St. Clair v. Commonwealth, 451 S.W.3d 597, 2014 Ky. LEXIS 341 ( Ky. 2014 ).

Defendant argued that he was denied due process of law because the prosecution used the same facts to prove two separate aggravating circumstances, murder committed during the commission of a robbery and murder committed for profit. The aggravating circumstance of robbery related to the taking of the victim’s property in the course of committing theft while the murder for profit aggravating circumstance went beyond the time when victim’s property was physically taken from her in the course of committing a theft. The credit cards of the victim were used the day after her death when co-defendants purchased a number of items for themselves with the cards. Clearly, they obtained something of monetary value which profited them. Use of the credit cards was not the same act as the robbery of the victim. The two aggravating circumstances were not the same as to either time or place and the jury properly found the existence of two distinct aggravating factors. Wilson v. Commonwealth, 836 S.W.2d 872, 1992 Ky. LEXIS 84 ( Ky. 1992 ), cert. denied, 507 U.S. 1034, 113 S. Ct. 1857, 123 L. Ed. 2d 479, 1993 U.S. LEXIS 2856 (U.S. 1993), overruled in part, St. Clair v. Roark, 10 S.W.3d 482, 1999 Ky. LEXIS 148 ( Ky. 1999 ).

It was reversible error for the trial court to admit, as an aggravating circumstance, evidence of defendant’s murder conviction which was in the process of being appealed. Thompson v. Commonwealth, 862 S.W.2d 871, 1993 Ky. LEXIS 126 ( Ky. 1993 ), overruled in part, St. Clair v. Commonwealth, 140 S.W.3d 510, 2004 Ky. LEXIS 44 ( Ky. 2004 ).

Before the death penalty can be imposed, there must be proof of an aggravating circumstance, and the murder of a victim by his kidnapper is an aggravating circumstance under this section. St. Clair v. Roark, 10 S.W.3d 482, 1999 Ky. LEXIS 148 ( Ky. 1999 ) sub. nom.St. Clair v. Commonwealth, 174 S.W.3d 474, 2005 Ky. LEXIS 334 ( Ky. 2005 ).

Defendant’s death sentence for his capital murder conviction was improper and had to be vacated as the alleged aggravating factor that the murder occurred during the course of a kidnapping was not an aggravating factor found among the eight listed in KRS 532.025(2)(a) and was not otherwise authorized by law to serve as an aggravating factor in a capital murder case. Jacobs v. Commonwealth, 58 S.W.3d 435, 2001 Ky. LEXIS 187 ( Ky. 2001 ).

Trial court’s reference, in its sentencing order, to a finding it made at trial that the prosecution proved an aggravating circumstance beyond a reasonable doubt, without reciting the finding in the sentencing order, was adequate. Marshall v. Commonwealth, 60 S.W.3d 513, 2001 Ky. LEXIS 202 ( Ky. 2001 ), cert. denied, 535 U.S. 1024, 122 S. Ct. 1622, 152 L. Ed. 2d 633, 2002 U.S. LEXIS 2953 (U.S. 2002).

Nothing in KRS 532.025 prevents a defendant from stipulating to the existence of aggravating circumstances nor is it inconsistent with the general rule that criminal defendants may knowingly and voluntarily waive statutory rights, and nothing in the statute requires a personal waiver or personal consent or stipulation regarding aggravating circumstances. Accordingly, the trial court did not err in finding that defendant in the penalty phase of a capital murder case had stipulated to the existence of aggravating circumstances. Furnish v. Commonwealth, 2006 Ky. LEXIS 233 (Ky. Sept. 21, 2006).

United States Supreme Court’s Apprendi and Blakely rulings do not preclude a defendant in the sentencing phase of a capital murder trial from stipulating to the aggravating factors; both Apprendi and Blakely concerned the propriety of shifting certain penalty-enhancing factual determinations from the jury to the court, and those cases do not prohibit a defendant from stipulating to penalty-enhancing facts. The evil sought to be eliminated by Apprendi and Blakely was nonconsensual judicial factfinding of penalty-enhancing factors, which infringed upon a defendant’s right to have a jury find every element of the crime beyond a reasonable doubt; nothing in KRS 532.025 prevents a defendant from stipulating to the existence of aggravating circumstances, nor is it inconsistent with the general rule that criminal defendants may knowingly and voluntarily waive statutory rights. Furnish v. Commonwealth, 267 S.W.3d 656, 2007 Ky. LEXIS 294 ( Ky. 2007 ), cert. denied, 558 U.S. 831, 130 S. Ct. 65, 175 L. Ed. 2d 48, 2009 U.S. LEXIS 5673 (U.S. 2009).

Although the trial court’s instruction on aggravating factors was nebulous and gave the impression that evidence of defendant’s character, general background, and personal circumstances would be considered as aggravating circumstances, defendant was not prejudiced by the instruction since the jury had unanimously found that defendant had murdered the victim during the commission of a robbery; substantial evidence supported that finding; and there were no grounds to conclude that the jury’s ability to consider mitigating evidence was impaired by the trial court’s failure to give a more accurate definition of aggravating circumstances. Fields v. Commonwealth, 274 S.W.3d 375, 2008 Ky. LEXIS 259 ( Ky. 2008 ), cert. denied, 558 U.S. 971, 130 S. Ct. 460, 175 L. Ed. 2d 310, 2009 U.S. LEXIS 7564 (U.S. 2009), overruled in part, Childers v. Commonwealth, 332 S.W.3d 64, 2010 Ky. LEXIS 306 ( Ky. 2010 ), overruled in part, Childers v. Commonwealth, 2010 Ky. LEXIS 285 (Ky. Dec. 16, 2010).

Although KRS 532.025 , governing sentencing proceedings in capital cases, did not specifically list victim-impact evidence as a potential aggravating factor in capital sentencing, it did provide that the jury could consider any other aggravating factors as otherwise authorized by law; because KRS 532.055(2)(a)(7) authorized the consideration of victim impact evidence, such evidence was allowable in capital sentencing proceedings, despite the specific lack of mention of such evidence in KRS 532.025 . St. Clair v. Commonwealth, 319 S.W.3d 300, 2010 Ky. LEXIS 90 ( Ky. 2010 ), modified, 2010 Ky. LEXIS 249 (Ky. Sept. 23, 2010).

Capital sentence imposed for defendant’s murders of his estranged wife and their eight-year-old son by stabbing them with a kitchen knife and beating them with a dumbbell was supported by sufficient aggravating factors because defendant committed a double murder and murdered his wife while a protective order on her behalf was in effect. Windsor v. Commonwealth, 2011 Ky. LEXIS 99 (Ky. Mar. 24, 2011), cert. denied, 565 U.S. 873, 132 S. Ct. 230, 181 L. Ed. 2d 128, 2011 U.S. LEXIS 7141 (U.S. 2011).

In a case in which a pro se state inmate sought authorization to file a second or successive 28 U.S.C.S. § 2254 habeas corpus petition, he did not present any new evidence with regard to his claim that the trial court violated his due-process rights and his right to a trial by jury under the Fourteenth and Sixth Amendments when it sentenced him to life imprisonment after the jury deadlocked during the penalty phase of his trial. The inmate had been convicted of murder and sentenced to life imprisonment; under KRS 532.055(4), the trial court could impose the sentence if the jury in a felony case was unable to agree on a sentence, and, while the inmate objected to his sentence of life imprisonment, which was not for life without benefit of probation or parole for twenty-five years, no finding of an additional aggravating circumstance was required. In re Chambers, 407 Fed. Appx. 877, 2011 FED App. 0039N, 2011 U.S. App. LEXIS 1005 (6th Cir. 2011).

In a case in which defendant, who was tried as a youthful offender, received a sentence of life without the possibility of parole for 25 years, he unsuccessfully argued that since he could not be sentenced to death, there was no procedure by which to find, present, and instruct the jury on aggravating factors. Nothing in KRS 532.025 prevented the jury from hearing evidence of aggravating circumstances, nor did the statute prevent the jury from being instructed on the aggravating factors and the range of statutory penalties. Grider v. Commonwealth, 404 S.W.3d 859, 2013 Ky. LEXIS 229 ( Ky. 2013 ).

Death penalty was properly imposed because defendant pleaded guilty to kidnapping three children, stabbing them to death, and setting their house on fire. He stabbed a five-year-old child nine times, he stabbed a fourteen-year-old child four times, and he tied a seventeen-year-old child’s hands and gagged her mouth before cutting her throat from ear to ear. Dunlap v. Commonwealth, 435 S.W.3d 537, 2013 Ky. LEXIS 292 ( Ky. 2013 ), cert. denied, 574 U.S. 838, 135 S. Ct. 87, 190 L. Ed. 2d 72, 2014 U.S. LEXIS 6466 (U.S. 2014).

10.—Burglary by Juvenile.

Fact that defendant in murder case was a minor and could not, under KRS 208.170(1) (repealed), be tried as an adult for first-degree burglary, did not prevent the burglary from being submitted as an aggravating circumstance in the sentencing phase of the murder trial. Ice v. Commonwealth, 667 S.W.2d 671, 1984 Ky. LEXIS 212 (Ky.), cert. denied, 469 U.S. 860, 105 S. Ct. 192, 83 L. Ed. 2d 125, 1984 U.S. LEXIS 3642 (U.S. 1984).

The fact of burglary in the first degree can be used as an aggravating factor to fix the death penalty against a juvenile who has been properly transferred to Circuit Court for trial; this section, in listing aggravating circumstances, makes no distinction for juveniles and nothing in the statute in this respect conflicts with either the Kentucky Constitution or the U.S. Constitution. Ice v. Commonwealth, 667 S.W.2d 671, 1984 Ky. LEXIS 212 (Ky.), cert. denied, 469 U.S. 860, 105 S. Ct. 192, 83 L. Ed. 2d 125, 1984 U.S. LEXIS 3642 (U.S. 1984).

11.—Casual Killing.

Where the murder committed by defendant involved the casual killing of a human being, not in anger or out of fear or any other strong emotion, the evidence supported the finding of an aggravating circumstance under subdivision (2)(a) of this section, and the sentence of death was not excessive or disproportionate to the penalty imposed in other cases. Kordenbrock v. Commonwealth, 700 S.W.2d 384, 1985 Ky. LEXIS 263 ( Ky. 1985 ), cert. denied, 476 U.S. 1153, 106 S. Ct. 2260, 90 L. Ed. 2d 704, 1986 U.S. LEXIS 1712 (U.S. 1986).

12.—Monetary Gain.

Admission of evidence of “celebration,” at which defendant was not present, where decedent allegedly told his brother and sister-in-law that he had made final payment to defendant on a contract for the purchase of certain real estate, used by the Commonwealth to show the aggravating circumstance of murder for monetary gain, was clearly hearsay, and because of its prejudicial effect, was improperly admitted. O'Bryan v. Commonwealth, 634 S.W.2d 153, 1982 Ky. LEXIS 254 ( Ky. 1982 ).

Where the victims (defendant’s parents) left a substantial estate, defendant was an only child, he was unemployed at the time, and immediately after the murders, he sold some furniture from his parents’ house, the jury could reasonably infer from the circumstances that defendant was motivated by profit to commit the murders. The jury could reasonably infer that defendant knew the estate would be substantial and that he would inherit. Harper v. Commonwealth, 694 S.W.2d 665, 1985 Ky. LEXIS 227 ( Ky. 1985 ), cert. denied, 476 U.S. 1178, 106 S. Ct. 2906, 90 L. Ed. 2d 992, 1986 U.S. LEXIS 1731 (U.S. 1986), overruled in part, Barnett v. Commonwealth, 317 S.W.3d 49, 2010 Ky. LEXIS 118 ( Ky. 2010 ).

Where defendant offered a hired killer from $2,000 to $10,000 for the murder of a codefendant’s husband, and where she said that the money would come from the deceased’s life insurance, there was proof that defendant was involved in the murder for the purpose of monetary gain and other profit, and the fact that the insurance policy on the victim’s life was not directly payable to her did not mean that she did not intend to share in the proceeds. Brown v. Commonwealth, 780 S.W.2d 627, 1989 Ky. LEXIS 106 ( Ky. 1989 ), cert. denied, 494 U.S. 1087, 110 S. Ct. 1825, 108 L. Ed. 2d 954, 1990 U.S. LEXIS 1938 (U.S. 1990).

An accomplice to murder, whose motive was revenge, cannot be sentenced to death because the killer’s motive was monetary gain. Young v. Commonwealth, 50 S.W.3d 148, 2001 Ky. LEXIS 71 ( Ky. 2001 ).

In a murder case, defendant received proper notice, under KRS 532.025(1)(a), that it was alleged he committed the murder with which he was charged for monetary gain when a notice of aggravating circumstances, filed separately from the indictment, described the specific aggravator the Commonwealth alleged and the proof it intended to rely on. Bratcher v. Commonwealth, 151 S.W.3d 332, 2004 Ky. LEXIS 332 ( Ky. 2004 ).

In a capital murder case, as there was evidence that defendant murdered his stepfather at his mother’s request for money, the jury was appropriately instructed on the murder-for-gain aggravating factor, KRS 532.025(2)(a)(4). Emerson v. Commonwealth, 230 S.W.3d 563, 2007 Ky. LEXIS 166 ( Ky. 2007 ).

13.—Multiple Deaths.

Where the jury was instructed that as a precondition to recommending the death penalty for multiple murders, it must find that the defendant’s act or acts in killing the victims were intentional and resulted in the death of both victims, and utilizing the forms of verdict provided, the jury filled in a finding as to both victims, stating that the defendant’s acts in killing the victims were intentional and resulted in the death of the named victim, but not both victims, it was clear from the form of the verdict when considered in connection with the words of the instruction, that the finding was one of intentional murder as to both victims, resulting in multiple deaths, pursuant to subdivision (2)(a)6 of this section. Matthews v. Commonwealth, 709 S.W.2d 414, 1985 Ky. LEXIS 257 ( Ky. 1985 ), cert. denied, 479 U.S. 871, 107 S. Ct. 245, 93 L. Ed. 2d 170, 1986 U.S. LEXIS 4150 (U.S. 1986).

Since the defendant murdered five persons and he was already past the threshold of those eligible to be considered for the death penalty under subdivision (2)(a)6 of this section, there was no error in the trial court considering his previous conviction of willful murder committed 50 years earlier as one of the circumstances bearing on whether the death penalty was appropriate. Bevins v. Commonwealth, 712 S.W.2d 932, 1986 Ky. LEXIS 252 ( Ky. 1986 ), cert. denied, 479 U.S. 1070, 107 S. Ct. 963, 93 L. Ed. 2d 1010, 1987 U.S. LEXIS 531 (U.S. 1987).

Where the defendant killed three unintended victims before killing his intended victim, his four death sentences were proper because the aggravating circumstance of multiple deaths supported the three murder convictions based on transferred intent. Smith v. Commonwealth, 734 S.W.2d 437, 1987 Ky. LEXIS 200 ( Ky. 1987 ), cert. denied, 484 U.S. 1036, 108 S. Ct. 762, 98 L. Ed. 2d 778, 1988 U.S. LEXIS 425 (U.S. 1988).

Act or acts of killing which result in multiple deaths, under subdivision (2)(a)6 of this section, means the deaths of more than one person, whether simultaneously or not. Simmons v. Commonwealth, 746 S.W.2d 393, 1988 Ky. LEXIS 9 ( Ky. 1988 ), cert. denied, 489 U.S. 1059, 109 S. Ct. 1328, 103 L. Ed. 2d 596, 1989 U.S. LEXIS 1183 (U.S. 1989).

Subdivision (2)(a)6 of this section is not vague in its intent. Simmons v. Commonwealth, 746 S.W.2d 393, 1988 Ky. LEXIS 9 ( Ky. 1988 ), cert. denied, 489 U.S. 1059, 109 S. Ct. 1328, 103 L. Ed. 2d 596, 1989 U.S. LEXIS 1183 (U.S. 1989).

Once the jury determined that two of defendant’s acts of killing were intentional and resulted in multiple deaths, the multiple murder aggravating factor applied; therefore, the imposition of two death sentences based on the same aggravating factor, multiple murders, did not violate double jeopardy. Bowling v. Commonwealth, 873 S.W.2d 175, 1993 Ky. LEXIS 127 ( Ky. 1993 ), cert. denied, 513 U.S. 862, 115 S. Ct. 176, 130 L. Ed. 2d 112, 1994 U.S. LEXIS 6204 (U.S. 1994), modified, 1994 Ky. LEXIS 26 (Ky. Mar. 24, 1994).

When defendant murdered a mother and her child and a jury imposed the death sentence because defendant committed intentional double murders resulting in multiple deaths, there was no evidence of any nature to indicate the jury considered the fact that the mother was pregnant, when it imposed sentence. Parrish v. Commonwealth, 121 S.W.3d 198, 2003 Ky. LEXIS 165 ( Ky. 2003 ), cert. denied, 541 U.S. 1050, 124 S. Ct. 2180, 158 L. Ed. 2d 746, 2004 U.S. LEXIS 3535 (U.S. 2004), overruled in part, Brown v. Commonwealth, 313 S.W.3d 577, 2010 Ky. LEXIS 148 ( Ky. 2010 ).

KRS 532.025(2)(a)(6) multiple murder aggravator applied, even though one murder was committed in 2000 and the other was committed in 2002. The jury found that both acts were intentional and resulted in multiple deaths; whether the multiple deaths occurred on the same day or over a longer course of time was irrelevant. Parker v. Commonwealth, 291 S.W.3d 647, 2009 Ky. LEXIS 91 ( Ky. 2009 ), cert. denied, 559 U.S. 910, 130 S. Ct. 1293, 175 L. Ed. 2d 1084, 2010 U.S. LEXIS 1004 (U.S. 2010).

14.—Prior Criminal Convictions.

In sentencing phase of defendant’s capital murder trial, trial judge was correct in allowing the prosecution to introduce evidence of prior criminal convictions which occurred subsequent to the commission of the crime for which he was being tried. Templeman v. Commonwealth, 785 S.W.2d 259, 1990 Ky. LEXIS 26 ( Ky. 1990 ).

In prosecution for murder there was no error in the Commonwealth’s introduction, pursuant to this section of defendant’s criminal convictions which occurred and became final subsequent to his commission of the instant offense for the term “prior” is the status of the defendant at the time of sentencing, not at the time of the commission of the crime charged. Haight v. Commonwealth, 938 S.W.2d 243, 1996 Ky. LEXIS 125 ( Ky. 1996 ), cert. denied, 522 U.S. 837, 118 S. Ct. 110, 139 L. Ed. 2d 63, 1997 U.S. LEXIS 4990 (U.S. 1997).

In prosecution for murder there was no error in the Commonwealth’s introduction, pursuant to this section, of defendant’s criminal convictions which occurred and became final subsequent to his commission of the instant offense for the term “prior” is the status of the defendant at the time of sentencing, not at the time of the commission of the crime charged. Haight v. Commonwealth, 938 S.W.2d 243, 1996 Ky. LEXIS 125 ( Ky. 1996 ), cert. denied, 522 U.S. 837, 118 S. Ct. 110, 139 L. Ed. 2d 63, 1997 U.S. LEXIS 4990 (U.S. 1997).

Term “prior” as used in KRS 532.025(1)(b) refers to the status of defendant at the time of sentencing, not at the time of the commission of the charged crime. Thus, the Commonwealth may introduce a conviction that was obtained subsequent to the offense for which a defendant is being sentenced because, at the time of sentencing, it had become a “prior” conviction. Furnish v. Commonwealth, 267 S.W.3d 656, 2007 Ky. LEXIS 294 ( Ky. 2007 ), cert. denied, 558 U.S. 831, 130 S. Ct. 65, 175 L. Ed. 2d 48, 2009 U.S. LEXIS 5673 (U.S. 2009).

Commonwealth was entitled to refer to defendant’s entire criminal history during its penalty closing argument, even though some of his prior convictions were outside of the statutory list of aggravating circumstances rendering him eligible for the death penalty. KRS 532.025(1)(b) expressly permitted such reference. Fields v. Commonwealth, 274 S.W.3d 375, 2008 Ky. LEXIS 259 ( Ky. 2008 ), cert. denied, 558 U.S. 971, 130 S. Ct. 460, 175 L. Ed. 2d 310, 2009 U.S. LEXIS 7564 (U.S. 2009), overruled in part, Childers v. Commonwealth, 332 S.W.3d 64, 2010 Ky. LEXIS 306 ( Ky. 2010 ), overruled in part, Childers v. Commonwealth, 2010 Ky. LEXIS 285 (Ky. Dec. 16, 2010).

Because the jury was presented with evidence of many convictions for capital offenses, some of which pre-dated the commission of the current murder and some of which did not, the instruction regarding the aggravating factor in KRS 532.025(2)(a)(1), as given, deprived defendant of his right to a unanimous verdict. To avoid any possibility that the jury relied upon a non-qualifying conviction in finding the aggravator, in defendant’s case and in similar future cases, the jury instruction had to require that the jury specifically identify the conviction that it used to find the aggravator; by specifically identifying qualifying convictions, the trial court could ensure that the jury did not rely on convictions that could not qualify. St. Clair v. Commonwealth, 319 S.W.3d 300, 2010 Ky. LEXIS 90 ( Ky. 2010 ), modified, 2010 Ky. LEXIS 249 (Ky. Sept. 23, 2010).

15.—Rape.

The statutory language of subdivision (2)(a) of this section as it pertains to rape means that the murder was committed incident to a rape, as distinguished from its having been committed during the physical act of sexual intercourse. Gall v. Commonwealth, 607 S.W.2d 97, 1980 Ky. LEXIS 291 ( Ky. 1980 ), cert. denied, 450 U.S. 989, 101 S. Ct. 1529, 67 L. Ed. 2d 824, 1981 U.S. LEXIS 1276 (U.S. 1981), overruled, Payne v. Commonwealth, 623 S.W.2d 867, 1981 Ky. LEXIS 286 ( Ky. 1981 ).

The rape of the victims was properly considered as an aggravating factor in both the kidnapping and the murder convictions, where the defendant admitted having sexual intercourse with the three victims, the victim who escaped with her life explicitly testified about the force used upon her and the appellant’s attempt to rape her, the bodies of the other three victims were found in secluded places, two of them in a park, and had multiple bruises upon their persons which indicated the use of force upon them and from which a jury could infer a struggle or resistance on their part, and the fact that some of their undergarments were torn and scattered about the scene of the murder was inconsistent with voluntary intercourse. Simmons v. Commonwealth, 746 S.W.2d 393, 1988 Ky. LEXIS 9 ( Ky. 1988 ), cert. denied, 489 U.S. 1059, 109 S. Ct. 1328, 103 L. Ed. 2d 596, 1989 U.S. LEXIS 1183 (U.S. 1989).

Jury’s consideration of aggravating circumstances is not limited to one exactingly and specifically enumerated in this section; therefore, it was not error for the jury to use the crime of attempted rape as an aggravator for the imposition of the death penalty. Jacobs v. Commonwealth, 870 S.W.2d 412, 1994 Ky. LEXIS 2 ( Ky. 1994 ), limited, Quarels v. Commonwealth, 142 S.W.3d 73, 2004 Ky. LEXIS 186 ( Ky. 2004 ), overruled in part, St. Clair v. Commonwealth, 451 S.W.3d 597, 2014 Ky. LEXIS 341 ( Ky. 2014 ).

Petitioner was not entitled to a writ of habeas corpus based on his claim of insufficiency of evidence in convictions for sodomy, KRS 510.070(1), and rape, KRS 510.040(1)(a), because a rational trier of fact, after viewing the evidence in the light most favorable to the prosecution, could have found the essential elements of those crimes, including the element of deviate sexual intercourse under KRS 510.010(1), beyond a reasonable doubt. Because the convictions were properly supported by evidence, they were properly used as aggravating circumstances during the penalty phase under KRS 532.025 . Sanborn v. Parker, 2005 U.S. Dist. LEXIS 44697 (W.D. Ky. Jan. 12, 2005).

Prisoner’s claim that the evidence at his second state trial was constitutionally insufficient to prove beyond a reasonable doubt the existence of the aggravating factors of rape or sodomy under KRS 532.025(2)(a)(2), did not provide a basis for federal habeas relief; although the prisoner attempted to argue that a clergyman’s testimony was inadmissible in the absence of corroboration and that, without this testimony, there was insufficient evidence for a jury to conclude that he raped or sodomized the victim, the prisoner’s burden on the sufficiency-of-the-evidence claim was not to demonstrate that insufficient properly admitted evidence existed to demonstrate that the victim was alive at the time of the unlawful penetration, but rather whether any rational trier of fact could have concluded that such was the case after considering everything admitted into evidence by the trial court, whether it was otherwise proper or not. Because the prisoner’s claim depended on his assertion that the evidence of his guilt was insufficient without the clergyman’s testimony, it necessarily failed because consideration of that testimony was required for purposes of a sufficiency-of-the-evidence evaluation. Sanborn v. Parker, 629 F.3d 554, 2010 FED App. 0389P, 2010 U.S. App. LEXIS 25912 (6th Cir. Ky. 2010 ), cert. denied, 565 U.S. 980, 132 S. Ct. 498, 181 L. Ed. 2d 353, 2011 U.S. LEXIS 7726 (U.S. 2011).

16.—Robbery and Burglary.

In the trial court’s instruction during the penalty phase of capital murder case, the trial judge was not required to instruct on the elements of the aggravating factors of robbery and burglary where during the guilt phase of the trial, defendant was found guilty of both such crimes. To have required the penalty jury to make a finding on the elements of robbery and burglary would have rendered the first verdict useless. Skaggs v. Commonwealth, 1985 Ky. LEXIS 304 (Ky. May 23, 1985).

Subsection (2)(a)2. only requires that the murder be committed while the offender was engaged in the commission of an aggravating offense; it does not require that the victim of the murder must be the same person as the victim of the robbery and/or burglary. Hodge v. Commonwealth, 17 S.W.3d 824, 2000 Ky. LEXIS 17 (Ky.), cert. denied, 531 U.S. 1018, 121 S. Ct. 581, 148 L. Ed. 2d 498, 2000 U.S. LEXIS 7910 (U.S. 2000), modified, 17 S.W.3d 824, 2000 Ky. LEXIS 66 ( Ky. 2000 ).

Phrase “engaged in the commission of a robbery in the first degree,” in KRS 532.025(2)(a)(2), stating an aggravating factor allowing imposition of the death penalty, was not unconstitutionally vague because it provided the sentencing authority with a specific and detailed formula stated in common and understandable terms to the jury. Parrish v. Commonwealth, 121 S.W.3d 198, 2003 Ky. LEXIS 165 ( Ky. 2003 ), cert. denied, 541 U.S. 1050, 124 S. Ct. 2180, 158 L. Ed. 2d 746, 2004 U.S. LEXIS 3535 (U.S. 2004), overruled in part, Brown v. Commonwealth, 313 S.W.3d 577, 2010 Ky. LEXIS 148 ( Ky. 2010 ).

In a capital murder case, the trial court properly charged the jury on the aggravating circumstance of murder while engaged in the commission of a first degree burglary, under KRS 532.025(2)(a)(2), because the tool shed in which defendant murdered one of the victims qualified as a “building,” for purposes of first degree burglary, under KRS 511.010(1). Soto v. Commonwealth, 139 S.W.3d 827, 2004 Ky. LEXIS 93 ( Ky. 2004 ), cert. denied, 544 U.S. 931, 125 S. Ct. 1670, 161 L. Ed. 2d 495, 2005 U.S. LEXIS 2608 (U.S. 2005).

Once a jury found the existence of aggravating circumstances contained in KRS 532.025(2)(a)(2), that a murder was committed during the commission of first-degree burglary, defendant was placed in the class eligible for the death penalty. Any consideration of defendant’s lack of remorse was harmless. Fields v. Commonwealth, 274 S.W.3d 375, 2008 Ky. LEXIS 259 ( Ky. 2008 ), cert. denied, 558 U.S. 971, 130 S. Ct. 460, 175 L. Ed. 2d 310, 2009 U.S. LEXIS 7564 (U.S. 2009), overruled in part, Childers v. Commonwealth, 332 S.W.3d 64, 2010 Ky. LEXIS 306 ( Ky. 2010 ), overruled in part, Childers v. Commonwealth, 2010 Ky. LEXIS 285 (Ky. Dec. 16, 2010).

As appellant pled guilty to both murder and first-degree robbery, under KRS 532.025(2)(a)2, he was subject to the death penalty; therefore, his counsel did not coerce him to accept a sentence of life without the possibility of parole for 25 years merely by advising him of the risk of being sentenced to death if he went to trial. Roach v. Commonwealth, 384 S.W.3d 131, 2012 Ky. LEXIS 137 ( Ky. 2012 ).

17.—Uncharged Misconduct.

Nonstatutory aggravating factors have been allowed in the penalty phase of a trial, but specific acts of uncharged misconduct are not factors which a jury may consider in its determination of a defendant’s penalty and, therefore, are inadmissible in its penalty phase. Foster v. Commonwealth, 827 S.W.2d 670, 1991 Ky. LEXIS 195 ( Ky. 1991 ), cert. denied, 506 U.S. 921, 113 S. Ct. 337, 121 L. Ed. 2d 254, 1992 U.S. LEXIS 6489 (U.S. 1992); Foster v. Kentucky, 506 U.S. 921, 113 S. Ct. 337, 121 L. Ed. 2d 254, 1992 U.S. LEXIS 6489 (U.S. 1992).

18.—Violation of Protective Order.

In a capital murder case, defendant’s violation of an order issued two years earlier, requiring him to stay away from one of his victims, was properly considered an aggravating circumstance, under KRS 532.025(2)(a)(8), because (1) this statutory provision was not limited to emergency protective orders and domestic violence orders; (2) it was reasonable to presume that the “no contact” order in question was designed to protect the victim from retaliation by defendant for causing him to be arrested for burglary; (3) the district court which issued the order had the authority to issue it, and, because there had never been an indictment in that case, the district court’s jurisdiction had not expired; and (4) as the burglary charge against defendant, which was dismissed without prejudice, was not a misdemeanor and was neither probated nor conditionally discharged, as defendant was never convicted, the “no contact” order had not expired. Soto v. Commonwealth, 139 S.W.3d 827, 2004 Ky. LEXIS 93 ( Ky. 2004 ), cert. denied, 544 U.S. 931, 125 S. Ct. 1670, 161 L. Ed. 2d 495, 2005 U.S. LEXIS 2608 (U.S. 2005).

19.Mitigating Circumstances.

The court is not limited by the statutory definition of mitigating circumstances, but all evidence that would tend to excuse or alleviate appellant’s responsibility is competent. Smith v. Commonwealth, 599 S.W.2d 900, 1980 Ky. LEXIS 223 ( Ky. 1980 ).

Exclusion of testimony of minister, which would have included comment on the relative youth of defendant and his lack of criminal background, specifically ruled out what this section specifically allows, and even though such testimony may have been cumulative and even though the witness had only had a brief acquaintance with defendant, his testimony, as it applied to the statutory mitigating circumstances, should have been admitted. Moore v. Commonwealth, 634 S.W.2d 426, 1982 Ky. LEXIS 264 ( Ky. 1982 ).

While defendant’s young age at the time of murder was an important factor that should have been given serious consideration at both the transfer hearing in juvenile court and as a mitigating circumstance at the sentencing phase in Circuit Court, it was not a constitutional distinction since the United States Supreme Court has not yet decided that juvenile status puts the death penalty in conflict with the Eighth Amendment to the U.S. Constitution.Ice v. Commonwealth, 667 S.W.2d 671, 1984 Ky. LEXIS 212 (Ky.), cert. denied, 469 U.S. 860, 105 S. Ct. 192, 83 L. Ed. 2d 125, 1984 U.S. LEXIS 3642 (U.S. 1984).

The court was not required to instruct the jury on the defendant’s accomplice participation as a mitigating factor, where he emptied a revolver into the bodies of two helpless victims. Halvorsen v. Commonwealth, 730 S.W.2d 921, 1986 Ky. LEXIS 322 ( Ky. 1986 ), cert. denied, 484 U.S. 982, 108 S. Ct. 496, 98 L. Ed. 2d 495, 1987 U.S. LEXIS 5065 (U.S. 1987), cert. denied, 484 U.S. 970, 108 S. Ct. 468, 98 L. Ed. 2d 407, 1987 U.S. LEXIS 5021 (U.S. 1987).

It is unnecessary for a judge or jury to designate the mitigating circumstances which it has rejected. Bevins v. Commonwealth, 712 S.W.2d 932, 1986 Ky. LEXIS 252 ( Ky. 1986 ), cert. denied, 479 U.S. 1070, 107 S. Ct. 963, 93 L. Ed. 2d 1010, 1987 U.S. LEXIS 531 (U.S. 1987).

The decision whether advanced age or alleged poor health should be considered relevant is the judge’s responsibility to make since neither is listed as a statutory mitigating circumstance which the trial court must consider in deciding upon the death penalty. Bevins v. Commonwealth, 712 S.W.2d 932, 1986 Ky. LEXIS 252 ( Ky. 1986 ), cert. denied, 479 U.S. 1070, 107 S. Ct. 963, 93 L. Ed. 2d 1010, 1987 U.S. LEXIS 531 (U.S. 1987).

The defendant was not denied rational sentencing and due process, where the penalty phase instructions failed to require findings regarding mitigating factors, and there were no specific findings. Smith v. Commonwealth, 734 S.W.2d 437, 1987 Ky. LEXIS 200 ( Ky. 1987 ), cert. denied, 484 U.S. 1036, 108 S. Ct. 762, 98 L. Ed. 2d 778, 1988 U.S. LEXIS 425 (U.S. 1988).

The jury need not make specific findings on mitigating factors. Kordenbrock v. Scroggy, 680 F. Supp. 867, 1988 U.S. Dist. LEXIS 1309 (E.D. Ky. 1988 ), aff'd, 889 F.2d 69, 1989 U.S. App. LEXIS 16478 (6th Cir. Ky. 1989 ), rev'd, 919 F.2d 1091, 1990 U.S. App. LEXIS 20424 (6th Cir. Ky. 1990 ).

This section contemplates that the jury will weigh the mitigating circumstances in the process of arriving at an appropriate penalty. Sanders v. Commonwealth, 801 S.W.2d 665, 1990 Ky. LEXIS 93 ( Ky. 1990 ), cert. denied, 502 U.S. 831, 112 S. Ct. 107, 116 L. Ed. 2d 76, 1991 U.S. LEXIS 4767 (U.S. 1991).

In a jury trial, the trial judge is not directed to hear any evidence in mitigation after the jury makes its findings. Epperson v. Commonwealth, 809 S.W.2d 835, 1990 Ky. LEXIS 105 ( Ky. 1990 ), modified, 1991 Ky. LEXIS 89 (Ky. July 3, 1991), cert. denied, 502 U.S. 1065, 112 S. Ct. 955, 117 L. Ed. 2d 122, 1992 U.S. LEXIS 393 (U.S. 1992), cert. denied, 502 U.S. 1037, 112 S. Ct. 885, 116 L. Ed. 2d 789, 1992 U.S. LEXIS 60 (U.S. 1992), writ denied, 2013 Ky. Unpub. LEXIS 21 (Ky. Mar. 21, 2013).

It was not reversible error in a capital murder case for the trial court to fail to consider and set forth in the sentencing report mitigating factors. Foley v. Commonwealth, 953 S.W.2d 924, 1997 Ky. LEXIS 56 ( Ky. 1997 ), cert. denied, 523 U.S. 1053, 118 S. Ct. 1375, 140 L. Ed. 2d 522, 1998 U.S. LEXIS 2237 (U.S. 1998).

Where there was no evidence that anyone but defendant fired the shots that killed victims, defendant’s participation could not be said to have been “relatively minor” within the meaning of paragraph (2)(b)5. Tamme v. Commonwealth, 973 S.W.2d 13, 1998 Ky. LEXIS 46 ( Ky. 1998 ), cert. denied, 525 U.S. 1153, 119 S. Ct. 1056, 143 L. Ed. 2d 61, 1999 U.S. LEXIS 1229 (U.S. 1999).

In a capital murder case, evidence that defendant believed his mother was trapped in an abusive marriage and that she pressured him to kill her husband entitled defendant to a jury instruction on the “moral justification” mitigator, KRS 532.025(2)(b)(4). Therefore, the trial court’s failure to give that instruction entitled him to a new sentencing hearing. Emerson v. Commonwealth, 230 S.W.3d 563, 2007 Ky. LEXIS 166 ( Ky. 2007 ).

In a death penalty case, because defendant was being tried for the murder of the second victim, and not the first victim, the first victim's wife was not a victim of the crime for which defendant was being tried and her victim impact testimony should not have been considered by the jury as it affected defendant's constitutional rights; however, the error was harmless because the jury heard how defendant had been incarcerated in Oklahoma awaiting sentencing for two other murders when he escaped; the proof included the proper victim-impact testimony from the second victim's daughter; and the jury heard testimony that defendant had claimed that killing people was like killing dogs and that it was easy after the first one. St. Clair v. Commonwealth, 451 S.W.3d 597, 2014 Ky. LEXIS 341 ( Ky. 2014 ), cert. denied, 577 U.S. 885, 136 S. Ct. 194, 193 L. Ed. 2d 152, 2015 U.S. LEXIS 5215 (U.S. 2015).

In a death penalty case, the evidence of defendant's other murders was not reversible error because most of the information about the four Oklahoma murders was injected by defendant in an effort to justify or at least minimize his earlier killings by painting the victims as cold killers and drug dealers who in his eyes deserved it; the cross-examination, to the extent the questions directly touched on the allegedly bad information, gave defendant an opportunity to tell his true story, and to do so under the apparent pressure of cross-examination; and it was reasonable for counsel not to object to that cross-examination. St. Clair v. Commonwealth, 451 S.W.3d 597, 2014 Ky. LEXIS 341 ( Ky. 2014 ), cert. denied, 577 U.S. 885, 136 S. Ct. 194, 193 L. Ed. 2d 152, 2015 U.S. LEXIS 5215 (U.S. 2015).

Defendant's right to a jury trial was not violated when the jury was not required to make findings as to non-statutory aggravators it considered in imposing the death penalty because the jury's verdict listed the aggravating circumstance that made defendant eligible for the death penalty in writing, and that was the only specific finding that had to be in writing and was required before the jury could impose the death penalty. St. Clair v. Commonwealth, 451 S.W.3d 597, 2014 Ky. LEXIS 341 ( Ky. 2014 ), cert. denied, 577 U.S. 885, 136 S. Ct. 194, 193 L. Ed. 2d 152, 2015 U.S. LEXIS 5215 (U.S. 2015).

In a death penalty case, the failure to instruct the jury to make written findings as to mitigation did not violate defendant's constitutional or statutory rights as such findings are a sufficient condition for constitutionality, not a necessary one. St. Clair v. Commonwealth, 451 S.W.3d 597, 2014 Ky. LEXIS 341 ( Ky. 2014 ), cert. denied, 577 U.S. 885, 136 S. Ct. 194, 193 L. Ed. 2d 152, 2015 U.S. LEXIS 5215 (U.S. 2015).

Although the two Oklahoma murders and the murder of the first victim could not be used to make defendant eligible for the death penalty, they were nevertheless relevant in determining whether defendant should, in fact, be sentenced to death; thus, the trial court and jury did not rely on invalid sentencing factors in sentencing defendant to death. St. Clair v. Commonwealth, 451 S.W.3d 597, 2014 Ky. LEXIS 341 ( Ky. 2014 ), cert. denied, 577 U.S. 885, 136 S. Ct. 194, 193 L. Ed. 2d 152, 2015 U.S. LEXIS 5215 (U.S. 2015).

Meece v. Commonwealth, 348 S.W.3d 627, ( Ky. 2011 ), and Young v. Commonwealth, 50 S.W.3d 148, ( Ky. 2001 ), properly articulate the law that the jury is required to find a statutory aggravating circumstance, an eligibility factor, before the defendant can be sentenced to death, and to the extent Harris v., Commonwealth, 793 S.W.2d 802 ( Ky. 1990 ), and Jacobs v. Commonwealth, 870 S.W.2d 412, ( Ky. 1994 ), differ from that articulation, they are overruled. St. Clair v. Commonwealth, 451 S.W.3d 597, 2014 Ky. LEXIS 341 ( Ky. 2014 ), cert. denied, 577 U.S. 885, 136 S. Ct. 194, 193 L. Ed. 2d 152, 2015 U.S. LEXIS 5215 (U.S. 2015).

Jury instructions barred the jury from imposing a death sentence unless it found the statutory aggravating circumstance to exist beyond a reasonable doubt. St. Clair v. Commonwealth, 451 S.W.3d 597, 2014 Ky. LEXIS 341 ( Ky. 2014 ), cert. denied, 577 U.S. 885, 136 S. Ct. 194, 193 L. Ed. 2d 152, 2015 U.S. LEXIS 5215 (U.S. 2015).

This statute provides sufficient statutory guidance for the imposition of the death penalty as it requires the jury to find a defendant guilty of a crime for which death is not a disproportionate punishment (that is, a homicide), and requires the jury to find the existence of at least one statutory aggravating circumstance, the definition of which is left up to the legislature, before imposing death. St. Clair v. Commonwealth, 451 S.W.3d 597, 2014 Ky. LEXIS 341 ( Ky. 2014 ), cert. denied, 577 U.S. 885, 136 S. Ct. 194, 193 L. Ed. 2d 152, 2015 U.S. LEXIS 5215 (U.S. 2015).

Defendant's death sentence was proper because it was not imposed under the influence of prejudice, passion, or any other arbitrary factor as the evidence channeled the jury to consider the circumstances of defendant's crimes, including the effect of the crimes on the victim's daughter, and defendant's cold and calculating approach to murder; the evidence supported the jury's conclusion that the murder was committed by a person with a prior record of conviction for a capital offense; although defendant was not convicted of multiple murders in the current case, he had committed multiple murders, and that fact appropriately bore on whether his death sentence was proportionate; and the death sentence was not excessive or disproportionate. St. Clair v. Commonwealth, 451 S.W.3d 597, 2014 Ky. LEXIS 341 ( Ky. 2014 ), cert. denied, 577 U.S. 885, 136 S. Ct. 194, 193 L. Ed. 2d 152, 2015 U.S. LEXIS 5215 (U.S. 2015).

Where petitioner was convicted of two counts of first-degree murder and the jury recommended life imprisonment with no possibility of parole for twenty-five years, which the judge imposed, petitioner was entitled to habeas corpus relief because counsel was ineffective at sentencing since counsel neglected to mount any defense, including to investigate or present mitigating evidence, counsel chose not to delineate the jury's sentencing options, and counsel's remark threatened to alienate jurors. Phillips v. White, 851 F.3d 567, 2017 FED App. 0058P, 2017 U.S. App. LEXIS 4509 (6th Cir. Ky. 2017 ).

20.Death Sentence.

Where the recommendation is death, then the jury shall designate in writing the aggravating circumstances which it found to exist beyond a reasonable doubt. Smith v. Commonwealth, 599 S.W.2d 900, 1980 Ky. LEXIS 223 ( Ky. 1980 ).

The jury’s function with regard to the ultimate sentence is limited, nevertheless its determination that an aggravating circumstance existed is a sine qua non, and its recommendation of the death sentence, though not binding on the trial judge, obviously carries great weight. Gall v. Commonwealth, 607 S.W.2d 97, 1980 Ky. LEXIS 291 ( Ky. 1980 ), cert. denied, 450 U.S. 989, 101 S. Ct. 1529, 67 L. Ed. 2d 824, 1981 U.S. LEXIS 1276 (U.S. 1981), overruled, Payne v. Commonwealth, 623 S.W.2d 867, 1981 Ky. LEXIS 286 ( Ky. 1981 ).

The death penalty sentence for a capital offense authorized by KRS 532.030 and 532.035 (repealed) and the method for its imposition provided by this section are applicable only to capital offenses committed after the effective date of those statutes, December 22, 1976. Hudson v. Commonwealth, 597 S.W.2d 610, 1980 Ky. LEXIS 207 ( Ky. 1980 ).

The ultimate decision concerning the penalty is within the province of the trial judge; even if the jury, after hearing evidence, recommends death, the trial judge has the implicit power to reduce the penalty to a sentence within the limits prescribed by law. Smith v. Commonwealth, 634 S.W.2d 411, 1982 Ky. LEXIS 259 ( Ky. 1982 ), overruled, Barker v. Commonwealth, 477 S.W.3d 583, 2015 Ky. LEXIS 2011 ( Ky. 2015 ).

Where “triggerman” in murder case had received minimum sentence and trial court decided it would be unconstitutional to give the “non-triggerman” the death sentence since it would be disproportionate under those circumstances, the trial judge had authority to relieve the jury of any consideration of the death penalty. Smith v. Commonwealth, 634 S.W.2d 411, 1982 Ky. LEXIS 259 ( Ky. 1982 ), overruled, Barker v. Commonwealth, 477 S.W.3d 583, 2015 Ky. LEXIS 2011 ( Ky. 2015 ).

Where the evidence showed that the defendant murdered three elderly individuals by beating them so badly that they had to be buried in disaster pouches, the sentence of death was not imposed under the influence of passion, prejudice or any other arbitrary factor and the evidence supported the finding of an aggravating circumstance. White v. Commonwealth, 671 S.W.2d 241, 1983 Ky. LEXIS 317 ( Ky. 1983 ), cert. denied, 469 U.S. 963, 105 S. Ct. 363, 83 L. Ed. 2d 299, 1984 U.S. LEXIS 400 (U.S. 1984).

Where the prosecutor clearly sought to divert from the minds of the jurors their true responsibility by implying that the ultimate responsibility of fixing the death penalty would fall to the trial judge, the court, other appellate courts, or to the Governor, it was clearly an error of reversible magnitude. Ward v. Commonwealth, 695 S.W.2d 404, 1985 Ky. LEXIS 307 ( Ky. 1985 ).

Should any inadvertent reference implying a dimunition of the jury’s duty in fixing a death penalty creep into any case, the trial judge should immediately inform the jury that their duty to fix the death penalty should be considered as if there were no possibility of review by any source. Ward v. Commonwealth, 695 S.W.2d 404, 1985 Ky. LEXIS 307 ( Ky. 1985 ).

The trial court’s function in imposing the death penalty following a jury verdict is different from its function where no jury is involved; in exercising his sentencing discretion where the jury has found statutory aggravating circumstances and imposed the death penalty, the trial court is not limited to statutory aggravating circumstances. Matthews v. Commonwealth, 709 S.W.2d 414, 1985 Ky. LEXIS 257 ( Ky. 1985 ), cert. denied, 479 U.S. 871, 107 S. Ct. 245, 93 L. Ed. 2d 170, 1986 U.S. LEXIS 4150 (U.S. 1986).

Once the judge has determined that death is the “only” appropriate penalty, there is no error in the judge next considering the possibility of parole in deciding whether to mitigate that penalty. Bevins v. Commonwealth, 712 S.W.2d 932, 1986 Ky. LEXIS 252 ( Ky. 1986 ), cert. denied, 479 U.S. 1070, 107 S. Ct. 963, 93 L. Ed. 2d 1010, 1987 U.S. LEXIS 531 (U.S. 1987).

Under subdivision (1)(b) of this section, when a jury recommends the death penalty, a trial judge is authorized to reduce the sentence to a term of imprisonment within the limits prescribed by law; a trial judge need not conduct a proportionality review. McClellan v. Commonwealth, 715 S.W.2d 464, 1986 Ky. LEXIS 274 ( Ky. 1986 ), cert. denied, 479 U.S. 1057, 107 S. Ct. 935, 93 L. Ed. 2d 986, 1987 U.S. LEXIS 379 (U.S. 1987).

Where the record demonstrated that the trial court heard the evidence and argument concerning propriety of the death sentence and determined that, under the circumstances, it was an appropriate penalty, the imposition of the death penalty was proper. McClellan v. Commonwealth, 715 S.W.2d 464, 1986 Ky. LEXIS 274 ( Ky. 1986 ), cert. denied, 479 U.S. 1057, 107 S. Ct. 935, 93 L. Ed. 2d 986, 1987 U.S. LEXIS 379 (U.S. 1987).

Only one aggravating circumstance must be shown beyond a reasonable doubt to sustain a death sentence. Simmons v. Commonwealth, 746 S.W.2d 393, 1988 Ky. LEXIS 9 ( Ky. 1988 ), cert. denied, 489 U.S. 1059, 109 S. Ct. 1328, 103 L. Ed. 2d 596, 1989 U.S. LEXIS 1183 (U.S. 1989).

In prosecution for murder where upon conviction defendant was sentenced to death, since such sentence was not imposed under the influence of passion, prejudice, or any other arbitrary factor and the evidence of record clearly supported the jury’s findings of statutory aggravating circumstances as enumerated in subsection (2) of this section, the sentence of death was neither excessive nor disproportionate to the penalty imposed in similar cases considering both the crime and the defendant. Haight v. Commonwealth, 938 S.W.2d 243, 1996 Ky. LEXIS 125 ( Ky. 1996 ), cert. denied, 522 U.S. 837, 118 S. Ct. 110, 139 L. Ed. 2d 63, 1997 U.S. LEXIS 4990 (U.S. 1997).

Defendant’s sentence was properly enhanced to a death sentence where, despite the imprecision in the trial judge’s report, the jury was instructed on seven different aggravators and found the existence of five of them beyond a reasonable doubt. It recommended that defendant be sentenced to death; other than the recognized inaccuracies, the report of the trial judge was correct. Epperson v. Commonwealth, 197 S.W.3d 46, 2006 Ky. LEXIS 49 ( Ky. 2006 ), cert. denied, 549 U.S. 1290, 127 S. Ct. 1840, 167 L. Ed. 2d 337, 2007 U.S. LEXIS 3185 (U.S. 2007).

In a death penalty case, a trial court did not err by failing to find that a death sentence was the appropriate punishment beyond a reasonable doubt because there was no such requirement under KRS 532.025(3). Windsor v. Commonwealth, 413 S.W.3d 568, 2010 Ky. LEXIS 312 ( Ky. 2010 ).

21.—Adequate Notice.

In a capital murder case, defendant received adequate notice of the Commonwealth’s intention to seek the death penalty, under KRS 532.025(1)(a), when, 38 days after defendant’s indictment was rendered and almost 10 months prior to his trial, the Commonwealth filed a formal notice of its intent to seek the death penalty, listing the aggravating circumstances which it alleged were applicable. Soto v. Commonwealth, 139 S.W.3d 827, 2004 Ky. LEXIS 93 ( Ky. 2004 ), cert. denied, 544 U.S. 931, 125 S. Ct. 1670, 161 L. Ed. 2d 495, 2005 U.S. LEXIS 2608 (U.S. 2005).

22.—Inadequate Notice.

Defense counsel was given inadequate notice that the Commonwealth would seek the death penalty where both the defense counsel and the Commonwealth regarded defendant’s trial as a noncapital case until six (6) days before trial and where the Commonwealth represented to defense counsel that no notice had been filed. Smith v. Commonwealth, 845 S.W.2d 534, 1993 Ky. LEXIS 13 ( Ky. 1993 ).

23.—New trial.

Under the capital sentencing procedure set out in this section, after a conviction of a capital crime and upon a written finding by a jury of a statutory aggravating factor beyond a reasonable doubt, an imposed sentence of less than death at the defendant’s first trial does not prevent, in the case of a successful appeal, the Commonwealth from again seeking the death penalty at a second trial. Commonwealth v. Eldred, 973 S.W.2d 43, 1998 Ky. LEXIS 42 ( Ky. 1998 ), cert. denied, 526 U.S. 1070, 119 S. Ct. 1466, 143 L. Ed. 2d 551, 1999 U.S. LEXIS 2661 (U.S. 1999), overruled in part, Brown v. Commonwealth, 313 S.W.3d 577, 2010 Ky. LEXIS 148 ( Ky. 2010 ).

24.Disqualification of Juror.

If a prospective juror will not say whether he can or cannot consider without prejudice the options from which he must choose in arriving at a verdict, he should be disqualified. Gall v. Commonwealth, 607 S.W.2d 97, 1980 Ky. LEXIS 291 ( Ky. 1980 ), cert. denied, 450 U.S. 989, 101 S. Ct. 1529, 67 L. Ed. 2d 824, 1981 U.S. LEXIS 1276 (U.S. 1981), overruled, Payne v. Commonwealth, 623 S.W.2d 867, 1981 Ky. LEXIS 286 ( Ky. 1981 ).

When a juror feels so strongly against the death penalty that he could never, in any circumstance, vote to impose it, or feels so strongly in favor of the death penalty for murder that upon a determination of guilt he could never, in any circumstance, vote to impose a lesser penalty than death, he is disqualified as a juror; thus, the trial court abused its discretion in denying the defendant’s challenge for cause to a juror who favored the death penalty to the exclusion of all other penalties as punishment for intentional murder. Grooms v. Commonwealth, 756 S.W.2d 131, 1988 Ky. LEXIS 36 ( Ky. 1988 ).

24.5—Pretrial Notice.

Prosecutor talked during the sentencing phase of trial about how convicted murderers were dangerous and how they had an incentive to escape, and the entire speech applied equally to anyone convicted of murder, with no attempt made to tie it to petitioner inmate's crimes or his drug abuse. Because the prosecutor's comments could not be considered evidence of the inmate's future dangerousness, they did not need to be disclosed to him. Halvorsen v. Simpson, 2014 U.S. Dist. LEXIS 150549 (E.D. Ky. Oct. 22, 2014), aff'd, 746 Fed. Appx. 489, 2018 FED App. 426N, 2018 U.S. App. LEXIS 23105 (6th Cir. Ky. 2018 ).

25.Evidence.

The statute requires that “only such evidence in aggravation as the state has made known to the defendant prior to his trial shall be admissible”; the purpose of this requirement is to keep the accused fully knowledgeable of what evidence may be relied upon by the Commonwealth so that the accused can make whatever efforts he can to meet it. Smith v. Commonwealth, 599 S.W.2d 900, 1980 Ky. LEXIS 223 ( Ky. 1980 ).

The trial court in a murder prosecution properly admitted evidence pertaining to the defendant’s previous convictions for pandering and third-degree burglary, where the evidence was introduced for the purpose of allowing the jury to decide whether the defendant had a significant history of prior criminal activity when they considered the mitigating circumstances. McQueen v. Commonwealth, 669 S.W.2d 519, 1984 Ky. LEXIS 210 (Ky.), cert. denied, 469 U.S. 893, 105 S. Ct. 269, 83 L. Ed. 2d 205, 1984 U.S. LEXIS 380 (U.S. 1984).

The defense witness’ proffered testimony, the main theme of which concerned his own philosophy about the value of the death sentence, was inadmissible, where he had no academic or professional qualifications to allow him to offer opinion evidence, his personal knowledge of the defendant was at best minimal and remote, and what little of his testimony which might have been admissible, such as the rehabilitative prospects of the defendant, was cumulative. Stanford v. Commonwealth, 734 S.W.2d 781, 1987 Ky. LEXIS 208 ( Ky. 1987 ), aff'd, 492 U.S. 361, 109 S. Ct. 2969, 106 L. Ed. 2d 306, 1989 U.S. LEXIS 3195 (U.S. 1989).

Under this section only such evidence in aggravation as the state has made known to the defendant prior to the trial shall be admissible, but written notice is not required. Francis v. Commonwealth, 752 S.W.2d 309, 1988 Ky. LEXIS 38 ( Ky. 1988 ).

In a murder prosecution of two (2) defendants, the trial court had not been obliged, sua sponte, to sever defendant’s penalty phase from his co-defendant’s penalty phase because the latter introduced evidence in mitigation that she had a submissive personality; it was apparent that defendant’s attorney did not believe that this evidence sufficiently prejudicial to his client to warrant a severance or even cross-examination of the expert. Caudill v. Commonwealth, 120 S.W.3d 635, 2003 Ky. LEXIS 140 ( Ky. 2003 ).

Trial court did not abuse its discretion by excluding defendant's accomplice's plea agreement from evidence during sentencing because it provided the jury with an instruction consistent with this section, and the Commonwealth's acceptance of the plea agreement did not amount to an admission by adoption as the record did not disclose all of the reasons the Commonwealth reduced the charges against the accomplice and the court could not say that the Commonwealth did so because it had determined that he acted wantonly rather than intentionally. Lewis v. Commonwealth, 2015 Ky. LEXIS 2005 (Ky. Sept. 24, 2015).

26.—Pretrial Notice.

The Commonwealth was not required to give notice to the defendant of testimony during the guilt phase of his trial since such testimony was not “additional evidence” during the penalty phase of the trial. Hodge v. Commonwealth, 17 S.W.3d 824, 2000 Ky. LEXIS 17 (Ky.), cert. denied, 531 U.S. 1018, 121 S. Ct. 581, 148 L. Ed. 2d 498, 2000 U.S. LEXIS 7910 (U.S. 2000), modified, 17 S.W.3d 824, 2000 Ky. LEXIS 66 ( Ky. 2000 ).

Where, during the penalty phase, the prosecutor introduced evidence of defendant’s prior criminal convictions, even though there was no proof in the record that the Commonwealth gave defense counsel pretrial notice of an intent to introduce these convictions, there was also no proof that it did not give such notice, and where the prosecutor had orally notified counsel on the record what he intended to tell the jury, to which counsel stated he had no objection, there was no error. Caudill v. Commonwealth, 120 S.W.3d 635, 2003 Ky. LEXIS 140 ( Ky. 2003 ).

Where, 20 days before trial, defendant filed notice of intent to introduce evidence of “mental illness, retardation or deficiency,” the Commonwealth was unable to schedule an independent examination of defendant until three days before the trial began, and the expert never prepared a final report, defendants were not entitled to relief as (1) defendant received the expert’s “preliminary report” before he testified, (2) co-defendant did not raise the issue at all, as the testimony did not prejudice him, and (3) as neither report was in the record, it could not be determined whether either defendant was prejudiced by the failure, if any, to timely receive them. Caudill v. Commonwealth, 120 S.W.3d 635, 2003 Ky. LEXIS 140 ( Ky. 2003 ).

Commonwealth is only required to notify defendant of aggravating circumstances prior to trial, and there is no requirement that an aggravating circumstance must be described in the indictment. Wheeler v. Commonwealth, 121 S.W.3d 173, 2003 Ky. LEXIS 179 ( Ky. 2003 ), modified, 2003 Ky. LEXIS 293 (Ky. Dec. 18, 2003), cert. denied, 541 U.S. 1051, 124 S. Ct. 2180, 158 L. Ed. 2d 746, 2004 U.S. LEXIS 3536 (U.S. 2004).

In a capital murder case, although aggravating circumstances were not charged in the indictment, the requirements of KRS 532.025(1), which mandated written notice of aggravating circumstances prior to trial, were met. Garland v. Commonwealth, 127 S.W.3d 529, 2003 Ky. LEXIS 233 ( Ky. 2003 ), cert. denied, 543 U.S. 839, 125 S. Ct. 252, 160 L. Ed. 2d 63, 2004 U.S. LEXIS 5940 (U.S. 2004), modified, 2004 Ky. LEXIS 54 (Ky. Feb. 19, 2004), overruled in part, Lanham v. Commonwealth, 171 S.W.3d 14, 2005 Ky. LEXIS 244 ( Ky. 2005 ).

27.Extreme Emotional Disturbance.

Where there was evidence that the defendant had been planning to shoot one of the murder victims for some time and that he extended this into multiple killings in order to eliminate the possibility of witnesses, and there was evidence regarding the defendant’s demeanor, appearance, and his calculated behavior which indicated that he did not suddenly go berserk, the defendant was not acting under the influence of extreme emotional disturbance under subdivision (2)(b)2 of this section. Bevins v. Commonwealth, 712 S.W.2d 932, 1986 Ky. LEXIS 252 ( Ky. 1986 ), cert. denied, 479 U.S. 1070, 107 S. Ct. 963, 93 L. Ed. 2d 1010, 1987 U.S. LEXIS 531 (U.S. 1987).

Extreme emotional disturbance for which there is a reasonable explanation or excuse does not exonerate or relieve one of criminal responsibility; it simply reduces the degree of a homicide from murder to manslaughter, and in that respect, it serves the same function as “acting in sudden heat of passion” in pre-penal code times. McClellan v. Commonwealth, 715 S.W.2d 464, 1986 Ky. LEXIS 274 ( Ky. 1986 ), cert. denied, 479 U.S. 1057, 107 S. Ct. 935, 93 L. Ed. 2d 986, 1987 U.S. LEXIS 379 (U.S. 1987).

A mental disease which does not in itself result in a lack of capacity to appreciate the criminality of one’s conduct or to conform one’s conduct to the requirements of law does not rise to the level of insanity, nor does it, in itself, constitute extreme emotional disturbance. McClellan v. Commonwealth, 715 S.W.2d 464, 1986 Ky. LEXIS 274 ( Ky. 1986 ), cert. denied, 479 U.S. 1057, 107 S. Ct. 935, 93 L. Ed. 2d 986, 1987 U.S. LEXIS 379 (U.S. 1987).

Extreme emotional disturbance is a temporary state of mind so enraged, inflamed, or disturbed as to overcome one’s judgment, and to cause one to act uncontrollably from the impelling force of the extreme emotional disturbance rather than from evil or malicious purposes; it is not a mental disease in itself, and an enraged, inflamed, or disturbed emotional state does not constitute an extreme emotional disturbance unless there is a reasonable explanation or excuse therefore, the reasonableness of which is to be determined from the viewpoint of a person in the defendant’s situation under circumstances as defendant believed them to be. McClellan v. Commonwealth, 715 S.W.2d 464, 1986 Ky. LEXIS 274 ( Ky. 1986 ), cert. denied, 479 U.S. 1057, 107 S. Ct. 935, 93 L. Ed. 2d 986, 1987 U.S. LEXIS 379 (U.S. 1987).

Where a jury found that the habeas corpus petitioner killed the victims immediately following a minor collision between the petitioner’s vehicle and the victims’ vehicle, the petitioner was not entitled to habeas corpus relief based upon the fact that the petitioner was only given a general instruction on mitigation and the jury was not specifically instructed to take into account evidence of extreme emotional disturbance, mental illness, or intoxication. Bowling v. Parker, 344 F.3d 487, 2003 FED App. 0330P, 2003 U.S. App. LEXIS 19184 (6th Cir. Ky. 2003 ), cert. denied, 543 U.S. 842, 125 S. Ct. 281, 160 L. Ed. 2d 68, 2004 U.S. LEXIS 5981 (U.S. 2004).

When defendant murdered a mother and then murdered her child, allegedly because the mother refused to loan defendant money, defendant was not entitled to an extreme emotional distress instruction as to the child because any triggering event that was present as to the mother was interrupted or over when the mother told defendant, as he was stabbing her, that he could have the money he wanted, so there was no triggering event applicable to the child’s murder. Parrish v. Commonwealth, 121 S.W.3d 198, 2003 Ky. LEXIS 165 ( Ky. 2003 ), cert. denied, 541 U.S. 1050, 124 S. Ct. 2180, 158 L. Ed. 2d 746, 2004 U.S. LEXIS 3535 (U.S. 2004), overruled in part, Brown v. Commonwealth, 313 S.W.3d 577, 2010 Ky. LEXIS 148 ( Ky. 2010 ).

Defendant was not entitled to an instruction on first-degree manslaughter pursuant to KRS 507.030(1)(b), because no evidence was presented of an extreme emotional disturbance (EED) or a triggering event, as contemplated by KRS 532.025 . Defendant’s substance abuse alone was not evidence of EED, and his fight with his girlfriend was not a triggering event. Fields v. Commonwealth, 274 S.W.3d 375, 2008 Ky. LEXIS 259 ( Ky. 2008 ), cert. denied, 558 U.S. 971, 130 S. Ct. 460, 175 L. Ed. 2d 310, 2009 U.S. LEXIS 7564 (U.S. 2009), overruled in part, Childers v. Commonwealth, 332 S.W.3d 64, 2010 Ky. LEXIS 306 ( Ky. 2010 ), overruled in part, Childers v. Commonwealth, 2010 Ky. LEXIS 285 (Ky. Dec. 16, 2010).

Prisoner’s trial counsel initially sought to present an extreme emotional disturbance (EED) defense that, under Kentucky law, hinged on the testimony of a mental health expert witness; although the admissibility of portions of that testimony may have been in doubt, the trial judge considered the question complex enough to warrant arguments taking up dozens of pages of transcript, ultimately resulting in a decision made without reference to controlling authority. Nothing in the record suggested that this approach fell outside the presumption of sound trial strategy, and, once that strategy was derailed, counsel took the rational option of presenting his EED defense at the punishment stage; because counsel’s actions were not constitutionally deficient, the prisoner’s ineffective-assistance claim failed. Sanborn v. Parker, 629 F.3d 554, 2010 FED App. 0389P, 2010 U.S. App. LEXIS 25912 (6th Cir. Ky. 2010 ), cert. denied, 565 U.S. 980, 132 S. Ct. 498, 181 L. Ed. 2d 353, 2011 U.S. LEXIS 7726 (U.S. 2011).

Court rejected argument that jury instructions impermissibly substituted the words, “acts in connection with the killing of,” for the statutory language that reads “the offender's acts or acts of killing,” because the statute's plain language does not limit itself to principals. When the statute alludes to “the offender's acts or acts of killing,” it follows Kentucky's statutory scheme and refers to both principals and accomplices. Halvorsen v. Simpson, 2014 U.S. Dist. LEXIS 150549 (E.D. Ky. Oct. 22, 2014), aff'd, 746 Fed. Appx. 489, 2018 FED App. 426N, 2018 U.S. App. LEXIS 23105 (6th Cir. Ky. 2018 ).

28.Instructions.

So long as the court has properly instructed jurors to weigh the evidence in their deliberations, without the court having to encroach on their prerogatives, there is no need to instruct the jury on the weight of aggravating and mitigating circumstances. Smith v. Commonwealth, 599 S.W.2d 900, 1980 Ky. LEXIS 223 ( Ky. 1980 ).

Where factual references to the jury’s sentence as a recommendation were unaccompanied by any message that the responsibility of the jury was lessened in any degree, the remarks were not reversible error. Error occurs when, because of additional comments, a message is conveyed that the jury’s decision is not the final one. Skaggs v. Commonwealth, 1985 Ky. LEXIS 304 (Ky. May 23, 1985).

Although the court and prosecutor must be extremely careful to avoid leaving the jury with any impression that would diminish its awesome responsibility in imposing the death sentence, use of the word “recommend” in the instructions to the jury is not constitutionally impermissible, so long as the context in which it is used does not mislead the jury as to its role in the process or its responsibility in exercising its sentencing function. Matthews v. Commonwealth, 709 S.W.2d 414, 1985 Ky. LEXIS 257 ( Ky. 1985 ), cert. denied, 479 U.S. 871, 107 S. Ct. 245, 93 L. Ed. 2d 170, 1986 U.S. LEXIS 4150 (U.S. 1986).

Where the jury sent a note to the court asking questions about parole in the event of a sentence of life imprisonment or a term of years, and the court instructed the jury that these “are questions which the court cannot instruct you upon,” the jury was adequately instructed. Matthews v. Commonwealth, 709 S.W.2d 414, 1985 Ky. LEXIS 257 ( Ky. 1985 ), cert. denied, 479 U.S. 871, 107 S. Ct. 245, 93 L. Ed. 2d 170, 1986 U.S. LEXIS 4150 (U.S. 1986).

Where the jury was instructed that if they had a reasonable doubt whether the defendant should be sentenced to death, they should recommend a sentence of imprisonment instead, and that they could not recommend that the defendant be sentenced to death unless they were satisfied from the evidence beyond a reasonable doubt that the statement listed in the instruction describing the aggravating circumstances was true in its entirety, the instructions adequately portrayed the jury’s sentencing options, and there was no confusion over the discretion to impose a life sentence even if an aggravating circumstance existed. Marlowe v. Commonwealth, 709 S.W.2d 424, 1986 Ky. LEXIS 253 (Ky.), cert. denied, 479 U.S. 946, 107 S. Ct. 427, 93 L. Ed. 2d 378, 1986 U.S. LEXIS 4620 (U.S. 1986).

Clearly, this section requires the finding of an aggravating circumstance beyond a reasonable doubt before the death penalty may be imposed either by the judge or jury. It does not follow, however, that the trial judge, if the finding is to be made by him, must use the exact language of the statute; different procedures apply when the judge determines mitigating and aggravating factors, and it is unnecessary for a judge to instruct himself. Askew v. Commonwealth, 768 S.W.2d 51, 1989 Ky. LEXIS 26 ( Ky. 1989 ).

Although trial counsel failed to object to an obviously and positively erroneous penalty phase instruction defining “aggravating circumstances” to mean “factors to show death is the appropriate sentence,” (the vice of this proposition lies in its implication that where aggravating circumstances are found, death is the only appropriate penalty) via additional instruction by the court the jury was well aware of its option not to impose the death penalty, even if it found aggravating circumstances to exist. Skaggs v. Commonwealth, 803 S.W.2d 573, 1990 Ky. LEXIS 113 ( Ky. 1990 ), cert. denied, 502 U.S. 844, 112 S. Ct. 140, 116 L. Ed. 2d 106, 1991 U.S. LEXIS 5583 (U.S. 1991).

The language of this section clearly states that the judge shall include instructions to the jury regarding mitigating circumstances; however, a court is not required to give a mitigation instruction unless the mitigating circumstances are supported by evidence. Smith v. Commonwealth, 845 S.W.2d 534, 1993 Ky. LEXIS 13 ( Ky. 1993 ).

Although trial judge used the word “recommend” in two isolated instances in the penalty phase instructions, considering all the circumstances, the duty of the jury was not in any way diminished; therefore, there was no reversible error. Bussell v. Commonwealth, 882 S.W.2d 111, 1994 Ky. LEXIS 51 ( Ky. 1994 ), cert. denied, 513 U.S. 1174, 115 S. Ct. 1154, 130 L. Ed. 2d 1111, 1995 U.S. LEXIS 1395 (U.S. 1995).

In prosecution for murder, claim with respect to alleged failure of the instructions to give guidance on application of extreme mental disturbance was without merit where the penalty phase instruction as given on this point was clear that the extent of such disturbance need not rise to the level of that which would constitute a defense to the crime and this was sufficient to inform the jury that the definition of extreme emotional disturbance given during the guilt phase had no application to the extreme mental or emotional disturbance instruction in the penalty phase; in fact the instruction came directly from subdivision (2)(b)2. of this section. Haight v. Commonwealth, 938 S.W.2d 243, 1996 Ky. LEXIS 125 ( Ky. 1996 ), cert. denied, 522 U.S. 837, 118 S. Ct. 110, 139 L. Ed. 2d 63, 1997 U.S. LEXIS 4990 (U.S. 1997).

Trial judge was not obliged to instruct a capital penalty jury that its findings on mitigation did not have to be unanimous, or that it could impose a life sentence even if it found an aggravating factor beyond a reasonable doubt. Caudill v. Commonwealth, 120 S.W.3d 635, 2003 Ky. LEXIS 140 ( Ky. 2003 ).

Defendants’ claims that they were not eligible for the death penalty because the jury did not specifically determine whether each was a principal or an accomplice in the commission of the offense failed, as the accomplice instruction required the accomplice to actually intend that the victim be killed, and the penalty phase instructions permitted the jury to consider in mitigation that defendant was an accomplice in an offense committed by another person and his or her participation in the offense was relatively minor. Caudill v. Commonwealth, 120 S.W.3d 635, 2003 Ky. LEXIS 140 ( Ky. 2003 ).

Trial court properly refused to give penalty phase instructions regarding defendant’s parole eligibility pursuant to KRS 532.025 . Fields v. Commonwealth, 274 S.W.3d 375, 2008 Ky. LEXIS 259 ( Ky. 2008 ), cert. denied, 558 U.S. 971, 130 S. Ct. 460, 175 L. Ed. 2d 310, 2009 U.S. LEXIS 7564 (U.S. 2009), overruled in part, Childers v. Commonwealth, 332 S.W.3d 64, 2010 Ky. LEXIS 306 ( Ky. 2010 ), overruled in part, Childers v. Commonwealth, 2010 Ky. LEXIS 285 (Ky. Dec. 16, 2010).

29.—Failure to Instruct.

The trial court erred to defendant’s substantial prejudice by failing to instruct the jury on mitigating circumstances where there was evidence presented that the capital offense was committed while defendant was under the influence of extreme mental or emotional disturbance and at the time of the capital offense, defendant’s capacity to appreciate the criminality of his conduct was impaired as a result of mental illness or retardation or intoxication. Smith v. Commonwealth, 845 S.W.2d 534, 1993 Ky. LEXIS 13 ( Ky. 1993 ).

Where evidence in a capital murder case showed that appellant was a 19-year old man of limited mental capabilities involved in a five (5) week marriage with victim that suffered from numerous separations and regular infidelities on the victim’s part, appellant and victim fought constantly, and appellant was aware that victim had been with another man on the night of her death, trial court’s failure to provide the jury with an instruction to consider extreme mental or emotional disturbance as a mitigating factor violated appellant’s constitutional right to individualized sentencing and due process. Hunter v. Commonwealth, 869 S.W.2d 719, 1994 Ky. LEXIS 14 ( Ky. 1994 ).

Defendant’s argument that a judge must formally instruct himself in sentencing phase as if he was a jury was without merit. Johnson v. Commonwealth, 103 S.W.3d 687, 2003 Ky. LEXIS 21 (Ky.), cert. denied, 540 U.S. 986, 124 S. Ct. 470, 157 L. Ed. 2d 379, 2003 U.S. LEXIS 8075 (U.S. 2003).

30.Jury Recommendation.

Where the Commonwealth was allowed to state that the jury would recommend a sentence, but the word “recommend” was not used to such an extent as to denigrate the responsibility of the jury in imposing a death penalty, and the voir dire went extensively into each juror’s ability to impose the death penalty, no reversible error was committed. Kordenbrock v. Commonwealth, 700 S.W.2d 384, 1985 Ky. LEXIS 263 ( Ky. 1985 ), cert. denied, 476 U.S. 1153, 106 S. Ct. 2260, 90 L. Ed. 2d 704, 1986 U.S. LEXIS 1712 (U.S. 1986).

The use of the word recommend in the instructions, voir dire, or otherwise is not a sufficient ground to require reversal of a death sentence unless the idea of a jury recommendation is so prevalent that it conveys the message that the jurors’ awesome responsibility is lessened by the fact that their decision is not final but is only a recommendation. McClellan v. Commonwealth, 715 S.W.2d 464, 1986 Ky. LEXIS 274 ( Ky. 1986 ), cert. denied, 479 U.S. 1057, 107 S. Ct. 935, 93 L. Ed. 2d 986, 1987 U.S. LEXIS 379 (U.S. 1987).

In capital cases, the word “recommend” may not be used with reference to a jury’s sentencing responsibilities in voir dire, instructions or closing argument. Tamme v. Commonwealth, 759 S.W.2d 51, 1988 Ky. LEXIS 58 ( Ky. 1988 ).

Where the prosecutor throughout defendant’s trial made repeated references with regard to the jury “recommending” the death penalty to the trial court, and where the penalty phase instructions pertaining to a murder charge contained seven references to the jury “recommending” a sentence, and each of the four options on the verdict forms contained the word “recommend,” the pattern of using the word “recommend” throughout trial to diminish the jury’s sentencing responsibility had a cumulative prejudicial effect. Dean v. Commonwealth, 777 S.W.2d 900, 1989 Ky. LEXIS 77 ( Ky. 1989 ), overruled in part, Caudill v. Commonwealth, 120 S.W.3d 635, 2003 Ky. LEXIS 140 ( Ky. 2003 ), limited, Quarels v. Commonwealth, 142 S.W.3d 73, 2004 Ky. LEXIS 186 ( Ky. 2004 ), overruled in part, Commonwealth v. McGorman, 489 S.W.3d 731, 2016 Ky. LEXIS 102 ( Ky. 2016 ).

The state’s use of the word “recommend” in references to the jury’s role in imposing capital punishment did not violate any of defendant’s constitutional rights where neither the Commonwealth attorney nor the trial court misstated the law and where there was no effort to diminish the jury’s responsibility. Kordenbrock v. Scroggy, 889 F.2d 69, 1989 U.S. App. LEXIS 16478 (6th Cir. Ky. 1989 ).

31.Pleas.

The language of RCr 8.08 and RCr 8.12, as construed according to common and approved usage, expressly prohibits the use of any pleas in criminal cases except guilty or not guilty; any conflicting common rule allowing the acceptance of pleas of nolo contendere is without effect. Commonwealth v. Hillhaven Corp., 687 S.W.2d 545, 1984 Ky. App. LEXIS 638 (Ky. Ct. App. 1984).

By virtue of RCr 8.08, and without regard to the wishes of the Commonwealth, a defendant has an absolute right to unconditionally plead guilty to the crime charged in the indictment, and by a widely utilized procedural device, may do so while maintaining his innocence if he believes such a plea to be in his best interest. Upon entry of such a guilty plea, the trial court must observe a number of procedural and substantive safeguards and impose a sentence within the limits prescribed by law. A defendant may avoid prosecutorial intransigience by entering a guilty plea pursuant to RCr 8.08 and depending on the wisdom of the trial court to impose an appropriate sentence. However, if the guilty plea has strings attached which limit the sentence which may be imposed by virtue of it, the Commonwealth must be a party to the agreement. Commonwealth v. Corey, 826 S.W.2d 319, 1992 Ky. LEXIS 46 ( Ky. 1992 ).

Trial court could not initiate and accept a guilty plea, over the objections of Commonwealth, conditioned on an express right of defendants to withdraw a plea if the court determined that a sentence of life without parole for 25 years or death should be imposed for the crimes committed. Commonwealth v. Corey, 826 S.W.2d 319, 1992 Ky. LEXIS 46 ( Ky. 1992 ).

A competent criminal defendant is entitled to plead guilty to a capital offense and to voluntarily seek and receive the death penalty. Chapman v. Commonwealth, 265 S.W.3d 156, 2007 Ky. LEXIS 178 ( Ky. 2007 ), modified, 2008 Ky. LEXIS 340 (Ky. Aug. 21, 2008).

In a capital murder case, although it was not improper to ask defendant whether he understood the aggravating circumstances alleged by the prosecution, the trial court erred when it asked defendant to admit to the aggravating circumstances during the plea colloquy. However, the error was harmless because even if the trial court had not asked defendant to admit to the aggravating factors, the jury would have easily concluded that the aggravators were satisfied. Dunlap v. Commonwealth, 435 S.W.3d 537, 2013 Ky. LEXIS 292 ( Ky. 2013 ), cert. denied, 574 U.S. 838, 135 S. Ct. 87, 190 L. Ed. 2d 72, 2014 U.S. LEXIS 6466 (U.S. 2014).

32.Prosecutor’s Comments.

Where the prosecutor referred to the jury’s responsibility as “a very heavy burden,” and asked the jury for “a verdict, a penalty of death by electrocution,” the prosecutor said nothing to diminish the jury’s sense of responsibility in imposing the death penalty. Matthews v. Commonwealth, 709 S.W.2d 414, 1985 Ky. LEXIS 257 ( Ky. 1985 ), cert. denied, 479 U.S. 871, 107 S. Ct. 245, 93 L. Ed. 2d 170, 1986 U.S. LEXIS 4150 (U.S. 1986).

Where, in his closing argument, the prosecutor stated that a witness had testified that the defendant indicated he was much older, there was no attempt to mislead the jury, where the prosecutor carefully cautioned the jury that his memory could be wrong, and he also conceded that the defendant was 20 years old. Slaughter v. Commonwealth, 744 S.W.2d 407, 1987 Ky. LEXIS 257 ( Ky. 1987 ), cert. denied, 490 U.S. 1113, 109 S. Ct. 3174, 104 L. Ed. 2d 1036, 1989 U.S. LEXIS 2908 (U.S. 1989).

The defendant did not have his constitutional rights violated because the prosecutor repeatedly stated the jury’s determination concerning the death penalty was a “recommendation” to the trial judge. Kordenbrock v. Scroggy, 680 F. Supp. 867, 1988 U.S. Dist. LEXIS 1309 (E.D. Ky. 1988 ), aff'd, 889 F.2d 69, 1989 U.S. App. LEXIS 16478 (6th Cir. Ky. 1989 ), rev'd, 919 F.2d 1091, 1990 U.S. App. LEXIS 20424 (6th Cir. Ky. 1990 ).

Where during voir dire prosecutor told jurors that their “recommendation of death, if you gave one as a juror, with your fellow jurors, would not be binding upon the court, but that the court would give it great weight” and further prosecutor characterized the jury’s sentence as “a recommendation, that is all”, prosecutor technically stated Kentucky law correctly thus there was no misstatement of law. Kordenbrock v. Scroggy, 919 F.2d 1091, 1990 U.S. App. LEXIS 20424 (6th Cir. Ky. 1990 ), cert. denied, 499 U.S. 970, 111 S. Ct. 1608, 113 L. Ed. 2d 669, 1991 U.S. LEXIS 2023 (U.S. 1991).

Under this section, when the death penalty is sought, evidence of minimum parole eligibility guidelines may not be introduced at all, thus the Commonwealth’s statements concerning parole eligibility made during closing argument in the penalty phase were reason for reversal and re-sentencing. Perdue v. Commonwealth, 916 S.W.2d 148, 1995 Ky. LEXIS 109 ( Ky. 1995 ), cert. denied, 519 U.S. 855, 117 S. Ct. 151, 136 L. Ed. 2d 96, 1996 U.S. LEXIS 5295 (U.S. 1996).

Where, during the penalty phase, the prosecutor first stated the correct test for the mitigating factor of intoxication, then referred to an incorrect standard in a rhetorical question, and the trial judge’s instruction contained the correct test and there was no objection to the rhetorical question, imposition of the death penalty was proper. Caudill v. Commonwealth, 120 S.W.3d 635, 2003 Ky. LEXIS 140 ( Ky. 2003 ).

There was no fundamental unfairness in that portion of the prosecutor’s penalty phase closing argument that evoked sympathy for the victim and members of her family. Caudill v. Commonwealth, 120 S.W.3d 635, 2003 Ky. LEXIS 140 ( Ky. 2003 ).

While the correct capital sentencing protocols were not followed, the deviation did not affect the ultimate sentence in any way and was not such a fundamental error as to jeopardize defendant's right to due process of law because in the final analysis, the same information was presented to the jury; defendant enjoyed the full opportunity to make his arguments in favor of mitigation and mercy, and he was not entitled to have his sentence reversed and remanded for a new sentencing hearing. Spears v. Commonwealth, 448 S.W.3d 781, 2014 Ky. LEXIS 608 ( Ky. 2014 ).

33.Review.

Nonprejudicial errors committed during the sentencing phase are subject to a harmless error analysis. Francis v. Commonwealth, 752 S.W.2d 309, 1988 Ky. LEXIS 38 ( Ky. 1988 ).

34.Waiver.

Where defendant was convicted of complicity to commit murder and received a sentence of life without parole for 25 years and appealed, claiming that the admission of evidence concerning parole eligibility constituted reversible error, the Supreme Court found no harmful error, in that the parole eligibility evidence was introduced by way of stipulated agreement between the prosecution and the defense, thus the defendant had waived his right to claim error. Allgeier v. Commonwealth, 915 S.W.2d 745, 1996 Ky. LEXIS 13 ( Ky. 1996 ).

Cited in:

Whorton v. Commonwealth, 570 S.W.2d 627, 1978 Ky. LEXIS 3 91 ( Ky. 1978 ); Gully v. Kunzman, 592 F.2d 283, 1979 U.S. App. LEXIS 17500 (6th Cir. Ky. 1979 ); Buchanan v. Kentucky, 483 U.S. 402, 107 S. Ct. 2906, 97 L. Ed. 2d 336, 1987 U.S. LEXIS 2877 (U.S. 1987); Halvorsen v. Commonwealth, 730 S.W.2d 921, 1986 Ky. LEXIS 3 22 ( Ky. 1986 ); Cosby v. Commonwealth, 776 S.W.2d 367, 1989 Ky. LEXIS 92 ( Ky. 1989 ); Turpin v. Kassulke, 26 F.3d 1392, 1994 FED App. 0224P, 1994 U.S. App. LEXIS 15519 (6th Cir. Ky. 1994 ); Chumbler v. Commonwealth, 905 S.W.2d 488, 1995 Ky. LEXIS 99 ( Ky. 1995 ); Eldred v. Commonwealth, 906 S.W.2d 694, 1994 Ky. LEXIS 12 2 ( Ky. 1994 ); Coffey v. Messer, 945 S.W.2d 944, 1997 Ky. LEXIS 62 ( Ky. 1997 ); Fields v. Commonwealth, 12 S.W.3d 275, 2000 Ky. LEXIS 22 ( Ky. 2000 ); Stopher v. Commonwealth, 57 S.W.3d 787, 2001 Ky. LEXIS 66 ( Ky. 2001 ); Woodall v. Commonwealth, 63 S.W.3d 104, 2001 Ky. LEXIS 142 ( Ky. 2001 ); Baze v. Parker, 371 F.3d 310, 2004 FED App. 0173P, 2004 U.S. App. LEXIS 11312 (6th Cir. Ky. 2004 ); Quarels v. Commonwealth, 142 S.W.3d 73, 2004 Ky. LEXIS 186 ( Ky. 2004 ); Sherroan v. Commonwealth, 142 S.W.3d 7, 2004 Ky. LEXIS 190 (Ky. 2004); Thompson v. Commonwealth, 147 S.W.3d 22, 2004 Ky. LEXIS 195 (Ky. 2004); Sims v. Commonwealth, 233 S.W.3d 731, 2007 Ky. App. LEXIS 327 (Ky. Ct. App. 2007); Sanborn v. Parker, 2007 U.S. Dist. LEXIS 10747 (W.D. Ky. Feb. 14, 2007); Vaughn v. Commonwealth, 258 S.W.3d 435, 2008 Ky. App. LEXIS 33 (Ky. Ct. App. 2008); Hunt v. Commonwealth, 2009 Ky. LEXIS 292 (Ky. Nov. 25, 2009); Ordway v. Commonwealth, 391 S.W.3d 762, 2013 Ky. LEXIS 3 ( Ky. 2013 ); Ordway v. Commonwealth, 391 S.W.3d 762, 2013 Ky. LEXIS 3 ( Ky. 2013 ); Dye v. Commonwealth, 411 S.W.3d 227, 2013 Ky. LEXIS 300 (Ky. 2013); Smith v. Commonwealth, 454 S.W.3d 283, 2015 Ky. LEXIS 12 ( Ky. 2015 ).

Notes to Unpublished Decisions

Analysis

1.Procedure.

Unpublished decision: Commonwealth of Kentucky complied with KRS 532.025(1)(a) by providing defendant with written notice prior to trial - in fact, approximately two and a half years prior to trial — of the evidence in aggravation that it intended to introduce. St. Clair v. Commonwealth, 140 S.W.3d 510, 2004 Ky. LEXIS 44 ( Ky. 2004 ).

2.Aggravating Circumstances.

Unpublished decision: Indictment does not have to recite the aggravating circumstance necessary to seek capital punishment so long as the Commonwealth satisfies the notice requirement in KRS 532.025(1)(a). Ernst v. Commonwealth, 160 S.W.3d 744, 2005 Ky. LEXIS 137 ( Ky. 2005 ).

3.Prior criminal convictions.

Unpublished decision: For purposes of KRS 532.025(2)(a)(1), prior record of conviction for a capital offense includes a plea of guilty accepted by the trial court or a jury’s or judge’s verdict of guilty. To the extent that Thompson v. Commonwealth, 736 S.W.2d 319, 1987 Ky. LEXIS 231 ( Ky. 1987 ).

Unpublished decision: Where the Commonwealth of Kentucky introduced evidence of all four of defendant’s capital convictions at trial - the latter two of which stemmed from a trial, which because of the date on which it was conducted did not constitute part of defendant’s prior record of conviction of a capital offense at the time of the victim’s murder — all of them were admissible at the capital sentencing phase pursuant to KRS § 532.025(1)(a). St. Clair v. Commonwealth, 140 S.W.3d 510, 2004 Ky. LEXIS 44 ( Ky. 2004 ).

Research References and Practice Aids

Kentucky Bench & Bar.

Gwin, The Death Penalty: Cruel and Unusual Punishment When Imposed Upon Juveniles, Vol. 45, No. 2, April 1981, Ky. Bench & Bar 16.

Kentucky Law Journal.

Kentucky Law Survey, Malone and Malone, Criminal Law, 69 Ky. L.J. 545 (1980-81).

Bartlett, Harris v. Commonwealth: The Use of “Statutory” Aggravating Circumstances in Kentucky’s Sentencing Procedure, 87 Ky. L.J. 203 (1998-99).

Article: The Undiscovered Country: Execution Competency & Comprehending Death, 98 Ky. L.J. 263 (2009/2010).

Northern Kentucky Law Review.

Drogin, To the Brink of Insanity: ‘Extreme Emotional Disturbance’ in Kentucky Law, 26 N. Ky. L. Rev. 99 (1999).

2010 Death Penalty Issue: Article: Race, Death and Disproportionality, 37 N. Ky. L. Rev. 213 (2010).

2010 Death Penalty Issue: Article: The Continuing Role of Race in Capital Cases, Notwithstanding President Obama’s Election, 37 N. Ky. L. Rev. 243 (2010).

2010 Death Penalty Issue: Article: The Racial Justice Act in Kentucky, 37 N. Ky. L. Rev. 273 (2010).

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Assaults and Restraints of Persons, Part 2 Homicide, § 3.22.

Kentucky Instructions To Juries (Criminal), 5th Ed., Assaults and Restraints of Persons, Part 5 Kidnapping and Related Offenses, § 3.79E.

Kentucky Instructions To Juries (Criminal), 5th Ed., Penalty Phase Instructions, Part 2 Capital Offenses, §§ 12.04A — 12.07.

532.030. Authorized dispositions — Generally — Instructions by judge.

  1. When a person is convicted of a capital offense, he shall have his punishment fixed at death, or at a term of imprisonment for life without benefit of probation or parole, or at a term of imprisonment for life without benefit of probation or parole until he has served a minimum of twenty-five (25) years of his sentence, or to a sentence of life, or to a term of not less than twenty (20) years nor more than fifty (50) years.
  2. When a person is convicted of a Class A felony, he shall have his punishment fixed at imprisonment in accordance with KRS 532.060 .
  3. When a person is convicted of an offense other than a capital offense or Class A felony, he shall have his punishment fixed at:
    1. A term of imprisonment authorized by this chapter; or
    2. A fine authorized by KRS Chapter 534; or
    3. Both imprisonment and a fine unless precluded by the provisions of KRS Chapter 534.
  4. In all cases in which the death penalty may be authorized the judge shall instruct the jury in accordance with subsection (1) of this section. The instructions shall state, subject to the aggravating and mitigating limitations and requirements of KRS 532.025 , that the jury may recommend upon a conviction for a capital offense a sentence of death, or at a term of imprisonment for life without benefit of probation or parole, or a term of imprisonment for life without benefit of probation or parole until the defendant has served a minimum of twenty-five (25) years of his sentence, or a sentence of life, or to a term of not less than twenty (20) years nor more than fifty (50) years.

History. Enact. Acts 1974, ch. 406, § 275, effective January 1, 1975; 1976 (Ex. Sess.), ch. 15, § 3, effective December 22, 1976; 1984, ch. 110, § 2, effective July 13, 1984; 1998, ch. 606, § 71, effective July 15, 1998.

NOTES TO DECISIONS

Analysis

1.Constitutionality.

Kentucky’s 1974 mandatory death penalty was unconstitutional. Boyd v. Commonwealth, 550 S.W.2d 507, 1977 Ky. LEXIS 429 ( Ky. 1977 ). (Decision prior to 1976 amendment).

Because Kentucky’s death penalty statute is modeled after the Georgia death penalty statute and the Georgia statute has consistently been held to be constitutional by the U.S. Supreme Court, defendant’s argument that Kentucky’s death penalty statute is unconstitutional was without merit. McQueen v. Scroggy, 99 F.3d 1302, 1996 FED App. 0349P, 1996 U.S. App. LEXIS 28677 (6th Cir. Ky. 1996 ), cert. denied, 520 U.S. 1257, 117 S. Ct. 2422, 138 L. Ed. 2d 185, 1997 U.S. LEXIS 3496 (U.S. 1997), overruled, Abdur'Rahman v. Bell (In re Abdur'Rahman), 392 F.3d 174, 2004 FED App. 0428P, 2004 U.S. App. LEXIS 25609 (6th Cir. Tenn. 2004).

2.Purpose.

The requirement that the election to prosecute any crime classified as a capital offense as a Class A felony be made at the time of indictment was intended to preclude prosecutorial use of the death penalty as a plea bargaining tool and not to deny to either party, state or defendant, the benefit of instructions covering lesser degrees of a capital offense. Trowel v. Commonwealth, 550 S.W.2d 530, 1977 Ky. LEXIS 437 ( Ky. 1977 ).

3.Applicability.

The death penalty sentence for a capital offense authorized by this section and KRS 532.035 (repealed) and the method for its imposition provided by KRS 532.025 are applicable only to capital offenses committed after the effective date of those statutes, December 22, 1976. Hudson v. Commonwealth, 597 S.W.2d 610, 1980 Ky. LEXIS 207 ( Ky. 1980 ).

4.Construction.

Assuming that the provision of this section providing for the death penalty in a kidnapping case (a capital offense) is unconstitutional it does not follow that the alternative penalty of 20 years to life (Class A felony) falls within it; the 20 years to life penalty provided for in subsection (2) of this section is not so essentially and inseparably connected with and dependent upon the death penalty provision of subsection (1) of this section that it is apparent that the general assembly would not have enacted the 20 years to life provision without enacting the death penalty provision. Griffin v. Commonwealth, 576 S.W.2d 514, 1978 Ky. LEXIS 457 ( Ky. 1978 ).

This section and KRS 532.040 should be read together as complimentary to each other rather than as alternatives; the statutory scheme requires imposition of a sentence of imprisonment or fine upon conviction, as appropriate for the offense committed, which must be rendered without unreasonable delay and before sentencing to probation. Commonwealth v. Tiryung, 709 S.W.2d 454, 1986 Ky. LEXIS 265 ( Ky. 1986 ).

5.Capital Offense Sentence.

Where jury chose to convict defendant of intentional multiple murder, the most serious and aggravated offense possible under the circumstances, and attempted to invoke the death penalty, defendant must be sentenced to life imprisonment in order not to frustrate the jury’s intent to impose the maximum punishment legally permissible. Boyd v. Commonwealth, 550 S.W.2d 507, 1977 Ky. LEXIS 429 ( Ky. 1977 ).

A conviction for kidnapping was supported by indictment and statutes although prosecution supplied necessary language to charge a capital offense. Wood v. Commonwealth, 567 S.W.2d 121, 1978 Ky. LEXIS 366 ( Ky. 1978 ).

In action where defendant was convicted of sodomy and kidnapping, where the defendant’s attorney had been under the same mistaken impression as the Commonwealth’s attorney that it was still possible to make an election whether to try defendant for kidnapping as a capital offense or a Class A felony, when the legislature had chosen to delete such option when it amended this section in 1976, which was prior to the occurrence of the offense in 1977, and where the defendant could have been tried for the capital offense, and given the death penalty there was no prejudice shown him in allowing him to be tried for a Class A felony, rather than the capital offense. Griffin v. Commonwealth, 576 S.W.2d 514, 1978 Ky. LEXIS 457 ( Ky. 1978 ).

In a death penalty case, appellant was permitted to waive jury sentencing under KRS 532.030(4), and the right to waive jury sentencing did not disappear due to a guilty plea to a capital offense. Windsor v. Commonwealth, 413 S.W.3d 568, 2010 Ky. LEXIS 312 ( Ky. 2010 ).

6.— Disqualification of Juror.

If a prospective juror will not say whether he can or cannot consider without prejudice the options from which he must choose in arriving at a verdict, he should be disqualified. Gall v. Commonwealth, 607 S.W.2d 97, 1980 Ky. LEXIS 291 ( Ky. 1980 ), cert. denied, 450 U.S. 989, 101 S. Ct. 1529, 67 L. Ed. 2d 824, 1981 U.S. LEXIS 1276 (U.S. 1981), overruled, Payne v. Commonwealth, 623 S.W.2d 867, 1981 Ky. LEXIS 286 ( Ky. 1981 ).

Trial judge did not abuse his discretion in excusing veniremembers who stated that they could not impose the death penalty. Caudill v. Commonwealth, 120 S.W.3d 635, 2003 Ky. LEXIS 140 ( Ky. 2003 ).

In a capital murder prosecution, the trial judge did not abuse his discretion in refusing to excuse veniremembers who stated that they could a impose a sentence in the lower range of penalties if the facts warranted this. Caudill v. Commonwealth, 120 S.W.3d 635, 2003 Ky. LEXIS 140 ( Ky. 2003 ).

As defense counsel was permitted to question potential jurors as to their ability to consider imposing the minimum penalty for aggravated murder, and the trial judge’s death penalty inquiry, in which he set out the full range of sentencing for murder, did not misstate the law or mislead the jury, the jury was properly “life qualified.” Caudill v. Commonwealth, 120 S.W.3d 635, 2003 Ky. LEXIS 140 ( Ky. 2003 ).

7.— Failure to Allege Aggravating Circumstances.

Murder is to be prosecuted as a capital offense pursuant to statute, and the fact that the Commonwealth did not allege or offer to prove any of the aggravating circumstances that would authorize the imposition of aggravated punishment did not transform the offense of capital murder into a Class A felony. Berry v. Commonwealth, 782 S.W.2d 625, 1990 Ky. LEXIS 7 ( Ky. 1990 ), overruled in part, Chestnut v. Commonwealth, 250 S.W.3d 288, 2008 Ky. LEXIS 113 ( Ky. 2008 ).

8.— Recommendation of Death Sentence.

The jury’s function with regard to the ultimate sentence is limited, nevertheless its determination that an aggravating circumstance existed is a sine qua non, and its recommendation of the death sentence, though not binding on the trial judge, obviously carries great weight. Gall v. Commonwealth, 607 S.W.2d 97, 1980 Ky. LEXIS 291 ( Ky. 1980 ), cert. denied, 450 U.S. 989, 101 S. Ct. 1529, 67 L. Ed. 2d 824, 1981 U.S. LEXIS 1276 (U.S. 1981), overruled, Payne v. Commonwealth, 623 S.W.2d 867, 1981 Ky. LEXIS 286 ( Ky. 1981 ).

9.Double Jeopardy.

Where defendants’ convictions for armed robbery, willful murder and malicious shooting without wounding were reversed for trial errors unrelated to sufficiency of the evidence, defendants could be retried and the death penalty statute applied without subjecting defendants to double jeopardy even though the death penalty statute had not been enacted at the time the crimes were committed. Gully v. Kunzman, 592 F.2d 283, 1979 U.S. App. LEXIS 17500 (6th Cir. Ky.), cert. denied, 442 U.S. 924, 99 S. Ct. 2850, 61 L. Ed. 2d 292, 1979 U.S. LEXIS 2397 (U.S. 1979).

KRS 532.025 does not require that the defendant be punished for the same offense twice but only requires that the aggravating circumstances be used to determine whether the crime of murder should receive the death penalty. If the aggravating circumstance cannot be proved, then the penalty of death cannot be imposed. Simply because the aggravating circumstances duplicates one of the underlying offenses does not mean that the defendant is being punished twice for the same offense. The underlying offenses were only factors to be considered as to whether the punishment for murder should be death. Defendant was not subjected to double jeopardy or multiple punishment for the same offense. Wilson v. Commonwealth, 836 S.W.2d 872, 1992 Ky. LEXIS 84 ( Ky. 1992 ), cert. denied, 507 U.S. 1034, 113 S. Ct. 1857, 123 L. Ed. 2d 479, 1993 U.S. LEXIS 2856 (U.S. 1993), overruled in part, St. Clair v. Roark, 10 S.W.3d 482, 1999 Ky. LEXIS 148 ( Ky. 1999 ).

10.Imposition of Sentence.

Any delay in the fixing of penalty is error, but it is not necessarily fatal; whether the delay in fixing a penalty is reversible error, absent objection, depends on whether there are circumstances giving rise to an inference of prejudice. Commonwealth v. Tiryung, 709 S.W.2d 454, 1986 Ky. LEXIS 265 ( Ky. 1986 ).

Trial court improperly revoked defendant’s probated three-year sentence and sentenced him instead to 20 years imprisonment because the sentencing arrangement imposed under the plea agreement violated KRS 532.030 by failing to “fix” the sentence and KRS 532.110(1) by failing to determine the concurrent or consecutive nature of the sentences. Machniak v. Commonwealth, 2010 Ky. LEXIS 282 (Ky. Dec. 16, 2010), op. withdrawn, 2011 Ky. LEXIS 146 (Ky. Sept. 22, 2011).

Even if the trial court had not failed to timely correct defendant’s sentence upon the revocation of defendant’s probation, from a sentence in accord with the written sentencing judgment to the lengthier sentence it told defendant about at defendant’s sentencing hearing, the trial court could only impose a three-year sentence rather than the 20-year sentence it wanted to impose. The trial court was obligated under KRS 532.030 to fix the punishment to be imposed at the time a defendant was convicted, and, indeed had to determine pursuant to KRS 532.110(1) at the time of sentencing whether multiple sentences would be concurrent or consecutive. Machniak v. Commonwealth, 351 S.W.3d 648, 2011 Ky. LEXIS 147 ( Ky. 2011 ).

While the Commonwealth committed a discovery violation by failing to notify defendant of its intent to introduce a prior conviction, sufficient justification did not exist for remand; defendant’s 35-year sentence for wanton murder, a capital offense, was far below the 50-year maximum. Baumia v. Commonwealth, 2012 Ky. LEXIS 191 (Ky. Nov. 21, 2012), sub. op., 402 S.W.3d 530, 2012 Ky. LEXIS 503 ( Ky. 2012 ), sub. op., 402 S.W.3d 530, 2013 Ky. LEXIS 247 ( Ky. 2013 ).

11.Persistent Felony Enhancement.

A persistent felony offender enhancement is not permissible following a conviction for murder. Murder is a capital crime and is not subject to such enhancement. Berry v. Commonwealth, 782 S.W.2d 625, 1990 Ky. LEXIS 7 ( Ky. 1990 ), overruled in part, Chestnut v. Commonwealth, 250 S.W.3d 288, 2008 Ky. LEXIS 113 ( Ky. 2008 ).

A sentence imposed upon conviction for murder is not subject to persistent felony offender enhancement. Offutt v. Commonwealth, 799 S.W.2d 815, 1990 Ky. LEXIS 44 ( Ky. 1990 ).

12.Plea Agreements.

Even if defendant’s plea were not knowingly and voluntarily entered, defendant still received a benefit from a plea agreement under which he pled guilty to murder and first degree robbery and was sentenced to life without the possibility of parole for 25 years because the agreement eliminated the death penalty as a possible punishment, avoided the possible imposition of a sentence of life without the benefit of probation or parole, and his 25-year sentence for robbery first degree was ordered to run concurrently. Denton v. Commonwealth, 2007 Ky. App. LEXIS 245 (Ky. Ct. App. Aug. 3, 2007, sub. op., 2007 Ky. App. Unpub. LEXIS 1183 (Ky. Ct. App. Aug. 3, 2007), review denied, ordered not published, 2008 Ky. LEXIS 57 (Ky. Mar. 12, 2008).

There was no Apprendi due process or equal protection violation since after defendant pled guilty to murder, the trial court imposed the agreed-upon sentence of life without the possibility of parole; the defendant had not been sentenced to a penalty that exceeded the maximum penalty prescribed by KRS 532.030(1), which was death. Furthermore, the defendant had not demanded jury sentencing under RCr 9.84(2). Vaughn v. Commonwealth, 258 S.W.3d 435, 2008 Ky. App. LEXIS 33 (Ky. Ct. App. 2008).

13.Probation.

This section and KRS 533.020 place a duty on the trial court to make a determination of punishment or sentence within a reasonable time after the guilty plea is accepted, and then consider probation; absent these determinations, later proceedings which attempt to revoke probation and impose punishment are invalid. Wilson v. Commonwealth, 577 S.W.2d 618, 1979 Ky. App. LEXIS 381 (Ky. Ct. App. 1979), overruled in part, Cole v. Commonwealth, 609 S.W.2d 371, 1980 Ky. App. LEXIS 390 (Ky. Ct. App. 1980).

Probation standing alone does not function as a sentence because it provides no authorized penalty. Commonwealth v. Tiryung, 709 S.W.2d 454, 1986 Ky. LEXIS 265 ( Ky. 1986 ).

Where a defendant, who failed to object when the court postponed fixing his sentence in order to grant him probation, violated probation, the trial court had the authority to sentence the defendant upon revocation of probation, since there was nothing in the record to suggest any additional punishment was provided because of a subsequent offense. Commonwealth v. Tiryung, 709 S.W.2d 454, 1986 Ky. LEXIS 265 ( Ky. 1986 ).

Because KRS 532.030 required that a term of imprisonment be fixed, and because a term of imprisonment was not a term or condition of a sentence of probation subject to modification pursuant to KRS 533.020(1), KRS 533.050(2) could not give a District Court the authority to grant defendant’s request to amend her sentence in the form of amended terms and conditions of probation that included an increase in a term of imprisonment from 180 days to 12 months. Commonwealth v. Gaddie, 239 S.W.3d 59, 2007 Ky. LEXIS 243 ( Ky. 2007 ).

14.Assistance of Counsel.

Where petitioner was convicted of two counts of first-degree murder and the jury recommended life imprisonment with no possibility of parole for twenty-five years, which the judge imposed, petitioner was entitled to habeas corpus relief because counsel was ineffective at sentencing since counsel neglected to mount any defense, including to investigate or present mitigating evidence, counsel chose not to delineate the jury's sentencing options, and counsel's remark threatened to alienate jurors. Phillips v. White, 851 F.3d 567, 2017 FED App. 0058P, 2017 U.S. App. LEXIS 4509 (6th Cir. Ky. 2017 ).

Cited:

Moore v. Cowan, 560 F.2d 1298, 1977 U.S. App. LEXIS 11806 (6th Cir. 1977), cert. denied, 435 U.S. 929, 98 S. Ct. 1500, 55 L. Ed. 2d 525, 1978 U.S. LEXIS 1174 (1978), cert. denied, Smith v. Cowan, 436 U.S. 960, 98 S. Ct. 3079, 57 L. Ed. 2d 1127, 1978 U.S. LEXIS 2233 (1978); Shannon v. Commonwealth, 562 S.W.2d 301, 1978 Ky. LEXIS 320 ( Ky. 1978 ); Harper v. Commonwealth, 694 S.W.2d 665, 1985 Ky. LEXIS 227 ( Ky. 1985 ); Matthews v. Commonwealth, 709 S.W.2d 414, 1985 Ky. LEXIS 257 ( Ky. 1985 ); Hamilton v. Commonwealth, 754 S.W.2d 870, 1988 Ky. App. LEXIS 72 (Ky. Ct. App. 1988); Morris v. Commonwealth, 766 S.W.2d 58, 1989 Ky. LEXIS 14 ( Ky. 1989 ); Sanders v. Commonwealth, 844 S.W.2d 391, 1992 Ky. LEXIS 171 ( Ky. 1992 ); Simpson v. Commonwealth, 889 S.W.2d 781, 1994 Ky. LEXIS 139 ( Ky. 1994 ); Shepherd v. Commonwealth, 251 S.W.3d 309, 2008 Ky. LEXIS 30 ( Ky. 2008 ); Grigsby v. Commonwealth, 302 S.W.3d 52, 2010 Ky. LEXIS 20 ( Ky. 2010 ); Jackson v. Commonwealth, 319 S.W.3d 343, 2010 Ky. LEXIS 178 ( Ky. 2010 ).

Notes to Unpublished Decisions

1.Imposition of penalty.

Unpublished decision: Defendant’s pretrial motion in his capital murder case, whereby defendant advised the trial court that he consented to the application of the 1998 amendments to KRS 532.030 and requested that the trial court include life without parole as a sentencing option available to the jury if the trial proceeded to a capital sentencing phase, satisfied the unqualified consent requirement; accordingly, defendant was entitled to an instruction on life without parole, and a new capital sentencing phase before the trial court was required because the trial court failed to so instruct the jury. St. Clair v. Commonwealth, 140 S.W.3d 510, 2004 Ky. LEXIS 44 ( Ky. 2004 ).

Opinions of Attorney General.

The application of Section 1 of House Bill 7 which revises KRS 439.3401 to offenses committed before the effective date, would constitute an ex post facto law in violation of the United States Constitution and the Kentucky Constitution since the effect of the Bill would be to increase the minimum sentence for the offense of murder, when a sentence other than life imprisonment or death was imposed from 12 years under the current law to 50% of the sentence of years imposed. OAG 91-26 .

Because no statute authorizes a court to order one convicted of a crime to make a donation to a sheriff’s drug and alcohol fund (or similar public purpose fund), the District Court would have no authority to enter such an order. OAG 91-224 .

Research References and Practice Aids

Cross-References.

Execution of judgment, RCr 11.22.

Fixing of penalty, RCr 9.84.

Imposition of sentence, RCr 11.02.

Kentucky Law Journal.

Cooper and Lawson, Self-Defense in Kentucky: A Need for Clarification or Revision, 76 Ky. L.J. 167 (1987-88).

Northern Kentucky Law Review.

Pruitt, Commonwealth v. Eldred: A Second Bite of the Apple, 26 N. Ky. L. Rev. 133 (1999).

Bartlett, Alternative Sanctions and the Governor’s Crime Bill of 1998 (HB 455): Another Attempt at Providing a Framework for Efficient and Effective Sentencing, 27 N. Ky. L. Rev. 283 (2000).

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Penalty Phase Instructions, Part 2 Capital Offenses, §§ 12.04A, 12.07.

Kentucky Instructions To Juries (Criminal), 5th Ed., Penalty Phase Instructions, Part 3 Felony Offenses, § 12.16.

532.031. Hate crimes — Finding — Effect — Definitions.

  1. A person may be found by the sentencing judge to have committed an offense specified below as a result of a hate crime if the person intentionally because of race, color, religion, sexual orientation, or national origin of another individual or group of individuals or because of a person’s actual or perceived employment as a state, city, county, or federal peace officer, member of an organized fire department, or emergency medical services personnel, violates a provision of any one (1) of the following:
    1. KRS 508.010 , 508.020 , 508.025 , or 508.030 ;
    2. KRS 508.050 or 508.060 ;
    3. KRS 508.100 or 508.110 ;
    4. KRS 509.020 ;
    5. KRS 510.040 , 510.050 , 510.060 , 510.070 , 510.080 , 510.090 , 510.100 , or 510.110 ;
    6. KRS 512.020 , 512.050 , or 512.060 ;
    7. KRS 513.020 , 513.030 , or 513.040 ; or
    8. KRS 525.020 , 525.050 , 525.060 , 525.070 , or 525.080 .
  2. At sentencing, the sentencing judge shall determine if, by a preponderance of the evidence presented at the trial, a hate crime was a primary factor in the commission of the crime by the defendant. If so, the judge shall make a written finding of fact and enter that in the court record and in the judgment rendered against the defendant.
  3. The finding that a hate crime was a primary factor in the commission of the crime by the defendant may be utilized by the sentencing judge as the sole factor for denial of probation, shock probation, conditional discharge, or other form of nonimposition of a sentence of incarceration.
  4. The finding by the sentencing judge that a hate crime was a primary factor in the commission of the crime by the defendant may be utilized by the Parole Board in delaying or denying parole to a defendant.
  5. As used in this section:
    1. “Emergency medical services personnel” has the same meaning as in KRS 311A.010 ; and
    2. “Member of an organized fire department, or emergency medical services personnel” includes volunteers, if the violation occurs while the volunteer is performing duties with an organized fire department or as emergency medical services personnel.

HISTORY: Enact. Acts 1998, ch. 606, § 51, effective July 15, 1998; 2000, ch. 541, § 6, effective July 14, 2000; 2017 ch. 27, § 1, effective June 29, 2017.

NOTES TO DECISIONS

1.Constitutionality.

Ky. Rev. Stat. Ann. § 532.031 was constitutional as written and applied because (1) the statute mandated nothing, so no constitutional right was affected, (2) defendant was not entitled to pre-trial notice of a hate-crime designation or a jury finding, (3) a statutory factor only had to be a crime's primary factor, and (4) sufficient evidence showed defendant's perception of a victim's sexual orientation was a primary factor in assaulting the victim, although such evidence was insufficient as to other victims. Burke v. Commonwealth, 506 S.W.3d 307, 2016 Ky. LEXIS 631 ( Ky. 2016 ).

2.Determination.

Finding of a hate crime need not be made by a jury, because this section does not increase the maximum penalty for any crime. Burke v. Commonwealth, 2014 Ky. App. Unpub. LEXIS 1034 (Ky. Ct. App. July 18, 2014).

Assaults of certain victims were erroneously designated as hate crimes because there was no evidence of these victims' sexual orientation and that the victims' sexual orientation was a primary motivating factor for the assaults. Burke v. Commonwealth, 506 S.W.3d 307, 2016 Ky. LEXIS 631 ( Ky. 2016 ).

Record contained insufficient evidence that defendant was primarily motivated by racial prejudice, even if her statements were evidence of a general disrespect or prejudice toward African-Americans because her statements and slurs were made without reference or connection to the crime of arson; it could not be determined when the statements were made or the context in which they were made; and, however offensive and distasteful, uttering racial slurs at some undetermined point in the past was not enough to establish a sufficient evidentiary nexus of primary racial motivation to commit a crime. While it was unclear why defendant might have committed the charged crimes, the supreme court could not say that a racial motivation was shown. Brafman v. Commonwealth, 612 S.W.3d 850, 2020 Ky. LEXIS 455 ( Ky. 2020 ).

Research References and Practice Aids

Kentucky Law Journal.

Jolly-Ryan, Strengthening Hate Crime Laws in Kentucky, 88 Ky. L.J. 63 (1999-2000).

Northern Kentucky Law Review.

Bartlett, Alternative Sanctions and the Governor’s Crime Bill of 1998 (HB 455): Another Attempt at Providing a Framework for Efficient and Effective Sentencing, 27 N. Ky. L. Rev. 283 (2000).

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public Order, Safety and Morals, Part 2 Riot, Disorderly Conduct and Related Offenses, § 8.45B.

532.032. Restitution.

  1. Restitution to a named victim, if there is a named victim, shall be ordered in a manner consistent, insofar as possible, with the provisions of this section and KRS 439.563 , 532.033 , 533.020 , and 533.030 in addition to any other part of the penalty for any offense under this chapter. The provisions of this section shall not be subject to suspension or nonimposition.
  2. If pretrial diversion is granted, restitution shall be a part of the diversion agreement.
  3. If probation, shock probation, conditional discharge, or other alternative sentence is granted, restitution shall be a condition of the sentence.
  4. If a person is sentenced to incarceration and paroled, restitution shall be made a condition of parole.
  5. Restitution payments ordered under this section shall be paid by the defendant to the clerk or a court-authorized program run by the county attorney or the Commonwealth’s attorney of the county.

History. Enact. Acts 1998, ch. 606, § 45, effective July 15, 1998; 2002, ch. 183, § 30, effective August 1, 2002.

NOTES TO DECISIONS

1.In General.

Trial court erred in concluding that the trial court did not have the legal authority to order defendant to pay restitution if the trial court ordered that defendant serve out defendant’s sentence in prison instead of ordering that defendant be granted probation as the authority to order restitution existed whether or not defendant was sentenced to probation. Clay v. Commonwealth, 2002 Ky. App. LEXIS 1920 (Ky. Ct. App. Sept. 6, 2002).

Where relieving defendant from paying restitution under KRS 532.032(1) based on his incarceration would not give effect to the legislative intent of requiring a defendant to pay restitution to a crime victim, the trial court erred in determining that it lacked jurisdiction to impose restitution. Commonwealth v. O'Bryan, 97 S.W.3d 454, 2003 Ky. App. LEXIS 35 (Ky. Ct. App. 2003).

KRS 532.032 is the generally applicable statute regarding restitution procedures, and KRS 431.200 provides the procedure for a post-sentencing restitution order. Fields v. Commonwealth, 123 S.W.3d 914, 2003 Ky. App. LEXIS 291 (Ky. Ct. App. 2003).

2.Applicability.

During defendant’s sentencing proceedings, the trial court determined that defendant was required to pay restitution of $140,000, and, therefore, KRS 532.032 provided the appropriate procedure for the trial court to follow. Fields v. Commonwealth, 123 S.W.3d 914, 2003 Ky. App. LEXIS 291 (Ky. Ct. App. 2003).

3.Evidence.

Where the 37-year-old defendant had sex with a 15-year-old girl and gave her herpes, where he pled guilty to third-degree rape and other charges, and where the trial court imposed a 20-year prison sentence and ordered defendant to pay $288,000 in restitution, which reflected the victim’s cost for herpes medication for a period of 40 years, the award of restitution was erroneous because it was based upon unsworn and uncross-examined statements of the victim’s mother and nothing else. The span of 40 years seemed to be a purely arbitrary choice of the trial court bearing no observable relationship to any actual medical expenses; with restitution having been set in such a capricious fashion, the trial court committed palpable error under RCr P. 10.26 because one could not state with any degree of confidence that justice was done for either defendant or the victim. Jones v. Commonwealth, 382 S.W.3d 22, 2011 Ky. LEXIS 180 ( Ky. 2011 ).

When the issue of restitution under KRS 532.032 has not been resolved by an agreement between the Commonwealth and the defendant, constitutional due process requires an adversarial hearing that includes the following protections: (1) reasonable notice to the defendant in advance of the sentencing hearing of the amount of restitution claimed and of the nature of the expenses for which restitution is claimed; (2) a hearing before a disinterested and impartial judge that includes a reasonable opportunity for the defendant, with assistance of counsel, to examine the evidence or other information presented in support of an order of restitution; (3) a reasonable opportunity for the defendant with assistance of counsel to present evidence or other information to rebut the claim of restitution and the amount thereof; and (4) the burden shall be upon the Commonwealth to establish the validity of the claim for restitution and the amount of restitution by a preponderance of the evidence, and findings with regard to the imposition of restitution must be supported by substantial evidence. Notwithstanding the foregoing recitation of the minimal due process requirements, trial courts retain broad discretion to manage the proceedings as needed to implement the mandate of KRS 532.032 in a manner that protects constitutional due process and achieves substantial justice. Jones v. Commonwealth, 382 S.W.3d 22, 2011 Ky. LEXIS 180 ( Ky. 2011 ).

Trial court did not err in ordering defendant to pay restitution of $100,000 to the victim because the victim received the policy limit of $300,000 from defendant’s insurer and $100,000 from her insurer; the amount would have only been paid to her by the insurance companies for damages actually resulting from the head-on collision with defendant; the victim’s attorney took at least $100,000 from her settlement as she was required to pay her attorney one-third of those proceeds; and the restitution amount ordered to be paid by defendant would repay the victim $100,000 in funds to which she would have been legally entitled but for the necessity she pay her attorney out of her settlement. Adams v. Commonwealth, 560 S.W.3d 879, 2018 Ky. App. LEXIS 242 (Ky. Ct. App. 2018).

4.Due Process.

When ordering restitution, a trial court must base an award on reliable facts; where defendant contests the amount of restitution, yet the trial court denies him a chance to controvert the Commonwealth’s evidence, trial court deprives defendant of an opportunity to be heard. Kentucky has adopted the due process standard articulated by the Sixth Circuit in Silverman: although a lower standard of due process applies at sentencing, the facts relied on by the court must have some minimal indicium of reliability beyond mere allegation. Thus, in order to satisfy this standard, defendant must have some meaningful opportunity to be heard and the record must establish a factual predicate for the restitution order. Jones v. Commonwealth, 382 S.W.3d 22, 2011 Ky. LEXIS 180 ( Ky. 2011 ).

There was palpable error when the trial court violated the procedure for establishing restitution because the trial court was required to hold an evidentiary hearing prior to imposing restitution as no indication appeared in the record that the Commonwealth of Kentucky and the defense had a prior agreement about the amount of restitution to be paid following defendant’s conviction for first-degree robbery. Taylor v. Commonwealth, 588 S.W.3d 463, 2019 Ky. App. LEXIS 189 (Ky. Ct. App. 2019).

5.Jurisdiction.

Circuit court had subject-matter jurisdiction to order restitution after entering a final judgment sentencing defendant to imprisonment where defendant had been charged with theft by deception over $300 and being a second-degree persistent felony offender. Commonwealth v. Steadman, 411 S.W.3d 717, 2013 Ky. LEXIS 468 ( Ky. 2013 ).

6.Victim.

In a drug case, it was improper to order defendant to pay restitution to a task force because it did not suffer direct or threatened financial harm as a result of defendant's crime. The task force was simply not a victim in the sense that the statutory scheme contemplated to be compensated for any harm it suffered. Hunt v. Commonwealth, 2016 Ky. App. LEXIS 65 (Ky. Ct. App. Apr. 29, 2016).

Research References and Practice Aids

Northern Kentucky Law Review.

Bartlett, Alternative Sanctions and the Governor’s Crime Bill of 1998 (HB 455): Another Attempt at Providing a Framework for Efficient and Effective Sentencing, 27 N. Ky. L. Rev. 283 (2000).

532.033. Order of restitution.

When a judge orders restitution, the judge shall:

  1. Order the restitution to be paid to a specific person or organization through the circuit clerk, who shall disburse the moneys as ordered by the court;
  2. Be responsible for overseeing the collection of restitution;
  3. Set the amount of restitution to be paid;
  4. Set the amount and frequency of each restitution payment or require the payment to be made in a lump sum;
  5. Monitor the payment of the restitution to assure that payment is being made;
  6. If restitution is not being paid as ordered, hold a hearing to determine why the restitution is not being paid;
  7. If the restitution is not being paid and no good reason exists therefor, institute sanctions against the defendant; and
  8. Not release the defendant from probation supervision until restitution has been paid in full and all other aspects of the probation order have been successfully completed.

History. Enact. Acts 1998, ch. 606, § 46, effective July 15, 1998.

NOTES TO DECISIONS

1.Particular Determinations.

Restitution order was sufficiently specific as to who was to be paid because it identified the entity from which money was taken, directed payment to an individual, and gave an address. Smith v. Commonwealth, 361 S.W.3d 908, 2012 Ky. LEXIS 29 ( Ky. 2012 ).

As a trial court made a restitution order pursuant to KRS 532.033(3) and (4), but it failed to set the amount to be paid by defendant, such was improper and could not stand; the trial court had to set the amount specifically. Chames v. Commonwealth, 405 S.W.3d 519, 2012 Ky. App. LEXIS 231 (Ky. Ct. App. 2012).

Trial court did not err in ordering defendant to pay restitution of $100,000 to the victim because the victim received the policy limit of $300,000 from defendant’s insurer and $100,000 from her insurer; the amount would have only been paid to her by the insurance companies for damages actually resulting from the head-on collision with defendant; the victim’s attorney took at least $100,000 from her settlement as she was required to pay her attorney one-third of those proceeds; and the restitution amount ordered to be paid by defendant would repay the victim $100,000 in funds to which she would have been legally entitled but for the necessity she pay her attorney out of her settlement. Adams v. Commonwealth, 560 S.W.3d 879, 2018 Ky. App. LEXIS 242 (Ky. Ct. App. 2018).

Probation order stating that defendant’s probation was to be extended until all restitution was paid did not satisfy the requirements of Ky. Rev. Stat. Ann. § 532.033 where it did not specify the amount of restitution defendant was to pay, to whom it was to be paid, or the amount of payments, and a restitution schedule could not remedy the deficiency because defendant was never ordered to comply with it. Commonwealth v. Adams, 566 S.W.3d 225, 2018 Ky. App. LEXIS 278 (Ky. Ct. App. 2018).

Probation order stating that defendant’s probation was to be extended until all restitution was paid did not satisfy the requirements of Ky. Rev. Stat. Ann. § 532.033 where it did not specify the amount of restitution defendant was to pay or to whom it was to be paid, although it did specify he was to make monthly payments of $200. Commonwealth v. Adams, 566 S.W.3d 225, 2018 Ky. App. LEXIS 278 (Ky. Ct. App. 2018).

2.Hearing.

Defendant’s due process rights were violated where a trial court made a determination regarding what amount of restitution to impose on defendant prior to the time allowed for him to submit documentation on the issue had expired pursuant to KRS 532.350(1) and 532.033(3). Donovan v. Commonwealth, 376 S.W.3d 628, 2012 Ky. App. LEXIS 153 (Ky. Ct. App. 2012).

3.Jurisdiction.

Circuit court properly denied the Commonwealth’s motion to revoke defendant’s probation based upon his failure to pay restitution because the circuit court lacked jurisdiction to revoke defendant’s probation as his fixed probationary period had expired, and no statute automatically extended it. Commonwealth v. Wright, 415 S.W.3d 606, 2013 Ky. LEXIS 652 ( Ky. 2013 ).

Circuit court’s restitution order complied with KRS 532.033 where it set forth the amount of restitution. Although the court’s original pretrial diversion order failed to set an amount, that order was interlocutory and was extended by defendant’s agreement, and because the court retained jurisdiction over defendant, it retained jurisdiction to order restitution. Maddix v. Commonwealth, 2013 Ky. App. LEXIS 20 (Ky. Ct. App. Feb. 1, 2013), review denied, ordered not published, 2014 Ky. LEXIS 47 (Ky. Feb. 12, 2014).

Cited:

Commonwealth v. O’Bryan, 97 S.W.3d 454, 2003 Ky. App. LEXIS 35 (Ky. Ct. App. 2003).

532.034. Restitution for financial loss resulting from theft of identity or trafficking in stolen identities.

  1. A person found guilty of violating any provisions of KRS 434.872 , 434.874 , 514.160 , or 514.170 shall, in addition to any other punishment, be ordered to make restitution for financial loss sustained by a victim as a result of the violation. Financial loss may include any costs incurred by the victim in correcting the credit history of the victim or any costs incurred in connection with any civil or administrative proceeding to satisfy any debt or other obligation of such victim, including lost wages and attorney’s fees.
  2. A person found guilty of violating any provisions of KRS 434.872 , 434.874 , 514.160 , or 514.170 shall pay restitution to the person or entity that suffers the financial loss. In addition to the financial loss detailed in subsection (1) of this section, the person or entity may include a financial institution, insurance company, or bonding association that suffers direct financial loss as a result of the violation.

History. Enact. Acts 2000, ch. 174, § 4, effective July 14, 2000; 2002, ch. 175, § 10, effective July 15, 2002.

NOTES TO DECISIONS

1.Applicability.

Trial court did not err by concluding that an auto sales company was an entity entitled to restitution under KRS 532.034 because, while the company neither had its identity stolen nor was one of the specific types of businesses described in KRS 532.034 (2), the statute’s use of the words “may include” indicated a clear legislative intent to permit the expansion of the list of possible victims, and the company was required to satisfy defendant’s unpaid loan obligation on the truck purchased with the stolen identity, and the truck was damaged when repossessed. Russell v. Commonwealth, 239 S.W.3d 578, 2007 Ky. App. LEXIS 417 (Ky. Ct. App. 2007).

2.Identity Theft.

Defendant’s argument that ordering him to pay an auto sales company restitution would allow a retail business to seek restitution under KRS 532.034 when one purchased goods at the business using a credit card obtained with another’s identifying information was unfounded because KRS 514.160(4) provided that the identity theft statute did not apply to credit or debit card fraud. Russell v. Commonwealth, 239 S.W.3d 578, 2007 Ky. App. LEXIS 417 (Ky. Ct. App. 2007).

532.035. Sentence for capital offense. [Repealed.]

Compiler’s Notes.

This section (Enact. Acts 1976 (Ex. Sess.), ch. 15, § 4, effective December 22, 1976) was repealed by Acts 1984, ch. 110, § 3, effective July 13, 1984.

532.040. Probation and conditional discharge.

When a person is convicted of an offense, other than a capital offense or having been designated a violent offender as defined in KRS 439.3401 , the court, where authorized by KRS Chapter 533 and where not prohibited by other provisions of applicable law, may sentence such person to a period of probation or to a period of conditional discharge as provided in that chapter. A sentence to probation or conditional discharge shall be deemed a tentative one to the extent that it may be altered or revoked in accordance with KRS Chapter 533, but for purposes of appeal shall be deemed to be a final judgment of conviction. In any case where the court imposes a sentence of probation or conditional discharge, it may also impose a fine as authorized by KRS Chapter 534.

History. Enact. Acts 1974, ch. 406, § 276, effective January 1, 1975; 1984, ch. 382, § 22, effective July 13, 1984; 2000, ch. 401, § 7, effective July 14, 2000.

NOTES TO DECISIONS

1.Construction.

This section and KRS 532.030 should be read together as complimentary to each other rather than as alternatives; the statutory scheme requires imposition of a sentence of imprisonment or fine upon conviction, as appropriate for the offense committed, which must be rendered without unreasonable delay and before sentencing to probation. Commonwealth v. Tiryung, 709 S.W.2d 454, 1986 Ky. LEXIS 265 ( Ky. 1986 ).

2.Later Imposition of Jail Sentence.

Original sentence of three (3) years probation was “sentence” under this section so that imposition five (5) months later of one (1) year jail sentence for violation of probation terms did not violate the requirements of RCr 11.02 that sentence must be imposed without unreasonable delay. Cole v. Commonwealth, 609 S.W.2d 371, 1980 Ky. App. LEXIS 390 (Ky. Ct. App. 1980).

Where a defendant, who failed to object when the court postponed fixing his sentence in order to grant him probation, violated probation, the trial court had the authority to sentence the defendant upon revocation of probation, since there was nothing in the record to suggest any additional punishment was provided because of a subsequent offense. Commonwealth v. Tiryung, 709 S.W.2d 454, 1986 Ky. LEXIS 265 ( Ky. 1986 ).

Where defendant’s sentence included a term of probation, which suspended execution of the term of imprisonment, the time for appealing it began to run when the judgment was entered; hence, a reviewing court was precluded from scrutinizing the exercise of the trial judge’s discretion in imposing consecutive sentences after defendant’s probation was revoked. Goldsmith v. Commonwealth, 363 S.W.3d 330, 2012 Ky. LEXIS 24 ( Ky. 2012 ).

3.Probation as Sentence.

Lower court properly denied motion under RCr 11.42 to vacate judgment resentencing defendant to one year imprisonment where probation sentence was violated, since original three (3) years probation imposed by the court was a sentence under this section and substitution of the jail sentence was not the delayed imposition of a sentence under RCr 11.02. Cole v. Commonwealth, 609 S.W.2d 371, 1980 Ky. App. LEXIS 390 (Ky. Ct. App. 1980).

Probation standing alone does not function as a sentence because it provides no authorized penalty. Commonwealth v. Tiryung, 709 S.W.2d 454, 1986 Ky. LEXIS 265 ( Ky. 1986 ).

Condition of probation restricting a probationer’s access to the internet was constitutional under U.S. Const. amend. I, on an as-applied basis, because the probationer’s underlying offenses and failure to comply with sex offender registration did not involve use of the internet and the probation condition of no internet access was not narrowly tailored to serve a legitimate interest and was impermissibly vague. Jennings v. Commonwealth, 2019 Ky. App. LEXIS 64 (Ky. Ct. App. Apr. 12, 2019), rev'd, 613 S.W.3d 14, 2020 Ky. LEXIS 448 ( Ky. 2020 ).

Cited:

Hamilton v. Commonwealth, 754 S.W.2d 870, 1988 Ky. App. LEXIS 72 (Ky. Ct. App. 1988).

Hamilton v. Commonwealth, 754 S.W.2d 870, 1988 Ky. App. LEXIS 72 (Ky. Ct. App. 1988).

Opinions of Attorney General.

The Circuit Court can place a defendant convicted under the Controlled Substances Act on probation even though his sentence would only be the imposition of a fine. OAG 78-18 .

Research References and Practice Aids

Cross-References.

Time period for placing defendant on probation upon defendant’s or court’s motion, jurisdiction, KRS 439.265 .

Kentucky Law Journal.

Kentucky Law Survey, Fortune, Criminal Procedure, 71 Ky. L.J. 367 (1982-83).

532.043. Requirement of postincarceration supervision for certain felonies.

  1. In addition to the penalties authorized by law, any person convicted of, pleading guilty to, or entering an Alford plea to a felony offense under KRS Chapter 510, 529.100 involving commercial sexual activity, 530.020 , 530.064(1)(a), 531.310 , or 531.320 shall be subject to a period of postincarceration supervision following release from:
    1. Incarceration upon expiration of sentence; or
    2. Completion of parole.
  2. The period of postincarceration supervision shall be five (5) years.
  3. During the period of postincarceration supervision, the defendant shall:
    1. Be subject to all orders specified by the Department of Corrections; and
    2. Comply with all education, treatment, testing, or combination thereof required by the Department of Corrections.
  4. Persons under postincarceration supervision pursuant to this section shall be subject to the supervision of the Division of Probation and Parole and under the authority of the Parole Board.
  5. If a person violates a provision specified in subsection (3) of this section, the violation shall be reported in writing by the Division of Probation and Parole. Notice of the violation shall be sent to the Parole Board to determine whether probable cause exists to revoke the defendant’s postincarceration supervision and reincarcerate the defendant as set forth in KRS 532.060 .
  6. The provisions of this section shall apply only to persons convicted, pleading guilty, or entering an Alford plea after July 15, 1998.

History. Enact. Acts 1998, ch. 606, § 25, effective July 15, 1998; 2000, ch. 345, § 9, effective July 14, 2000; 2006, ch. 182, § 42, effective July 12, 2006; 2007, ch. 19, § 15, effective June 26, 2007; 2011, ch. 2, § 91, effective March 3, 2011.

Compiler’s Notes.

Section 197 of Acts 1998, ch. 606, stated: “Sections 24, 25, 70, and 121 of this Act may be cited as the Sarah Hansen Act.”

NOTES TO DECISIONS

1.Constitutionality.

This section, which imposes an additional three years conditional discharge for certain offenses, is an unconstitutional ex post facto law as applied to offenses committed before the effective date of the act. Purvis v. Commonwealth, 14 S.W.3d 21, 2000 Ky. LEXIS 34 ( Ky. 2000 ).

The application of this section to a defendant who committed third degree sodomy prior to the effective date of the statute was unconstitutional as an improper ex post facto application of the statute. Lozier v. Commonwealth, 32 S.W.3d 511, 2000 Ky. App. LEXIS 33 (Ky. Ct. App. 2000).

KRS 532.043 did not violate the separation of powers doctrine by infringing upon the judiciary’s duty to administer justice and by removing all discretion from the trial court by imposing a three-year mandatory conditional discharge, as the Legislature, and not the judiciary, designated the elements of criminal conduct and the corresponding penalties; further, the Legislature did not unconstitutionally usurp the court’s functions by eliminating the exercise of discretion by the trial court in fixing a sentence, as it had the plenary power to set criminal penalties. Wilfong v. Commonwealth, 175 S.W.3d 84, 2004 Ky. App. LEXIS 353 (Ky. Ct. App. 2004).

Where defendant pled guilty and was not sentenced by a jury, his request that the appeals court declare KRS 532.043 to be in violation of the Truth in Sentencing Statute, KRS 532.055 , and the constitutional guarantee of due process, lacked merit; thus, the jury was not required to hear information regarding the mandated post-incarceration three-year term of conditional discharge. Wilfong v. Commonwealth, 175 S.W.3d 84, 2004 Ky. App. LEXIS 353 (Ky. Ct. App. 2004).

KRS 532.043(5) does not violate the separation of powers clause by giving the power of revocation of conditional discharge to the courts, and thus was constitutional because service of a defendant’s conditional discharge sentence remained under the control of the judicial branch, and not, as parole, under the executive branch. Henley v. Commonwealth, 2007 Ky. App. LEXIS 427 (Ky. Ct. App. Nov. 9, 2007) sub. nom.Jones v. Commonwealth, 2008 Ky. LEXIS 276 (Ky. Oct. 15, 2008).

Because KRS 532.043(5) violated the separation of powers doctrine of Ky. Const. §§ 27 and 28 by impermissibly conferring an executive power to revoke a post-incarceration or post-parole conditional release upon the judiciary, the revocation of appellants’ post-incarceration conditional discharge was improper. Jones v. Commonwealth, 319 S.W.3d 295, 2010 Ky. LEXIS 99 ( Ky. 2010 ), modified, 2010 Ky. LEXIS 250 (Ky. Sept. 23, 2010).

Requiring five years’ post-incarceration supervision pursuant to KRS 532.043 was not an ex post facto violation under U.S. Const. art. I, § 9 and Ky. Const. § 19, absent proof that the events giving rise to the guilty plea occurred before the revised sentencing provisions of KRS 532.043 took effect. Brady v. Commonwealth, 396 S.W.3d 315, 2013 Ky. App. LEXIS 46 (Ky. Ct. App. 2013).

Circuit court properly denied defendant's motion to vacate her sentence because she did not sign or verify it, it was untimely filed, and defendant failed to notify the Attorney General of her challenge to the constitutionality of the post-incarceration statute, the requirement that defendant admit guilt as a condition of her counseling course did not violate her constitutional right against self-incrimination where Kentucky had statutes in place to prevent admissions of guilt during required counseling from being used as the basis for criminal charges, and she had to appeal through the proper administrative process if her post-incarceration supervision was revoked by the Division of Probation and Parole. Skaggs v. Commonwealth, 488 S.W.3d 10, 2016 Ky. App. LEXIS 157 (Ky. Ct. App. 2016).

2.Applicability.

Appellant was not required to receive written notice at sentencing, or anytime thereafter, to have the three-year conditional discharge period apply to appellant’s sentence. As a matter of law, when appellant was convicted as a sex offender, appellant was subject to the three-year conditional release period, and the record further showed that appellant was sufficiently apprised of the conditional release period. Jones v. Commonwealth, 200 S.W.3d 495, 2006 Ky. App. LEXIS 248 (Ky. Ct. App. 2006).

Since the version of KRS 532.043 in effect at the time that the offenses were allegedly committed only allowed for a conditional discharge of three years, the trial court erred in sentencing defendant to five years of conditional discharge. Sanderson v. Commonwealth, 291 S.W.3d 610, 2009 Ky. LEXIS 96 ( Ky. 2009 ).

Pursuant to KRS 532.043 , a trial court erred when it listed the conditions that could be imposed upon defendant’s conditional discharge, as such was within the authority of the Department of Corrections. Chames v. Commonwealth, 405 S.W.3d 519, 2012 Ky. App. LEXIS 231 (Ky. Ct. App. 2012).

Trial courts properly denied defendants’ motions to amend their criminal sentences because, while they were not able to anticipate the changes to the statutory revocation procedures, each of them pleaded guilty to sex offenses and sought removal of the conditional discharge, the criminal rule had to be considered before the civil rule, and their punishment did not become stricter and their right to due process was not diminished. Martin v. Commonwealth, 2014 Ky. App. LEXIS 60 (Ky. Ct. App. Apr. 4, 2014) sub. nom.McDaniel v. Commonwealth, 2014 Ky. LEXIS 547 (Ky. Dec. 10, 2014) sub. nom.Deshields v. Commonwealth, 2014 Ky. LEXIS 552 (Ky. Dec. 10, 2014), vacated, 495 S.W.3d 115, 2016 Ky. LEXIS 321 ( Ky. 2016 ).

Circuit court did not abuse its discretion in denying defendant's motion to amend his sentence pursuant to Ky. R. Crim. P. 11.42; 2011 amendments to Ky. Rev. Stat. § 532.043 were not applied retroactively to defendant, but merely changed the revocation provision to comply with the Supreme Court's directive in Jones v. Commonwealth by placing the responsibility to revoke conditional discharge in the executive branch rather than the judicial branch. Melcher v. Commonwealth, 471 S.W.3d 699, 2015 Ky. App. LEXIS 96 (Ky. Ct. App. 2015).

Court of Appeals correctly held that the Board of Claims properly dismissed a parolee’s suit against the parole board because, while the Court found that the Board of Claims only had jurisdiction to award damages for “the negligent performance of ministerial acts,” the Supreme Court of Kentucky held that the parole board’s revocation hearing was a quasi-adjudicative function, a discretionary act for which it enjoyed absolute immunity inasmuch as the board was duty-bound to determine whether the parolee was subject to statutory post-incarceration supervision requirements and whether she had violated the requirements, which did not abrogate the board’s absolute immunity. Roach v. Ky. Parole Bd., 553 S.W.3d 791, 2018 Ky. LEXIS 278 ( Ky. 2018 ).

3.Conditional Discharge Not Authorized.

Circuit court improperly imposed a five-year conditional discharge period and accompanying conditions following the expiration of defendant’s sentence as well as other restrictions relative to his duty to register in the sex offender registration database after he pled guilty to kidnapping because conditional discharge was not authorized by KRS 532.043 . Ladriere v. Commonwealth, 329 S.W.3d 278, 2010 Ky. LEXIS 259 ( Ky. 2010 ).

4.Amendment of Sentence.

Amendment of a sentence was inappropriate because the Kentucky Legislature's amendment of Ky. Rev. Stat. Ann. § 532.043(5), after a prior version of that subsection was declared an unconstitutional violation of the separation of powers doctrine, was not an ex post facto law and its application did not warrant amendment of the sentence. Rider v. Commonwealth, 460 S.W.3d 909, 2014 Ky. App. LEXIS 196 (Ky. Ct. App. 2014).

5.Due process.

Defendant was denied due process at a final hearing on revocation of post-incarceration supervision because (1) the revocation was insufficiently based on findings at a probable cause hearing, (2) defendant was not asked if defendant sought counsel’s assistance, and (3) defendant did not receive timely notice of the final hearing or a final decision identifying the decision’s basis. Jones v. Bailey, 576 S.W.3d 128, 2019 Ky. LEXIS 216 ( Ky. 2019 ).

Defendant was denied due process at a final hearing on revocation of post-incarceration supervision because (1) the revocation was insufficiently based on findings at a probable cause hearing, (2) defendant was not asked if defendant sought counsel’s assistance, and (3) defendant did not receive timely notice of the final hearing or a final decision identifying the decision’s basis. State v. Epefanio, 156 Wn. App. 378, 234 P.3d 253, 2010 Wash. App. LEXIS 1116 (Wash. Ct. App. 2010).

6.Standard of proof.

Ky. Rev. Stat. Ann. § 532.043(5) does not permit the application of a probable cause standard at a final hearing to determine whether an offender has violated a condition of the offender’s post-incarceration supervision because due process requires that the evidentiary final hearing be the basis for more than determining probable cause, and it is presumed Ky. Rev. Stat. Ann. § 532.043(5) is not contrary to any constitutional right. Jones v. Bailey, 576 S.W.3d 128, 2019 Ky. LEXIS 216 ( Ky. 2019 ).

Ky. Rev. Stat. Ann. § 532.043(5) does not permit the application of a probable cause standard at a final hearing to determine whether an offender has violated a condition of the offender’s post-incarceration supervision because due process requires that the evidentiary final hearing be the basis for more than determining probable cause, and it is presumed Ky. Rev. Stat. Ann. § 532.043(5) is not contrary to any constitutional right. Jones v. Bailey, 576 S.W.3d 128, 2019 Ky. LEXIS 216 ( Ky. 2019 ).

Cited:

Martin v. Chandler, 122 S.W.3d 540, 2003 Ky. LEXIS 265 ( Ky. 2003 ).

Research References and Practice Aids

Kentucky Bench & Bar.

Hunt, Human Trafficking: A Primer for Kentucky Lawyers. Vol. 73, No. 4, July 2009, Ky. Bench & Bar, 17.

Northern Kentucky Law Review.

Bartlett, Alternative Sanctions and the Governor’s Crime Bill of 1998 (HB 455): Another Attempt at Providing a Framework for Efficient and Effective Sentencing, 27 N. Ky. L. Rev. 283 (2000).

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public Order, Safety and Morals, Part 8 Family Offenses, § 8.99.

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Related to Sex and Pornography, Part 2 Rape, § 4.23.

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Related to Sex and Pornography, Part 6 First-Degree Unlawful Transaction with a Minor, § 4.59B.

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Related to Sex and Pornography, Part 9 Sexual Exploitation of Minors, § 4.87.

532.045. Persons prohibited from probation or postincarceration supervision — Procedure when probation or postincarceration supervision not prohibited.

  1. As used in this section:
    1. “Position of authority” means but is not limited to the position occupied by a biological parent, adoptive parent, stepparent, foster parent, relative, household member, adult youth leader, recreational staff, or volunteer who is an adult, adult athletic manager, adult coach, teacher, classified school employee, certified school employee, counselor, staff, or volunteer for either a residential treatment facility or a detention facility as defined in KRS 520.010(4), staff or volunteer with a youth services organization, religious leader, health-care provider, or employer;
    2. “Position of special trust” means a position occupied by a person in a position of authority who by reason of that position is able to exercise undue influence over the minor; and
    3. “Substantial sexual conduct” means penetration of the vagina or rectum by the penis of the offender or the victim, by any foreign object; oral copulation; or masturbation of either the minor or the offender.
  2. Notwithstanding other provisions of applicable law, probation shall not be granted to, nor shall the execution or imposition of sentence be suspended for, nor shall a finding bringing the defendant within the provision of this section be stricken for a person convicted of violating KRS 510.050 , 510.080 , 529.040 , 529.070 , 529.100 where the offense involves commercial sexual activity, 530.020 , 531.310 , 531.320 , or 531.370 , or criminal attempt to commit any of these offenses under KRS 506.010 , and, who meets one (1) or more of the following criteria:
    1. A person who commits any of the offenses enumerated in this subsection against a minor by the use of force, violence, duress, menace, or threat of bodily harm;
    2. A person who, in committing any of the offenses enumerated in this subsection, caused bodily injury to the minor;
    3. A person convicted of any of the offenses enumerated in this subsection and who was a stranger to the minor or made friends with the minor for the purpose of committing an act constituting any of the offenses enumerated in this subsection, unless the defendant honestly and reasonably believed the minor was eighteen (18) years old or older;
    4. A person who used a dangerous instrument or deadly weapon against a minor during the commission of any of the offenses enumerated in this subsection;
    5. A person convicted of any of the offenses enumerated in this subsection and who has had a prior conviction of assaulting a minor, with intent to commit an act constituting any of the offenses enumerated in this subsection;
    6. A person convicted of kidnapping a minor in violation of the Kentucky Penal Code and who kidnapped the minor for the purpose of committing an act constituting any of the offenses enumerated in this subsection;
    7. A person who is convicted of committing any of the offenses enumerated in this subsection on more than one (1) minor at the same time or in the same course of conduct;
    8. A person who in committing any of the offenses enumerated in this subsection has substantial sexual conduct with a minor under the age of fourteen (14) years; or
    9. A person who occupies a position of special trust and commits an act of substantial sexual conduct. Nothing in this section shall be construed to prohibit the additional period of five (5) years’ postincarceration supervision required by KRS 532.043 .
  3. If a person is not otherwise prohibited from obtaining probation or conditional discharge under subsection (2), the court may impose on the person a period of probation or conditional discharge. Probation or conditional discharge shall not be granted until the court is in receipt of the comprehensive sex offender presentence evaluation of the offender performed by an approved provider, as defined in KRS 17.500 or the Department of Corrections. The court shall use the comprehensive sex offender presentence evaluation in determining the appropriateness of probation or conditional discharge.
  4. If the court grants probation or conditional discharge, the offender shall be required, as a condition of probation or conditional discharge, to successfully complete a community-based sexual offender treatment program operated or approved by the Department of Corrections or the Sex Offender Risk Assessment Advisory Board.
  5. The offender shall pay for any evaluation or treatment required pursuant to this section up to the offender’s ability to pay but not more than the actual cost of the comprehensive sex offender presentence evaluation or treatment.
  6. Failure to successfully complete the sexual offender treatment program constitutes grounds for the revocation of probation or conditional discharge.
  7. The comprehensive sex offender presentence evaluation and all communications relative to the comprehensive sex offender presentence evaluation and treatment of a sexual offender shall fall under the provisions of KRS 197.440 . The comprehensive sex offender presentence evaluation shall be filed under seal and shall not be made a part of the court record subject to review in appellate proceedings and shall not be made available to the public.
  8. Before imposing sentence, the court shall advise the defendant or his counsel of the contents and conclusions of any comprehensive sex offender presentence evaluation performed pursuant to this section and afford a fair opportunity and a reasonable period of time, if the defendant so requests, to controvert them. The court shall provide the defendant’s counsel and the Commonwealth’s attorney a copy of the comprehensive sex offender presentence evaluation. It shall not be necessary to disclose the sources of confidential information.
  9. To the extent that this section conflicts with KRS 533.010 , this section shall take precedence.

History. Enact. Acts 1984, ch. 382, § 23, effective July 13, 1984; 1994, ch. 94, § 3, effective July 15, 1994; 1996, ch. 300, § 3, effective July 15, 1996; 1998, ch. 293, § 1, effective July 15, 1998; 1998, ch. 606, § 118, effective July 15, 1998; 2000, ch. 401, §§ 9, 34, effective July 14, 2000; 2006, ch. 182, § 43, effective July 12, 2006; 2007, ch. 19, § 16, effective June 26, 2007; 2011, ch. 2, § 94, effective June 8, 2011; 2014, ch. 132, § 22, effective July 15, 2014.

NOTES TO DECISIONS

1.Constitutionality.

There is a reasonable basis in the General Assembly’s contrasting sexual offenders who are strangers or mere acquaintances of the abused child from those who abuse not only the child, but their advantageous position as a person who society teaches the child to regard as an adult role model; therefore, this section does not violate Ky. Const., § 59 as being class legislation. Owsley v. Commonwealth, 743 S.W.2d 408, 1987 Ky. App. LEXIS 589 (Ky. Ct. App. 1987).

This section, as it pertains to persons convicted of violating KRS 510.110 , does not violate Ky. Const., § 51. Owsley v. Commonwealth, 743 S.W.2d 408, 1987 Ky. App. LEXIS 589 (Ky. Ct. App. 1987).

This section does not violate the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution because it punishes males but not females who engage in “substantial sexual conduct” with a minor under the age of fourteen (14) years, as this section clearly condemns penetration by any foreign object as well as other kinds of sexual conduct capable of being performed by males or females. Owsley v. Commonwealth, 743 S.W.2d 408, 1987 Ky. App. LEXIS 589 (Ky. Ct. App. 1987).

2.Construction.

Whether a defendant is a person in a position of authority or special trust is a question of fact for the jury, the jury is not limited to the list of persons contained in the statute, and the definitions of position of authority and position of special trust are not mutually exclusive at all; a person occupying a position of special trust is one who is in a position to exercise authority over a minor, and the position need not be an official one, and it is enough that a jury make an objective determination that the defendant is a person in a trustful position of power over the minor. Boone v. Commonwealth, 2013 Ky. App. LEXIS 152 (Ky. Ct. App. Oct. 18, 2013), review denied, ordered not published, 2014 Ky. LEXIS 407 (Ky. Aug. 13, 2014).

Court sees nothing that would require a finding of a personal, intimate, or meaningful relationship; the statute requires no regularity, frequency, or duration of contact between the perpetrator and the victim, and the court sees no reason to impose one upon it. Boone v. Commonwealth, 2013 Ky. App. LEXIS 152 (Ky. Ct. App. Oct. 18, 2013), review denied, ordered not published, 2014 Ky. LEXIS 407 (Ky. Aug. 13, 2014).

Definitions of position of authority and position of special trust are not mutually exclusive, and rather, one defines the other; the jury was not presented with alternate theories of guilt in this first-degree sexual abuse case and defendant’s unanimity argument failed. Boone v. Commonwealth, 2013 Ky. App. LEXIS 152 (Ky. Ct. App. Oct. 18, 2013), review denied, ordered not published, 2014 Ky. LEXIS 407 (Ky. Aug. 13, 2014).

3.Construction with Other Laws.

KRS 500.095 , which allows a trial judge to create innovative and effective sentencing alternatives, does not overrule the sentencing prohibition set forth in this section. Porter v. Commonwealth, 841 S.W.2d 166, 1992 Ky. LEXIS 169 ( Ky. 1992 ).

KRS 510.110(1)(d) is not unconstitutionally vague under U.S. Const. amend. XIV; although 16-17 year olds could have legally consented to sexual activity, the Kentucky General Assembly has recognized that certain persons may be able to abuse a position of authority or influence to obtain sexual contact with minors, and the legislature has a rational basis to impose a higher standard on persons who have an advantageous position of authority or influence over minors in their care. Even if the statutory definitions of “position of authority” and “position of special trust” were potentially vague in some situations, they clearly applied to appellant, who was exercising parental authority over a child staying at his house, and a dismissal of the indictment for first-degree sexual abuse was not appropriate. Stinson v. Commonwealth, 2011 Ky. App. LEXIS 161 (Ky. Ct. App. Sept. 9, 2011).

Trial court did not err by denying defendant’s motion for a directed verdict after determining that the phrase “with whom he or she comes into contact as a result of that position” of KRS 510.110 (d) merely required proof that defendant came into contact with the child victim as a result of his position of authority, but that the contact could, though did not have to be, the initial contact or the sexual contact. Sprague v. Commonwealth, 2011 Ky. App. LEXIS 242 (Ky. Ct. App. Dec. 16, 2011, sub. op., 2011 Ky. App. Unpub. LEXIS 984 (Ky. Ct. App. Dec. 16, 2011).

Element of lack of consent under KRS 510.110(1)(d) was satisfied by the fact that the victim was unable to consent, as she was 17 and was subjected to sexual contact by a person in a position of authority or special trust within the meaning of KRS 532.045(1)(b); defendant was the victim’s uncle and the head of her household at the time of the offense. Stinson v. Commonwealth, 396 S.W.3d 900, 2013 Ky. LEXIS 87 ( Ky. 2013 ).

Requirement under KRS 510.110(1)(d) that the perpetrator be in a “position of authority” and/or “position of special trust” does not render the statute unconstitutionally void for vagueness, as those terms are defined by KRS 532.045 . Stinson v. Commonwealth, 396 S.W.3d 900, 2013 Ky. LEXIS 87 ( Ky. 2013 ).

4.Position of authority or special trust.

It was not defendant’s mere status as an adult that categorized him as a person in a position of authority or special trust, and the evidence showed more than that and was sufficient to support a factual finding that he fit the definitions, as he had been a household member for two years and was engaged to the mother of the victim’s friend. Boone v. Commonwealth, 2013 Ky. App. LEXIS 152 (Ky. Ct. App. Oct. 18, 2013), review denied, ordered not published, 2014 Ky. LEXIS 407 (Ky. Aug. 13, 2014).

There was sufficient evidence from which the jury could have found that defendant occupied a position of authority and special trust in relation to the victim, and came into contact with the victim as a result of that position, and thus the denial of defendant’s motion for a directed verdict for his charge of first degree sexual abuse was proper. Boone v. Commonwealth, 2013 Ky. App. LEXIS 152 (Ky. Ct. App. Oct. 18, 2013), review denied, ordered not published, 2014 Ky. LEXIS 407 (Ky. Aug. 13, 2014).

Because appellee could be properly considered as a person in a position of authority or a person in position of special trust as she was often the only adult supervising several small children in the afterschool program, she had the ability to punish them by putting them in time out and was responsible for reporting any disciplinary incidents that occurred between the children, and she could, theoretically, use her position of authority to exercise undue influence on those children, the Department for Community Based Services, Cabinet for Health and Family Services had a statutory duty to investigate reports that a child had been neglected. Dep't for Cmty. Based Servs., Cabinet for Health & Family Servs. v. Baker, 613 S.W.3d 1, 2020 Ky. LEXIS 459 ( Ky. 2020 ).

5.Probation improper.

Defendant, who pled guilty to sodomizing and sexually abusing his three (3) year-old daughter, was not entitled to shock probation. Porter v. Commonwealth, 869 S.W.2d 48, 1993 Ky. App. LEXIS 177 (Ky. Ct. App. 1993).

The mere fact that the trial judge mentioned the possibility of probation in the future during juvenile defendant’s initial sentencing for sodomy in the first degree does not put the matter of probation in issue, and the Commonwealth was not barred from appealing a later grant of probation bestowed on defendant after his completion of the sexual offender program. Commonwealth v. Taylor, 945 S.W.2d 420, 1997 Ky. LEXIS 35 ( Ky. 1997 ).

Defendant who was convicted of first degree sodomy and sexual abuse upon his sister who was the age of 14 when the act occurred was a person who occupied a position of special trust, and thus, subsection (2) of this section prohibited the granting of probation to defendant. Commonwealth v. Taylor, 945 S.W.2d 420, 1997 Ky. LEXIS 35 ( Ky. 1997 ).

6.Sentencing Alternatives.

Where the charges against defendant were no greater than Class D felonies, the trial court may and should have at least considered sentencing alternatives other than incarceration. Corman v. Commonwealth, 822 S.W.2d 421, 1991 Ky. App. LEXIS 143 (Ky. Ct. App. 1991).

Where defendant was convicted of sexual abuse in violation of KRS 510.110 , the trial court erred in holding that he was ineligible for probation due to the constraints of KRS 532.045 (b) because he was in a “position of authority” with the victim, as the more lenient language of KRS 533.030(6) indicated the legislative intent to allow probation in such situations in order to reduce prison overcrowding; however, as the trial court also relied on other more traditional reasons for denying probation, any error was harmless. Ebertshauser v. Commonwealth, 2005 Ky. App. Unpub. LEXIS 47 (Ky. Ct. App. Feb. 4, 2005).

7.Extending Probation.

Trial court improperly extended appellant’s probationary term beyond the two-year period set forth in KRS 533.020(4) based on his failure to complete a sex offender treatment program; appellant did not request the extension, KRS 532.045 only authorized the revocation of probation, and the last-minute citation to KRS 532.045 was problematic. On remand, jurisdiction was not lost in this case because the Commonwealth initiated probation revocation proceedings prior to the expiration of the two-year probationary period; appellant was on notice and litigating his probation revocation proceeding prior to October 27, 2008, the date probation was set to expire. Miller v. Commonwealth, 2010 Ky. App. LEXIS 227 (Ky. Ct. App. Dec. 10, 2010, sub. op., 2010 Ky. App. Unpub. LEXIS 1001 (Ky. Ct. App. Dec. 10, 2010).

Cited:

Edmonson v. Commonwealth, 725 S.W.2d 595, 1987 Ky. LEXIS 194 ( Ky. 1987 ), overruled, Smith v. Commonwealth, 361 S.W.3d 908, 2012 Ky. LEXIS 29 ( Ky. 2012 ).

Research References and Practice Aids

Kentucky Bench & Bar.

Hunt, Human Trafficking: A Primer for Kentucky Lawyers. Vol. 73, No. 4, July 2009, Ky. Bench & Bar, 17.

Northern Kentucky Law Review.

Lotz, A Survey of Criminal Law Statutes Enacted in 1992, 20 N. Ky. L. Rev. 745 (1993).

Bartlett, Alternative Sanctions and the Governor’s Crime Bill of 1998 (HB 455): Another Attempt at Providing a Framework for Efficient and Effective Sentencing, 27 N. Ky. L. Rev. 283 (2000).

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Related to Sex and Pornography, Part 1 Definitions, §§ 4.21B, 4.21C.

Kentucky Instructions To Juries (Criminal), 5th Ed., Penalty Phase Instructions, Part 5 Persistent Felony Offenders, § 12.28.

532.047. Nonavailability of probation or suspension of sentence to violent offender — Exception.

Probation shall not be granted to, nor shall the execution or imposition of sentence be suspended for, a person who has been designated as a violent offender as defined in KRS 439.3401 , unless such probation is granted in accordance with KRS 439.3401 .

History. Enact. Acts 2000, ch. 401, § 8, effective July 14, 2000.

532.050. Presentence procedure for felony conviction.

  1. No court shall impose sentence for conviction of a felony, other than a capital offense, without first ordering a presentence investigation after conviction and giving due consideration to a written report of the investigation. The presentence investigation report shall not be waived; however, the completion of the presentence investigation report may be delayed until after sentencing upon the written request of the defendant if the defendant is in custody.
  2. The report shall be prepared and presented by a probation officer and shall include:
    1. The results of the defendant’s risk and needs assessment;
    2. An analysis of the defendant’s history of delinquency or criminality, physical and mental condition, family situation and background, economic status, education, occupation, and personal habits;
    3. A preliminary calculation of the credit allowed the defendant for time spent in custody prior to the commencement of a sentence under KRS 532.120 ; and
    4. Any other matters that the court directs to be included.
  3. Before imposing sentence for a felony conviction, the court may order the defendant to submit to psychiatric observation and examination for a period not exceeding sixty (60) days. The defendant may be remanded for this purpose to any available clinic or mental hospital or the court may appoint a qualified psychiatrist to make the examination.
  4. If the defendant has been convicted of a sex crime, as defined in KRS 17.500 , prior to determining the sentence or prior to final sentencing for youthful offenders, the court shall order a comprehensive sex offender presentence evaluation of the defendant to be conducted by an approved provider, as defined in KRS 17.500 , the Department of Corrections, or the Department of Juvenile Justice if the defendant is a youthful offender. The comprehensive sex offender presentence evaluation shall provide to the court a recommendation related to the risk of a repeat offense by the defendant and the defendant’s amenability to treatment and shall be considered by the court in determining the appropriate sentence. A copy of the comprehensive sex offender presentence evaluation shall be furnished to the court, the Commonwealth’s attorney, and to counsel for the defendant. If the defendant is eligible and the court suspends the sentence and places the defendant on probation or conditional discharge, the provisions of KRS 532.045(3) to (8) shall apply. All communications relative to the comprehensive sex offender presentence evaluation and treatment of the sex offender shall fall under the provisions of KRS 197.440 and shall not be made a part of the court record subject to review in appellate proceedings. The defendant shall pay for any comprehensive sex offender presentence evaluation or treatment required pursuant to this section up to the defendant’s ability to pay but no more than the actual cost of the comprehensive sex offender presentence evaluation or treatment.
  5. The presentence investigation report shall identify the counseling treatment, educational, and rehabilitation needs of the defendant and identify community-based and correctional-institutional-based programs and resources available to meet those needs or shall identify the lack of programs and resources to meet those needs.
  6. Before imposing sentence, the court shall advise the defendant or his or her counsel of the factual contents and conclusions of any presentence investigation or psychiatric examinations and afford a fair opportunity and a reasonable period of time, if the defendant so requests, to controvert them. The court shall provide the defendant’s counsel a copy of the presentence investigation report. It shall not be necessary to disclose the sources of confidential information.

History. Enact. Acts 1974, ch. 406, § 277, effective January 1, 1975; 1976, ch. 183, § 5; 1990, ch. 497, § 14, effective July 13, 1990; 1992, ch. 427, § 3, effective July 14, 1992; 1994, ch. 94, § 4, effective July 15, 1994; 1996, ch. 300, § 4, effective July 15, 1996; 1998, ch. 606, § 75, effective July 15, 1998; 2000, ch. 401, § 35, effective April 11, 2000; 2004, ch. 160, § 11, effective July 13, 2004; 2006, ch. 182, § 44, effective July 12, 2006; 2009, ch. 57, § 4, effective June 25, 2009; 2011, ch. 2, § 107, effective June 8, 2011; 2011, ch. 2, § 37, effective July 1, 2013.

Legislative Research Commission Note.

(7/1/2013). This section was amended by 2011 Ky. Acts ch. 2, secs. 37 and 107, which do not appear to be in conflict and have been codified together.

NOTES TO DECISIONS

1.Applicability.

Where the crime of which a defendant was convicted occurred prior to the effective date of this section, the presentencing provisions would not apply even if the defendant was actually tried after the section went into effect. Green v. Commonwealth, 556 S.W.2d 684, 1977 Ky. LEXIS 527 ( Ky. 1977 ).

Where the court considered the written report of the presentence investigation and a copy of an order entered in the court indicated that the defendant and his counsel were given a chance to dispute the report, but did not do so, sentencing was in accordance with this section. Shannon v. Commonwealth, 562 S.W.2d 301, 1978 Ky. LEXIS 320 ( Ky. 1978 ), overruled, Wellman v. Commonwealth, 694 S.W.2d 696, 1985 Ky. LEXIS 235 ( Ky. 1985 ).

Where the crime of which the defendant was convicted was committed prior to January 1, 1975, he was not entitled to be sentenced in accord with this section and KRS 533.010 which were not then in effect. Kotas v. Commonwealth, 565 S.W.2d 445, 1978 Ky. LEXIS 353 ( Ky. 1978 ).

2.Construction.

The mandatory requirement of this section may be met by the authority granted to the court by virtue of subsection (3) of this section. Southern Bluegrass Mental Health & Mental Retardation Board, Inc. v. Angelucci, 609 S.W.2d 931, 1980 Ky. App. LEXIS 399 (Ky. Ct. App.), aff'd, 609 S.W.2d 928, 1980 Ky. LEXIS 276 ( Ky. 1980 ).

There is no conflict between this section and KRS 421.215 (repealed) which would abrogate the privileged communication between patient and psychiatrist. Southern Bluegrass Mental Health & Mental Retardation Board, Inc. v. Angelucci, 609 S.W.2d 931, 1980 Ky. App. LEXIS 399 (Ky. Ct. App.), aff'd, 609 S.W.2d 928, 1980 Ky. LEXIS 276 ( Ky. 1980 ).

The procedure required by this section is mandatory and numerous cases have been remanded for compliance. Misher v. Commonwealth, 576 S.W.2d 238, 1978 Ky. App. LEXIS 654 (Ky. Ct. App. 1978).

Prisoner’s failure to raise constitutional claims in his motion to correct his presentence report pursuant to this section did not constitute sufficient procedural default so as to bar his federal petition for a writ of habeas corpus. Reynolds v. Berry, 146 F.3d 345, 1998 FED App. 0176P, 1998 U.S. App. LEXIS 11695 (6th Cir. Ky. 1998 ).

3.Purpose.

Upon pleas of guilty, the purpose of this section is clearly to furnish the court with an adequate background which an evaluation of the defendant may be made, together with an assessment of the recommendation made by the prosecutor concerning the crimes with which the defendant is charged, and the sentence therefor. Misher v. Commonwealth, 576 S.W.2d 238, 1978 Ky. App. LEXIS 654 (Ky. Ct. App. 1978).

4.Conduct Prior to Commencement of Sentence.

The Bureau of Corrections (now Department of Corrections) is charged with the duty of determining the conduct of a prisoner prior to the commencement of a sentence. Polsgrove v. Kentucky Bureau of Corrections, 559 S.W.2d 736, 1977 Ky. LEXIS 560 ( Ky. 1977 ).

5.Consecutive or Concurrent Sentences.

The question of whether sentences shall run consecutive or concurrent is a matter within the sound discretion of the trial judge, and where the juvenile defendant in a rape and robbery prosecution had a lengthy juvenile court record, the trial judge did not err in imposing consecutive sentences for defendant’s convictions of first-degree rape, first-degree robbery and criminal attempt to commit first-degree robbery. Pevlor v. Commonwealth, 638 S.W.2d 272, 1982 Ky. LEXIS 291 ( Ky. 1982 ), cert. denied, 459 U.S. 1149, 103 S. Ct. 794, 74 L. Ed. 2d 998, 1983 U.S. LEXIS 3136 (U.S. 1983).

The trial court’s discretion to impose concurrent or consecutive sentences must be exercised only after the defendant has had a fair opportunity to present evidence at a meaningful hearing in favor of having the sentences run concurrently or present other matters in mitigation of punishment. Edmonson v. Commonwealth, 725 S.W.2d 595, 1987 Ky. LEXIS 194 ( Ky. 1987 ).

6.Mandatory Requirements.

Prior to entering judgment the trial court must order presentencing investigation, examine and consider the report of the investigation, inform defendant of the factual contents of the report and afford him an opportunity to controvert them, and the record of the proceeding should clearly disclose compliance with these requirements. Brewer v. Commonwealth, 550 S.W.2d 474, 1977 Ky. LEXIS 417 ( Ky. 1977 ).

Where a trial court failed to follow the mandatory presentencing procedures, the case would be remanded for resentencing pursuant to this section. Darnell v. Commonwealth, 558 S.W.2d 590, 1977 Ky. LEXIS 537 ( Ky. 1977 ).

The requirements of this section are mandatory and not within the discretion of the trial court judge. Taylor v. Commonwealth, 551 S.W.2d 813, 1977 Ky. App. LEXIS 703 (Ky. Ct. App. 1977), rev'd, 436 U.S. 478, 98 S. Ct. 1930, 56 L. Ed. 2d 468, 1978 U.S. LEXIS 95 (U.S. 1978).

It is mandatory that the trial judge comply with the provisions of this section unless the defendant waives the sentencing procedures and where there was nothing to indicate any waiver the case would be remanded for resentencing after compliance with this section. Sears v. Commonwealth, 561 S.W.2d 672, 1979 Ky. LEXIS 217 ( Ky. 1979 ).

Where the record reflected that the trial court failed to comply with the mandate of this section, the judgment must be vacated and the case remanded for resentencing in conformity with this section. Nickell v. Commonwealth, 565 S.W.2d 145, 1978 Ky. LEXIS 350 ( Ky. 1978 ).

The requirement placed upon a trial court by this section is mandatory, and does not afford a trial judge the privilege or discretion of determining whether the presentencing report will be requested, obtained or considered and where there was no evidence that trial court followed statutory procedures, the case would be remanded for resentencing. Arnold v. Commonwealth, 573 S.W.2d 344, 1978 Ky. LEXIS 410 ( Ky. 1978 ).

Where there was nothing in the judgment or the record indicating that a presentence report was either obtained or considered, the statutory procedures were not complied with, and the judgment entered on the jury verdict must be vacated. Baker v. Commonwealth, 574 S.W.2d 325, 1978 Ky. App. LEXIS 618 (Ky. Ct. App. 1978).

Compliance with the provisions of this section is mandatory and is in fact a prerequisite to the entry of a valid judgment. Eversole v. Commonwealth, 575 S.W.2d 457, 1978 Ky. LEXIS 452 ( Ky. 1978 ).

Where the record revealed that the trial court, in overruling defendants’ motion for probation, considered a presentence investigation conducted by the probation officer, but did not reflect that the contents of such a report were disclosed to defendants nor that they were given an opportunity to controvert the contents of the respective presentence reports, case would be remanded for resentencing in conformity with this section. Eversole v. Commonwealth, 575 S.W.2d 457, 1978 Ky. LEXIS 452 ( Ky. 1978 ).

The requirement of a presentence investigation and report is mandatory and must precede the entry of a valid judgment. Brown v. Commonwealth, 639 S.W.2d 758, 1982 Ky. LEXIS 298 ( Ky. 1982 ), cert. denied, 460 U.S. 1037, 103 S. Ct. 1428, 75 L. Ed. 2d 788, 1983 U.S. LEXIS 4164 (U.S. 1983).

Where expert testimony as to defendant juvenile’s progress and need for additional treatment was relevant to the issue of sentencing and because KRS 533.010(2), 532.050(6), and RCr 11.02 required the trial court to consider probation and alternative sentencing prior to sentencing, the trial court erred in failing to consider the evidence before sentencing pursuant to KRS 640.030(2). Finley v. Commonwealth, 2003 Ky. App. Unpub. LEXIS 954 (Ky. Ct. App. May 23, 2003).

Trial court violated defendant’s right to a meaningful sentencing hearing pursuant to KRS 532.050 and RCr 11.02, where the trial court ordered defendant to pay restitution of $140,000 to the victims since defendant was not notified of any factual allegations underlying the claim for restitution. Fields v. Commonwealth, 123 S.W.3d 914, 2003 Ky. App. LEXIS 291 (Ky. Ct. App. 2003).

Where the trial judge told defendant that he would receive the maximum sentence allowed under the plea agreement should he violate the terms of his presentence release, the trial judge committed to the imposition of a specific sentence in a way that precluded true compliance with KRS 532.050(1), 532.110(1), and 533.010(1) and (2), and RCr P. 11.02 because the sentencing decision had been made prior to the sentencing hearing and was made before due consideration could have been given to the nature and circumstances of the crime; to the history, character and condition of the defendant; to the presentence report; and to the alternatives to incarceration. McClanahan v. Commonwealth, 308 S.W.3d 694, 2010 Ky. LEXIS 98 ( Ky. 2010 ).

7.Presentencing Report.

Judgment entered upon jury verdict finding defendant guilty of theft by unlawful taking was vacated where the record failed to reflect the fact that consideration had been given the presentence investigation and probation or conditional discharge before the judgment was entered. Brewer v. Commonwealth, 550 S.W.2d 474, 1977 Ky. LEXIS 417 ( Ky. 1977 ).

Where, in a prosecution for first-degree rape, no presentencing report was ordered or considered by the trial judge in sentencing the defendants, the case must be remanded for resentencing after consideration of such a report. Patterson v. Commonwealth, 555 S.W.2d 607, 1977 Ky. App. LEXIS 793 (Ky. Ct. App. 1977).

Where a case was remanded for sentencing and the trial court relied on a presentencing report prepared 16 months before, the trial court erred in not securing a current presentencing report and by not affording the appellant a fair opportunity to contradict the information contained therein. Doolan v. Commonwealth, 566 S.W.2d 413, 1978 Ky. LEXIS 360 ( Ky. 1978 ).

Where the trial court failed to order a presentence report, the judgment must be vacated for purposes of resentencing in compliance with the provisions of this section. Henley v. Commonwealth, 621 S.W.2d 906, 1981 Ky. LEXIS 279 ( Ky. 1981 ).

The defendant was not entitled to enforcement of a plea agreement which was approved by the court prior to receipt of the presentence investigation report and formal sentencing, as this section prohibits final sentencing prior to receipt and consideration of the presentence investigation report, and the defendant and his counsel were given notice that the sentencing decision was not irrevocable. Simpson v. Commonwealth, 759 S.W.2d 224, 1988 Ky. LEXIS 54 ( Ky. 1988 ).

A criminal defendant is not entitled to a copy of his or her presentence investigation report both at the presentence and post-conviction stages. Commonwealth v. Bush, 740 S.W.2d 943, 1987 Ky. LEXIS 264 ( Ky. 1987 ).

To conform with the “fair opportunity” afforded a defendant by subsection (4) of this section, a defendant is entitled to being advised by the prison official who has custody of the presentence investigation report of the factual contents and conclusions therein and to a reasonable time to controvert factual information contained therein, but in order to protect the sources of confidential information, matters of opinion and comments of a personal and nonfactual nature shall not be revealed, and a defendant is not entitled to a copy of the report. Commonwealth v. Bush, 740 S.W.2d 943, 1987 Ky. LEXIS 264 ( Ky. 1987 ).

A presentence investigation report is a court record, and control over court records has been traditionally exempt from legislative control. Thus, a presentence investigation (PSI) report is not controlled by KRS 17.142 . Aaron v. Commonwealth, 810 S.W.2d 60, 1991 Ky. App. LEXIS 71 (Ky. Ct. App. 1991).

Given that defendant’s acceptance of the ten (10) year persistent felony offender (PFO) sentence rendered the issues of probation and conditional discharge moot, and that defendant agreed to the PFO sentence to avoid the possibility of a higher sentence in the upcoming sentencing proceeding, any error that the court committed in allowing defendant to waive the presentence investigation report was harmless. Hulett v. Commonwealth, 834 S.W.2d 688, 1992 Ky. App. LEXIS 138 (Ky. Ct. App. 1992).

Trial court properly ordered a presentence investigation report in the case of a convicted rapist since such a report is not required nor precluded by statute. Woodall v. Commonwealth, 63 S.W.3d 104, 2001 Ky. LEXIS 142 ( Ky. 2001 ), cert. denied, 537 U.S. 835, 123 S. Ct. 145, 154 L. Ed. 2d 54, 2002 U.S. LEXIS 6199 (U.S. 2002), overruled in part, Roe v. Commonwealth, 2015 Ky. LEXIS 2080 (Ky. Sept. 24, 2015).

Defendant waived a pre-sentence investigation report by refusing to cooperate with the report's author because the ability to waive the report under Ky. R. Crim. P. 11.02(1) preempted the inability to waive the report in Ky. Rev. Stat. Ann. § 532.050(6). Roe v. Commonwealth, 2015 Ky. LEXIS 2080 (Ky. Sept. 24, 2015).

Sentencing court did not err in allowing hearsay testimony or testimony concerning police surveillance, which included comments on alleged criminal activity at defendant's home, because the Kentucky Rules of Evidence did not apply at sentencing by a judge. Furthermore, the court was required to give due consideration to a pre-sentencing investigative report, which included information about the surveillance by the police department. Snodgrass v. Commonwealth, 2017 Ky. App. LEXIS 709 (Ky. Ct. App. Nov. 17, 2017, sub. op., 2017 Ky. App. Unpub. LEXIS 955 (Ky. Ct. App. Nov. 17, 2017).

8.— Juvenile Records.

The General Assembly was cognizant of former KRS 208.350 (repealed), prohibiting subsequent use of evidence or dispositions in juvenile proceedings, when it enacted this section and it did not intend that the juvenile statute apply to presentence investigation reports; consequently, the trial judge correctly interpreted this section as governing the consideration of an adult defendant’s juvenile record and properly allowed the juvenile records in the presentence investigation report. Schooler v. Commonwealth, 628 S.W.2d 885, 1981 Ky. App. LEXIS 318 (Ky. Ct. App. 1981).

This section authorizes a sentencing court to consider the juvenile record of an adult felon before imposing its sentence. Schooler v. Commonwealth, 628 S.W.2d 885, 1981 Ky. App. LEXIS 318 (Ky. Ct. App. 1981).

9.Probation or Conditional Discharge.

Although the determination by the court to grant probation or conditional discharge is discretionary rather than mandatory, its feasibility must be considered and the record should clearly reflect the fact of the consideration prior to the entry of judgment. Brewer v. Commonwealth, 550 S.W.2d 474, 1977 Ky. LEXIS 417 ( Ky. 1977 ).

Judgment entered upon jury verdict convicting defendant of theft by unlawful taking was vacated where the record did not show that consideration had been given to the presentence investigation and to probation or conditional discharge before judgment was entered. Brewer v. Commonwealth, 550 S.W.2d 474, 1977 Ky. LEXIS 417 ( Ky. 1977 ).

10.Psychological Examination.

The trial court did not err in ordering a post-trial psychological examination of the defendant, where the defendant’s attorney knew the intended use of the psychological exam and was able to advise his client, and the record clearly showed that the defendant was warned that any statement he made to the psychologist could be used against him. Marlowe v. Commonwealth, 709 S.W.2d 424, 1986 Ky. LEXIS 253 (Ky.), cert. denied, 479 U.S. 946, 107 S. Ct. 427, 93 L. Ed. 2d 378, 1986 U.S. LEXIS 4620 (U.S. 1986).

11.Waiver.

The presentencing procedures established by this section may be waived by a criminal defendant and a defendant’s indication that he wanted to return to the penitentiary immediately constituted an understanding waiver. Alcorn v. Commonwealth, 557 S.W.2d 624, 1977 Ky. LEXIS 534 ( Ky. 1977 ).

Where the trial court specifically informed the defendant of his rights under this section and, in effect, conducted a presentence hearing even though a presentence report, as such, had never been ordered or considered, the defendant’s indication to the trial court that he did not want any further delay in sentencing constituted a specific waiver of the sentencing procedures under this section. Risinger v. Commonwealth, 556 S.W.2d 177, 1977 Ky. App. LEXIS 815 (Ky. Ct. App. 1977).

12.Plea Agreements.

When presented with a plea agreement with a hammer clause, the trial judge should accord it no special deference, and shall make no commitment that compromises the court’s independence or impairs the proper exercise of judicial discretion. It is an abuse of discretion to impose a sentence based on a breach of a hammer clause condition, without proper consideration of the presentence investigation report and other relevant factors under KRS 532.050 , RCr P. 11.02, and KRS 533.010 . Knox v. Commonwealth, 361 S.W.3d 891, 2012 Ky. LEXIS 28 ( Ky. 2012 ).

Upon entry of a guilty plea, it is required (not merely suggested) that the trial court shall not threaten to impose a specific sentence, or announce an intention to impose a specific sentence, or otherwise commit to a specific sentence, but must simply accept the entry of the plea, note the recommendation or agreement concerning sentence, and set a date and time for sentencing based on all the underlying facts and circumstances, which include the presentence investigation report under KRS 532.050 , RCr P. 11.02, and the factors set forth in KRS 533.010 . Knox v. Commonwealth, 361 S.W.3d 891, 2012 Ky. LEXIS 28 ( Ky. 2012 ).

In a sentencing for eight counts of robbery, the trial court improperly committed to imposing the maximum sentence of 20 years if a hammer clause in the plea agreement was violated, without considering the presentence investigation report and relevant factors under KRS 532.050 , RCr P. 11.02, and KRS 533.010 . Knox v. Commonwealth, 361 S.W.3d 891, 2012 Ky. LEXIS 28 ( Ky. 2012 ).

Cited:

Scott v. Commonwealth, 555 S.W.2d 623, 1977 Ky. App. LEXIS 797 (Ky. Ct. App. 1977); Gregory v. Commonwealth, 557 S.W.2d 439, 1977 Ky. App. LEXIS 838 (Ky. Ct. App. 1977); Adams v. Commonwealth, 560 S.W.2d 825, 1977 Ky. App. LEXIS 885 (Ky. Ct. App. 1977); Bell v. Commonwealth, 566 S.W.2d 785, 1978 Ky. App. LEXIS 529 (Ky. Ct. App. 1978); Smith v. Commonwealth, 567 S.W.2d 304, 1978 Ky. LEXIS 369 ( Ky. 1978 ); Hibbs v. Commonwealth, 570 S.W.2d 642, 1978 Ky. App. LEXIS 576 (Ky. Ct. App. 1978); Robinson v. Commonwealth, 572 S.W.2d 606, 1978 Ky. App. LEXIS 600 (Ky. Ct. App. 1978); Young v. Commonwealth, 585 S.W.2d 378, 1979 Ky. LEXIS 269 ( Ky. 1979 ); Edmonds v. Commonwealth, 586 S.W.2d 24, 1979 Ky. LEXIS 279 ( Ky. 1979 ), overruled, Wellman v. Commonwealth, 694 S.W.2d 696, 1985 Ky. LEXIS 235 ( Ky. 1985 ), overruled in part, Wellman v. Commonwealth, 694 S.W.2d 696, 1985 Ky. LEXIS 235 ( Ky. 1985 ), overruled in part as stated, Matthews v. Simpson, 603 F. Supp. 2d 960, 2008 U.S. Dist. LEXIS 108974 (W.D. Ky. 2008 ), overruled, Matthews v. Parker, — F.3d —, 651 F.3d 489, 2011 U.S. App. LEXIS 13091 (6th Cir. 2011); Gall v. Commonwealth, 607 S.W.2d 97, 1980 Ky. LEXIS 291 ( Ky. 1980 ); Hampton v. Commonwealth, 666 S.W.2d 737, 1984 Ky. LEXIS 219 ( Ky. 1984 ); Bowling v. Commonwealth, 684 S.W.2d 11, 1984 Ky. App. LEXIS 539 (Ky. Ct. App. 1984); Dillingham v. Commonwealth, 684 S.W.2d 307, 1984 Ky. App. LEXIS 640 (Ky. Ct. App. 1984); Buchanan v. Kentucky, 483 U.S. 402, 107 S. Ct. 2906, 97 L. Ed. 2d 336, 1987 U.S. LEXIS 2877 (1987); Hall v. Commonwealth, 817 S.W.2d 228, 1991 Ky. LEXIS 153 ( Ky. 1991 ); Commonwealth v. Corey, 826 S.W.2d 319, 1992 Ky. LEXIS 46 ( Ky. 1992 ); Brown v. Commonwealth, 932 S.W.2d 359, 1996 Ky. LEXIS 85 ( Ky. 1996 ); Commonwealth v. Meyers, 8 S.W.3d 58, 1999 Ky. App. LEXIS 153 (Ky. Ct. App. 1999); Commonwealth v. Jeffries, 95 S.W.3d 60, 2002 Ky. LEXIS 232 ( Ky. 2002 ); Bard v. Commonwealth, 359 S.W.3d 1, 2011 Ky. LEXIS 154 ( Ky. 2011 ).

Opinions of Attorney General.

Since the apparent purpose of this section, which replaces KRS 439.280 (repealed), was to make it comparable to the federal rule, the court may order a presentence investigation any time prior to the determination of guilt, but such report should not be submitted to the court until after there has been a determination of guilt by either a guilty plea or a finding by the court. OAG 75-213 .

A court procedure which would permit a defendant to waive his rights under this section would violate the requirement that the court consider probation or conditional discharge before imposing a sentence of imprisonment. OAG 77-489 .

Inspection of the presentence investigation report (PSI) remains closed except to the court, Parol Board, or Corrections Cabinet pursuant to KRS 61.878(1)(j) and KRS 439.510 although these agencies may order otherwise. Interpretation of subsection (4) of this section indicates that there is a question as to whether the PSI itself should be released for inspection even to the defendant or his counsel. Statutory language only requires the court to advise of factual contents and conclusions; it does not require inspection. OAG 84-285 .

Criminal defendants were not entitled to release of their presentence investigation report, but subsection (4) of this section was amended in 1990, and precludes waiver of the presentence investigation report as well as requiring a court to provide defendant’s counsel with a copy of the report, excluding the sources of confidential information. OAG 91-194 .

This section was amended in 1990, and now precludes waiver of the presentence investigation report. In addition, it requires a court to provide defendant’s counsel with a copy of the report, excluding the sources of confidential information. OAG 92-49 .

Prior to the 1990 amendments, in order to satisfy the “fair opportunity” requirements of this section, a defendant who waived his presentence/postsentence investigation (PSI) report at sentencing, “is entitled to being advised by the prison official who has custody of the PSI of the factual contents and conclusions therein. OAG 92-49 .

If the defendant did not waive his PSI, and was advised of its contents at sentencing pursuant to KRS 532.050(6), is he foreclosed from being advised of its contents under a open records request because KRS 439.510 makes the report confidential. While the agencies are not required to furnish him with a copy of the report in either case, if he waived his PSI at sentencing, he is entitled to be advised by the prison official who has custody of it of the factual contents and conclusions therein. OAG 01-ORD-13.

Research References and Practice Aids

Kentucky Bench & Bar.

Ryan, Overview II, Vol. 47, No. 4, October, 1983, Ky. Bench & Bar 26 (1983).

Kentucky Law Journal.

Kentucky Law Survey, Fritz, Criminal Procedure, 67 Ky. L.J. 599 (1978-1979).

Kentucky Law Survey, Fortune, Criminal Procedure, 71 Ky. L.J. 367 (1982-83).

Cooper and Lawson, Self-Defense in Kentucky: A Need for Clarification or Revision, 76 Ky. L.J. 167 (1987-88).

Northern Kentucky Law Review.

Lotz, A Survey of Criminal Law Statutes Enacted in 1992, 20 N. Ky. L. Rev. 745 (1993).

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Controlled Substances, Part 4 Miscellaneous KRS 218A Offenses, §§ 9.31, 9.32.

Kentucky Instructions To Juries (Criminal), 5th Ed., Controlled Substances, Part 5 Alcoholic Beverages, §§ 9.36E, 9.39, 9.41A.

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public Order, Safety and Morals, Part 2 Riot, Disorderly Conduct and Related Offenses, § 8.38B.

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public Order, Safety and Morals, Part 4 Offenses Relating to Firearms and Destructive Devices, § 8.64F.

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public Order, Safety and Morals, Part 8 Family Offenses, § 8.104.

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Related to Sex and Pornography, Part 8 Obscenity, § 4.84E.

Kentucky Instructions To Juries (Criminal), 5th Ed., Penalty Phase Instructions, Part 4 Subsequent Offense Enhancement, § 12.25.

Kentucky Instructions To Juries (Criminal), 5th Ed., Penalty Phase Instructions, Part 5 Persistent Felony Offenders, § 12.28.

Petrilli, Kentucky Family Law, Juvenile Court, §§ 32.24, 32.29.

532.055. Verdicts and sentencing by jury in felony cases.

  1. In all felony cases, the jury in its initial verdict will make a determination of not guilty, guilty, guilty but mentally ill, or not guilty by virtue of insanity, and no more.
  2. Upon return of a verdict of guilty or guilty but mentally ill against a defendant, the court shall conduct a sentencing hearing before the jury, if such case was tried before a jury. In the hearing the jury will determine the punishment to be imposed within the range provided elsewhere by law. The jury shall recommend whether the sentences shall be served concurrently or consecutively.
    1. Evidence may be offered by the Commonwealth relevant to sentencing including:
      1. Minimum parole eligibility, prior convictions of the defendant, both felony and misdemeanor;
      2. The nature of prior offenses for which he was convicted;
      3. The date of the commission, date of sentencing, and date of release from confinement or supervision from all prior offenses;
      4. The maximum expiration of sentence as determined by the division of probation and parole for all such current and prior offenses;
      5. The defendant’s status if on probation, parole, postincarceration supervision, conditional discharge, or any other form of legal release;
      6. Juvenile court records of adjudications of guilt of a child for an offense that would be a felony if committed by an adult. Subject to the Kentucky Rules of Evidence, these records shall be admissible in court at any time the child is tried as an adult, or after the child becomes an adult, at any subsequent criminal trial relating to that same person. Juvenile court records made available pursuant to this section may be used for impeachment purposes during a criminal trial and may be used during the sentencing phase of a criminal trial; however, the fact that a juvenile has been adjudicated delinquent of an offense that would be a felony if the child had been an adult shall not be used in finding the child to be a persistent felony offender based upon that adjudication. Release of the child’s treatment, medical, mental, or psychological records is prohibited unless presented as evidence in Circuit Court. Release of any records resulting from the child’s prior abuse and neglect under Title IV-E or Title IV-B of the federal Social Security Act is also prohibited; and
      7. The impact of the crime upon the victim or victims, as defined in KRS 421.500 , including a description of the nature and extent of any physical, psychological, or financial harm suffered by the victim or victims;
    2. The defendant may introduce evidence in mitigation or in support of leniency; and
    3. Upon conclusion of the proof, the court shall instruct the jury on the range of punishment and counsel for the defendant may present arguments followed by the counsel for the Commonwealth. The jury shall then retire and recommend a sentence for the defendant.
  3. All hearings held pursuant to this section shall be combined with any hearing provided for by KRS 532.080 .
  4. In the event that the jury is unable to agree as to the sentence or any portion thereof and so reports to the judge, the judge shall impose the sentence within the range provided elsewhere by law.

History. Enact. Acts 1986, ch. 358, § 2, effective July 15, 1986; 1996, ch. 358, § 8, effective July 15, 1997; 1998, ch. 606, § 111, effective July 15, 1998; 2008, ch. 60, § 2, effective July 15, 2008; 2011, ch. 2, § 95, effective June 8, 2011.

Compiler’s Notes.

Titles IV-E and IV-B of the Ffederal Social Security Act, referred to in (2)(a)6., may be found as 42 USCS § 670 et seq. and 42 USCS § 620 et seq., respectively.

Legislative Research Commission Note.

(11/19/91). Pursuant to KRS 7.136(1), the Reviser of Statutes has made a technical correction to correct a manifest clerical or typographical error in subsection (2) of this statute. The text now shown as “ . . . . . before a jury. In the hearing the jury . . . . . ” appeared in 1986 Acts ch. 358, sec. 2, as “ . . . . . before a jury in the hearing the jury . . . . . ”.

(7/15/96). Under 1996 Ky. Acts ch. 358, sec. 67(1), the amendment of this statute by Section 8 of that Act becomes effective July 15, 1997.

NOTES TO DECISIONS

Analysis

1.Constitutionality.

Because this section is a legislative attempt to invade the rule making prerogative of the Supreme Court by legislatively prescribing rules of practice and procedure, it violates the separation of powers doctrine enunciated in Ky. Const., § 28. Commonwealth v. Reneer, 734 S.W.2d 794, 1987 Ky. LEXIS 232 ( Ky. 1987 ).

The Supreme Court declined to hold this section unconstitutional, even though it violates the separation of powers doctrine, and accepted its provisions for the time being under the principle of comity. Commonwealth v. Reneer, 734 S.W.2d 794, 1987 Ky. LEXIS 232 ( Ky. 1987 ).

The defendant was not denied due process of law because the trial court tried him under this section, the new truth in sentencing law, prior to its effective date. Ballard v. Commonwealth, 743 S.W.2d 21, 1988 Ky. LEXIS 6 ( Ky. 1988 ).

Subsection (4) of this section does not violate the Due Process Clause of U.S. Const., amend. 14 by authorizing a trial judge to impose a sentence in excess of the minimum sentence prescribed by statute if the jury fails to agree on a sentence. Commonwealth v. Hubbard, 777 S.W.2d 882, 1989 Ky. LEXIS 69 ( Ky. 1989 ).

That portion of subdivision (2)(a)1. of this section giving the sole power to introduce evidence of minimum parole eligibility to the Commonwealth is unconstitutional, and the privilege of introducing said evidence shall be extended to the defendant and the Commonwealth. Boone v. Commonwealth, 780 S.W.2d 615, 1989 Ky. LEXIS 107 ( Ky. 1989 ).

KRS 532.043 did not violate the separation of powers doctrine by infringing upon the judiciary’s duty to administer justice and by removing all discretion from the trial court by imposing a three-year mandatory conditional discharge, as the Legislature, and not the judiciary, designated the elements of criminal conduct and the corresponding penalties; further, the Legislature did not unconstitutionally usurp the court’s functions by eliminating the exercise of discretion by the trial court in fixing a sentence, as it had the plenary power to set criminal penalties. Wilfong v. Commonwealth, 175 S.W.3d 84, 2004 Ky. App. LEXIS 353 (Ky. Ct. App. 2004).

2.Applicability.

Because this section relates to changes in procedure rather than substantive law, its application at the trial of a person for an offense committed before its enactment is not an ex post facto application of the law. Commonwealth v. Reneer, 734 S.W.2d 794, 1987 Ky. LEXIS 232 ( Ky. 1987 ).

Where the offense of which the defendant was accused was allegedly committed before the effective date of this section, and his trial began after the effective date, the application of this section to the trial of the defendant did not give retroactive effect to this section in violation of subsection (3) of KRS 446.080 . Commonwealth v. Reneer, 734 S.W.2d 794, 1987 Ky. LEXIS 232 ( Ky. 1987 ).

Although the criminal defendant has no right to jury sentencing under the United States Constitution, the General Assembly of Kentucky has created a statutory right for criminal defendants. White v. Commonwealth, 770 S.W.2d 222, 1989 Ky. LEXIS 19 ( Ky. 1989 ).

The pretext for enacting this section was to supply more information to jurors to use in setting sentences, not to enhance the severity of the sentences rendered. Nor does its existence destroy the rule of lenity that applies to interpreting criminal statutes. Nor does it overrule expressly or by implication the principles controlling concurrent and consecutive sentencing expounded in KRS 532.110 and its commentary. Stoker v. Commonwealth, 828 S.W.2d 619, 1992 Ky. LEXIS 45 ( Ky. 1992 ).

The provision of KRS 532.055(2)(a)6 that permitted use of defendant’s juvenile court records as evidence of a prior conviction for purposes of impeachment violated the separation of powers doctrine and was unlawful, and the state Supreme Court reversed defendant’s conviction for manslaughter in the first degree and remanded the case for a new trial because the trial court allowed the prosecutor to use defendant’s juvenile court records to impeach defendant during the findings portion of trial. Manns v. Commonwealth, 80 S.W.3d 439, 2002 Ky. LEXIS 114 ( Ky. 2002 ).

Contention by defendant that his statistical evidence rebutted the parole eligibility evidence of the Commonwealth was without merit; the Commonwealth offered proof, pursuant to KRS 532.055(2)(a)(1) of the minimum parole eligibility of defendant, not proof regarding the probability that defendant would ever actually be paroled, as the statistical evidence presented by defendant did not controvert the parole eligibility proof presented by the Commonwealth and, consequently, did not qualify as rebuttal. Young v. Commonwealth, 129 S.W.3d 343, 2004 Ky. LEXIS 78 ( Ky. 2004 ).

Nothing in House Bill (HB) 406, 2008 Ky. Acts 127, affected KRS 532.055 or any related truth-in-sentencing laws; retroactive application of HB 406 did not change an offender’s minimum parole eligibility date, nor did HB 406 change the method of calculating an offender’s minimum or maximum expiration of sentence date, as the information provided to juries under § 532.055 was unaffected by HB 406, and there was no conflict between a retroactive application of HB 406 and Kentucky’s truth-in-sentencing system. Commonwealth ex rel. Conway v. Thompson, 300 S.W.3d 152, 2009 Ky. LEXIS 290 ( Ky. 2009 ).

Trial court was authorized, in the penalty phase of defendant’s trial for robbery and tampering with evidence the fact that defendant had prior parole violations. Those prior parole violations were not barred by KRS 532.055 ’ s truth-in-sentencing law, which was non-exhaustive about what could be admitted and because they were admissible under that statute for truth-in-sentencing, they could not be barred from being admitted as KRE. 404(b) prior bad acts. Garrison v. Commonwealth, 338 S.W.3d 257, 2011 Ky. LEXIS 72 ( Ky. 2011 ).

Trial court was not required to impose sentence once the jury reported it was not going to be able to come to a unanimous sentencing decision but rather properly probed the jury to determine whether further deliberations would be useful and, once determining that they would, properly read RCr P. 9.57 to the jury. McAtee v. Commonwealth, 413 S.W.3d 608, 2013 Ky. LEXIS 400 ( Ky. 2013 ).

RCr P. 9.57 and this statute can, and should, be read together: When a jury indicates it is unable to come to a unanimous verdict on the sentence, the court may probe the jury to determine whether further deliberation may be useful; where a majority of the jurors indicate that further deliberation may be useful, the judge may order further deliberation; where further deliberation will likely not be useful, the court must impose sentence. McAtee v. Commonwealth, 413 S.W.3d 608, 2013 Ky. LEXIS 400 ( Ky. 2013 ).

2.5.Comity.

Trial court could not overturn or disregard the controlling authority that barred the relief defendant sought because only the Kentucky Supreme Court was authorized to determine if or when the comity accorded to the jury's verdict would no longer apply. Jackson v. Commonwealth, 481 S.W.3d 794, 2016 Ky. LEXIS 10 ( Ky. 2016 ).

3.Purpose.

The purpose of this section is to insure having a jury well informed about all pertinent information relating to the person on trial; it cannot be used to wheelbarrow into evidence incompetent evidence relating to third persons. Commonwealth v. Bass, 777 S.W.2d 233, 1989 Ky. LEXIS 71 ( Ky. 1989 ).

This section is geared toward providing the jury with information relevant to arriving at an appropriate sentence for the particular offender. Williams v. Commonwealth, 810 S.W.2d 511, 1991 Ky. LEXIS 77 ( Ky. 1991 ).

This section embraces the idea of informed decision making by a jury. This permits the Commonwealth and, to a limited extent, the defendant to inform the jury of relevant matters prior to its determination of the sentence which should be imposed. Turfway Park Racing Ass'n v. Griffin, 834 S.W.2d 667, 1992 Ky. LEXIS 83 ( Ky. 1992 ).

4.Concurrent Sentencing.

There is no duty under this section to accept the recommendation of the jury as to concurrent sentencing. Dotson v. Commonwealth, 740 S.W.2d 930, 1987 Ky. LEXIS 266 ( Ky. 1987 ).

A jury recommendation regarding whether sentences shall be served concurrently or consecutively pursuant to subsection (2) of this section is not mandatory or binding on a trial judge. Nichols v. Commonwealth, 839 S.W.2d 263, 1992 Ky. LEXIS 143 ( Ky. 1992 ).

5.Death Penalty.

In any case in which the death penalty is sought, the capital penalty sentencing phase pursuant to KRS 532.025 should be conducted before the truth-in-sentencing hearing under subsection (2) of this section and the persistent felony offender proceeding per KRS 532.080 are held. Francis v. Commonwealth, 752 S.W.2d 309, 1988 Ky. LEXIS 38 ( Ky. 1988 ).

In a capital murder case, an instruction and verdict form instructing the jury to recommend whether defendant should serve his sentences concurrently or consecutively did not denigrate the jury’s responsibility in imposing the death penalty because the jury “fixed” defendant’s sentences in its other verdicts, as KRS 532.055(2) only required that the jury “recommend” whether the sentences it had fixed should run concurrently or consecutively, and a death sentence could not run concurrently or consecutively with another sentence, so the recommendation only applied to the murder convictions if the jury returned a verdict of a term of years, which did not occur. Soto v. Commonwealth, 139 S.W.3d 827, 2004 Ky. LEXIS 93 ( Ky. 2004 ), cert. denied, 544 U.S. 931, 125 S. Ct. 1670, 161 L. Ed. 2d 495, 2005 U.S. LEXIS 2608 (U.S. 2005).

Defendant's right to a jury trial was not violated when the jury was not required to make findings as to non-statutory aggravators it considered in imposing the death penalty because the jury's verdict listed the aggravating circumstance that made defendant eligible for the death penalty in writing, and that was the only specific finding that had to be in writing and was required before the jury could impose the death penalty. St. Clair v. Commonwealth, 451 S.W.3d 597, 2014 Ky. LEXIS 341 ( Ky. 2014 ), cert. denied, 577 U.S. 885, 136 S. Ct. 194, 193 L. Ed. 2d 152, 2015 U.S. LEXIS 5215 (U.S. 2015).

6.Evidence.

Testimony as to when defendant was released from confinement from prior offenses was relevant to sentencing and admissible under subdivision (2)(a)3 of this section, and the jury properly used evidence of his probation and parole history to enhance his sentence under KRS 532.080 . Lemon v. Commonwealth, 760 S.W.2d 94, 1988 Ky. App. LEXIS 96 (Ky. Ct. App. 1988).

Information contained in plea negotiations with a co-defendant, including the length of sentence received, may not be introduced into evidence during the penalty phase of a defendant’s jury trial. Commonwealth v. Bass, 777 S.W.2d 233, 1989 Ky. LEXIS 71 ( Ky. 1989 ).

Information from the Kentucky State Reformatory Resident Record Card of a co-defendant, including prior convictions of the co-defendant, may not be introduced into evidence during the penalty phase of a jury trial. Commonwealth v. Bass, 777 S.W.2d 233, 1989 Ky. LEXIS 71 ( Ky. 1989 ).

Parole eligibility statistics are not a proper subject for judicial notice, are not admissible mitigating evidence, and do not negate the Commonwealth’s evidence; therefore, the trial court did not err in finding that “the introduction of specific figures and numbers opens the door to evidence that the statute was not set up for.” Abbott v. Commonwealth, 822 S.W.2d 417, 1992 Ky. LEXIS 1 ( Ky. 1992 ).

The trial court’s refusal during the penalty phase to admit as allegedly mitigating evidence a plea agreement in a totally unrelated, but factually similar case in the same county was not error despite defendant’s argument that had the jury known of this same prosecutor’s recent willingness to plea bargain the prior case (where two men had abducted, raped, and sodomized a minor female) down to third-degree rape and third-degree sodomy, they might not have recommended appellant’s allegedly, disproportionately severe sentence. Dean v. Commonwealth, 844 S.W.2d 417, 1992 Ky. LEXIS 185 ( Ky. 1992 ), cert. denied, 512 U.S. 1234, 114 S. Ct. 2737, 129 L. Ed. 2d 858, 1994 U.S. LEXIS 4897 (U.S. 1994).

Use of a computer printout, for purposes of sentencing defendant, which reflected various charges for which defendant received fines, jail stays or suspended sentences and also reflected charges which were apparently dismissed was improper, as subsection (2)(a) of this section permits introduction of prior convictions, but not prior charges subsequently dismissed and introduction of document by detective who could not testify as to authenticity, or whether it was compiled in ordinary course of business did not meet requirements of KRS 422.040 . Robinson v. Commonwealth, 926 S.W.2d 853, 1996 Ky. LEXIS 30 ( Ky. 1996 ).

It was not error for a police officer to be permitted to testify during a sentencing hearing as to the effect of good time credit on the duration of a sentence of imprisonment. Cornelison v. Commonwealth, 990 S.W.2d 609, 1999 Ky. LEXIS 11 ( Ky. 1999 ).

The word “including” in subsection (2)(a) of this section leaves no doubt that the list of evidence that may be offered by the state is illustrative rather than exhaustive. Cornelison v. Commonwealth, 990 S.W.2d 609, 1999 Ky. LEXIS 11 ( Ky. 1999 ).

Evidence of defendant’s expected “good time” and time served awaiting trial was admissible at the penalty phase of his trial, as the jury was entitled to know how much of his sentence he was likely to serve, as well as how much he had already served. Commonwealth v. Higgs, 59 S.W.3d 886, 2001 Ky. LEXIS 197 ( Ky. 2001 ).

Supreme court affirmed death penalty and admission of gruesome victim photographs to prove heinousness aggravator in penalty phase and stated that heinous brutality committed upon a victim by a defendant by its nature revealed evidence that was inflammatory; the prosecution, in proving its case in the penalty phase, was limited by the bare facts of the crime, which could be dreadful; the prosecution has a right to prove its case even where the defendant pleaded guilty; and moreover, it was imperative that a capital sentencer consider all the evidence bearing upon the defendant’s character, record, and circumstances of his crime. Johnson v. Commonwealth, 103 S.W.3d 687, 2003 Ky. LEXIS 21 (Ky.), cert. denied, 540 U.S. 986, 124 S. Ct. 470, 157 L. Ed. 2d 379, 2003 U.S. LEXIS 8075 (U.S. 2003).

Because there was only the possibility that jurors might have become aware of the original charges underlying defendant’s prior convictions if they looked at during deliberations the final judgments that had been introduced into evidence as documentary exhibits, the error could not be regarded as palpable; the circumstances strongly suggested that the maximum sentence for defendant’s enhanced first-degree trafficking conviction resulted from the nature of the instant particular conviction in combination with his several prior convictions for drug-related crimes, rather than the jury’s awareness of the dismissed or amended charges underlying his criminal past. Martin v. Commonwealth, 409 S.W.3d 340, 2013 Ky. LEXIS 398 ( Ky. 2013 ).

There was no error in the Commonwealth's failure to inform the jury that Ky. Rev. Stat. Ann. § 532.400 imposed a one year term of post-conviction supervision for persons convicted of a capital offense because Ky. Rev. Stat. Ann. § 532.055(2)(a) did not require it to do so; section 32.055(2)(a) provides evidence that may be offered by the Commonwealth. Smith v. Commonwealth, 454 S.W.3d 283, 2015 Ky. LEXIS 12 ( Ky. 2015 ).

Admission of victims' names and evidence of a dismissed charge during the sentencing phase was palpable error under Ky. Rev. Stat. Ann. § 532.055 where published case law repeatedly advised the Commonwealth to stop introducing the very type of evidence in question, and the court could not say that introduction of the dismissed wanton endangerment charge, which was filed in conjunction with the assault and arson charges, did not have an impact, nor could it say that the introduction of the identities of local victims with whom the jurors might have had a connection did not have an impact. Stansbury v. Commonwealth, 454 S.W.3d 293, 2015 Ky. LEXIS 10 ( Ky. 2015 ).

7.—Minimum Parole Eligibility.

If “Truth-in-Sentencing” is the objective sought by this section, then either the defendant or the Commonwealth should be permitted to introduce evidence of minimum parole eligibility. Boone v. Commonwealth, 780 S.W.2d 615, 1989 Ky. LEXIS 107 ( Ky. 1989 ).

Though Commonwealth’s attorney correctly pointed out in his opening statement that the 12 years he was referring to was the minimum parole eligibility, his closing statement could easily have been interpreted as stating that defendant would be released at the end of 12 years and as this was prejudicial to defendant a new trial was required. Whitaker v. Commonwealth, 895 S.W.2d 953, 1995 Ky. LEXIS 21 ( Ky. 1995 ), overruled, Calhoun v. Commonwealth, 492 S.W.3d 132, 2016 Ky. LEXIS 249 ( Ky. 2016 ).

Where defendant was convicted of complicity to commit murder and received a sentence of life without parole for 25 years and appealed, claiming that the admission of evidence concerning parole eligibility constituted reversible error, the Supreme Court found no harmful error, in that the parole eligibility evidence was introduced by way of stipulated agreement between the prosecution and the defense, thus the defendant had waived his right to claim error. Allgeier v. Commonwealth, 915 S.W.2d 745, 1996 Ky. LEXIS 13 ( Ky. 1996 ).

8.—Prior Convictions.

A prior conviction may not be utilized under this section or under KRS 532.080 (felony offender act) unless: (1) The time for appealing the convictions has expired without appeal having been taken, or (2) matter of right appeal has been taken pursuant to Ky. Const., § 115 and the judgment of conviction has been affirmed. This does not apply to collateral attacks, such as motions under RCr 11.42, nor does it apply to pending motions for discretionary review. If discretionary review has been granted, the conviction shall not be utilized until the case is disposed of by the reviewing court. Melson v. Commonwealth, 772 S.W.2d 631, 1989 Ky. LEXIS 58 ( Ky. 1989 ).

The trial court did not err in permitting the introduction of prior convictions more than ten (10) years old, the first occurring when defendant was 28 years old, for it was but the first chapter in a continuing history of convictions; the distance in time of certain of the prior convictions does not deprive them of relevance, as the temporal remoteness of a prior conviction affects its evidential weight, as a defendant may point out in mitigation. Grenke v. Commonwealth, 796 S.W.2d 858, 1990 Ky. LEXIS 99 ( Ky. 1990 ).

In criminal prosecution the trial court committed reversible error in denying defendant his right to introduce evidence of his prior criminal history. Williams v. Commonwealth, 810 S.W.2d 511, 1991 Ky. LEXIS 77 ( Ky. 1991 ).

Where there was no dispute whatever as to the defendant’s prior convictions and no issue as to the contents of a writing, it was not error for the trial court, during the punishment phase of a bifurcated trial, to admit testimony of the defendant’s prior convictions based upon a certified Kentucky State Police computer printout. Hall v. Commonwealth, 817 S.W.2d 228, 1991 Ky. LEXIS 153 ( Ky. 1991 ), overruled, Commonwealth v. Ramsey, 920 S.W.2d 526, 1996 Ky. LEXIS 38 ( Ky. 1996 ).

Defendant’s argument, that KRE 410 precluded the introduction in the sentencing phase of his trial of evidence that he was found guilty of a felony following his plea of nolo contendere according to North Carolina v. Alford, 400 US 25, 91 S. Ct. 160, 27 L. Ed. 2d 162, 56 Ohio Op. 2d 85, 1970 U.S. LEXIS 3 (1970), was misapplied, as exclusion of an “Alford” plea as an admission against interest was held in Pettiway v. Commonwealth, Ky., 860 S.W.2d 766, 1993 Ky. LEXIS 111 (1993), to have “no relationship to the use of an “Alford” plea to enhance a sentence in a persistent felony offender hearing.” Whalen v. Commonwealth, 891 S.W.2d 86, 1995 Ky. App. LEXIS 9 (Ky. Ct. App. 1995).

No time limits are imposed on the introduction of prior convictions during sentencing under this section. McKinnon v. Commonwealth, 892 S.W.2d 615, 1995 Ky. App. LEXIS 28 (Ky. Ct. App. 1995).

Once a guilty verdict is reached in driving under the influence case, the Circuit Court has the authority to conduct a penalty phase, pursuant to this section, in which the prior convictions may be introduced and the appropriate sentence determined, following proper instructions to the jury. Commonwealth v. Ramsey, 920 S.W.2d 526, 1996 Ky. LEXIS 38 ( Ky. 1996 ).

The defendant was entitled to a new sentencing phase where the Commonwealth called a district supervisor to testify to the records of the defendant’s prior convictions and, in addition to reading the convictions, dates, and sentences, the supervisor also read information regarding the factual circumstances of each conviction from the warrants or uniform citations. Hudson v. Commonwealth, 979 S.W.2d 106, 1998 Ky. LEXIS 139 ( Ky. 1998 ).

In defendant’s trial for first-degree trafficking in a controlled substance, possession of drug paraphernalia, and being a second-degree persistent felony offender (PFO), the trial court did not err when it allowed the prosecution to introduce defendant’s 1997 indictment for first-degree wanton endangerment, the final judgment and sentence of probation for that offense, and a 1998 order revoking probation, during the PFO phase of defendant’s trial. Maxie v. Commonwealth, 82 S.W.3d 860, 2002 Ky. LEXIS 158 ( Ky. 2002 ).

Trial court did not commit palpable error pursuant to RCr 10.26, where it admitted into the penalty phase evidence that defendant had been convicted of armed robbery 31 years before; even if the conviction, which was permitted to be introduced under KRS 532.055 , should have been excluded pursuant to KRE 403, this did not rise to the level of palpable error. Cochran v. Commonwealth, 114 S.W.3d 837, 2003 Ky. LEXIS 206 ( Ky. 2003 ), overruled in part, Castle v. Commonwealth, 411 S.W.3d 754, 2013 Ky. LEXIS 460 ( Ky. 2013 ).

There was no objection to introduction of evidence of defendant’s prior offenses on the grounds that it was more than permitted by the statute, and thus that issue was waived for purposes of appeal. Brooks v. Commonwealth, 114 S.W.3d 818, 2003 Ky. LEXIS 213 ( Ky. 2003 ).

A prior conviction may not be utilized under KRS 532.055 unless: (1) the time for appealing the conviction has expired without appeal having been taken; or, (2) matter of right appeal has been taken pursuant to Ky. Const. § 115 and the judgment of conviction has been affirmed; trial court erred in a defendant’s trial for wanton murder by admitting evidence of the defendant’s prior felony convictions where such convictions were set aside and never finalized by entry of a judgment and the time for the appeal of those convictions had not yet expired, though defendant’s guilty pleas to the prior offenses were convictions. Cook v. Commonwealth, 129 S.W.3d 351, 2004 Ky. LEXIS 76 ( Ky. 2004 ).

Evidence in the penalty phase of defendant’s trial that defendant’s prior convictions were for gun-related crimes complied with KRS 532.055(2)(a)1-2; defendant’s history of gun-related convictions was relevant to the appropriate punishment for a gun-related assault. Warfield v. Commonwealth, 2004 Ky. App. LEXIS 330 (Ky. Ct. App. Nov. 12, 2004, sub. op., 2004 Ky. App. Unpub. LEXIS 931 (Ky. Ct. App. Nov. 12, 2004), review denied, ordered not published, 2005 Ky. LEXIS 217 (Ky. Aug. 17, 2005).

Improper introduction of misdemeanor juvenile adjudications was not bad faith by the prosecutor such as to bar defendant’s retrial on double jeopardy grounds. Terry v. Commonwealth, 153 S.W.3d 794, 2005 Ky. LEXIS 16 ( Ky. 2005 ).

Trial court did not err in denying defendant’s motion for a mistrial due to the admission of evidence during sentencing of a charge on which he was not convicted under circumstances in which the Commonwealth stated that defendant was charged with theft of mail but was convicted of receiving stolen property; the Commonwealth was not prohibited from divulging some details of the charge as part of evidence of prior offenses admissible under KRS 532.055(2)(a)(2). Land v. Commonwealth, 2007 Ky. App. LEXIS 231 (Ky. Ct. App. July 20, 2007, sub. op., 2007 Ky. App. Unpub. LEXIS 829 (Ky. Ct. App. July 20, 2007), review denied, ordered not published, 2008 Ky. LEXIS 194 (Ky. Apr. 16, 2008).

Term “prior” as used in KRS 532.055(2)(a) refers to the status of defendant at the time of sentencing, not at the time of the commission of the charged crime. Thus, the Commonwealth may introduce a conviction that was obtained subsequent to the offense for which a defendant is being sentenced because, at the time of sentencing, it had become a “prior” conviction. Furnish v. Commonwealth, 267 S.W.3d 656, 2007 Ky. LEXIS 294 ( Ky. 2007 ), cert. denied, 558 U.S. 831, 130 S. Ct. 65, 175 L. Ed. 2d 48, 2009 U.S. LEXIS 5673 (U.S. 2009).

Trial court did not err by allowing the Commonwealth to read to the jury from a prior citation for burglary, because the testimony was merely a general description of the nature of the prior crime, as permitted by KRS 532.055 . Cuzick v. Commonwealth, 276 S.W.3d 260, 2009 Ky. LEXIS 2 ( Ky. 2009 ).

Trial court erroneously allowed the Commonwealth to prove defendant criminal history during the penalty phase with testimony based upon CourtNet, a product compiled by the Administrative Office of the Courts that was not intended as an official record of that background, because CourtNet was not an appropriate document to use to influence a jury’s decision on fixing a penalty when it lacked the requisite indicia of reliability necessary to reliably prove a defendant’s prior convictions; evidence based on a document such as CourtNet, which proclaims that it is not official, may not reflect the true status of cases, and whose accuracy cannot be guaranteed, is not competent to be weighed in fixing a penalty. Finnell v. Commonwealth, 295 S.W.3d 829, 2009 Ky. LEXIS 254 ( Ky. 2009 ).

During the sentencing phase of a defendant’s trial pursuant to KRS 532.055(2)(a), the evidence of prior convictions is limited to conveying to the jury the elements of the crimes previously committed; this can be done either by a reading of the instruction of such crime from an acceptable form book or directly from the Kentucky Revised Statute itself, and said recitation for the jury’s benefit is best left to the judge. The description of the elements of the prior offense may need to be customized to fit the particulars of the crime, i.e., the burglary was of a building as opposed to a dwelling; the trial court should avoid identifiers, such as naming of victims, which might trigger memories of jurors who may—especially in rural areas—have prior knowledge about the crimes. Mullikan v. Commonwealth, 341 S.W.3d 99, 2011 Ky. LEXIS 89 ( Ky. 2011 ).

Penalty phase introduction of original dismissed charges from defendant’s prior convictions was erroneous under KRS 532.055(2)(a)(2); the statute only permitted the jury to hear evidence of the nature of the prior offenses for which defendant was convicted. Blane v. Commonwealth, 364 S.W.3d 140, 2012 Ky. LEXIS 54 ( Ky. 2012 ), overruled in part, Roe v. Commonwealth, 2015 Ky. LEXIS 2080 (Ky. Sept. 24, 2015).

Court erred in consolidating all of defendant’s murder charges into a single trial because the third murder was not connected to the other crimes as part of a common scheme or plan; if defendant was tried only on the third murder, the other two murders would not have been admissible at the sentencing phase under KRS 532.055(2)(a)(2) because defendant had not yet been convicted of those murders. Hammond v. Commonwealth, 366 S.W.3d 425, 2012 Ky. LEXIS 63 ( Ky. 2012 ).

Commonwealth exceeded the scope of KRS 532.055 and introduced improper evidence during the penalty phase when it told jurors about defendant’s prior convictions. The Commonwealth went far beyond conveying to the jury the elements of the crimes previously committed and introduced highly prejudicial information concerning the victims of the prior crimes. Webb v. Commonwealth, 387 S.W.3d 319, 2012 Ky. LEXIS 195 ( Ky. 2012 ).

In a death penalty case, the evidence of defendant's other murders was not reversible error because most of the information about the four Oklahoma murders was injected by defendant in an effort to justify or at least minimize his earlier killings by painting the victims as cold killers and drug dealers who in his eyes deserved it; the cross-examination, to the extent the questions directly touched on the allegedly bad information, gave defendant an opportunity to tell his true story, and to do so under the apparent pressure of cross-examination; and it was reasonable for counsel not to object to that cross-examination. St. Clair v. Commonwealth, 451 S.W.3d 597, 2014 Ky. LEXIS 341 ( Ky. 2014 ), cert. denied, 577 U.S. 885, 136 S. Ct. 194, 193 L. Ed. 2d 152, 2015 U.S. LEXIS 5215 (U.S. 2015).

In a death penalty case, because the evidence of the first victim's murder was not proof of a prior conviction for sentencing purposes, but, rather, it was part of the evidence of other bad acts that was admitted at the guilt phase of the 1998 trial as proper evidence of other bad acts, a summary of that evidence was admissible at a re-trial of the sentencing phase. St. Clair v. Commonwealth, 451 S.W.3d 597, 2014 Ky. LEXIS 341 ( Ky. 2014 ), cert. denied, 577 U.S. 885, 136 S. Ct. 194, 193 L. Ed. 2d 152, 2015 U.S. LEXIS 5215 (U.S. 2015).

Although the introduction of documents related to prior charges against defendant was error, it did not reach the level of manifest injustice requiring reversal under the palpable error rule, as the Commonwealth did not elicit testimony from its witnesses about the original charges or the underlying facts or mention it in its closing argument. Palmer v. Commonwealth, 2017 Ky. App. LEXIS 40 (Ky. Ct. App. Mar. 3, 2017).

Explanations of the methods by which the criminal offenses were committed were not error where telling the jury that one defendant twice shot at homes while people were inside and that he once shot at someone was necessary to identify the method he used to commit the offenses, informing the jury that codefendant attempted to push someone off a second story platform was necessary to explain his method of wanton endangerment, i.e. the way in which he placed the victim in substantial danger and exhibited extreme indifference to the value of human life, and the Commonwealth followed the elements listed in Cooper’s Instructions when it presented those prior convictions. Mulazim v. Commonwealth, 600 S.W.3d 183, 2020 Ky. LEXIS 117 ( Ky. 2020 ).

9.—Subsequent to Commission of Crime.

Although conviction of a previous offense followed the commission of a present offense, the previous offense was properly ruled “prior” for sentencing purposes where both the offense and conviction occurred before the trial on the subsequent charge. Logan v. Commonwealth, 785 S.W.2d 497, 1989 Ky. App. LEXIS 103 (Ky. Ct. App. 1989).

10.—Victim Impact Evidence.

Murder victim’s daughter was properly permitted to testify at defendant’s sentencing when the victim’s spouse declined to testify; however, the trial court erred in allowing both the victim’s daughter and the victim’s sister to testify. Terry v. Commonwealth, 153 S.W.3d 794, 2005 Ky. LEXIS 16 ( Ky. 2005 ).

In a rape and sodomy prosecution, testimony by the victim during the sentencing phase about defendant’s HIV-positive status was propertly admitted under KRS 532.055(2)(a)(7) as evidence of the impact of the crime upon her. The prejudicial nature of the HIV evidence did not outweigh its probative value Torrence v. Commonwealth, 269 S.W.3d 842, 2008 Ky. LEXIS 324 ( Ky. 2008 ).

Although KRS 532.025 , governing sentencing proceedings in capital cases, did not specifically list victim-impact evidence as a potential aggravating factor in capital sentencing, it did provide that the jury could consider any other aggravating factors as otherwise authorized by law; because KRS 532.055(2)(a)(7) authorized the consideration of victim impact evidence, such evidence was allowable in capital sentencing proceedings, despite the specific lack of mention of such evidence in KRS 532.025 . St. Clair v. Commonwealth, 319 S.W.3d 300, 2010 Ky. LEXIS 90 ( Ky. 2010 ), modified, 2010 Ky. LEXIS 249 (Ky. Sept. 23, 2010).

In a capital sentencing proceeding, the victim-impact evidence presented at the resentencing proceeding in the form of testimony of the victim’s daughter about the victim’s personality characteristics, hobbies, and family connections covered less than 10 transcribed pages; was not inappropriate or excessive; provided some description of the victim as a unique human being, rather than a mere statistic, without glorifying or enlarging the victim; was not unduly prejudicial to defendant; and would not warrant a reversal of defendant’s sentence. St. Clair v. Commonwealth, 319 S.W.3d 300, 2010 Ky. LEXIS 90 ( Ky. 2010 ), modified, 2010 Ky. LEXIS 249 (Ky. Sept. 23, 2010).

Although the individual who gave victim impact evidence under KRS 532.055(2)(a)(7) was a first cousin and not a relative permitted to provide such testimony under KRS 421.500(1)(b), the cousin’s testimony was not so extreme, emotional, or outrageous as to result in manifest injustice and admission of her testimony did not constitute palpable error under RCr P. 10.26. Elery v. Commonwealth, 368 S.W.3d 78, 2012 Ky. LEXIS 87 ( Ky. 2012 ).

Although KRS 532.055 (a)(7) and 421.500(1)(b) did not permit victim impact evidence from a friend, because the friend’s testimony was not so moving or emotional that it was likely to have inspired the jury toward a more severe sentence, there was no palpable error from the improperly admitted victim impact evidence. McGuire v. Commonwealth, 368 S.W.3d 100, 2012 Ky. LEXIS 97 ( Ky. 2012 ).

In a death penalty case, because defendant was being tried for the murder of the second victim, and not the first victim, the first victim's wife was not a victim of the crime for which defendant was being tried and her victim impact testimony should not have been considered by the jury as it affected defendant's constitutional rights; however, the error was harmless because the jury heard how defendant had been incarcerated in Oklahoma awaiting sentencing for two other murders when he escaped; the proof included the proper victim-impact testimony from the second victim's daughter; and the jury heard testimony that defendant had claimed that killing people was like killing dogs and that it was easy after the first one. St. Clair v. Commonwealth, 451 S.W.3d 597, 2014 Ky. LEXIS 341 ( Ky. 2014 ), cert. denied, 577 U.S. 885, 136 S. Ct. 194, 193 L. Ed. 2d 152, 2015 U.S. LEXIS 5215 (U.S. 2015).

In a death penalty case, proper victim-impact testimony is limited to that of victims of the crime for which the defendant is standing trial and has been convicted. St. Clair v. Commonwealth, 451 S.W.3d 597, 2014 Ky. LEXIS 341 ( Ky. 2014 ), cert. denied, 577 U.S. 885, 136 S. Ct. 194, 193 L. Ed. 2d 152, 2015 U.S. LEXIS 5215 (U.S. 2015).

In a death penalty case, the testimony given by the first victim's wife described her husband's personality and life, not the crime itself, and was not the type other crimes evidence admitted at defendant's 1998 trial; it was pure victim-impact testimony, was at least a step removed from the evidence previously admitted, and was erroneously admitted. St. Clair v. Commonwealth, 451 S.W.3d 597, 2014 Ky. LEXIS 341 ( Ky. 2014 ), cert. denied, 577 U.S. 885, 136 S. Ct. 194, 193 L. Ed. 2d 152, 2015 U.S. LEXIS 5215 (U.S. 2015).

Admitting victim-impact testimony in a trial's guilt phase was not palpable error because the testimony only presented the victim as a loving wife and mother. Roe v. Commonwealth, 2015 Ky. LEXIS 2080 (Ky. Sept. 24, 2015).

11.—Parole Violations.

Defendant’s parole violations may be introduced during the penalty phase of trial, notwithstanding their absence from the evidentiary categories listed in KRS 532.055(2)(a) because parole violations are sufficiently similar and equally as valuable as the evidence listed in the statute so as to warrant admission. Further KRE. 404(b) did not bar the admission of parole violations during the penalty phase because, while parole violations or any other prior bad acts are never admissible to prove the character of a person in order to show action in conformity therewith, parole violations and other prior bad acts may be admissible for some other purpose, including for truth in sentencing during the penalty phase. Miller v. Commonwealth, 394 S.W.3d 402, 2011 Ky. LEXIS 179 ( Ky. 2011 ).

12.—Mitigating Evidence.

While the allotment of peremptory strikes at defendant’s trial was not constitutionally defective and the trial judge’s failure to include a “no adverse inference” instruction in the penalty phase was not defective where it was not requested, the reckless homicide charge was inflammatory and defendant should have been allowed to explain the attendant circumstances to the jury where they were in the record and the testifying witness used the plea sheets that included the crime’s details. Wood v. Commonwealth, 432 S.W.3d 726, 2014 Ky. App. LEXIS 78 (Ky. Ct. App. 2014).

Where petitioner was convicted of two counts of first-degree murder and the jury recommended life imprisonment with no possibility of parole for twenty-five years, which the judge imposed, petitioner was entitled to habeas corpus relief because counsel was ineffective at sentencing since counsel neglected to mount any defense, including to investigate or present mitigating evidence, counsel chose not to delineate the jury's sentencing options, and counsel's remark threatened to alienate jurors. Phillips v. White, 851 F.3d 567, 2017 FED App. 0058P, 2017 U.S. App. LEXIS 4509 (6th Cir. Ky. 2017 ).

13.Persistent Felony Enhancement.

Where the instructions allowed the jury to find the defendants guilty as persistent felons and enhance their sentences as such without requiring that the jury first set sentences for the underlying offense, it was at most a procedural matter which was unobjected to at the time of trial and which did not result in an enhancement of the penalty. Montgomery v. Commonwealth, 819 S.W.2d 713, 1991 Ky. LEXIS 154 ( Ky. 1991 ).

Trial court did not err in allowing the introduction of misdemeanor convictions in the same proceeding as a persistent felony offender phase under KRS 532.055(3) as the penalty and persistent felony determination were combined into the same procedure, and the same evidence that was pertinent toward fixing the penalty was also pertinent for consideration in the enhancement of sentence. Cantrell v. Commonwealth, 288 S.W.3d 291, 2009 Ky. LEXIS 162 ( Ky. 2009 ).

Trial court did not err in discontinuing jury deliberations because, while the jury foreperson did not state that the jury was deadlocked, she did indicate that she did not believe additional deliberations would prove useful. Lopez v. Commonwealth, 459 S.W.3d 867, 2015 Ky. LEXIS 1616 ( Ky. 2015 ).

14.Procedure.

It was not reversible error for the trial judge to hold a persistent felony offender hearing prior to the sentencing phase of capital murder, where the defendant introduced evidence concerning his own record in the guilt phase. Francis v. Commonwealth, 752 S.W.2d 309, 1988 Ky. LEXIS 38 ( Ky. 1988 ).

The trial judge erred by refusing to allow defendant to be sentenced by a jury on resentencing for a wanton murder conviction since a criminal defendant has a statutory right to have his sentence set by a jury and the trial judge is not vested with the authority to abrogate a criminal defendant’s right to jury sentencing by speculating on what sentence the jury would have imposed if properly instructed. Wilson v. Commonwealth, 765 S.W.2d 22, 1989 Ky. LEXIS 13 ( Ky. 1989 ).

An indictment which originally charged the defendant as being a Persistent Felony Offender I was sufficient to allow for a conviction as a Persistent Felony Offender II; nevertheless the jury must be instructed on Persistent Felony Offender II and decide his guilt or innocence. White v. Commonwealth, 770 S.W.2d 222, 1989 Ky. LEXIS 19 ( Ky. 1989 ).

Nothing in this section requires submitting the issue of punishment to the same jury panel which determined guilt. Williamson v. Commonwealth, 767 S.W.2d 323, 1989 Ky. LEXIS 24 ( Ky. 1989 ).

All that is admissible as to the nature of a prior conviction is a general description of the crime, and it was permissible to introduce a judgment with testimony that defendant assaulted the woman with whom he had been living, but was not permissible to admit actual testimony of woman with whom defendant had been living, which described, at length, the specifics of the assault. Robinson v. Commonwealth, 926 S.W.2d 853, 1996 Ky. LEXIS 30 ( Ky. 1996 ).

If a jury finds a defendant guilty solely of a lesser included misdemeanor in a felony case, no additional evidence shall be admitted, the jury shall immediately be instructed on the penalty range for that offense, and the attorneys shall be allowed additional argument only on the issue of punishment, following which the jury shall retire to deliberate its verdict on that issue; however, if a jury finds a defendant guilty of both a misdemeanor and a felony offense, the procedure described in the preceding sentence shall first be followed with respect to the misdemeanor convictions, after which the procedure described in KRS 532.055(2) and (3) shall be followed with respect to the felony convictions. Commonwealth v. Philpott, 75 S.W.3d 209, 2002 Ky. LEXIS 100 ( Ky. 2002 ).

Where defendant pled guilty and was not sentenced by a jury, his request that the appeals court declare KRS 532.043 to be in violation of the Truth in Sentencing Statute, KRS 532.055 , and the constitutional guarantee of due process, lacked merit; thus, the jury was not required to hear information regarding the mandated post-incarceration three-year term of conditional discharge. Wilfong v. Commonwealth, 175 S.W.3d 84, 2004 Ky. App. LEXIS 353 (Ky. Ct. App. 2004).

Defendant’s claim that reading jury instructions at the start of the penalty phase erred was not reviewed because only unpreserved assertions that a sentencing decision was contrary to statute or did not fully consider statutory options were considered, and defendant did not allege this, as defendant only claimed a violation of KRS 532.055(2)(c). Webster v. Commonwealth, 438 S.W.3d 321, 2014 Ky. LEXIS 239 ( Ky. 2014 ).

15.Sentence by Court.

Trial court was authorized to fix the penalty in defendant’s case where he was convicted of one perjury crime and the jury was unable to agree on defendant’s sentencing, and, thus, the trial court should not have declared a mistrial and seated a new jury to again consider defendant’s guilt, which had already been determined; rather, the trial court should have decided the penalty itself. Holbrooks v. Commonwealth, 85 S.W.3d 563, 2002 Ky. LEXIS 173 ( Ky. 2002 ).

In a case in which a pro se state inmate sought authorization to file a second or successive 28 U.S.C.S. § 2254 habeas corpus petition, he did not present any new evidence with regard to his claim that the trial court violated his due-process rights and his right to a trial by jury under the Fourteenth and Sixth Amendments when it sentenced him to life imprisonment after the jury deadlocked during the penalty phase of his trial. The inmate had been convicted of murder and sentenced to life imprisonment; under KRS 532.055(4), the trial court could impose the sentence if the jury in a felony case was unable to agree on a sentence, and, while the inmate objected to his sentence of life imprisonment, which was not for life without benefit of probation or parole for twenty-five years, no finding of an additional aggravating circumstance was required. In re Chambers, 407 Fed. Appx. 877, 2011 FED App. 0039N, 2011 U.S. App. LEXIS 1005 (6th Cir. 2011).

16.—Jury Recommended.

Trial court erred in allowing defendant convicted of first-degree criminal abuse and the intentional murder of her stepson to waive jury sentencing pursuant to the court’s recommendation of a minimum sentence; Commonwealth was entitled to a jury-recommended sentence; neither exception contained within RCr 9.84(1) applied. Commonwealth v. Collins, 933 S.W.2d 811, 1996 Ky. LEXIS 80 ( Ky. 1996 ).

Where the jury recommends a sentence that is not within the prescribed statutory range, it is unauthorized and unlawful and the court may correct the sentence. Neace v. Commonwealth, 978 S.W.2d 319, 1998 Ky. LEXIS 119 ( Ky. 1998 ).

The statute does not impose a duty upon the trial court to accept the recommendation of the jury as to sentencing; the jury’s recommendation is only that, and has no mandatory effect. Murphy v. Commonwealth, 50 S.W.3d 173, 2001 Ky. LEXIS 81 ( Ky. 2001 ).

Where defendant was indicted and charged with felonies, but was convicted of only misdemeanors, he was entitled to a recommendation from the jury as to whether the sentences should have been concurrent or consecutive; the trial court’s failure to so instruct the jury was palpable error, so the judgment was reversed to the extent that it ordered the sentences to be run consecutively and the case was remanded for a new sentencing hearing. Stinnett v. Commonwealth, 2003 Ky. App. LEXIS 143 (Ky. Ct. App. June 6, 2003), rev'd, 144 S.W.3d 829, 2004 Ky. LEXIS 217 ( Ky. 2004 ).

[Unpublished Opinion] Where a jury’s recommendation, pursuant to RCr 9.84(1) and KRS 532.055 , that a state prisoner serve his two (2) seven and one-half (71/2) year sentences consecutively was recited on the first page of the judgment, even though the trial judge failed to mark in another place on the judgment that the term was consecutive, the prisoner was sufficiently on notice that his term was consecutive so that his due process rights were not violated by the department of corrections re-calculating his sentence from concurrent to consecutive, especially in light of the fact that he failed to exhaust state court remedies to clarify the sentence. Collins v. Million, 121 Fed. Appx. 628, 2005 U.S. App. LEXIS 1585 (6th Cir. Ky. 2005 ).

Trial court erred in failing to instruct the jury on the maximum allowable 70-year sentence under KRS 532.055(2) and KRS 532.110(1)(c) where defendant was convicted of multiple felony offenses. Allen v. Commonwealth, 276 S.W.3d 768, 2008 Ky. LEXIS 290 ( Ky. 2008 ).

17.Sentencing Information Prior to Final Sentence.

The current criminal trial procedure generally precludes the jury from hearing purely sentencing information during the guilt or innocence phase of a trial but, it does not absolutely preclude their being given some information of that type incidental to a proper voir dire examination. Shields v. Commonwealth, 812 S.W.2d 152, 1991 Ky. LEXIS 79 ( Ky. 1991 ), cert. denied, 502 U.S. 1065, 112 S. Ct. 953, 117 L. Ed. 2d 121, 1992 U.S. LEXIS 381 (U.S. 1992), overruled in part, Lawson v. Commonwealth, 53 S.W.3d 534, 2001 Ky. LEXIS 87 ( Ky. 2001 ).

The defense counsel was properly prevented by the in limine ruling from telling the jury that the range of punishment would be imprisonment for ten (10) to twenty (20) years, since, as indicated by the final sentence, the correct permissible range of punishment was 20 years to life. Shields v. Commonwealth, 812 S.W.2d 152, 1991 Ky. LEXIS 79 ( Ky. 1991 ), cert. denied, 502 U.S. 1065, 112 S. Ct. 953, 117 L. Ed. 2d 121, 1992 U.S. LEXIS 381 (U.S. 1992), overruled in part, Lawson v. Commonwealth, 53 S.W.3d 534, 2001 Ky. LEXIS 87 ( Ky. 2001 ).

The prosecutor did not violate the statute where he first mentioned sentencing issues during voir dire when he questioned the prospective jurors on their ability to follow the law and consider any potential punishment in the authorized penalty range. Norton v. Commonwealth, 37 S.W.3d 750, 2001 Ky. LEXIS 20 ( Ky. 2001 ).

The prosecutor did not violate the statute where he contended during his closing argument that the defendant admitted every element short of entering the victim’s dwelling because he hoped to receive the substantially lesser penalty than he would receive if he were convicted of attempted burglary instead of burglary as the defendant first put the question of penalty at issue during the guilt/innocence phase of trial when he admitted all of the elements of the lesser offense and asked the jury not to “max” him out. Norton v. Commonwealth, 37 S.W.3d 750, 2001 Ky. LEXIS 20 ( Ky. 2001 ).

At defendant’s trial for first-degree possession of a controlled substance and possession of a handgun by a convicted felon, his right to due process was not denied by his parole officer’s testimony during the penalty phase regarding the potential effect of parole and sentence credits on defendant’s sentence. The testimony comported with the aims of the truth-in-sentencing statute, KRS 532.055 , and was not unfair. Cox v. Commonwealth, 399 S.W.3d 431, 2013 Ky. LEXIS 228 ( Ky. 2013 ).

18.Subsequent Punishment Phase Due to Error.

Where a subsequent separate punishment phase is necessary because of reversible error committed only in that phase at the original trial, common sense dictates that the second jury must be told something about what transpired during the earlier guilt phase; it would suffice, in most cases, for the jury to have read to it (a) the charges from the indictment of which the defendant was found guilty; (b) any charge of which the defendant was found guilty which was a lesser-included offense to a charge set out in the indictment; (c) the jury instructions given by the trial court at the guilt phase; and (d) the jury’s verdict; in addition, should both sides agree, each could read a concise summary of the evidence and closing arguments. In the event that the parties cannot agree, then each could submit its proposed summary to the opposing party and the court, who could then determine what the summaries would contain after hearing any objections and argument from the opposing party. Boone v. Commonwealth, 821 S.W.2d 813, 1992 Ky. LEXIS 7 ( Ky. 1992 ).

When, at defendant’s sentencing, the jury was given erroneous information, in testimony and argument, about the maximum possible sentence it could recommend, if sentences were served consecutively, due process entitled defendant to a new sentencing hearing at which a properly informed jury would consider whether the sentences for his convictions should be served concurrently or consecutively. Lawson v. Commonwealth, 85 S.W.3d 571, 2002 Ky. LEXIS 175 ( Ky. 2002 ).

20.Sentence by Jury.

While the plea form that defendant signed conjoined the waiver of a right that was constitutionally guaranteed with the waiver of a right that was not, omission of the adjective “constitutional” did not diminish the validity of defendant’s waiver of the right to appeal under Ky. Const. § 115; therefore, defendant’s motion to withdraw the defendant’s waiver of jury sentencing under RCr P. 9.26(1) and KRS 532.055 was properly denied. Simms v. Commonwealth, 354 S.W.3d 141, 2011 Ky. App. LEXIS 166 (Ky. Ct. App. 2011).

Jury did not err in meting out the maximum sentence for defendant's rape and sodomy convictions where no amount of testimony about a cap on earning credit, lifetime sex offender registration or post-incarceration supervision would have changed the jury's recommendation of the maximum sentence because defendant had sealed his fate with his persistent lie and lack of remorse. Kays v. Commonwealth, 505 S.W.3d 260, 2016 Ky. App. LEXIS 177 (Ky. Ct. App. 2016).

Cited in:

Buchanan v. Kentucky, 483 U.S. 402, 107 S. Ct. 2906, 97 L. Ed. 2d 336, 1987 U.S. LEXIS 2877 (1987), rehearing denied, 483 U.S. 1044, 108 S. Ct. 19, 97 L. Ed. 2d 807, 1987 U.S. LEXIS 3112 (1987); Carter v. Commonwealth, 782 S.W.2d 597, 1989 Ky. LEXIS 76 ( Ky. 1989 ); Offutt v. Commonwealth, 799 S.W.2d 815, 1990 Ky. LEXIS 44 ( Ky. 1990 ); Ruppee v. Commonwealth, 821 S.W.2d 484, 1991 Ky. LEXIS 50 ( Ky. 1991 ); Sanders v. Commonwealth, 844 S.W.2d 391, 1992 Ky. LEXIS 171 ( Ky. 1992 ); Skinner v. Commonwealth, 864 S.W.2d 290, 1993 Ky. LEXIS 149 ( Ky. 1993 ); Chumbler v. Commonwealth, 905 S.W.2d 488, 1995 Ky. LEXIS 99 ( Ky. 1995 ); Garland v. Commonwealth, 127 S.W.3d 529, 2003 Ky. LEXIS 233 ( Ky. 2003 ); Cook v. Commonwealth, 129 S.W.3d 351, 2004 Ky. LEXIS 76 ( Ky. 2004 ); Commonwealth v. Stinnett, 144 S.W.3d 829, 2004 Ky. LEXIS 217 ( Ky. 2004 ); Epperson v. Commonwealth, 197 S.W.3d 46, 2006 Ky. LEXIS 49 ( Ky. 2006 ); Barbour v. Commonwealth, 204 S.W.3d 606, 2006 Ky. LEXIS 197 ( Ky. 2006 ); Peyton v. Commonwealth, 253 S.W.3d 504, 2008 Ky. LEXIS 130 ( Ky. 2008 ); Fields v. Commonwealth, 274 S.W.3d 375, 2008 Ky. LEXIS 259 ( Ky. 2008 ); Jenkins v. Commonwealth, 275 S.W.3d 226, 2008 Ky. App. LEXIS 377 (Ky. Ct. App. 2008); Hunt v. Commonwealth, — S.W.3d —, 2009 Ky. LEXIS 292 ( Ky. 2009 ); Ordway v. Commonwealth, 391 S.W.3d 762, 2013 Ky. LEXIS 3 ( Ky. 2013 ); Chesley v. Abbott, 524 S.W.3d 471, 2017 Ky. App. LEXIS 47 (Ky. Ct. App. 2017).

Notes to Unpublished Decisions

1.Role of Jury

Unpublished decision: Prosecutor’s closing argument was improper as the prosecutor asked the jury to send a message to defendant and the community that drug dealers would be punished and suggested that the jury had an obligation to cure the community’s problems; further, the prosecutor improperly suggested that the only way for the jury to do its job was to return a guilty verdict, which was patently untrue under KRS 532.055(1). Whether the error was palpable error under RCr P. 10.26 was not decided as there were other errors in the trial, and cumulatively, the errors denied defendant a fair trial. Mitchell v. Commonwealth, 2003 Ky. App. LEXIS 216 (Ky. Ct. App. Aug. 29, 2003), rev'd, 165 S.W.3d 129, 2005 Ky. LEXIS 185 ( Ky. 2005 ).

Research References and Practice Aids

Kentucky Law Journal.

Note: Drawing the Line at Pushing “Play”: Barring Video Montages as Victim Impact Evidence at Capital Sentencing Trials, 99 Ky. L.J. 845 (2010/2011).

Northern Kentucky Law Review.

Notes, University of Louisville v. O’Bannon: Retroactive Application of Board of Claims Act Amendments, 18 N. Ky. L. Rev. 121 (1990).

Rankin and Muehlenkamp, 1993 Kentucky Criminal Law Update, 21 N. Ky. L. Rev. 311 (1994).

Thomas, Execution Impact Evidence in Kentucky: It Is Time to Return the Scales to Balance, 27 N. Ky. L. Rev. 411 (2000).

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Controlled Substances, Part 2 Schedule Substances, §§ 9.11B, 9.12, 9.14, 9.15C, 9.16.

Kentucky Instructions To Juries (Criminal), 5th Ed., Controlled Substances, Part 3 Marijuana, §§ 9.17B, 9.20B.

Kentucky Instructions To Juries (Criminal), 5th Ed., Controlled Substances, Part 4 Miscellaneous KRS 218A Offenses, §§ 9.24A, 9.30C — 9.32, 9.34C.

Kentucky Instructions To Juries (Criminal), 5th Ed., Controlled Substances, Part 5 Alcoholic Beverages, §§ 9.36B, 9.36E, 9.39, 9.41A.

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public Order, Safety and Morals, Part 2 Riot, Disorderly Conduct and Related Offenses, §§ 8.38B, 8.39B, 8.46.

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public Order, Safety and Morals, Part 4 Offenses Relating to Firearms and Destructive Devices, §§ 8.59B, 8.64F, 8.65E.

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public Order, Safety and Morals, Part 8 Family Offenses, § 8.104.

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Related to Sex and Pornography, Part 8 Obscenity, §§ 4.82, 4.84E.

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Related to Sex and Pornography, Part 9 Sexual Exploitation of Minors, § 4.96E.

Kentucky Instructions To Juries (Criminal), 5th Ed., Penalty Phase Instructions, Part 1 Misdemeanor Offenses, § 12.03.

Kentucky Instructions To Juries (Criminal), 5th Ed., Penalty Phase Instructions, Part 2 Capital Offenses, § 12.04A.

Kentucky Instructions To Juries (Criminal), 5th Ed., Penalty Phase Instructions, Part 3 Felony Offenses, §§ 12.16, 12.17, 12.19A.

Kentucky Instructions To Juries (Criminal), 5th Ed., Penalty Phase Instructions, Part 4 Subsequent Offense Enhancement, § 12.25.

Kentucky Instructions To Juries (Criminal), 5th Ed., Penalty Phase Instructions, Part 5 Persistent Felony Offenders, § 12.28.

Kentucky Instructions To Juries (Criminal), 5th Ed., Robbery, Theft and Related Offenses, Part 3 Theft, § 6.55.

532.060. Sentence of imprisonment for felony — Postincarceration supervision.

  1. A sentence of imprisonment for a felony shall be an indeterminate sentence, the maximum of which shall be fixed within the limits provided by subsection (2), and subject to modification by the trial judge pursuant to KRS 532.070 .
  2. Unless otherwise provided by law, the authorized maximum terms of imprisonment for felonies are:
    1. For a Class A felony, not less than twenty (20) years nor more than fifty (50) years, or life imprisonment;
    2. For a Class B felony, not less than ten (10) years nor more than twenty (20) years;
    3. For a Class C felony, not less than five (5) years nor more than ten (10) years; and
    4. For a Class D felony, not less than one (1) year nor more than five (5) years.
  3. For any felony specified in KRS Chapter 510, KRS 530.020 , 530.064(1)(a), or 531.310 , the sentence shall include an additional five (5) year period of postincarceration supervision which shall be added to the maximum sentence rendered for the offense. During this period of postincarceration supervision, if a defendant violates the provisions of postincarceration supervision, the defendant may be reincarcerated for:
    1. The remaining period of his initial sentence, if any is remaining; and
    2. The entire period of postincarceration supervision, or if the initial sentence has been served, for the remaining period of postincarceration supervision.
  4. In addition to the penalties provided in this section, for any person subject to a period of postincarceration supervision pursuant to KRS 532.400 his or her sentence shall include an additional one (1) year period of postincarceration supervision following release from incarceration upon expiration of sentence if the offender is not otherwise subject to another form of postincarceration supervision. During this period of postincarceration supervision, if an offender violates the provisions of supervision, the offender may be reincarcerated for the remaining period of his or her postincarceration supervision.
  5. The actual time of release within the maximum established by subsection (1), or as modified pursuant to KRS 532.070 , shall be determined under procedures established elsewhere by law.

History. Enact. Acts 1974, ch. 406, § 278, effective January 1, 1975; 1998, ch. 606, § 70, effective July 15, 1998; 2006, ch. 182, § 65, effective July 12, 2006; 2011, ch. 2, § 38, effective June 8, 2011.

Compiler’s Notes.

Section 197 of Acts 1998, ch. 606, stated: “Sections 24, 25, 70, and 121 of this Act may be cited as the Sarah Hansen Act.”

NOTES TO DECISIONS

Analysis

1.In General.

A sentence for a felony is an indeterminate sentence, Since the maximum term is to be fixed within the listed limits, but is subject to modification by the trial judge. Prather v. Commonwealth, 2007 Ky. App. LEXIS 421 (Ky. Ct. App. Nov. 2, 2007).

2.Legislative Intent.

Subdivision (2)(a) of this section implies that the General Assembly considers life imprisonment to be a penalty equal to or greater than any sentence to a term of years. Smith v. Commonwealth, 806 S.W.2d 647, 1991 Ky. LEXIS 29 ( Ky. 1991 ), overruled, Benet v. Commonwealth, 253 S.W.3d 528, 2008 Ky. LEXIS 132 ( Ky. 2008 ).

KRS 532.043 did not violate the separation of powers doctrine by infringing upon the judiciary’s duty to administer justice and by removing all discretion from the trial court by imposing a three-year mandatory conditional discharge, as the Legislature, and not the judiciary, designated the elements of criminal conduct and the corresponding penalties; further, the Legislature did not unconstitutionally usurp the court’s functions by eliminating the exercise of discretion by the trial court in fixing a sentence, as it had the plenary power to set criminal penalties. Wilfong v. Commonwealth, 175 S.W.3d 84, 2004 Ky. App. LEXIS 353 (Ky. Ct. App. 2004).

3.Due Process.

Trial court’s denial of defendant’s motion in limine which requested defendant be allowed to voir dire prospective jurors as to whether they could consider the full range of penalties for each charged offense, i. e. 10 to 20 years for manufacturing methamphetamine, KRS 218A.1432(2), KRS 532.060(2)(b), and 1 to 5 years for possession of a controlled substance in the first degree, KRS 218A.1415(2)(a), KRS 532.060(2)(d), was erroneous as defendant was denied the right to determine whether each prospective juror was qualified to serve on the jury. The error was not harmless, as the jurors did not impose the minimum sentence allowable for either conviction. Varble v. Commonwealth, 125 S.W.3d 246, 2004 Ky. LEXIS 9 ( Ky. 2004 ).

4.Instructions.

It was reversible error for the trial court to give the instruction for punishment for a sentence of 20 years to life, under subsection (2)(c) of this section, where the defendant was charged with kidnapping; since kidnapping was a Class B felony (KRS 509.040(2)), and an attempt to commit a Class B felony is itself a Class C felony pursuant to KRS 506.010 (4)(b). Bruce v. Commonwealth, 581 S.W.2d 8, 1979 Ky. LEXIS 253 ( Ky. 1979 ).

5.Modification of Sentence.

Where a jury sentenced a defendant convicted of first-degree rape and first-degree sodomy to the maximum sentence for each offense — imprisonment for life — to be served consecutively, the court’s modification of the sentence to two consecutive 25-year terms was unauthorized, in that it resulted in a sentence more severe than that fixed by the jury; since this section forecloses parole eligibility for 12 years in the event of a life sentence, and for 50 percent of the term upon a sentence to a term of years. Smith v. Commonwealth, 806 S.W.2d 647, 1991 Ky. LEXIS 29 ( Ky. 1991 ), overruled, Benet v. Commonwealth, 253 S.W.3d 528, 2008 Ky. LEXIS 132 ( Ky. 2008 ).

When a sentence of imprisonment for a felony is fixed by a jury pursuant to the statute and the trial court, having regard to the nature and circumstances of the crime and to the history and character of the defendant, is of the opinion that a sentence of imprisonment is necessary but that the maximum term fixed by the jury is unduly harsh, the court may modify that sentence and fix a maximum term within the limits provided in the statute for the offense for which the defendant presently stands convicted. Young v. Commonwealth, 25 S.W.3d 66, 2000 Ky. LEXIS 106 ( Ky. 2000 ).

A trial court has the discretion to decline to follow a jury’s recommendation regarding whether a sentence should be served concurrently or consecutively, regardless of any parole eligibility implications for a defendant. Benet v. Commonwealth, 253 S.W.3d 528, 2008 Ky. LEXIS 132 ( Ky. 2008 ).

Trial court did not err in failing to instruct the jury that the sentence could not be modified by the judge; Ky. Rev. Stat. Ann. § 532.010 classifies capital offenses as felonies for sentencing purposes, and thus, sentencing in non-aggravated capital cases is governed in part by Ky. Rev. Stat. Ann. § 532.060 and is, therefore, subject to modification by the trial court pursuant to Ky. Rev. Stat. Ann. § 532.070 . Smith v. Commonwealth, 454 S.W.3d 283, 2015 Ky. LEXIS 12 ( Ky. 2015 ).

6.Persistent Felony Enhancement.

A persistent felony offender enhancement is not permissible following a conviction for murder. Murder is a capital crime and is not subject to such enhancement. Berry v. Commonwealth, 782 S.W.2d 625, 1990 Ky. LEXIS 7 ( Ky. 1990 ), overruled in part, Chestnut v. Commonwealth, 250 S.W.3d 288, 2008 Ky. LEXIS 113 ( Ky. 2008 ).

If the punishment is not assessed under this section, the persistent felony offender statute KRS 532.080 , is not applicable. Berry v. Commonwealth, 782 S.W.2d 625, 1990 Ky. LEXIS 7 ( Ky. 1990 ), overruled in part, Chestnut v. Commonwealth, 250 S.W.3d 288, 2008 Ky. LEXIS 113 ( Ky. 2008 ).

A sentence imposed upon conviction for murder is not subject to persistent felony offender enhancement. Offutt v. Commonwealth, 799 S.W.2d 815, 1990 Ky. LEXIS 44 ( Ky. 1990 ).

Method of enhancement of defendant’s sentence following conviction as a second-degree felony offender was proper pursuant to Class A felony provisions. Stroud v. Commonwealth, 922 S.W.2d 382, 1996 Ky. LEXIS 53 ( Ky. 1996 ).

Trial court erred in imposing a 30-year sentence because, as to first-degree trafficking in a controlled substance, cocaine, under KRS 532.060(2), defendant, as a persistent felony offender, could have been sentenced to 10 to 20 years in prison; thus, the maximum allowable sentence permissible under KRS 532.110(1)(c) was 20 years. Blane v. Commonwealth, 364 S.W.3d 140, 2012 Ky. LEXIS 54 ( Ky. 2012 ), overruled in part, Roe v. Commonwealth, 2015 Ky. LEXIS 2080 (Ky. Sept. 24, 2015).

General Assembly only excluded first-degree possession of a controlled substance from persistent felony offender (PFO) enhancement eligibility, demonstrating that trafficking in a controlled substance in the second degree is eligible for PFO enhancement. Commonwealth v. Gamble, 453 S.W.3d 716, 2015 Ky. LEXIS 15 ( Ky. 2015 ).

Circuit court could enhance defendant's sentence beyond the three-year cap set forth in Ky. Rev. Stat. Ann. § 218A.1413(2)(b)(1) because the statute did not prohibit defendant's sentence from being enhanced to five years imprisonment by virtue of his status as a persistent felony offender conviction. Commonwealth v. Gamble, 453 S.W.3d 716, 2015 Ky. LEXIS 15 ( Ky. 2015 ).

Cited:

Powell v. Payton, 544 S.W.2d 1, 1976 Ky. LEXIS 147 ( Ky. 1976 ); Moore v. Cowan, 560 F.2d 1298, 1977 U.S. App. LEXIS 11806 (6th Cir. 1977); Jones v. Commonwealth, 554 S.W.2d 363, 1977 Ky. LEXIS 491 ( Ky. 1977 ); Pace v. Commonwealth, 561 S.W.2d 664, 1978 Ky. LEXIS 329 ( Ky. 1978 ); Cook v. Bordenkircher, 602 F.2d 117, 1979 U.S. App. LEXIS 13600 (6th Cir. 1979), cert. denied, 444 U.S. 936, 100 S. Ct. 286, 62 L. Ed. 2d 196, 1979 U.S. LEXIS 3597 (1979); Zachery v. Commonwealth, 580 S.W.2d 220, 1979 Ky. LEXIS 245 ( Ky. 1979 ); Parrish v. Commonwealth, 581 S.W.2d 560, 1979 Ky. LEXIS 256 ( Ky. 1979 ); Smith v. Commonwealth, 634 S.W.2d 411, 1982 Ky. LEXIS 259 ( Ky. 1982 ); James v. Commonwealth, 647 S.W.2d 794, 1983 Ky. LEXIS 230 ( Ky. 1983 ), rev’d, James v. Kentucky, 466 U.S. 341, 104 S. Ct. 1830, 80 L. Ed. 2d 346, 1984 U.S. LEXIS 61 (1984); Jackson v. Commonwealth, 650 S.W.2d 250, 1983 Ky. LEXIS 244 ( Ky. 1983 ); Milner v. Commonwealth, 655 S.W.2d 31, 1983 Ky. App. LEXIS 333 (Ky. Ct. App. 1983); Finney v. Rothgerber, 751 F.2d 858, 1985 U.S. App. LEXIS 27573 (6th Cir. 1985); Woods v. Commonwealth, 712 S.W.2d 363, 1986 Ky. App. LEXIS 1144 (Ky. Ct. App. 1986); Lemon v. Corrections Cabinet, 712 S.W.2d 370, 1986 Ky. App. LEXIS 1157 (Ky. Ct. App. 1986); Buchanan v. Kentucky, 483 U.S. 402, 107 S. Ct. 2906, 97 L. Ed. 2d 336, 1987 U.S. LEXIS 2877 (1987); Hamilton v. Commonwealth, 754 S.W.2d 870, 1988 Ky. App. LEXIS 72 (Ky. Ct. App. 1988); George v. Seabold, 909 F.2d 157, 1990 U.S. App. LEXIS 12169 (6th Cir. 1990); McCarthy v. Commonwealth, 867 S.W.2d 469, 1993 Ky. LEXIS 139 ( Ky. 1993 ); United States v. Epley, 52 F.3d 571, 1995 U.S. App. LEXIS 9137 (6th Cir. 1995); Morrow v. Commonwealth, 77 S.W.3d 558, 2002 Ky. LEXIS 133 ( Ky. 2002 ); Shepherd v. Commonwealth, 251 S.W.3d 309, 2008 Ky. LEXIS 30 ( Ky. 2008 ); Weaver v. Commonwealth, 298 S.W.3d 851, 2009 Ky. LEXIS 328 ( Ky. 2009 ); Commonwealth v. Rank, 494 S.W.3d 476, 2016 Ky. LEXIS 325 ( Ky. 2016 ).

Notes to Unpublished Decisions

1.Parole.

Unpublished decision: “Serve-out” order that required a prisoner to serve the remainder of concurrent life sentences and rendered the prisoner ineligible for future parole consideration did not violate the Eighth Amendment; the prisoner’s sentence was within the statutory maximum for murder and therefore did not constitute cruel and unusual punishment. Kordenbrock v. Brown, 469 Fed. Appx. 434, 2012 FED App. 0425N, 2012 U.S. App. LEXIS 7766 (6th Cir. Ky.), cert. denied, 568 U.S. 892, 133 S. Ct. 285, 184 L. Ed. 2d 167, 2012 U.S. LEXIS 6372 (U.S. 2012).

Opinions of Attorney General.

When a defendant has been convicted on two or more felonies while on parole, probation, shock probation or conditional discharge, the trial court may run such sentences concurrent with each and must run them consecutively with any other sentence. OAG 78-167 .

Research References and Practice Aids

Kentucky Bench & Bar.

Coy, A Brief Look at the Kentucky Parole System., Vol. 70, No. 5, September 2006, Ky. Bench & Bar 13.

Kentucky Law Journal.

Kentucky Law Survey, Brice and Taylor, Criminal Law, 67 Ky. L.J. 569 (1978-1979).

Kentucky Law Survey, Malone and Malone, Criminal Law, 69 Ky. L.J. 545 (1980-81).

Kentucky Law Survey, Sellars, Criminal Law, 71 Ky. L.J. 355 (1982-83).

Kentucky Law Survey, Fortune, Criminal Procedure, 71 Ky. L.J. 367 (1982-83).

Kentucky Law Survey, Read, Criminal Law, 72 Ky. L.J. 365 (1983-84).

Cooper and Lawson, Self-Defense in Kentucky: A Need for Clarification or Revision, 76 Ky. L.J. 167 (1987-88).

Article: Drug Law Reform-Retreating from an Incarceration Addiction, 98 Ky. L.J. 201 (2009/2010).

Note: Cost Conscious Justice: The Case for Wholly-Informed Discretionary Sentencing in Kentucky, 100 Ky. L.J. 391 (2011/2012).

Northern Kentucky Law Review.

Royce and Waits, The Crime of Incest, 5 N. Ky. L. Rev. 191 (1978).

Comments, Criminal Law — Murder by Auto, Kentucky’s Hard Line Stance Against Drunken Drivers, 5 N. Ky. L. Rev. 279 (1978).

Johnson, The Changing Face of Criminal Procedure for the General Practitioner, 12 N. Ky. L. Rev. 233 (1985).

Lotz, A Survey of Criminal Law Statutes Enacted in 1992, 20 N. Ky. L. Rev. 745 (1993).

Bartlett, Alternative Sanctions and the Governor’s Crime Bill of 1998 (HB 455): Another Attempt at Providing a Framework for Efficient and Effective Sentencing, 27 N. Ky. L. Rev. 283 (2000).

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Penalty Phase Instructions, Part 2 Capital Offenses, § 12.07.

Kentucky Instructions To Juries (Criminal), 5th Ed., Penalty Phase Instructions, Part 3 Felony Offenses, §§ 12.11 — 12.14.

Kentucky Instructions To Juries (Criminal), 5th Ed., Penalty Phase Instructions, Part 4 Subsequent Offense Enhancement, § 12.20.

Kentucky Instructions To Juries (Criminal), 5th Ed., Penalty Phase Instructions, Part 5 Persistent Felony Offenders, §§ 12.28, 12.33A — 12.34.

532.070. Court modification of felony sentence.

  1. When a sentence of imprisonment for a felony is fixed by a jury pursuant to KRS 532.060 and the trial court, having regard to the nature and circumstances of the crime and to the history and character of the defendant, is of the opinion that a sentence of imprisonment is necessary but that the maximum term fixed by the jury is unduly harsh, the court may modify that sentence and fix a maximum term within the limits provided in KRS 532.060 for the offense for which the defendant presently stands convicted.
  2. When a sentence of imprisonment for a Class D felony is fixed by a jury pursuant to KRS 532.060 and the trial court, having regard to the nature and circumstances of the crime and to the history and character of the defendant, is of the opinion that a sentence of imprisonment is necessary but that it would be unduly harsh to impose such a sentence, the court may sentence the defendant to a definite term of imprisonment in a county or a regional correctional institution for a term of one (1) year or less.

History. Enact. Acts 1974, ch. 406, § 279, effective January 1, 1975.

NOTES TO DECISIONS

Cited:

1.Applicability.

The statute did not control in a situation in which the court accepted the jury’s verdict of five (5) years and then set aside such recommendation and imposed a 20 year sentence, which was the statutory minimum. Neace v. Commonwealth, 978 S.W.2d 319, 1998 Ky. LEXIS 119 ( Ky. 1998 ).

2.Construction.

This section is purely meliorative — the court may in its discretion modify a jury sentence which, considered in the circumstances, is found to be unduly harsh; it reveals no legislative intent to create a means by which the court may impose a more onerous penalty in benignant guise. Smith v. Commonwealth, 806 S.W.2d 647, 1991 Ky. LEXIS 29 ( Ky. 1991 ), overruled, Benet v. Commonwealth, 253 S.W.3d 528, 2008 Ky. LEXIS 132 ( Ky. 2008 ).

A trial court has the discretion to decline to follow a jury’s recommendation regarding whether a sentence should be served concurrently or consecutively, regardless of any parole eligibility implications for a defendant. Benet v. Commonwealth, 253 S.W.3d 528, 2008 Ky. LEXIS 132 ( Ky. 2008 ).

Trial court did not err in failing to instruct the jury that the sentence could not be modified by the judge; Ky. Rev. Stat. Ann. § 532.010 classifies capital offenses as felonies for sentencing purposes, and thus, sentencing in non-aggravated capital cases is governed in part by Ky. Rev. Stat. Ann. § 532.060 and is, therefore, subject to modification by the trial court pursuant to Ky. Rev. Stat. Ann. § 532.070 . Smith v. Commonwealth, 454 S.W.3d 283, 2015 Ky. LEXIS 12 ( Ky. 2015 ).

3.Jurisdiction.

Where the order of June 21, 1976, was entered 38 days subsequent to the May 14, 1976, judgment, the court had lost jurisdiction of the case and the entry of the order modifying the perjury sentence was void. Silverburg v. Commonwealth, 587 S.W.2d 241, 1979 Ky. LEXIS 289 ( Ky. 1979 ).

4.Modification Unauthorized.

Where a jury sentenced a defendant convicted of first-degree rape and first-degree sodomy to the maximum sentence for each offense — imprisonment for life — to be served consecutively, the court’s modification of the sentence to two consecutive 25-year terms was unauthorized, in that it resulted in a sentence more severe than that fixed by the jury since KRS 439.3401 , forecloses parole eligibility for 12 years in the event of a life sentence, and for 50 percent of the term upon a sentence to a term of years. Smith v. Commonwealth, 806 S.W.2d 647, 1991 Ky. LEXIS 29 ( Ky. 1991 ), overruled, Benet v. Commonwealth, 253 S.W.3d 528, 2008 Ky. LEXIS 132 ( Ky. 2008 ).

5.Previous Felony Conviction.

A felony conviction resulting in an initial sentence of one (1) year or more, which sentence is subsequently modified by the trial court pursuant to subsection (2) of this section, is a “previous felony conviction” for enhancement of sentence purposes under the Persistent Felony Offender statute, KRS 532.080 . Hamilton v. Commonwealth, 754 S.W.2d 870, 1988 Ky. App. LEXIS 72 (Ky. Ct. App. 1988).

A person whose Class D felony sentence is reduced under section 532.070(2) does not become a misdemeanant by virtue of the reduction but remains a felon, consequently, defendant who was indicted on her fourth offense of driving under the influence and operating a motor vehicle on a suspended license, was not eligible for a probated sentence conditioned on home incarceration. Commonwealth v. Rhodes, 920 S.W.2d 531, 1996 Ky. App. LEXIS 67 (Ky. Ct. App. 1996).

6.Meaningful Sentencing.

Defendant was not denied a meaningful judicial sentencing because there was no indication that the judges failed to fully consider the nature and circumstances of his crimes, his history and character, and the severity of the sentence recommended by the jury. Defendant cited only to the brevity of one judge’s hearing, but that did not establish the lack of full and fair judicial consideration. Thornton v. Commonwealth, 421 S.W.3d 372, 2013 Ky. LEXIS 401 ( Ky. 2013 ).

7.Assistance of Counsel.

Where petitioner was convicted of two counts of first-degree murder and the jury recommended life imprisonment with no possibility of parole for twenty-five years, which the judge imposed, petitioner was entitled to habeas corpus relief because counsel was ineffective at sentencing since counsel neglected to mount any defense, including to investigate or present mitigating evidence, counsel chose not to delineate the jury's sentencing options, and counsel's remark threatened to alienate jurors. Phillips v. White, 851 F.3d 567, 2017 FED App. 0058P, 2017 U.S. App. LEXIS 4509 (6th Cir. Ky. 2017 ).

Cited:

Smith v. Commonwealth, 634 S.W.2d 411, 1982 Ky. LEXIS 259 ( Ky. 1982 ); Godsey v. Commonwealth, 661 S.W.2d 2, 1983 Ky. App. LEXIS 399 (Ky. Ct. App. 1983); Hampton v. Commonwealth, 666 S.W.2d 737, 1984 Ky. LEXIS 219 ( Ky. 1984 ); Buchanan v. Kentucky, 483 U.S. 402, 107 S. Ct. 2906, 97 L. Ed. 2d 336, 1987 U.S. LEXIS 2877 (1987).

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Fortune, Criminal Procedure, 71 Ky. L.J. 367 (1982-83).

Note: Cost Conscious Justice: The Case for Wholly-Informed Discretionary Sentencing in Kentucky, 100 Ky. L.J. 391 (2011/2012).

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Penalty Phase Instructions, Part 5 Persistent Felony Offenders, § 12.28.

532.075. Review of death sentence by Supreme Court.

  1. Whenever the death penalty is imposed for a capital offense, and upon the judgment becoming final in the Circuit Court, the sentence shall be reviewed on the record by the Supreme Court. The circuit clerk, within ten (10) days after receiving the transcript, shall transmit the entire record and transcript to the Supreme Court together with a notice prepared by the clerk and a report prepared by the trial judge. The notice shall set forth the title docket number of the case, the name of the defendant and the name and address of his attorney, a narrative statement of the judgment, the offense, and the punishment prescribed. The report shall be in the form of a standard questionnaire prepared and supplied by the Supreme Court.
  2. The Supreme Court shall consider the punishment as well as any errors enumerated by way of appeal.
  3. With regard to the sentence, the court shall determine:
    1. Whether the sentence of death was imposed under the influence of passion, prejudice, or any other arbitrary factor, and
    2. Whether the evidence supports the jury’s or judge’s finding of statutory aggravating circumstances as enumerated in KRS 532.025(2), and
    3. Whether the sentence of death is excessive or disproportionate to the penalty imposed in similar cases, considering both the crime and the defendant.
  4. Both the defendant and the Commonwealth shall have the right to submit briefs within the time provided by the court, and to present oral argument to the court.
  5. The court shall include in its decision a reference to those similar cases which it took into consideration. In addition to its authority regarding correction of errors, the court, with regard to review of death sentences, shall be authorized to:
    1. Affirm the sentence of death; or
    2. Set the sentence aside and remand the case for resentencing by the trial judge based on the record and argument of counsel. The records of those similar cases referred to by the Supreme Court in its decision, and the extracts prepared as hereinafter provided for, shall be provided to the resentencing judge for his consideration.
  6. The Chief Justice shall assign to an administrative assistant who is an attorney the following duties:
    1. To accumulate the records of all felony offenses in which the death penalty was imposed after January 1, 1970, or such earlier date as the court may deem appropriate.
    2. To provide the court with whatever extracted information it desires with respect thereto, including but not limited to a synopsis or brief of the facts in the record concerning the crime and the defendant.
    3. To compile such data as are deemed by the Chief Justice to be appropriate and relevant to the statutory questions concerning the validity of the sentence.
  7. The administrative office of the courts shall provide such staff, services, and data as are necessary to proper consideration of any matter relating to the imposition of the death penalty in any case.
  8. The sentence review shall be in addition to the direct appeal, if taken, and the review and appeal shall be consolidated. The court shall render its decision on legal errors enumerated, the factual substantiation of the verdict, and the validity of the sentence.

History. Enact. Acts 1976 (Ex. Sess.), ch. 15, § 6, effective December 22, 1976.

NOTES TO DECISIONS

1.In General.

It is a function of the General Assembly to say when and if the death penalty shall be imposed, and this includes the right to prescribe the special type of review of punishment and errors enumerated by way of appeal prescribed in this section, limited only by the Kentucky Constitution, the United States Constitution, and the decisions of the United States Supreme Court. Cosby v. Commonwealth, 776 S.W.2d 367, 1989 Ky. LEXIS 92 ( Ky. 1989 ), cert. denied, 493 U.S. 1063, 110 S. Ct. 880, 107 L. Ed. 2d 963, 1990 U.S. LEXIS 508 (U.S. 1990), overruled in part, St. Clair v. Roark, 10 S.W.3d 482, 1999 Ky. LEXIS 148 ( Ky. 1999 ).

This section and the standard of review utilized by the Supreme Court of Kentucky are but a codification of the United States Supreme Court mandate. Cosby v. Commonwealth, 776 S.W.2d 367, 1989 Ky. LEXIS 92 ( Ky. 1989 ), cert. denied, 493 U.S. 1063, 110 S. Ct. 880, 107 L. Ed. 2d 963, 1990 U.S. LEXIS 508 (U.S. 1990), overruled in part, St. Clair v. Roark, 10 S.W.3d 482, 1999 Ky. LEXIS 148 ( Ky. 1999 ).

Any defendant is entitled to a review of the conviction and death sentence by the Kentucky Supreme Court and is entitled to pursue post conviction remedies and appeal, subject to the rules of the court. Bowling v. Commonwealth, 926 S.W.2d 667, 1996 Ky. LEXIS 17 (Ky.), cert. denied, 517 U.S. 1223, 116 S. Ct. 1855, 134 L. Ed. 2d 955, 1996 U.S. LEXIS 3486 (U.S. 1996).

KRS 532.075 (1) requires that appellate review of a death sentence be conducted “on the record” and orders the circuit clerk to transmit the entire record and transcript to the Kentucky Supreme Court for purposes of the review, but KRS 532.075 does not require that a transcript be prepared, nor does it require the review to be conducted only on a written transcript of the proceedings. The plain language of the statute is that review be conducted “on the record”; video recordings of the proceedings, along with the clerk’s written record, constitute the official record on appeal pursuant to RCr P. 98(3), and a video recording of the proceedings thus satisfies the requirements of KRS 532.075. Windsor v. Commonwealth, 2010 Ky. LEXIS 210 (Ky. Aug. 26, 2010).

2.Constitutionality.

Because Kentucky’s death penalty statute is modeled after the Georgia death penalty statute and the Georgia statute has consistently been held to be constitutional by the U.S. Supreme Court, defendant’s argument that Kentucky’s death penalty statute is unconstitutional was without merit. McQueen v. Scroggy, 99 F.3d 1302, 1996 FED App. 0349P, 1996 U.S. App. LEXIS 28677 (6th Cir. Ky. 1996 ), cert. denied, 520 U.S. 1257, 117 S. Ct. 2422, 138 L. Ed. 2d 185, 1997 U.S. LEXIS 3496 (U.S. 1997), overruled, Abdur'Rahman v. Bell (In re Abdur'Rahman), 392 F.3d 174, 2004 FED App. 0428P, 2004 U.S. App. LEXIS 25609 (6th Cir. Tenn. 2004).

3.Compilation of Data.

The Supreme Court does not consider all previous cases which were tried or could have been tried as capital cases. Subsection (6) refers to records of all felony offenses in which the death penalty was imposed after January 1, 1970, or such earlier date as the court may deem appropriate. Harper v. Commonwealth, 694 S.W.2d 665, 1985 Ky. LEXIS 227 ( Ky. 1985 ), cert. denied, 476 U.S. 1178, 106 S. Ct. 2906, 90 L. Ed. 2d 992, 1986 U.S. LEXIS 1731 (U.S. 1986), overruled in part, Barnett v. Commonwealth, 317 S.W.3d 49, 2010 Ky. LEXIS 118 ( Ky. 2010 ).

4.Due Process.

Due process does not require an appellate court to lay out for inspection by the appellant, even in a capital case, all of the information in its hands from which it may seek perspective and guidance in reviewing the propriety of his sentence. Ex parte Farley, 570 S.W.2d 617, 1978 Ky. LEXIS 390 ( Ky. 1978 ).

5.Guilty Pleas.

With respect to a defendant’s contention that his guilty pleas were not entered knowingly, voluntarily, and intelligently because the trial court did not specifically inform him of certain matters, and this claim of error was not preserved for appellate review, yet it could be addressed pursuant to KRS 532.075(2). Johnson v. Commonwealth, 103 S.W.3d 687, 2003 Ky. LEXIS 21 (Ky.), cert. denied, 540 U.S. 986, 124 S. Ct. 470, 157 L. Ed. 2d 379, 2003 U.S. LEXIS 8075 (U.S. 2003).

A competent criminal defendant is entitled to plead guilty to a capital offense and to voluntarily seek and receive the death penalty. Chapman v. Commonwealth, 265 S.W.3d 156, 2007 Ky. LEXIS 178 ( Ky. 2007 ), modified, 2008 Ky. LEXIS 340 (Ky. Aug. 21, 2008).

6.Judge’s Report.

In prosecution for murder failure to timely file a trial judge’s report as required by subsection (1) of this section was not grounds for reversal of conviction since defendant acknowledged that the report was filed and it appeared that the court gave appropriate consideration to the aggravating and mitigating evidence and otherwise complied with the statute. Haight v. Commonwealth, 938 S.W.2d 243, 1996 Ky. LEXIS 125 ( Ky. 1996 ), cert. denied, 522 U.S. 837, 118 S. Ct. 110, 139 L. Ed. 2d 63, 1997 U.S. LEXIS 4990 (U.S. 1997).

That the trial judge at least partially prepared the report required by KRS 532.075(1) before the death sentences were imposed did not mean that the trial judge had prejudged the sentences. Caudill v. Commonwealth, 120 S.W.3d 635, 2003 Ky. LEXIS 140 ( Ky. 2003 ).

When defendant murdered a mother and her child and a jury imposed the death sentence, the trial judge’s report was adequate because it provided the Supreme Court with the information necessary to properly perform the entire appellate process. Parrish v. Commonwealth, 121 S.W.3d 198, 2003 Ky. LEXIS 165 ( Ky. 2003 ), cert. denied, 541 U.S. 1050, 124 S. Ct. 2180, 158 L. Ed. 2d 746, 2004 U.S. LEXIS 3535 (U.S. 2004), overruled in part, Brown v. Commonwealth, 313 S.W.3d 577, 2010 Ky. LEXIS 148 ( Ky. 2010 ).

On remand of the penalty phase of a capital murder case, the trial court’s report was properly and sufficiently completed in compliance with KRS 532.075 . The trial court was aware of what the aggravating circumstances were, noted them in the report, and stated that they had been found by a previous jury. Furnish v. Commonwealth, 2006 Ky. LEXIS 233 (Ky. Sept. 21, 2006).

In a death penalty case, the trial court did not limit the mitigating evidence offered by defendant as the judge heard about defendant's childhood and rough upbringing and his ex-wife's warm regard for him; and defendant's claim that the trial court's report to the supreme court only glancingly mentioned his brain injury and mental issues was incorrect; thus, the trial court's consideration of mitigating circumstances satisfied the constitutional requirements. St. Clair v. Commonwealth, 451 S.W.3d 597, 2014 Ky. LEXIS 341 ( Ky. 2014 ), cert. denied, 577 U.S. 885, 136 S. Ct. 194, 193 L. Ed. 2d 152, 2015 U.S. LEXIS 5215 (U.S. 2015).

7.Proportionality Review.

Habeas corpus petitioner was not entitled to relief because Kentucky's framework for a death penalty proportionality review, which required a comparative proportionality review, went beyond the Constitution's mandate and therefore did not create an Eighth Amendment violation. Sanders v. White, 2015 U.S. Dist. LEXIS 20140 (E.D. Ky. Feb. 18, 2015).

In the exercise of discretion in the imposition of sentence, a trial judge is not required to conduct a proportionality review; that review will be conducted by the Supreme Court in the event the death penalty is imposed. McClellan v. Commonwealth, 715 S.W.2d 464, 1986 Ky. LEXIS 274 ( Ky. 1986 ), cert. denied, 479 U.S. 1057, 107 S. Ct. 935, 93 L. Ed. 2d 986, 1987 U.S. LEXIS 379 (U.S. 1987).

Proportionality review falls clearly within the constitutionally appellate jurisdiction of the Supreme Court, and determination of appellate matters according to law does not constitute an exercise of arbitrary power over the life of a convicted defendant. Sanders v. Commonwealth, 801 S.W.2d 665, 1990 Ky. LEXIS 93 ( Ky. 1990 ), cert. denied, 502 U.S. 831, 112 S. Ct. 107, 116 L. Ed. 2d 76, 1991 U.S. LEXIS 4767 (U.S. 1991).

Petitioner was not entitled to habeas corpus relief based upon the argument that the state Supreme Court’s review of petitioner’s death penalty sentence for proportionality was unconstitutional. Bowling v. Parker, 344 F.3d 487, 2003 FED App. 0330P, 2003 U.S. App. LEXIS 19184 (6th Cir. Ky. 2003 ), cert. denied, 543 U.S. 842, 125 S. Ct. 281, 160 L. Ed. 2d 68, 2004 U.S. LEXIS 5981 (U.S. 2004).

Prisoner was not entitled to federal habeas relief on his challenge to the statutory proportionality review of his death sentence on the basis that the Kentucky Supreme Court only compared his sentence to other crimes where the death penalty was imposed, but should have compared it to similar crimes where the death penalty was not imposed; there was no clear support in Kentucky law for the proposition that the Kentucky Supreme Court had to consider those additional cases. Woodall v. Simpson, 2009 U.S. Dist. LEXIS 14328 (W.D. Ky. Feb. 23, 2009).

There is no statutory authority for the proposition that the sentencing judge or jury must consider the comparative information described in KRS 532.075(5)(b) prior to sentencing. The plain language of the statute is clear that the comparative information be provided to the lower court when re-sentencing is ordered. Windsor v. Commonwealth, 2010 Ky. LEXIS 210 (Ky. Aug. 26, 2010).

Capital sentence was not disproportionate or excessive where defendant murdered his estranged wife and their eight-year-old son by stabbing them with a kitchen knife and beating them with a dumbbell. Windsor v. Commonwealth, 2011 Ky. LEXIS 99 (Ky. Mar. 24, 2011), cert. denied, 565 U.S. 873, 132 S. Ct. 230, 181 L. Ed. 2d 128, 2011 U.S. LEXIS 7141 (U.S. 2011).

State prisoner was denied federal habeas relief on a challenge to the state’s proportionality review where federal law did not require comparative proportionality review, the statute did not create a due process interest, and even if a due process right was created, case law foreclosed the argument that such review was constitutionally flawed when it did not include cases where defendants had not received the death penalty. Bowling v. Parker, 2012 U.S. Dist. LEXIS 88222 (E.D. Ky. June 26, 2012).

Petitioner was not entitled to habeas relief on his claim that the Kentucky Supreme Court’s proportionality review process under KRS 532.075(3)(c), (6) was unconstitutional because petitioner failed to show that the Kentucky Supreme Court did not engage in proportionality review in good faith. Thompson v. Parker, 2012 U.S. Dist. LEXIS 174273 (W.D. Ky. Dec. 10, 2012), aff'd, 867 F.3d 641, 2017 FED App. 178P, 2017 U.S. App. LEXIS 15055 (6th Cir. Ky. 2017 ).

Mitigating evidence was presented to and considered by the jury, but the mere existence of mitigating evidence did not render defendant's death sentence unconstitutional or disproportionate. St. Clair v. Commonwealth, 451 S.W.3d 597, 2014 Ky. LEXIS 341 ( Ky. 2014 ), cert. denied, 577 U.S. 885, 136 S. Ct. 194, 193 L. Ed. 2d 152, 2015 U.S. LEXIS 5215 (U.S. 2015).

Circuit court erred in concluding pretrial that the imposition of the death penalty would be a disproportionate penalty where, pursuant to Ky. Rev. Stat. Ann. § 532.075 , the sole responsibility for conducting a comparative proportionality review rested with the Supreme Court of Kentucky, and the exercise of the circuit court's retained authority to determine whether a death sentence was inherently disproportionate was proper only after the Commonwealth had the opportunity to present all of its evidence in the guilt phase of trial. Commonwealth v. Guernsey, 501 S.W.3d 884, 2016 Ky. LEXIS 496 ( Ky. 2016 ).

Plain reading of Ky. Rev. Stat. Ann. § 532.075 and the absence of any similar language in sentencing statutes applicable to the circuit court demonstrate that the Kentucky legislature gave the Supreme Court of Kentucky sole responsibility for conducting a comparative proportionality review. Commonwealth v. Guernsey, 501 S.W.3d 884, 2016 Ky. LEXIS 496 ( Ky. 2016 ).

Based on the clear language of Ky. Rev. Stat. Ann. § 532.075(3)(c) and case law, it is indisputable that comparative proportionality analysis is a statutory function reserved solely to the Supreme Court of Kentucky. Commonwealth v. Guernsey, 501 S.W.3d 884, 2016 Ky. LEXIS 496 ( Ky. 2016 ).

Petitioner's federally protected liberty interest created by Kentucky's proportionality-review statute, at most, was an interest in having the Kentucky Supreme Court follow that statute, which it did. That court compared his case to those of other defendants sentenced to death for a single murder and specifically cited two of those other cases; that analysis was sufficient to satisfy Kentucky law. Thompson v. Parker, 867 F.3d 641, 2017 FED App. 0178P, 2017 U.S. App. LEXIS 15055 (6th Cir. Ky. 2017 ), cert. denied, 138 S. Ct. 1594, 200 L. Ed. 2d 780, 2018 U.S. LEXIS 2529 (U.S. 2018).

8.Prejudicial Error.

Prejudicial error must be reviewed in a capital case, regardless of contemporaneous objection; this means errors where there is no reasonable justification or explanation for defense counsel’s failure to object, tactical or otherwise, and the totality of circumstances persuades the Supreme Court of Kentucky that the defendant may not have been found guilty of a capital offense or the death penalty may not have been imposed but for the unpreserved error. Cosby v. Commonwealth, 776 S.W.2d 367, 1989 Ky. LEXIS 92 ( Ky. 1989 ), cert. denied, 493 U.S. 1063, 110 S. Ct. 880, 107 L. Ed. 2d 963, 1990 U.S. LEXIS 508 (U.S. 1990), overruled in part, St. Clair v. Roark, 10 S.W.3d 482, 1999 Ky. LEXIS 148 ( Ky. 1999 ).

In prosecution for murder where prosecutor continually used the word “recommend” rather than “fix” to describe the jury’s function in setting the death penalty and told the jury that there was an automatic appeal from the death sentence, the question of whether the jury fully understood the awesome responsibility for deciding the death penalty was in serious doubt and thus the verdict was unreliable and was error. Thomas v. Commonwealth, 864 S.W.2d 252, 1993 Ky. LEXIS 77 ( Ky. 1993 ), cert. denied, 510 U.S. 1177, 114 S. Ct. 1218, 127 L. Ed. 2d 564, 1994 U.S. LEXIS 2067 (U.S. 1994), overruled in part, Morgan v. Commonwealth, 189 S.W.3d 99, 2006 Ky. LEXIS 12 ( Ky. 2006 ).

Upon review of death penalty cases in which the Court is confronted with claims of error which are unpreserved by proper objection, the Court applies the prevailing rule and standard of review established in Sanders v. Commonwealth, Ky., 801 S.W.2d 665, 1990 Ky. LEXIS 93 , and inquires whether an error was committed; whether there was a reasonable justification for the failure to object, including trial tactic; and finally, even without a reasonable explanation, whether the error was so prejudicial that without it, the defendant might not have been found guilty or the death penalty might not have been imposed. Perdue v. Commonwealth, 916 S.W.2d 148, 1995 Ky. LEXIS 109 ( Ky. 1995 ), cert. denied, 519 U.S. 855, 117 S. Ct. 151, 136 L. Ed. 2d 96, 1996 U.S. LEXIS 5295 (U.S. 1996).

9.Public Availability of Sentencing Records.

The materials compiled for purposes of reviewing death sentences will be open to the public and, perforce, to all who may be interested, as soon as the Supreme Court has the occasion and opportunity to examine and consider them, and until then, they are in the same category as any other source of knowledge or information, apart from the record of proceedings relating to an individual appellant, from which the members of the court may properly seek assistance or inspiration in the formulation of their judgments. Ex parte Farley, 570 S.W.2d 617, 1978 Ky. LEXIS 390 ( Ky. 1978 ).

Where public advocate brought declaratory judgment action to force inspection of records compiled for purpose of Supreme Court review of death sentences, jurisdiction was vested exclusively in Supreme Court, not Circuit Court. Ex parte Farley, 570 S.W.2d 617, 1978 Ky. LEXIS 390 ( Ky. 1978 ).

The public advocate is not entitled to data compiled for the Supreme Court pursuant to subdivisions (6)(a), (b) and (c). Skaggs v. Commonwealth, 1985 Ky. LEXIS 304 (Ky. May 23, 1985).

Prisoner was not entitled to federal habeas relief on his challenge to the statutory proportionality review of his death sentence on the basis that he did not receive access to the proportionality data compiled and relied on by the Kentucky Supreme Court; in determining that the prisoner’s sentence was not excessive or disproportionate, the Supreme Court considered all the cases in which the death penalty was imposed since 1970 involving both the crime and the defendant, as required by KRS 532.075(6). As those cases all should have been reported, the prisoner was free to examine them himself and make any arguments he deemed appropriate from that examination; there was no constitutional requirement that the Supreme Court share its legal research with him. Woodall v. Simpson, 2009 U.S. Dist. LEXIS 14328 (W.D. Ky. Feb. 23, 2009).

10.Sentence Upheld.

Where the murder committed by defendant involved the casual killing of a human being, not in anger or out of fear or any other strong emotion, the evidence supported the finding of an aggravating circumstance under subdivision (2)(a) of KRS 532.025 , and the sentence of death was not excessive or disproportionate to the penalty imposed in other cases. Kordenbrock v. Commonwealth, 700 S.W.2d 384, 1985 Ky. LEXIS 263 ( Ky. 1985 ), cert. denied, 476 U.S. 1153, 106 S. Ct. 2260, 90 L. Ed. 2d 704, 1986 U.S. LEXIS 1712 (U.S. 1986).

Where the defendant broke into his wife’s home and murdered both his wife and his mother-in-law, the sentence of death was not excessive or disproportionate. Matthews v. Commonwealth, 709 S.W.2d 414, 1985 Ky. LEXIS 257 ( Ky. 1985 ), cert. denied, 479 U.S. 871, 107 S. Ct. 245, 93 L. Ed. 2d 170, 1986 U.S. LEXIS 4150 (U.S. 1986).

Where the psychiatrist testified that the defendant did not feel any remorse or any obvious guilt about the murders, the trial court’s conclusion that there was substantial evidence to support the jury’s recommendation of the death penalty because the defendant’s acts were intentional and he felt no remorse, was not unreasonable. Matthews v. Commonwealth, 709 S.W.2d 414, 1985 Ky. LEXIS 257 ( Ky. 1985 ), cert. denied, 479 U.S. 871, 107 S. Ct. 245, 93 L. Ed. 2d 170, 1986 U.S. LEXIS 4150 (U.S. 1986).

Where the defendant shot, beat, and robbed the 78-year-old victim, the death sentence was not excessive or disproportionate to the penalty imposed in similar cases. Marlowe v. Commonwealth, 709 S.W.2d 424, 1986 Ky. LEXIS 253 (Ky.), cert. denied, 479 U.S. 946, 107 S. Ct. 427, 93 L. Ed. 2d 378, 1986 U.S. LEXIS 4620 (U.S. 1986).

Where the defendant shot five (5) persons to death with an automatic rifle, the sentence of death was not excessive or disproportionate to the penalty that has been imposed in similar cases. Bevins v. Commonwealth, 712 S.W.2d 932, 1986 Ky. LEXIS 252 ( Ky. 1986 ), cert. denied, 479 U.S. 1070, 107 S. Ct. 963, 93 L. Ed. 2d 1010, 1987 U.S. LEXIS 531 (U.S. 1987).

The sentence of death was not excessive or disproportionate to the penalty imposed in similar cases, where the victim’s wounds caused her to cry, moan, and convulse until the defendant ended her suffering with two (2) additional shots. Halvorsen v. Commonwealth, 730 S.W.2d 921, 1986 Ky. LEXIS 322 ( Ky. 1986 ), cert. denied, 484 U.S. 982, 108 S. Ct. 496, 98 L. Ed. 2d 495, 1987 U.S. LEXIS 5065 (U.S. 1987), cert. denied, 484 U.S. 970, 108 S. Ct. 468, 98 L. Ed. 2d 407, 1987 U.S. LEXIS 5021 (U.S. 1987).

Where the defendant killed the victim during a robbery, the sentence of death was not excessive or disproportionate. Slaughter v. Commonwealth, 744 S.W.2d 407, 1987 Ky. LEXIS 257 ( Ky. 1987 ), cert. denied, 490 U.S. 1113, 109 S. Ct. 3174, 104 L. Ed. 2d 1036, 1989 U.S. LEXIS 2908 (U.S. 1989).

Where the defendant was convicted of three (3) murders, three (3) rapes, one (1) attempted murder, one attempted rape, and four (4) kidnappings, the death penalty was not excessive or disproportionate to the penalty imposed in similar cases. Simmons v. Commonwealth, 746 S.W.2d 393, 1988 Ky. LEXIS 9 ( Ky. 1988 ), cert. denied, 489 U.S. 1059, 109 S. Ct. 1328, 103 L. Ed. 2d 596, 1989 U.S. LEXIS 1183 (U.S. 1989).

Where the defendants gained entrance to the victims’ home by posing as F.B.I. agents, murdered the adult daughter and strangled her father until he lost consciousness, and stole money and jewelry from the victims, the circumstances exceed any minimum justifying capital punishment. Epperson v. Commonwealth, 809 S.W.2d 835, 1990 Ky. LEXIS 105 ( Ky. 1990 ), modified, 1991 Ky. LEXIS 89 (Ky. July 3, 1991), cert. denied, 502 U.S. 1065, 112 S. Ct. 955, 117 L. Ed. 2d 122, 1992 U.S. LEXIS 393 (U.S. 1992), cert. denied, 502 U.S. 1037, 112 S. Ct. 885, 116 L. Ed. 2d 789, 1992 U.S. LEXIS 60 (U.S. 1992), writ denied, 2013 Ky. Unpub. LEXIS 21 (Ky. Mar. 21, 2013).

The death sentence imposed on defendant was not inappropriate, arbitrary, discriminatory, unusual or disproportionate. The sentence was not fixed because he was black or because he chose to limit his standby counsel’s participation in his defense. Rather, the sentences were imposed because he was found guilty as charged in a case involving the kidnapping, rape, robbery, and murder of victim. Wilson v. Commonwealth, 836 S.W.2d 872, 1992 Ky. LEXIS 84 ( Ky. 1992 ), cert. denied, 507 U.S. 1034, 113 S. Ct. 1857, 123 L. Ed. 2d 479, 1993 U.S. LEXIS 2856 (U.S. 1993), overruled in part, St. Clair v. Roark, 10 S.W.3d 482, 1999 Ky. LEXIS 148 ( Ky. 1999 ).

The death sentence imposed on defendant was not inappropriate, arbitrary, discriminatory, unusual or disproportionate. The sentence was not fixed because defendant was black or because the victim was white — the sentence was imposed because he was found guilty as charged. Bussell v. Commonwealth, 882 S.W.2d 111, 1994 Ky. LEXIS 51 ( Ky. 1994 ), cert. denied, 513 U.S. 1174, 115 S. Ct. 1154, 130 L. Ed. 2d 1111, 1995 U.S. LEXIS 1395 (U.S. 1995).

Trial judge’s decision to impose the death penalty was not premature where the trial judge’s preparation of a tentative draft of a final judgment prior to the formal sentencing did not affect the fact that he heard and considered the arguments and evidence for a reduction of the sentence fixed by the jury before entering the final sentencing judgment. Bussell v. Commonwealth, 882 S.W.2d 111, 1994 Ky. LEXIS 51 ( Ky. 1994 ), cert. denied, 513 U.S. 1174, 115 S. Ct. 1154, 130 L. Ed. 2d 1111, 1995 U.S. LEXIS 1395 (U.S. 1995).

In prosecution for murder where upon conviction defendant was sentence to death, since such sentence was not imposed under the influence of passion, prejudice, or any other arbitrary factor and the evidence of record clearly supported the jury’s findings of statutory aggravating circumstances as enumerated in KRS 532.025(2), the sentence of death was neither excessive nor disproportionate to the penalty imposed in similar cases considering both the crime and the defendant. Haight v. Commonwealth, 938 S.W.2d 243, 1996 Ky. LEXIS 125 ( Ky. 1996 ), cert. denied, 522 U.S. 837, 118 S. Ct. 110, 139 L. Ed. 2d 63, 1997 U.S. LEXIS 4990 (U.S. 1997).

Sentence of death for the murder of two (2) police officers was not excessive or disproportionate relative to sentences in other similar cases. Baze v. Commonwealth, 965 S.W.2d 817, 1997 Ky. LEXIS 40 ( Ky. 1997 ), cert. denied, 523 U.S. 1083, 118 S. Ct. 1536, 140 L. Ed. 2d 685, 1998 U.S. LEXIS 2686 (U.S. 1998).

The death penalty was not an excessive or disproportionate penalty for the murder of four (4) adults in a “cold and callous” manner, in the sight of two (2) children, by a defendant previously convicted of other crimes. Foley v. Commonwealth, 953 S.W.2d 924, 1997 Ky. LEXIS 56 ( Ky. 1997 ), cert. denied, 523 U.S. 1053, 118 S. Ct. 1375, 140 L. Ed. 2d 522, 1998 U.S. LEXIS 2237 (U.S. 1998).

Trial judge’s decision to impose the death penalty was not arbitrary or capricious, and was supported by the evidence; the judge is permitted to give more weight to some factors than others, and is not required to give written consideration to every mitigating factor asserted by the defense. Tamme v. Commonwealth, 973 S.W.2d 13, 1998 Ky. LEXIS 46 ( Ky. 1998 ), cert. denied, 525 U.S. 1153, 119 S. Ct. 1056, 143 L. Ed. 2d 61, 1999 U.S. LEXIS 1229 (U.S. 1999).

The sentence of death was not imposed under the influence of passion, prejudice, or any other arbitrary factor where there was ample evidence to support the finding of the aggravating factors of first-degree robbery and first-degree burglary. Mills v. Commonwealth, 996 S.W.2d 473, 1999 Ky. LEXIS 51 ( Ky. 1999 ), cert. denied, 528 U.S. 1164, 120 S. Ct. 1182, 145 L. Ed. 2d 1088, 2000 U.S. LEXIS 1172 (U.S. 2000), overruled in part, Padgett v. Commonwealth, 312 S.W.3d 336, 2010 Ky. LEXIS 71 ( Ky. 2010 ), writ denied, 2018 Ky. Unpub. LEXIS 35 (Ky. June 14, 2018).

After a review of other cases, including, most particularly, cases in which a defendant was sentenced to death for intentional murders unaccompanied by other criminal behavior directed toward the victims, the sentence of death was not excessive or disproportionate to the penalty imposed in similar cases, considering both the crimes and the defendant. Mills v. Commonwealth, 996 S.W.2d 473, 1999 Ky. LEXIS 51 ( Ky. 1999 ), cert. denied, 528 U.S. 1164, 120 S. Ct. 1182, 145 L. Ed. 2d 1088, 2000 U.S. LEXIS 1172 (U.S. 2000), overruled in part, Padgett v. Commonwealth, 312 S.W.3d 336, 2010 Ky. LEXIS 71 ( Ky. 2010 ), writ denied, 2018 Ky. Unpub. LEXIS 35 (Ky. June 14, 2018).

A sentence of death was not imposed under the influence of passion, prejudice, or any other arbitrary factor and was not excessive or disproportionate to the penalty imposed in similar cases, considering both the crimes and the defendant. Hodge v. Commonwealth, 17 S.W.3d 824, 2000 Ky. LEXIS 17 (Ky.), cert. denied, 531 U.S. 1018, 121 S. Ct. 581, 148 L. Ed. 2d 498, 2000 U.S. LEXIS 7910 (U.S. 2000), modified, 17 S.W.3d 824, 2000 Ky. LEXIS 66 ( Ky. 2000 ).

In a capital murder case, defendant’s death sentence was proportional, under KRS 532.075(3), with other cases in which a defendant was convicted of multiple intentional murders committed during the course of a burglary and sentenced to death. Soto v. Commonwealth, 139 S.W.3d 827, 2004 Ky. LEXIS 93 ( Ky. 2004 ), cert. denied, 544 U.S. 931, 125 S. Ct. 1670, 161 L. Ed. 2d 495, 2005 U.S. LEXIS 2608 (U.S. 2005).

Defendant’s death sentence was not disproportionate, pursuant to the court’s review as required by KRS 532.075(3), considering the intentional killing of the two innocent children. Chapman v. Commonwealth, 265 S.W.3d 156, 2007 Ky. LEXIS 178 ( Ky. 2007 ), modified, 2008 Ky. LEXIS 340 (Ky. Aug. 21, 2008).

Review of a death sentence pursuant to KRS 532.075 indicated that the verdict and sentence were not imposed under the influence of passion, prejudice or other arbitrary factor, as contemplated in KRS 532.075 (3)(a). The evidence of the statutory aggravating circumstances of burglary was substantial and compelling under KRS 532.075(3)(b), and the death sentence was not excessive or disproportionate to similar murders committed in the course of a robbery. Fields v. Commonwealth, 274 S.W.3d 375, 2008 Ky. LEXIS 259 ( Ky. 2008 ), cert. denied, 558 U.S. 971, 130 S. Ct. 460, 175 L. Ed. 2d 310, 2009 U.S. LEXIS 7564 (U.S. 2009), overruled in part, Childers v. Commonwealth, 332 S.W.3d 64, 2010 Ky. LEXIS 306 ( Ky. 2010 ), overruled in part, Childers v. Commonwealth, 2010 Ky. LEXIS 285 (Ky. Dec. 16, 2010).

Under KRS 532.075(3), a sentence of death was not imposed under the influence of passion, prejudice, or any other arbitrary factor where appellant admitted to stabbing and bludgeoning his wife and child to death; the evidence supported the judge’s finding that two statutory aggravating factors existed in this case since appellant admitted that he intentionally committed a double murder and that he murdered his wife while a protective order on her behalf was in effect. Moreover, the penalty was not disproportionate for appellant’s crimes or in relation to others who committed similar crimes. Windsor v. Commonwealth, 413 S.W.3d 568, 2010 Ky. LEXIS 312 ( Ky. 2010 ).

Death penalty was properly imposed because defendant pleaded guilty to kidnapping three children, stabbing them to death, and setting their house on fire. He stabbed a five-year-old child nine times, he stabbed a fourteen-year-old child four times, and he tied a seventeen-year-old child’s hands and gagged her mouth before cutting her throat from ear to ear. Dunlap v. Commonwealth, 435 S.W.3d 537, 2013 Ky. LEXIS 292 ( Ky. 2013 ), cert. denied, 574 U.S. 838, 135 S. Ct. 87, 190 L. Ed. 2d 72, 2014 U.S. LEXIS 6466 (U.S. 2014).

Defendant's death sentence was proper because it was not imposed under the influence of prejudice, passion, or any other arbitrary factor as the evidence channeled the jury to consider the circumstances of defendant's crimes, including the effect of the crimes on the victim's daughter, and defendant's cold and calculating approach to murder; the evidence supported the jury's conclusion that the murder was committed by a person with a prior record of conviction for a capital offense; although defendant was not convicted of multiple murders in the current case, he had committed multiple murders, and that fact appropriately bore on whether his death sentence was proportionate; and the death sentence was not excessive or disproportionate. St. Clair v. Commonwealth, 451 S.W.3d 597, 2014 Ky. LEXIS 341 ( Ky. 2014 ), cert. denied, 577 U.S. 885, 136 S. Ct. 194, 193 L. Ed. 2d 152, 2015 U.S. LEXIS 5215 (U.S. 2015).

11.Standard of Review.

In affirming defendant’s death sentence the Kentucky Supreme Court stated that the standard of review for unpreserved errors in a case in which the death penalty had been imposed was properly stated as follows: where the death penalty had been imposed, appeals courts nonetheless review allegations of these quasi errors; assuming that the so-called error occurred, appeals courts begin by inquiring: (1) whether there was a reasonable justification or explanation for defense counsel’s failure to object, e.g., whether the failure might have been a legitimate trial tactic; and (2) if there was no reasonable explanation, whether the unpreserved error was prejudicial, i.e., whether the circumstances in totality were persuasive that, minus the error, the defendant may not have been found guilty of a capital crime, or the death penalty may not have been imposed. Johnson v. Commonwealth, 103 S.W.3d 687, 2003 Ky. LEXIS 21 (Ky.), cert. denied, 540 U.S. 986, 124 S. Ct. 470, 157 L. Ed. 2d 379, 2003 U.S. LEXIS 8075 (U.S. 2003).

12.— Considerations.

The court will comply with the statutory request to include in its decision a reference to those similar cases that have been taken into consideration. Ex parte Farley, 570 S.W.2d 617, 1978 Ky. LEXIS 390 ( Ky. 1978 ).

In reviewing cases in which death penalty was imposed, the question of whether objection was made at the trial level is only significant where it may reasonably be inferred that defendant intentionally failed to object for reasons of trial tactics. Ice v. Commonwealth, 667 S.W.2d 671, 1984 Ky. LEXIS 212 (Ky.), cert. denied, 469 U.S. 860, 105 S. Ct. 192, 83 L. Ed. 2d 125, 1984 U.S. LEXIS 3642 (U.S. 1984).

13.— Proportionality of Penalty.

Review of the imposition of death penalties by the Supreme Court and determination whether the sentence is excessive or disproportionate to the penalties imposed in similar cases is not constitutionally mandated; however, where the Commonwealth has opted to act in an area where it has discretion, it must conduct such review according to constitutional guidelines. Kordenbrock v. Scroggy, 680 F. Supp. 867, 1988 U.S. Dist. LEXIS 1309 (E.D. Ky. 1988 ), aff'd, 889 F.2d 69, 1989 U.S. App. LEXIS 16478 (6th Cir. Ky. 1989 ), rev'd, 919 F.2d 1091, 1990 U.S. App. LEXIS 20424 (6th Cir. Ky. 1990 ).

14.Standard Questionnaire.

The trial court’s failure to answer a question on the standard questionnaire prepared and supplied by the Supreme Court under this section was a technical error and in no way affected the judge’s ability to impose the death penalty, where he did answer all other questions and those questions (and answers) provided all the information necessary to respond to the basic questions provided in this section. Slaughter v. Commonwealth, 744 S.W.2d 407, 1987 Ky. LEXIS 257 ( Ky. 1987 ), cert. denied, 490 U.S. 1113, 109 S. Ct. 3174, 104 L. Ed. 2d 1036, 1989 U.S. LEXIS 2908 (U.S. 1989).

15.Record on Appeal.

KRS 532.075 does not require that a transcript be prepared, nor does it require the Kentucky Supreme Court’s review to be conducted only on a written transcript of the proceedings; video recordings of the proceedings, along with the clerk’s written record, constitute the official record on appeal. A video recording of the proceedings satisfies the requirements of KRS 532.075 ; therefore, a written transcript of a death penalty proceeding was not required before review could have taken place. Windsor v. Commonwealth, 413 S.W.3d 568, 2010 Ky. LEXIS 312 ( Ky. 2010 ).

16.Re-sentencing.

There is no statutory authority for the proposition that a sentencing judge or jury must consider the comparative information described in KRS 532.075(5)(b) prior to sentencing. Therefore, re-sentencing was required in a death penalty case because there were no circumstance that would require reversal of the sentence; the mere fact that the Commonwealth insisted on seeking the death penalty in this case was not an indication of prosecutorial misconduct or arbitrariness. Windsor v. Commonwealth, 413 S.W.3d 568, 2010 Ky. LEXIS 312 ( Ky. 2010 ).

Cited:

Gall v. Commonwealth, 607 S.W.2d 97, 1980 Ky. LEXIS 291 ( Ky. 1980 ), cert. denied, Gall v. Kentucky, 450 U.S. 989, 101 S. Ct. 1529, 67 L. Ed. 2d 824, 1981 U.S. LEXIS 1276, 49 U.S.L.W. 3664 (1981), overruled, Payne v. Commonwealth, 623 S.W.2d 867, 1981 Ky. LEXIS 286 ( Ky. 1981 ), overruled in part, Payne v. Commonwealth, 623 S.W.2d 867, 1981 Ky. LEXIS 286 ( Ky. 1981 ), overruled, Matthews v. Parker, — F.3d —, 651 F.3d 489, 2011 U.S. App. LEXIS 13091 (6th Cir. 2011); McQueen v. Commonwealth, 669 S.W.2d 519, 1984 Ky. LEXIS 210 ( Ky. 1984 ); White v. Commonwealth, 671 S.W.2d 241, 1983 Ky. LEXIS 317 ( Ky. 1983 ); Sanborn v. Commonwealth, 754 S.W.2d 534, 1988 Ky. LEXIS 35 ( Ky. 1988 ); Moore v. Commonwealth, 771 S.W.2d 34, 1988 Ky. LEXIS 76 ( Ky. 1988 ), cert. denied, Moore v. Kentucky, 494 U.S. 1060, 110 S. Ct. 1536, 108 L. Ed. 2d 774, 1990 U.S. LEXIS 1539, 58 U.S.L.W. 3614 (1990), overruled, McGuire v. Commonwealth, 885 S.W.2d 931, 1994 Ky. LEXIS 123 ( Ky. 1994 ); Taylor v. Commonwealth, 817 S.W.2d 891, 1990 Ky. LEXIS 81 ( Ky. 1990 ); Taylor v. Commonwealth, 821 S.W.2d 72, 1990 Ky. LEXIS 159 ( Ky. 1990 ); Bowling v. Commonwealth, 873 S.W.2d 175, 1993 Ky. LEXIS 127 ( Ky. 1993 ); Sanborn v. Commonwealth, 892 S.W.2d 542, 1994 Ky. LEXIS 126 ( Ky. 1994 ), cert. denied, Sanborn v. Kentucky, 516 U.S. 854, 116 S. Ct. 154, 133 L. Ed. 2d 98, 1995 U.S. LEXIS 5964, 64 U.S.L.W. 3243 (1995); Bowling v. Commonwealth, 942 S.W.2d 293, 1997 Ky. LEXIS 54 ( Ky. 1997 ); Skaggs v. Parker, 27 F. Supp. 2d 952, 1998 U.S. Dist. LEXIS 21264 (W.D. Ky. 1998 ); Woodall v. Commonwealth, 63 S.W.3d 104, 2001 Ky. LEXIS 142 ( Ky. 2001 ); Thompson v. Commonwealth, 147 S.W.3d 22, 2004 Ky. LEXIS 195 ( Ky. 2004 ); Hunt v. Commonwealth, — S.W.3d —, 2009 Ky. LEXIS 292 ( Ky. 2009 ).

Opinions of Attorney General.

Although Ky. Const., § 14 requires that the courts be open and although the courts are included within the definition of public agency of subsection (1) of KRS 61.870 any papers produced by judges or staff attorneys during the internal deliberative process of the appellate courts are of such a preliminary nature that they come within the exception of subsection (1) (g) and (h) of KRS 61.878 . OAG 78-262 .

Records and information gathered under subsection (6) of this section are the work product of a staff attorney of the court and are specifically designed and intended to aid the court in reviewing death penalty cases and because of their nature they are preliminary drafts, notes, preliminary recommendations and preliminary memoranda in which opinions are expressed or policies formulated or recommended and as such are exempt under KRS 61.878 (1) (g) and (h) of the Open Records Law. OAG 78-262 .

The Chief Justice has the power to enact regulations which preclude the inspection of the court records by a public agency as well as by the public generally. OAG 78-262 .

Research References and Practice Aids

Kentucky Law Journal.

Kentucky Law Survey, Fritz, Criminal Procedure, 67 Ky. L.J. 599 (1978-1979).

Note, Judicial v. Legislative Power in Kentucky: A “Comity” of Errors, 71 Ky. L.J. 829 (1982-83).

Northern Kentucky Law Review.

Blakley, The Cost of Killing Criminals, 18 N. Ky. L. Rev. 61 (1990).

2010 Death Penalty Issue: Article: Race, Death and Disproportionality, 37 N. Ky. L. Rev. 213 (2010).

2010 Death Penalty Issue: Article: The Continuing Role of Race in Capital Cases, Notwithstanding President Obama’s Election, 37 N. Ky. L. Rev. 243 (2010).

2010 Death Penalty Issue: Article: The Racial Justice Act in Kentucky, 37 N. Ky. L. Rev. 273 (2010).

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., General Principles, Part 4 Matters of Appeal, § 1.27.

Kentucky Instructions To Juries (Criminal), 5th Ed., Penalty Phase Instructions, Part 2 Capital Offenses, § 12.06.

ALR

Caldwell’s Kentucky Form Book, 5th Ed., Practice Context for Criminal Appeals, § 104.00.

532.080. Persistent felony offender sentencing.

  1. When a defendant is found to be a persistent felony offender, the jury, in lieu of the sentence of imprisonment assessed under KRS 532.060 for the crime of which such person presently stands convicted, shall fix a sentence of imprisonment as authorized by subsection (5) or (6) of this section. When a defendant is charged with being a persistent felony offender, the determination of whether or not he is such an offender and the punishment to be imposed pursuant to subsection (5) or (6) of this section shall be determined in a separate proceeding from that proceeding which resulted in his last conviction. Such proceeding shall be conducted before the court sitting with the jury that found the defendant guilty of his most recent offense unless the court for good cause discharges that jury and impanels a new jury for that purpose.
  2. A persistent felony offender in the second degree is a person who is more than twenty-one (21) years of age and who stands convicted of a felony after having been convicted of one (1) previous felony. As used in this provision, a previous felony conviction is a conviction of a felony in this state or conviction of a crime in any other jurisdiction provided:
    1. That a sentence to a term of imprisonment of one (1) year or more or a sentence to death was imposed therefor; and
    2. That the offender was over the age of eighteen (18) years at the time the offense was committed; and
    3. That the offender:
      1. Completed service of the sentence imposed on the previous felony conviction within five (5) years prior to the date of commission of the felony for which he now stands convicted; or
      2. Was on probation, parole, postincarceration supervision, conditional discharge, conditional release, furlough, appeal bond, or any other form of legal release from any of the previous felony convictions at the time of commission of the felony for which he now stands convicted; or
      3. Was discharged from probation, parole, postincarceration supervision, conditional discharge, conditional release, or any other form of legal release on any of the previous felony convictions within five (5) years prior to the date of commission of the felony for which he now stands convicted; or
      4. Was in custody from the previous felony conviction at the time of commission of the felony for which he now stands convicted; or
      5. Had escaped from custody while serving any of the previous felony convictions at the time of commission of the felony for which he now stands convicted.
  3. A persistent felony offender in the first degree is a person who is more than twenty-one (21) years of age and who stands convicted of a felony after having been convicted of two (2) or more felonies, or one (1) or more felony sex crimes against a minor as defined in KRS 17.500 , and now stands convicted of any one (1) or more felonies. As used in this provision, a previous felony conviction is a conviction of a felony in this state or conviction of a crime in any other jurisdiction provided:
    1. That a sentence to a term of imprisonment of one (1) year or more or a sentence to death was imposed therefor; and
    2. That the offender was over the age of eighteen (18) years at the time the offense was committed; and
    3. That the offender:
      1. Completed service of the sentence imposed on any of the previous felony convictions within five (5) years prior to the date of the commission of the felony for which he now stands convicted; or
      2. Was on probation, parole, postincarceration supervision, conditional discharge, conditional release, furlough, appeal bond, or any other form of legal release from any of the previous felony convictions at the time of commission of the felony for which he now stands convicted; or
      3. Was discharged from probation, parole, postincarceration supervision, conditional discharge, conditional release, or any other form of legal release on any of the previous felony convictions within five (5) years prior to the date of commission of the felony for which he now stands convicted; or
      4. Was in custody from the previous felony conviction at the time of commission of the felony for which he now stands convicted; or
      5. Had escaped from custody while serving any of the previous felony convictions at the time of commission of the felony for which he now stands convicted.
  4. For the purpose of determining whether a person has two (2) or more previous felony convictions, two (2) or more convictions of crime for which that person served concurrent or uninterrupted consecutive terms of imprisonment shall be deemed to be only one (1) conviction, unless one (1) of the convictions was for an offense committed while that person was imprisoned.
  5. A person who is found to be a persistent felony offender in the second degree shall be sentenced to an indeterminate term of imprisonment pursuant to the sentencing provisions of KRS 532.060(2) for the next highest degree than the offense for which convicted. A person who is found to be a persistent felony offender in the second degree shall not be eligible for probation, shock probation, or conditional discharge, unless all offenses for which the person stands convicted are Class D felony offenses which do not involve a violent act against a person, in which case probation, shock probation, or conditional discharge may be granted. A violent offender who is found to be a persistent felony offender in the second degree shall not be eligible for parole except as provided in KRS 439.3401 .
  6. A person who is found to be a persistent felony offender in the first degree shall be sentenced to imprisonment as follows:
    1. If the offense for which he presently stands convicted is a Class A or Class B felony, or if the person was previously convicted of one (1) or more sex crimes committed against a minor as defined in KRS 17.500 and presently stands convicted of a subsequent sex crime, a persistent felony offender in the first degree shall be sentenced to an indeterminate term of imprisonment, the maximum of which shall not be less than twenty (20) years nor more than fifty (50) years, or life imprisonment, or life imprisonment without parole for twenty-five (25) years for a sex crime committed against a minor;
    2. If the offense for which he presently stands convicted is a Class C or Class D felony, a persistent felony offender in the first degree shall be sentenced to an indeterminate term of imprisonment, the maximum of which shall not be less than ten (10) years nor more than twenty (20) years.
  7. A person who is found to be a persistent felony offender in the first degree shall not be eligible for probation, shock probation, or conditional discharge, unless all offenses for which the person stands convicted are Class D felony offenses which do not involve a violent act against a person or a sex crime as that term is defined in KRS 17.500 , in which case, probation, shock probation, or conditional discharge may be granted. If the offense the person presently stands convicted of is a Class A, B, or C felony, the person shall not be eligible for parole until the person has served a minimum term of incarceration of not less than ten (10) years, unless another sentencing scheme applies. A violent offender who is found to be a persistent felony offender in the first degree shall not be eligible for parole except as provided in KRS 439.3401 .
  8. A conviction, plea of guilty, or Alford plea under KRS 218A.1415 shall not trigger the application of this section, regardless of the number or type of prior felony convictions that may have been entered against the defendant. A conviction, plea of guilty, or Alford plea under KRS 218A.1415 may be used as a prior felony offense allowing this section to be applied if he or she is subsequently convicted of a different felony offense.
  9. The provisions of this section amended by 1994 Ky. Acts ch. 396, sec. 11, shall be retroactive.
    1. Except as provided in paragraph (b) of this subsection, this section shall not apply to a person convicted of a criminal offense if the penalty for that offense was increased from a misdemeanor to a felony, or from a lower felony classification to a higher felony classification, because the conviction constituted a second or subsequent violation of that offense. (10) (a) Except as provided in paragraph (b) of this subsection, this section shall not apply to a person convicted of a criminal offense if the penalty for that offense was increased from a misdemeanor to a felony, or from a lower felony classification to a higher felony classification, because the conviction constituted a second or subsequent violation of that offense.
    2. This subsection shall not prohibit the application of this section to a person convicted of:
      1. A felony offense arising out of KRS 189A.010 , 189A.090 , 506.140 , 508.032 , 508.140 , or 510.015 ; or
      2. Any other felony offense if the penalty was not enhanced to a higher level because the Commonwealth elected to prosecute the person as a first-time violator of that offense.

History. Enact. Acts 1974, ch. 406, § 280, effective January 1, 1975; 1976, ch. 180, § 1; 1976 (Ex. Sess.), ch. 14, § 474, effective January 2, 1978; 1978, ch. 78, § 6, effective June 17, 1978; 1982, ch. 241, § 1, effective July 15, 1982; 1994, ch. 396, § 11, effective July 15, 1994; 1996, ch. 247, § 1, effective April 4, 1996; 1998, ch. 606, § 76, effective July 15, 1998; 2006, ch. 182, § 45, effective July 12, 2006; 2011, ch. 2, § 26, effective June 8, 2011; 2012, ch. 156, § 19, effective July 12, 2012.

NOTES TO DECISIONS

Analysis

1.In General.

Increased penalties cannot be imposed by reason of an offense committed prior to the original conviction or convictions. (Decided under prior law) Brown v. Commonwealth, 100 Ky. 127 , 37 S.W. 496, 18 Ky. L. Rptr. 630 , 1896 Ky. LEXIS 150 ( Ky. 1896 ).

Under habitual criminal law, the provision for increased punishment for a second offense did not constitute an additional punishment for the first offense. (Decided under prior law) Adamson v. Hoblitzell, 279 S.W.2d 759, 1955 Ky. LEXIS 531 ( Ky. 1955 ).

Due process requirements were not offended by the Kentucky doctrine which stated that where a person understandingly pleads guilty to an indictment charging him with a felony and with having been convicted of two (2) previous felonies, the state need not offer any proof of guilt of the immediate offense or of the previous convictions. (Decided under prior law) Jones v. Davis, 233 F. Supp. 949, 1964 U.S. Dist. LEXIS 7431 (W.D. Ky.), aff'd, 336 F.2d 594, 1964 U.S. App. LEXIS 4299 (6th Cir. Ky. 1964 ).

Regardless of the effect the evidence of five prior convictions might have had on the jury in deciding whether the defendant was guilty of the primary charge, such procedure was clearly permitted by this section. (Decided under prior law) Wahl v. Commonwealth, 490 S.W.2d 769, 1972 Ky. LEXIS 19 ( Ky. 1972 ).

Commentary to this section which suggests “If the jury is unable to agree unanimously that the defendant is a persistent felony offender or as to the sanction to be imposed upon him the sentence fixed by the jury under KRS 532.060 (for the primary offense) shall stand” is a gratuitous addition to the section on “Persistent Felony Offender Sentencing” rather than an appropriate explanation of anything contained in that section and the legislature did not intend such an incongruous result. Commonwealth v. Crooks, 655 S.W.2d 475, 1983 Ky. LEXIS 289 ( Ky. 1983 ).

An application of the statute required merger of the defendant’s prior convictions for PFO purposes, and those merged convictions could not subsequently be divided for further enhancement purposes. Gray v. Commonwealth, 979 S.W.2d 454, 1998 Ky. LEXIS 130 ( Ky. 1998 ), overruled, Morrow v. Commonwealth, 77 S.W.3d 558, 2002 Ky. LEXIS 133 ( Ky. 2002 ).

Defendant’s convictions of first-degree robbery, KRS 515.020 , and being a first-degree persistent felony offender, KRS 532.080 was affirmed, as the trial court properly refused to suppress, pursuant to RCr 9.78, identification testimony which indicated that defendant was the perpetrator, as defendant failed to show that the identification was based solely on a vanity license plate on the get-away vehicle, and also properly refused to suppress still photos taken from a surveillance tape, as defendant failed to show that the police acted in bad faith when they accidentally recorded a soap opera over the surveillance film; the trial court also properly denied defendant’s motion for a directed verdict of acquittal pursuant to RCr 10.24, as the State presented sufficient evidence that defendant was the perpetrator and that he threatened to use a gun during the commission of the robbery; it was not palpable error under RCr 10.26 for the trial court to decline to enter a mistrial when it was discovered that a potential witness was a member of the jury pool. Shegog v. Commonwealth, 142 S.W.3d 101, 2004 Ky. LEXIS 178 ( Ky. 2004 ).

Although the Commonwealth violated RCr 8.28(5) by failing to show good cause for having defendant remain shackled during the penalty phase of his trial for attempted rape and kidnapping, the error was harmless since defendant suffered no prejudice and since the Commonwealth established that defendant clearly met all the statutory requirements for being a persistent felony offender II, under KRS 532.080 . Barbour v. Commonwealth, 204 S.W.3d 606, 2006 Ky. LEXIS 197 ( Ky. 2006 ).

2.Constitutionality.

Former habitual criminal law is not unconstitutional as imposing a second punishment for a former offense. (Decided under prior law) Herndon v. Commonwealth, 105 Ky. 197 , 48 S.W. 989, 20 Ky. L. Rptr. 1114 , 1899 Ky. LEXIS 195 ( Ky. 1899 ); Hall v. Commonwealth, 106 Ky. 894 , 51 S.W. 814, 21 Ky. L. Rptr. 520 , 1899 Ky. LEXIS 117 ( Ky. 1899 ); McIntyre v. Commonwealth, 154 Ky. 149 , 156 S.W. 1058, 1913 Ky. LEXIS 24 ( Ky. 1913 ); Turner v. Commonwealth, 191 Ky. 825 , 231 S.W. 519, 1921 Ky. LEXIS 390 ( Ky. 1921 ); Allen v. Commonwealth, 272 Ky. 533 , 114 S.W.2d 757, 1938 Ky. LEXIS 155 ( Ky. 1938 ).

Former habitual criminal law did not violate Ky. Const., §§ 11, 12, 13 or 14 or United States Const., Art. 6 or Amend. 1, 5 or 14. (Decided under prior law) Hampton v. Whaley, 313 Ky. 611 , 233 S.W.2d 273, 1950 Ky. LEXIS 949 ( Ky. 1950 ).

Claims that former habitual criminal law was unconstitutional as denying due process of law and equal protection of laws have been consistently shown to be without merit. (Decided under prior law) Harrod v. Whaley, 239 S.W.2d 480, 1951 Ky. LEXIS 898 ( Ky. 1951 ).

Former habitual criminal law was not unconstitutional on the ground that it permitted evidence of other crimes and violated a defendant’s constitutional right to a trial free from prejudice. (Decided under prior law) Etherton v. Jones, 350 S.W.2d 151, 1961 Ky. LEXIS 84 ( Ky. 1961 ), cert. denied, 369 U.S. 845, 82 S. Ct. 876, 7 L. Ed. 2d 848, 1962 U.S. LEXIS 1505 (U.S. 1962).

Former habitual criminal law that imposed increased penalties on multiple felony offenders was constitutional. (Decided under prior law) Barber v. Thomas, 355 S.W.2d 682, 1962 Ky. LEXIS 81 ( Ky. 1962 ).

Procedure of reading indictment and conviction of another offense to the jury was not violative of due process. (Decided under prior law) Pulliam v. Commonwealth, 406 S.W.2d 724, 1966 Ky. LEXIS 209 ( Ky. 1966 ).

Procedure of reading indictment and conviction of another offense to the jury was not violative of due process. (Decided under prior law) Pulliam v. Commonwealth, 406 S.W.2d 724, 1966 Ky. LEXIS 209 ( Ky. 1966 ).

Imposition of additional penalties under former habitual criminal law did not constitute double jeopardy. (Decided under prior law) Jones v. Commonwealth, 401 S.W.2d 68, 1966 Ky. LEXIS 404 ( Ky. 1966 ).

Imposition of additional penalties under former habitual criminal law did not constitute double jeopardy. (Decided under prior law) Jones v. Commonwealth, 401 S.W.2d 68, 1966 Ky. LEXIS 404 ( Ky. 1966 ).

Recidivist conviction can only be obtained if it is shown that the defendant had been previously lawfully convicted of felony and if the prior conviction is unconstitutional the habitual criminal conviction is null and void as it has lost one of its essential elements — existence of a prior felony conviction. (Decided under prior law) Ingram v. Wingo, 320 F. Supp. 1032, 1971 U.S. Dist. LEXIS 14996 (E.D. Ky. 1971 ).

Recidivist conviction can only be obtained if it is shown that the defendant had been previously lawfully convicted of felony and if the prior conviction is unconstitutional the habitual criminal conviction is null and void as it has lost one of its essential elements — existence of a prior felony conviction lawfully obtained. (Decided under prior law) Ingram v. Wingo, 320 F. Supp. 1032, 1971 U.S. Dist. LEXIS 14996 (E.D. Ky. 1971 ).

The validity of the habitual criminal statute lies in the fact it serves a legitimate purpose and thus the imposition on defendant of the habitual criminal statute’s mandatory life sentence did not constitute cruel and unusual punishment. (Decided under prior law) Cox v. Commonwealth, 514 S.W.2d 49, 1974 Ky. LEXIS 285 ( Ky. 1974 ).

The validity of the habitual criminal statute lies in the fact it serves a legitimate purpose and thus the imposition on defendant of the habitual criminal statute’s mandatory life sentence did not constitute cruel and unusual punishment. (Decided under prior law) Cox v. Commonwealth, 514 S.W.2d 49, 1974 Ky. LEXIS 285 ( Ky. 1974 ).

Imposition of a mandatory ten-year term without probation under subdivision (6)(b) of this section did not violate U.S. Const., Amend. 8 or 14 or Ky. Const., § 17, although the defendant’s convictions all involved nonviolent property-related crimes. Other property-related felonies are considered by the legislature to be sufficient to support imposition of the penalties of subdivision (6)(b). Therefore, defendant’s punishment was no harsher than that of persons who commit such other offenses. Collett v. Commonwealth, 686 S.W.2d 822, 1984 Ky. App. LEXIS 641 (Ky. Ct. App. 1984).

There is no plausible basis to support the constitutionality of the classification found in subsections (5) and (7) for PFO I Class D felons and PFO II Class D felons, and being void of rational justification, it is violative of equal protection of the law. Commonwealth v. Meyers, 8 S.W.3d 58, 1999 Ky. App. LEXIS 153 (Ky. Ct. App. 1999).

Because the present statutory construction is unconstitutional, the benefit or eligibility for probation, shock probation, and conditional discharge should be extended to PFO II Class D felons, so that both PFO I Class D felons and PFO II Class D felons are eligible. Commonwealth v. Meyers, 8 S.W.3d 58, 1999 Ky. App. LEXIS 153 (Ky. Ct. App. 1999).

3.Applicability.

This section providing for a bifurcated trial does not apply to offenses committed prior to January 1, 1975, which offenses must be construed and punished according to the provisions of law existing at the time of the commission thereof. Kimbrough v. Commonwealth, 550 S.W.2d 525, 1977 Ky. LEXIS 436 ( Ky. 1977 ), overruled in part, Ray v. Commonwealth, 611 S.W.3d 250, 2020 Ky. LEXIS 403 ( Ky. 2020 ).

Where the principal offense of armed assault with intent to rob, on which the indictment as a habitual criminal was based, was committed prior to January 1, 1975, the effective date of KRS 532.080 , which provided for a bifurcated trial, the trial court properly applied the provisions of the former section punishing habitual criminals and so was not required to afford the defendant a bifurcated trial. (Decided under prior law) Kimbrough v. Commonwealth, 550 S.W.2d 525, 1977 Ky. LEXIS 436 ( Ky. 1977 ), overruled in part, Ray v. Commonwealth, 611 S.W.3d 250, 2020 Ky. LEXIS 403 ( Ky. 2020 ).

Where the highest class of crime for which sentence was imposed was second-degree manslaughter, a Class C felony, subsection (6)(b) of this section limited the defendant’s sentence to no more than 20 years and it was error to order two (2) sentences for manslaughter and one for third-degree arson to run consecutively so as to impose an aggregate sentence of 25 years. Hendley v. Commonwealth, 573 S.W.2d 662, 1978 Ky. LEXIS 416 ( Ky. 1978 ).

Where a person serves time in prison for a felony, is released on parole, commits another crime and is resentenced to prison, then upon his release again and third conviction, he has two prior felonies for purposes of a persistent felony offender charge. Accordingly, where defendant was convicted on four (4) counts of forgery, was imprisoned, then released on parole, was returned to prison as a parole violator, was subsequently paroled again and then was convicted of theft by unlawful taking, he was a persistent felony offender in the first degree upon receiving his third conviction. Williams v. Commonwealth, 639 S.W.2d 788, 1982 Ky. App. LEXIS 256 (Ky. Ct. App. 1982).

Where the defendant was convicted of felonies on three (3) separate occasions and his sentences ran consecutively only because he persisted in committing new crimes before he completed serving earlier sentences, he was not entitled to have all of those convictions treated as a single conviction for purposes of subsection (4) of this section. Adkins v. Commonwealth, 647 S.W.2d 502, 1982 Ky. App. LEXIS 286 (Ky. Ct. App. 1982).

It is clear from the wording of this section and the 1974 commentary thereto that a person who, in defendant’s situation, serves time in prison for a felony, is released on parole, commits another crime and is resentenced to prison, that upon his release again and third conviction, he has two prior felonies for purposes of a persistent felony offender charge. That is, the rehabilitative efforts on his first conviction failed, the rehabilitative efforts on his second conviction failed, and he is, under the statute, a persistent felony offender in the first degree upon receiving his third conviction. Combs v. Commonwealth, 652 S.W.2d 859, 1983 Ky. LEXIS 258 ( Ky. 1983 ).

A conviction of a second offense of trafficking in a Schedule III controlled substance under subsection (2) of KRS 218A.990 (repealed) may be further enhanced by a persistent felony offender second degree charge pursuant to the general persistent felony offender statute, subsection (2) of this section, where the persistent felony offender charge is grounded on a prior, unrelated conviction. Commonwealth v. Grimes, 698 S.W.2d 836, 1985 Ky. LEXIS 281 ( Ky. 1985 ).

Where defendant was convicted of possession of and trafficking in controlled substances and as a second-degree persistent felony offender (PFO), trial judge correctly determined that the $10,000 originally assessed by the jury on the possession of controlled substance conviction no longer applied once the sentence was enhanced under the PFO statute; the prosecution could not select penalties under both the PFO statute and KRS 218A.990 (now repealed), absent a clear indication by the statutes. Dawson v. Commonwealth, 756 S.W.2d 935, 1988 Ky. LEXIS 55 ( Ky. 1988 ).

If the punishment is not assessed under KRS 532.060 , the persistent felony offender statute, this section, is not applicable. Berry v. Commonwealth, 782 S.W.2d 625, 1990 Ky. LEXIS 7 ( Ky. 1990 ), overruled in part, Chestnut v. Commonwealth, 250 S.W.3d 288, 2008 Ky. LEXIS 113 ( Ky. 2008 ).

The persistent felony offender enhancement under this section is applicable to violations of Chapter 218A, the Controlled Substance Act. Harrison v. Commonwealth, 842 S.W.2d 531, 1992 Ky. App. LEXIS 137 (Ky. Ct. App. 1992).

A defendant was eligible to take advantage of subsection (8) where the subsection became effective between the time he was indicted and tried as the amendment was mitigating. Bolen v. Commonwealth, 31 S.W.3d 907, 2000 Ky. LEXIS 147 ( Ky. 2000 ).

Where the phrase “unless all offenses for which the person stands convicted are Class D Felony offenses” in KRS 532.080(7) referred not only to the offenses for which defendant was currently convicted, but also to the offenses for which defendant had previously been convicted, a trial court correctly determined that defendant was ineligible for probation under KRS 532.080(7). Williams v. Commonwealth, 2003 Ky. App. Unpub. LEXIS 664 (Ky. Ct. App. May 23, 2003).

Court of Appeals of Kentucky interprets the phrase “unless all offenses for which the person stands convicted are Class D Felony offenses” in KRS 532.080(7) to refer not only to the offenses for which a defendant is currently convicted, but also to the offenses for which the defendant has previously been convicted. Williams v. Commonwealth, 2003 Ky. App. Unpub. LEXIS 664 (Ky. Ct. App. May 23, 2003).

Chart following 501 Ky. Admin. Regs. 1:030, § 3(1)(e)4, requiring certain offenders to serve 20 years before being eligible for parole (or 85 percent of the offender’s sentence, whichever is less), did not apply to appellant because he committed none of the felonies listed therein. Thus, he remained subject to the default 10-year parole eligibility requirement found in Ky. Rev. Stat. Ann. § 532.080(7) for a persistent felony offender I convicted of a Class B felony. Goben v. Keeney, 2021 Ky. App. LEXIS 75 (Ky. Ct. App. June 4, 2021).

4.Purpose.

This section’s purpose is the homogenizing of the treatment of recidivists with the new penal code and uniform proceedings dealing with persistent felony offenders. Hardin v. Commonwealth, 573 S.W.2d 657, 1978 Ky. LEXIS 415 ( Ky. 1978 ).

The two (2) stage proceeding in persistent felony-offender cases was designed for the specific purpose of obviating the prejudice that necessarily results from a jury’s knowledge of previous convictions while it is weighing the guilt or innocence of a defendant on another charge. Such evidence is no longer relevant or competent during the guilt phase of a bifurcated trial unless, of course, it should become relevant for impeachment purposes. Hubbard v. Commonwealth, 633 S.W.2d 67, 1982 Ky. LEXIS 249 ( Ky. 1982 ).

This section is designed to strengthen the Commonwealth’s attempts at rehabilitation of convicted persons; greater penalties are sanctioned for those persons who, after serving a prison term for a conviction, demonstrate the futility of their rehabilitation by committing other crimes after their release. The concurrent sentence break is provided only to those who may have committed more than one crime but received their sentences for these crimes prior to serving any time in prison. Williams v. Commonwealth, 639 S.W.2d 788, 1982 Ky. App. LEXIS 256 (Ky. Ct. App. 1982).

The 1974 commentary to the criminal code makes it plain that the intent of this section was to restrict its application to persons who have been previously exposed to an institutional rehabilitative effort and that when an individual has been convicted two (2) times before being exposed to the institutional rehabilitation efforts afforded by a term of imprisonment, the two convictions shall count only as one in persistent felony offender proceedings. The commentary states that this is another effort to avoid the label of persistent felony offender for persons who might be rehabilitated through an ordinary term of imprisonment for the offense most recently committed. Combs v. Commonwealth, 652 S.W.2d 859, 1983 Ky. LEXIS 258 ( Ky. 1983 ).

The interest of the Commonwealth of Kentucky, as expressed in this section, indeed the interest of all states with recidivist statutes, is to deal in a harsher manner with those individuals who by their repeated criminal acts have proven themselves unwilling to conform their conduct to societal norms as expressed in the criminal law. Collett v. Commonwealth, 686 S.W.2d 822, 1984 Ky. App. LEXIS 641 (Ky. Ct. App. 1984).

5.Construction.

This section only requires that completion of service of sentence or discharge from probation or parole on any, not each, of the prior convictions shall have occurred within five (5) years of the commission of the instant offense. Howard v. Commonwealth, 608 S.W.2d 62, 1980 Ky. App. LEXIS 382 (Ky. Ct. App. 1980).

Subsection (7) of this section requires a person convicted of persistent felony offender in the first degree to serve a minimum of ten (10) years before being eligible for parole, and neither the courts nor the Department of Corrections may change that. Rudolph v. Corrections Cabinet of Kentucky, 710 S.W.2d 235, 1986 Ky. App. LEXIS 1124 (Ky. Ct. App. 1986).

Because this section prohibits a person convicted of being a Persistent Felony Offender (PFO) from being given any form of probation, parole or conditional discharge until he has served a minimum sentence of ten (10) years, defendant was not eligible for probation under an alternative sentencing plan. Brown v. Commonwealth, 818 S.W.2d 600, 1991 Ky. LEXIS 75 ( Ky. 1991 ).

An enhanced sentence under this section may run consecutively under KRS 532.110(4), which mandates that a sentence imposed for an escape or attempted escape offense shall run consecutively with any other sentence that the defendant must serve. Gaither v. Commonwealth, 963 S.W.2d 621, 1998 Ky. LEXIS 47 ( Ky. 1998 ).

A reasonable inference is sufficient to meet the requirements of the persistent felony offender (PFO) statute. Martin v. Commonwealth, 13 S.W.3d 232, 1999 Ky. LEXIS 143 ( Ky. 1999 ).

Hon v. Commonwealth, 670 S.W.2d 851, is expressly overruled to the extent that it degrades the standard of a reasonable inference to that of guesswork with regard to determining a defendant’s persistent felony offender status. Shabazz v. Commonwealth, 153 S.W.3d 806, 2005 Ky. LEXIS 1 ( Ky. 2005 ).

Word conviction in the first sentence does not bar the court’s reliance on all felony possession convictions as a basis for a persistent felony offender (PFO) charge and conviction, one phrase refers to the instant or underlying conviction, and the second sentence explicitly refers only to prior offenses; thus, the first sentence bars the usage of a current or underlying felony possession conviction as a basis for implicating the PFO statute, whereas the second sentence expressly states that prior felony possession offenses may be used. Boone v. Commonwealth, 412 S.W.3d 883, 2013 Ky. App. LEXIS 165 (Ky. Ct. App. 2013).

6.—With Other Laws.

The one (1) year statute of limitations for misdemeanor prosecutions had no application to the imposition under former habitual criminal law of an additional penalty for a second offense, because such a penalty was in no sense a prosecution of the first offense. (Decided under prior law) Adamson v. Hoblitzell, 279 S.W.2d 759, 1955 Ky. LEXIS 531 ( Ky. 1955 ).

The violent offender statute, KRS 439.3401 , and the persistent felony offender statute, KRS 532.080 , are not in conflict. Bills v. Commonwealth, 851 S.W.2d 466, 1993 Ky. LEXIS 60 ( Ky. 1993 ).

Subsection (5) and KRS 533.030(7) control over KRS 533.060(2) and, therefore, the defendant was eligible for parole, notwithstanding that the offenses at issue were committed while he was on parole from a prior felony conviction, as the offenses at issue were all Class D nonviolent felonies. Adams v. Commonwealth, 46 S.W.3d 572, 2000 Ky. App. LEXIS 76 (Ky. Ct. App. 2000).

7.Age of Defendant.

Proof that a defendant was over the age of 18 at the time of the commission of the prior felony offenses is an essential element of this section, but a failure of such proof may be waived by not directing the attention of the trial court to the omission by appropriate objections. Newell v. Commonwealth, 549 S.W.2d 89, 1977 Ky. LEXIS 406 ( Ky. 1977 ).

Age of defendant at time previous offense was committed is a distinct element of the case which must be proven by the Commonwealth in order to obtain a conviction under the persistent felony statute. Adams v. Commonwealth, 551 S.W.2d 561, 1977 Ky. LEXIS 451 ( Ky. 1977 ).

Defendant’s age at the time the crime of storehouse breaking was committed was a distinct element which must be proven in order to satisfy this section. Crawley v. Commonwealth, 568 S.W.2d 927, 1978 Ky. LEXIS 374 ( Ky. 1978 ), cert. denied, 439 U.S. 1119, 99 S. Ct. 1028, 59 L. Ed. 2d 79, 1979 U.S. LEXIS 531 (U.S. 1979), limited, Martin v. Commonwealth, 13 S.W.3d 232, 1999 Ky. LEXIS 143 ( Ky. 1999 ).

Evidence showing that defendant was 19 years of age at the time he was convicted of storehouse breaking did not support inference that he was over 18 at the time he committed the offense, and therefore the Commonwealth failed to sustain the burden of proving every element of the offense beyond a reasonable doubt. Crawley v. Commonwealth, 568 S.W.2d 927, 1978 Ky. LEXIS 374 ( Ky. 1978 ), cert. denied, 439 U.S. 1119, 99 S. Ct. 1028, 59 L. Ed. 2d 79, 1979 U.S. LEXIS 531 (U.S. 1979), limited, Martin v. Commonwealth, 13 S.W.3d 232, 1999 Ky. LEXIS 143 ( Ky. 1999 ).

A defendant who was convicted of a second felony, which second felony was committed 13 days prior to his twenty-first birthday, could still be sentenced as a persistent felony offender where the defendant was 21 years old at the time of his indictment and trial for the second felony. Hayes v. Commonwealth, 660 S.W.2d 5, 1983 Ky. LEXIS 304 ( Ky. 1983 ).

It is “improper” to establish age at the time of commission of the prior offense by proof of an inferential nature. There must be direct evidence of the date on which the prior offense was committed which, together with proof of the offender’s date of birth, will prove the age at which the prior offense was committed. Age will not be inferred from the date of conviction. Hayes v. Commonwealth, 698 S.W.2d 827, 1985 Ky. LEXIS 277 ( Ky. 1985 ).

For purposes of the Penal Code, a person is “over the age of 18” from the first moment of the day on which his 18th birthday falls; accordingly, for purpose of applying the persistent felony offender statute there was no merit to the defendant’s argument that the language “over the age of 18” in subdivision (3)(b) of this section meant that the person had to be at least 19. Garrett v. Commonwealth, 675 S.W.2d 1, 1984 Ky. LEXIS 245 ( Ky. 1984 ).

Since a conviction as a persistent felony offender (PFO) in the first degree requires proof of conviction of two (2) or more felonies and that the offender was over the age of 18 at the date of the commission of the prior offenses, where there was no proof of the date of the commission of the prior felonies, the Commonwealth failed to meet their burden of proof beyond a reasonable doubt. Tyler v. Commonwealth, 805 S.W.2d 126, 1991 Ky. LEXIS 16 ( Ky. 1991 ).

A pre-sentencing investigation report from which probation and parole officer testified as to the date of defendant’s birth to establish that he was over 18 years of age satisfied the requirements of subsection (6) of KRE 803 which excepts records of a regularly conducted business activity from KRE 802’s rule against the admission of hearsay. Jones v. Commonwealth, 907 S.W.2d 783, 1995 Ky. App. LEXIS 178 (Ky. Ct. App. 1995).

8.—At Time of Offense.

The term “the offense” as used in subsection (2)(b) of this section refers to the prior offense charged in the persistent felony offender count, not to the present offense which will be enhanced by the offender’s status as a persistent felon. Hayes v. Commonwealth, 698 S.W.2d 827, 1985 Ky. LEXIS 277 ( Ky. 1985 ).

9.Aggregate Consecutive Sentences.

Where defendant was convicted of second-degree robbery under KRS 515.030 and sentenced to enhanced term of 20 years as persistent felony offender, his sentence of ten (10) years for theft of property under KRS 532.110 could not be made to run consecutively since the aggregate consecutive terms allowed by subsection (1) (c) of KRS 532.110 is limited to the longest term authorized by this section, which in this case would be 20 years for the second-degree robbery. Tabor v. Commonwealth, 613 S.W.2d 133, 1981 Ky. LEXIS 221 ( Ky. 1981 ).

Any attempt to run the persistent felony offender conviction either concurrently with or consecutively to the underlying offense on which it is based is improper. Pace v. Commonwealth, 636 S.W.2d 887, 1982 Ky. LEXIS 280 ( Ky. 1982 ), overruled, Commonwealth v. Harrell, 3 S.W.3d 349, 1999 Ky. LEXIS 117 ( Ky. 1999 ).

Because second-degree robbery under KRS 515.030 was the highest class of crime for which defendant was convicted, the aggregate of the sentences to be imposed upon defendant for convictions of one count of second-degree robbery, four counts of third-degree burglary, and one count of theft over $300 could not lawfully exceed 20 years; KRS 532.110(1)(c) did not give the trial court leeway to impose a greater sentence, and explicitly stated, through its incorporation of KRS 532.080(6)(b), that the sentence “shall not exceed” 20 years. Thus, defendant’s 35-year sentence was not within the statutorily prescribed range of punishment and the plea agreement authorizing that sentence should have been rejected pursuant to RCr P. 8.10. McClanahan v. Commonwealth, 308 S.W.3d 694, 2010 Ky. LEXIS 98 ( Ky. 2010 ).

10.Arguments of Counsel.

For the same reasons that it would be improper to instruct the jury that it may disregard the law and return a verdict of “not guilty” on the persistent felony offender charge because it believes that the penalty set by the legislature is too severe, it is equally improper for counsel to make such an argument. Counsel has the right to argue that the jury may disbelieve the evidence and find the defendant not guilty but no right to argue that it may disregard the law because it believes the minimum penalty set by the legislature is too severe. Medley v. Commonwealth, 704 S.W.2d 190, 1985 Ky. LEXIS 298 ( Ky. 1985 ).

Arguments of both counsel should be limited to reasonable inferences to be drawn from the evidence and should not include comments as to the consequences of a particular verdict; comments by the prosecutor and defense counsel concerning the availability of drug treatment programs were improper. Callison v. Commonwealth, 706 S.W.2d 434, 1986 Ky. App. LEXIS 1073 (Ky. Ct. App. 1986).

11.Bifurcated Trial.

In prosecution for attempted robbery and for being a persistent felony offender, defendant was not entitled to separate juries for the two stages of trial inasmuch as he could not appear as a witness for himself in the first stage and admit one (1) or more prior convictions but elect not to testify in the second stage and be at the same time protected against the Commonwealth’s proving its case in the recidivist prosecution by introducing information drawn from defendant for impeachment purposes in the first stage. Brown v. Commonwealth, 551 S.W.2d 557, 1977 Ky. LEXIS 450 ( Ky. 1977 ).

Purpose of bifurcated trial in recidivist prosecution is to shield defendant from unfair influence his previous conviction are bound to have on the jury in determining his guilt or innocence of the crime for which he is presently being charged, but if he elects to testify in the first stage, what he says can be used against him in the second stage to the same extent that it can be used as an admission against him in a wholly separate trial for a different offense. Brown v. Commonwealth, 551 S.W.2d 557, 1977 Ky. LEXIS 450 ( Ky. 1977 ).

The facts necessary to be proven to secure and uphold a conviction on the primary offense are separate and distinct from those necessary to be proven to sustain a conviction as a persistent felony offender, and it is impermissible to present to the jury facts upon which a person charged with being a persistent felony offender was initially tried and convicted. Hardin v. Commonwealth, 573 S.W.2d 657, 1978 Ky. LEXIS 415 ( Ky. 1978 ).

This section contemplates that it may be appropriate to try the defendant separately and at a later time on the persistent felony offender charge; where the jury was unable to agree upon a sentence as to the persistent felony offender charge, it was discharged “for good cause” and, in conformity with this section, a new jury should be impaneled to consider the persistent felony offender charge. Commonwealth v. Crooks, 655 S.W.2d 475, 1983 Ky. LEXIS 289 ( Ky. 1983 ).

In all drug cases tried when a subsequent offense is charged, the trial shall be bifurcated in accordance with the Truth-In-Sentencing Act and no reference shall be made to the prior offense until the sentencing phase of the trial; this specifically includes reading of the indictment prior to or during the guilt phase. Clay v. Commonwealth, 818 S.W.2d 264, 1991 Ky. LEXIS 158 ( Ky. 1991 ), cert. denied, 503 U.S. 923, 112 S. Ct. 1304, 117 L. Ed. 2d 525, 1992 U.S. LEXIS 1609 (U.S. 1992), overruled in part, Bratcher v. Commonwealth, 424 S.W.3d 411, 2014 Ky. LEXIS 85 ( Ky. 2014 ).

12.—Persistent Felony Offender Stage.

Defendant was not denied due process under Ky. Const., § 11, where trial court prevented him from informing the jury about the strict nonparole provision under subsection (7) of this section, since the persistent felony offender phase of the trial is not designed to provide a separate sentencing phase where mitigating or aggravating factors surrounding the charge can be presented and probation and parole are not constitutional rights, but rather legislative clemencies granted as a matter of grace. White v. Commonwealth, 611 S.W.2d 529, 1980 Ky. App. LEXIS 419 (Ky. Ct. App. 1980), cert. denied, 452 U.S. 966, 101 S. Ct. 3119, 69 L. Ed. 2d 978, 1981 U.S. LEXIS 2563 (U.S. 1981).

Where defendant entered a guilty plea on a persistent felony offender charge and was sentenced to the minimum of 20 years, the trial court’s order limiting his voir dire by ruling that he could only inform the jury panel that the possible range of penalties was one day to life, without any further explanation, was harmless error. Harbin v. Commonwealth, 121 S.W.3d 191, 2003 Ky. LEXIS 172 ( Ky. 2003 ), modified, 2003 Ky. LEXIS 296 (Ky. Dec. 18, 2003).

Where defendant was not arraigned and no plea was taken on the second-degree persistent felony offender charge, the conviction on that offense was improper; arraignment and taking of a plea were necessary, and defendant did not waive those proceedings where defendant objected immediately after the charge was referred to for the first time at sentencing, since the charge could not be referred to during the guilt phase of the trial under KRS 532.080 . Hutson v. Commonwealth, 171 S.W.3d 743, 2005 Ky. App. LEXIS 187 (Ky. Ct. App. 2005).

13.— —Evidence.

The trial court at the persistent offender stage of a trial was correct in refusing defendant’s evidence of prior lunacy adjudications against him since such adjudications were irrelevant to the factual issues faced by the jury at that stage. Wagner v. Commonwealth, 581 S.W.2d 352, 1979 Ky. LEXIS 262 ( Ky. 1979 ), overruled, Estep v. Commonwealth, 663 S.W.2d 213, 1983 Ky. LEXIS 316 ( Ky. 1983 ), overruled in part, Estep v. Commonwealth, 663 S.W.2d 213, 1983 Ky. LEXIS 316 ( Ky. 1983 ), overruled on other grounds sub nom. Estep v. Commonwealth, 663 S.W.2d 213, 1983 Ky. LEXIS 316 (Ky. 1983).

During the persistent felony offender phase of a murder trial, the trial court erred when it allowed a witness to explain gruesome facts pertaining to the prior felonies; the jacket that the defendant was wearing when he was arrested for the underlying offense was also clearly irrelevant, and should not have been admitted during that phase of the trial. Pace v. Commonwealth, 636 S.W.2d 887, 1982 Ky. LEXIS 280 ( Ky. 1982 ), overruled, Commonwealth v. Harrell, 3 S.W.3d 349, 1999 Ky. LEXIS 117 ( Ky. 1999 ).

The trial judge did not commit reversible error in refusing to permit defendant in persistent felony offender proceedings the opportunity to introduce evidence raising the issue of validity of prior conviction during trial because such a challenge must be made by a pretrial motion. Commonwealth v. Gadd, 665 S.W.2d 915, 1984 Ky. LEXIS 214 ( Ky. 1984 ), overruled in part, Commonwealth v. Fugate, 527 S.W.3d 43, 2017 Ky. LEXIS 373 ( Ky. 2017 ), overruled in part, Commonwealth v. Fugate, 2017 Ky. LEXIS 202 (Ky. Apr. 27, 2017).

Upon remand of the bifurcated persistent felony offender first-degree portion, the only proof concerning the defendant’s parole that would be admissible would be the date that he was released from parole. Burton v. Commonwealth, 715 S.W.2d 897, 1986 Ky. App. LEXIS 1186 (Ky. Ct. App. 1986).

The introduction of evidence concerning the beginning of the defendant’s parole was clearly inadmissible and was prejudicial where the jury assessed 15 years rather than the minimum of ten (10) years. Burton v. Commonwealth, 715 S.W.2d 897, 1986 Ky. App. LEXIS 1186 (Ky. Ct. App. 1986).

It was not mandatory for certified copies of judgment of conviction to be admitted into evidence in support of a persistent felony offender charge; it was sufficient for oral testimony of a circuit clerk based upon documents in her custody, to be received in support of the elements of the charge. In the absence of objection at trial, failure to admit the documentary evidence will not be reviewed on appeal. Commonwealth v. Mixon, 827 S.W.2d 689, 1992 Ky. LEXIS 54 ( Ky. 1992 ).

The trial court did not err in admitting evidence of defendant’s juvenile convictions during the persistent felony offender (PFO) phase of his trial. Sanders v. Commonwealth, 844 S.W.2d 391, 1992 Ky. LEXIS 171 ( Ky. 1992 ).

Trial court did not err when it denied defendant’s motion for a directed verdict on a persistent offender charge. The Commonwealth read defendant’s criminal record aloud to the jury, and the defense made no objection to the introduction of the evidence in this manner. Webb v. Commonwealth, 387 S.W.3d 319, 2012 Ky. LEXIS 195 ( Ky. 2012 ).

Defendant was properly convicted of first-degree trafficking in a controlled substance over two grams and of being a first-degree persistent felony offender because a police officer's "minnow-and-fish" metaphor did not substantially sway the verdict due to the sufficiency of the other evidence, a mistrial was not warranted where the trial court's recognition of a procedural error—failure to provide the jury with a complete set of instructions after orally instructing the jury in the sentencing phase—the trial court properly recommitted the case to the jury with a full set of instructions, and defendant was not denied a unanimous verdict as his designation as a persistent felony offender was supported under any theory in the instruction. Conrad v. Commonwealth, 534 S.W.3d 779, 2017 Ky. LEXIS 504 ( Ky. 2017 ).

Trial court did not err in allowing the Commonwealth to proceed to trial on a second-degree persistent felony offender charge because defendant was not unduly prejudiced by the delay in presenting a superseding indictment. Minter v. Commonwealth, 415 S.W.3d 614, 2013 Ky. LEXIS 635 ( Ky. 2013 ).

Trial court erred by failing to grant a directed verdict on the persistent felony offender (PFO) charge because the Commonwealth failed to prove that defendant was either in the system, e.g., incarcerated, probated, or paroled, or not where, it did not call witnesses to provide testimony to establish the essential elements of defendant's PFO status, but, rather, introduced certified copies of his prior convictions, which did not adequately provide the necessary information from which the jury could reasonably infer, beyond a reasonable doubt, that at least one of the statutory alternatives applied to defendant. Moore v. Commonwealth, 462 S.W.3d 378, 2015 Ky. LEXIS 1637 ( Ky. 2015 ).

14.— —Instructions.

The due process clause requires a trial court, if requested, to instruct the jury during the enhancement portion of a bifurcated trial of one charged as a persistent felony offender that no adverse inference may be drawn from the defendant’s failure to testify; this requirement applies regardless of whether the defendant has testified during the trial of the underlying substantive offense. Finney v. Rothgerber, 751 F.2d 858, 1985 U.S. App. LEXIS 27573 (6th Cir. Ky.), cert. denied, 471 U.S. 1020, 105 S. Ct. 2048, 85 L. Ed. 2d 310, 1985 U.S. LEXIS 2659 (U.S. 1985).

15.— —Closing Argument.

The “closing summations of counsel,” referred to in subsection (1) of RCr 9.54, is part of an accused’s basic right to make his defense under the sixth amendment; this is a per se rule regardless of the strength of the prosecution’s case, and applies to habitual offender trials as well as trials for substantive crimes. Patty v. Bordenkircher, 603 F.2d 587, 1979 U.S. App. LEXIS 12458 (6th Cir. Ky. 1979 ).

16.Burden of Proof.

After the judgments of conviction are introduced, the burden shifts to the defendant to show any infringement of his rights or irregularity of procedure upon which he relies; the burden then falls to the Commonwealth to prove that the underlying judgments were entered in a manner which did, in fact, protect the rights of the defendant. Dunn v. Commonwealth, 703 S.W.2d 874, 1985 Ky. LEXIS 297 ( Ky. 1985 ), cert. denied, Dunn v. Kentucky, 479 U.S. 832, 107 S. Ct. 121, 93 L. Ed. 2d 67, 1986 U.S. LEXIS 3579 (1986), but see Dunn v. Simmons, 877 F.2d 1275, 1989 U.S. App. LEXIS 8437 (6th Cir. Ky. 1989 ), cert. denied, 494 U.S. 1061, 110 S. Ct. 1539, 108 L. Ed. 2d 778, 1990 U.S. LEXIS 1579 (U.S. 1990), disapproved, Parke v. Raley, 506 U.S. 20, 113 S. Ct. 517, 121 L. Ed. 2d 391, 1992 U.S. LEXIS 7661 (U.S. 1992).

In those cases in which the defendant is indicted as a persistent felony offender and files a proper motion to suppress any evidence of his prior offenses, the burden is on the Commonwealth to prove the judgments of conviction in each of the underlying offenses upon which it intends to rely; the presumption of regularity of judgment shall be sufficient to meet the original burden of proof. Dunn v. Commonwealth, 703 S.W.2d 874, 1985 Ky. LEXIS 297 ( Ky. 1985 ), cert. denied, 479 U.S. 832, 107 S. Ct. 121, 93 L. Ed. 2d 67, 1986 U.S. LEXIS 3579 (U.S. 1986), overruled in part, Commonwealth v. Fugate, 527 S.W.3d 43, 2017 Ky. LEXIS 373 ( Ky. 2017 ), overruled in part, Commonwealth v. Fugate, 2017 Ky. LEXIS 202 (Ky. Apr. 27, 2017).

There was no reversible error where the Commonwealth met its original burden by introducing the proof of three (3) pleas of guilty to felony charges and that the defendant was represented by counsel on each occasion, the defendant testified that the trial judge had failed to advise him of certain rights prior to the entry of the plea of guilty, and the Commonwealth cross-examined the defendant concerning the issue, and he readily admitted that he knew of the rights about which he contends he was not informed by the court. Dunn v. Commonwealth, 703 S.W.2d 874, 1985 Ky. LEXIS 297 ( Ky. 1985 ), cert. denied, 479 U.S. 832, 107 S. Ct. 121, 93 L. Ed. 2d 67, 1986 U.S. LEXIS 3579 (U.S. 1986), overruled in part, Commonwealth v. Fugate, 527 S.W.3d 43, 2017 Ky. LEXIS 373 ( Ky. 2017 ), overruled in part, Commonwealth v. Fugate, 2017 Ky. LEXIS 202 (Ky. Apr. 27, 2017).

Where the record from the trial court is inadequate to affirmatively demonstrate that a plea of guilty was intelligent and voluntary, the state may not utilize a presumption of regularity of judgment to satisfy its burden of persuasion, and, where it seeks to satisfy that burden by supplementing an incomplete contemporaneous record with extrinsic evidence, that evidence must be clear and convincing. Dunn v. Simmons, 877 F.2d 1275, 1989 U.S. App. LEXIS 8437 (6th Cir. Ky. 1989 ), cert. denied, 494 U.S. 1061, 110 S. Ct. 1539, 108 L. Ed. 2d 778, 1990 U.S. LEXIS 1579 (U.S. 1990), disapproved, Parke v. Raley, 506 U.S. 20, 113 S. Ct. 517, 121 L. Ed. 2d 391, 1992 U.S. LEXIS 7661 (U.S. 1992).

Due process permitted Commonwealth to employ burden of proof scheme when allowing recidivism defendants to attack previous convictions as invalid under Boykin v. Alabama, 395 U.S. 238, 89 S. Ct. 1709, 23 L. Ed. 2d 274 (1969). When defendant challenges a previous conviction through a suppression motion the Commonwealth must prove the existence of the judgment on which it intends to rely and once this is done a presumption of regularity attaches and the burden shifts to defendant to produce evidence that his rights were infringed by some procedural irregularity, after which the burden shifts back to the Commonwealth to affirmatively show that the underlying judgment was entered in a manner that did, in fact, protect defendant’s rights. In recidivism proceedings it is not unfair to place at least a burden of production on defendant who challenges the validity of a prior conviction under Boykin. Parke v. Raley, 506 U.S. 20, 113 S. Ct. 517, 121 L. Ed. 2d 391, 1992 U.S. LEXIS 7661 (U.S. 1992).

The Commonwealth must prove all the requirements of this section beyond a reasonable doubt, and cannot, by inference or guesswork, confer persistent felony offender status on anyone. Davis v. Commonwealth, 899 S.W.2d 487, 1995 Ky. LEXIS 47 ( Ky. 1995 ), overruled in part, Merriweather v. Commonwealth, 99 S.W.3d 448, 2003 Ky. LEXIS 39 ( Ky. 2003 ).

Reasonable inference is sufficient to meet the requirements of the persistent felony offender statute, KRS 532.080(2)(c)Shabazz v. Commonwealth, 153 S.W.3d 806, 2005 Ky. LEXIS 1 ( Ky. 2005 ).

17.Charging Habitual Offender Status.

Separate charges in indictment under former habitual criminal law need not have closed with the statement that the offense was “against the peace and dignity of the Commonwealth.” This statement at the close of the indictment was sufficient. (Decided under prior law) Rawlings v. Commonwealth, 191 Ky. 401 , 230 S.W. 529, 1921 Ky. LEXIS 322 ( Ky. 1921 ).

Additional counts which charged prior convictions of felonies, in indictment for murder, did not constitute charges of commission of a public offense, their only purpose being to permit evidence for the purpose of increasing the penalty. (Decided under prior law) Canter v. Commonwealth, 274 Ky. 508 , 119 S.W.2d 864, 1938 Ky. LEXIS 310 ( Ky. 1938 ).

Indictment for willful murder that contained count under former habitual criminal law was not fatally defective as surplusage on the ground that other crimes could add nothing to punishment of life imprisonment or death, nor prejudicial to accused, since accused could have been convicted of a lesser degree of homicide not punishable with life imprisonment or death, and punishment for which might have been augmented. (Decided under prior law) Smiddy v. Commonwealth, 287 Ky. 276 , 152 S.W.2d 949, 1941 Ky. LEXIS 532 ( Ky. 1941 ).

An indictment which charged the defendant under the habitual criminal statute and which alleged that he had been previously convicted of voluntary manslaughter and sentenced to 21 years in the penitentiary was sufficient, although it failed to allege that voluntary manslaughter is a felony. (Decided under prior law) Green v. Commonwealth, 281 S.W.2d 637, 1955 Ky. LEXIS 199 ( Ky. 1955 ).

Although on a prosecution under former habitual criminal law the court committed error when it overruled the defendant’s objection to the reading of the indictment under which he was formerly convicted, such was not reversible error under RCr 9.24 and 9.26. (Decided under prior law) Taylor v. Commonwealth, 449 S.W.2d 208, 1969 Ky. LEXIS 28 ( Ky. 1969 ).

Unless there is some special necessity for reading the indictment of a former conviction, it should not be permitted. (Decided under prior law) Taylor v. Commonwealth, 449 S.W.2d 208, 1969 Ky. LEXIS 28 ( Ky. 1969 ).

There was not deprivation of defendant’s constitutional rights in the reading to the jury of the indictment charging him as an habitual criminal. (Decided under prior law) Shull v. Commonwealth, 475 S.W.2d 469, 1971 Ky. LEXIS 67 ( Ky. 1971 ).

Indictment with habitual criminal count which did not identify the previous convictions was not fatally defective as deficiency could have been cured by motion for bill of particulars or timely objection. (Decided under prior law) Strong v. Commonwealth, 507 S.W.2d 691, 1974 Ky. LEXIS 741 ( Ky. 1974 ).

It is not necessary in an indictment to charge facts constituting a basis for the imposition of the habitual criminal penalty for each primary offense constituting separate counts of indictment; one properly pleaded charge of being a habitual criminal is sufficient for an indictment containing multiple charges. (Decided under prior law) Berning v. Commonwealth, 550 S.W.2d 561, 1977 Ky. LEXIS 448 ( Ky. 1977 ).

One properly pleaded charge of being a habitual criminal is sufficient for an indictment containing multiple charges. Wilhite v. Commonwealth, 574 S.W.2d 304, 1978 Ky. LEXIS 447 ( Ky. 1978 ).

The Commonwealth may not seek to enhance a misdemeanor weapons charge to a felony and then use the conviction of that felony to “trigger” further enhanced punishment via the persistent felony offender statute. Heady v. Commonwealth, 597 S.W.2d 613, 1980 Ky. LEXIS 208 ( Ky. 1980 ).

Since defendant’s status as a convicted felon establishes the substantive offense of possession of a handgun by a convicted felon under KRS 527.020 , the same status cannot be used to trigger enhanced punishment under the persistent felony-offender statute under this section. Boulder v. Commonwealth, 610 S.W.2d 615, 1980 Ky. LEXIS 288 ( Ky. 1980 ), overruled, Dale v. Commonwealth, 715 S.W.2d 227, 1986 Ky. LEXIS 284 ( Ky. 1986 ).

For sentencing defendant as a persistent felony offender under this section it is only necessary that the Commonwealth establish that as to any one of the previous felonies the defendant has completed service of sentence, or has been discharged from parole within the past five years, or has not yet completed his sentence, or has not yet been discharged from probation or parole. Howard v. Commonwealth, 608 S.W.2d 62, 1980 Ky. App. LEXIS 382 (Ky. Ct. App. 1980).

Where defendant was arraigned on separate indictment for persistent felony offender (PFO) charge nearly one (1) full month before he proceeded to trial, he was not in any way deprived of notice of or an opportunity to defend against the charge and there was no error in the fact that he was charged as a PFO in an indictment separate from the indictment charging him with robbery. Price v. Commonwealth, 666 S.W.2d 749, 1984 Ky. LEXIS 223 ( Ky. 1984 ).

If the Commonwealth seeks enhancement by proof of persistent felony offender status, the defendant is entitled to notice of this before the trial of the underlying substantive offense; a separate indictment meets this requirement just as does a separate count in the indictment charging the substantive offense to which it refers and this section does not require that the charge be included in the same indictment which charges the underlying offense. Price v. Commonwealth, 666 S.W.2d 749, 1984 Ky. LEXIS 223 ( Ky. 1984 ).

While it is true that the statute is an enhancement provision and that a present felony conviction is required to trigger its operation, this does not mean that a persistent felony offender charge cannot be set out in a separate indictment; all that is required if the Commonwealth seeks enhancement by proof of persistent felony offender status is that the defendant be given notice of this before the trial of the underlying substantive offense. Jackson v. Commonwealth, 20 S.W.3d 906, 2000 Ky. LEXIS 76 ( Ky. 2000 ).

Defendant was entitled to a third trial with regard to his alleged sexual abuse of his wife’s daughter while the wife was at work because the Commonwealth improperly joined a misdemeanor charge of failing to register as a sex offender under 2000 Ky. Acts 401 with a misdemeanor handgun charge, instead of retaining a felony sodomy charge and, therefore, the circuit court did not have jurisdiction to try the case and should have remanded the same to the district court for disposition since the district court had exclusive jurisdiction over misdemeanor cases. Dickerson v. Commonwealth, 174 S.W.3d 451, 2005 Ky. LEXIS 325 ( Ky. 2005 ).

Order granting defendant’s motion to dismiss a charge of persistent felony offender was error because, although the PFO indictment was handed down after the Commonwealth moved to continue the trial on other charges, there was no evidence of prosecutorial misconduct and the delay in bringing the PFO count did not prejudice the defense; the very nature of a PFO charge involved the status of the offender and the length of the punishment, not a separate or independent criminal offense. Likewise, because a PFO charge was a status offense, defendant was subject to retrial without violating double jeopardy. Commonwealth v. Hill, 228 S.W.3d 15, 2007 Ky. App. LEXIS 176 (Ky. Ct. App. 2007).

18.—Former Offenses Included.

A murder indictment charging previous convictions for felony did not charge two (2) offenses and was not duplicitous. (Decided under prior law) Elliott v. Commonwealth, 290 Ky. 502 , 161 S.W.2d 633, 1941 Ky. LEXIS 7 ( Ky. 1941 ).

An indictment which charged the defendant with murder and with a violation of former habitual criminal law was not duplicitous. (Decided under prior law) Stodghill v. Commonwealth, 305 Ky. 451 , 204 S.W.2d 570, 1947 Ky. LEXIS 830 ( Ky. 1947 ).

Inclusion in the indictment of two (2) counts charging two (2) previous convictions was not error as charging two (2) offenses; the counts concerning previous convictions address themselves only to the penalty. (Decided under prior law) Wolford v. Buchanan, 313 Ky. 512 , 232 S.W.2d 1016, 1950 Ky. LEXIS 920 ( Ky. 1950 ).

Defendant was not prejudiced by the fact that he was charged as an habitual criminal as well as for a capital offense, for even had he been convicted of a lesser degree of the principal charge, the penalty under former habitual offender law could have been imposed. (Decided under prior law) Irvin v. Commonwealth, 407 S.W.2d 122, 1966 Ky. LEXIS 136 ( Ky. 1966 ).

The Commonwealth, in amending indictment which contained successive counts charging prior felony convictions, could elect which counts would be dismissed and which counts would remain in the indictment. (Decided under prior law) Newton v. Commonwealth, 487 S.W.2d 950, 1972 Ky. LEXIS 101 ( Ky. 1972 ).

Trial court’s jury instruction for first-degree persistent felony offender was incorrect under KRS 532.080(8) because it allowed the jury to convict defendant based on a prior conviction for possession of drug paraphernalia, second offense, in violation of KRS 218A.500 . Sanders v. Commonwealth, 2009 Ky. LEXIS 142 (Ky. June 25, 2009).

19.—Imprisonment for Underlying Charge.

A defendant cannot be convicted as a persistent felony offender unless a term of imprisonment was imposed as punishment for the underlying charge. Davis v. Manis, 812 S.W.2d 505, 1991 Ky. LEXIS 90 ( Ky. 1991 ).

20.—Sequence of Convictions.

The indictment must show that the offense presently charged was committed subsequent to a former conviction, but no specific allegation of this fact is necessary where the dates appearing in the indictment show the sequence of offenses. (Decided under prior law) Brown v. Commonwealth, 119 Ky. 670 , 61 S.W. 4, 22 Ky. L. Rptr. 1582 , 1901 Ky. LEXIS 11 ( Ky. 1901 ); Morgan v. Commonwealth, 170 Ky. 400 , 186 S.W. 132, 1916 Ky. LEXIS 70 ( Ky. 1916 ).

An indictment which failed to charge that the principal crime of storehouse breaking was committed after both judgments of conviction of previous crimes were rendered was defective. (Decided under prior law) Harrod v. Whaley, 239 S.W.2d 480, 1951 Ky. LEXIS 898 ( Ky. 1951 ).

An indictment which charged the defendant under the habitual criminal statute and which alleged an indictment, trial and judgment in 1926, with allegations of crime in 1953, was sufficient to meet requirements that indictment must charge that the crimes were committed in sequence after conviction for a previous one. (Decided under prior law) Green v. Commonwealth, 281 S.W.2d 637, 1955 Ky. LEXIS 199 ( Ky. 1955 ).

Where the indictment alleged that the defendant had been convicted of a felony and received a two (2) year sentence in 1948, again convicted of a felony and sentenced in 1951, the 1951 conviction occurring prior to the present charge and the 1948 conviction occurring prior to the 1951 conviction and the present charge, it was sufficient to meet the requirements of former habitual offender law. (Decided under prior law) Hill v. Commonwealth, 296 S.W.2d 221, 1956 Ky. LEXIS 193 ( Ky. 1956 ).

The failure of the indictment to aver that the previous crimes were committed progressively after each conviction did not make the judgment and life sentence void. (Decided under prior law) Ramsey v. Commonwealth, 399 S.W.2d 473, 1966 Ky. LEXIS 463 (Ky.), cert. denied, 385 U.S. 865, 87 S. Ct. 126, 17 L. Ed. 2d 93, 1966 U.S. LEXIS 889 (U.S. 1966).

Felony for which defendant was on pretrial diversion could not be used to indict the defendant as a second-degree persistent felony offender, under KRS 532.080 , because, (1) when defendant pled guilty as a condition of being granted pretrial diversion, under KRS 533.250(1)(f), no sentence was imposed, and (2) KRS 532.080 (2) required the imposition of a sentence on a prior felony conviction to find that defendant had the status of a persistent felony offender. Commonwealth v. Derringer, 386 S.W.3d 123, 2012 Ky. LEXIS 201 ( Ky. 2012 ).

When defendant was charged with committing a felony, after defendant had been granted felony pretrial diversion, the Commonwealth could not seek revocation of the pretrial diversion order and then charge defendant with being a second-degree persistent felony offender (PFO) after defendant was sentenced on the previously diverted felony conviction because the prior felony conviction had to occur before defendant committed the later crime the Commonwealth sought to enhance, as the conviction, not the act, had to precede the commission of a present offense in order to trigger a PFO charge. Commonwealth v. Derringer, 386 S.W.3d 123, 2012 Ky. LEXIS 201 ( Ky. 2012 ).

Prior felony conviction could not form the basis of a charge of being a second-degree persistent felony offender (PFO 2) unless a sentence for that conviction had been imposed at the time the defendant committed the present crime because, when a defendant was granted pretrial diversion on a felony conviction, a sentence for that conviction was not imposed, if ever, unless and until the pretrial diversion agreement was voided, so a conviction for which a defendant was currently on diversion could not be used to indict that defendant as a PFO 2 when the defendant committed a subsequent felony offense. Commonwealth v. Derringer, 386 S.W.3d 123, 2012 Ky. LEXIS 201 ( Ky. 2012 ).

21.Death Penalty.

In any case in which the death penalty is sought, the capital penalty sentencing phase pursuant to KRS 532.025 should be conducted before the truth-in-sentencing hearing under KRS 532.055(2) and the persistent felony offender proceeding under this section are held. Francis v. Commonwealth, 752 S.W.2d 309, 1988 Ky. LEXIS 38 ( Ky. 1988 ).

It was not reversible error for the trial judge to hold a persistent felony offender hearing prior to the sentencing phase of capital murder, where the defendant introduced evidence concerning his own record in the guilt phase. Francis v. Commonwealth, 752 S.W.2d 309, 1988 Ky. LEXIS 38 ( Ky. 1988 ).

22.Double Jeopardy.

This section does not create or define a criminal offense, but merely recognizes a status and, in a proceeding separate and apart from the initial trial, fixes a penalty which is to be imposed rather than the one fixed by the jury on the initial trial; it does not impose additional punishment and, therefore, does not place defendant in double jeopardy. Hardin v. Commonwealth, 573 S.W.2d 657, 1978 Ky. LEXIS 415 ( Ky. 1978 ).

Where defendant was convicted as second degree persistent felony offender under this section on the basis of a prior felony, which had been used in another second degree persistent felony offender conviction, there was no double jeopardy created, since habitual criminality is a status under this section to which jeopardy does not attach as opposed to an independent crime. Smith v. Commonwealth, 610 S.W.2d 939, 1980 Ky. App. LEXIS 415 (Ky. Ct. App. 1980).

Inasmuch as the former habitual criminal statute did not establish an independent criminal offense, but rather defined a status and thereby served to enhance punishment for a crime committed by a person who was an habitual criminal, a defendant was not subjected to double jeopardy where the same prior felony convictions were twice used to enhance his punishment as an habitual criminal. (Decided under prior law) Montgomery v. Bordenkircher, 620 F.2d 127, 1980 U.S. App. LEXIS 18176 (6th Cir. Ky.), cert. denied, 449 U.S. 857, 101 S. Ct. 155, 66 L. Ed. 2d 71, 1980 U.S. LEXIS 3056 (U.S. 1980).

The persistent felony offender statute defines a status, not an independent criminal offense. Because it is a status, double jeopardy does not attach. Malicoat v. Commonwealth, 637 S.W.2d 640, 1982 Ky. LEXIS 287 ( Ky. 1982 ).

The defendant was not placed twice in jeopardy when he was tried for second degree persistent felony offender after having his earlier conviction for first degree persistent felony offender set aside, where it was apparent from the record that the trial judge’s order to set aside was based upon a finding of insufficient evidence to sustain the jury’s guilty verdict. The order setting aside said nothing of the sufficiency of the evidence to convict defendant of second degree persistent felony offender and it could not be inferred from the jury’s verdict in the first proceeding that the defendant was acquitted of it. Gill v. Commonwealth, 648 S.W.2d 846, 1982 Ky. LEXIS 334 ( Ky. 1982 ).

When a single prior felony is used to create an offense or enhance a punishment of the second crime so created or enhanced, it may not be used again at that trial to prosecute the defendant under this section. Commonwealth v. Grimes, 698 S.W.2d 836, 1985 Ky. LEXIS 281 ( Ky. 1985 ).

Although the defendant was discharged from prison by parole in 1972 for his 1967 convictions, he was returned to custody in 1975 as a parole violator, and his return to prison on the new sentence for the 1975 conviction automatically revoked his parole on the 1967 convictions. The defendant completed serving his sentences for the 1967 and 1975 convictions when he was discharged in 1978, at the minimum expiration of the sentence for his 1975 conviction. Since the events which lead to his conviction on first degree robbery and possession of a handgun by a convicted felon charges occurred in 1981, the 1967 convictions satisfied the five (5) year limitation period under subdivision (3)(c)1 of this section; accordingly, the enhanced punishment under the persistent felony offender statute did not constitute double jeopardy. Robards v. Rees, 789 F.2d 379, 1986 U.S. App. LEXIS 24622 (6th Cir. Ky. 1986 ).

The defendant was not subjected to double jeopardy and double enhancement by the use of his previous conviction as a basis for his conviction as a persistent felony offender under this section and its use again to impose consecutive sentences pursuant to subsection (2) of KRS 533.060 . Corbett v. Commonwealth, 717 S.W.2d 831, 1986 Ky. LEXIS 288 ( Ky. 1986 ).

The second verdict rendered by the jury finding the defendants guilty of being first-degree persistent felony offenders violated their right against double jeopardy, where the jury was not reassembled to further deliberate a question under corrected instructions, but was reassembled to consider the same issue it had previously decided. Burchett v. Commonwealth, 734 S.W.2d 818, 1987 Ky. App. LEXIS 528 (Ky. Ct. App. 1987).

Persistent felony offender (PFO) proceedings under this section, do not establish an independent criminal offense but merely defines a status and serves to enhance punishment for a crime committed by a person who is a habitual criminal; therefore defendant was not placed in double jeopardy where incidence of the same prior felony connections used to enhance his sentence as a second degree PFO in first trial were used to enhance his sentence in second trial as a first degree PFO. Carpenter v. Chapleau, 72 F.3d 1269, 1996 FED App. 0011P, 1996 U.S. App. LEXIS 339 (6th Cir. Ky.), cert. denied, 519 U.S. 835, 117 S. Ct. 108, 136 L. Ed. 2d 61, 1996 U.S. LEXIS 5014 (U.S. 1996).

Reversal of a persistent felony conviction on the grounds that the evidence supporting the conviction was erroneously admitted does not, under double jeopardy principles, prohibit retrial; reversal for a trial error which incorrectly admitted incompetent evidence does not constitute a decision that the government has failed to prove its case, but is a determination that although the government did prove its case, it did so by evidence which was incompetent, and defendant is entitled to a new trial free of this procedural defect. Merriweather v. Commonwealth, 99 S.W.3d 448, 2003 Ky. LEXIS 39 ( Ky. 2003 ).

Because the underlying crimes for which defendant was convicted (trafficking in cocaine and tampering with physical evidence) could be retried, so too could a persistent felony offender (PFO) charge. There was no double jeopardy bar as to retrial of the PFO charge. Whittle v. Commonwealth, 352 S.W.3d 898, 2011 Ky. LEXIS 141 ( Ky. 2011 ).

Trial court did not palpably err in using appellant’s single prior felony conviction to establish the offense of possession of a handgun by a convicted felon and to enhance the first-degree robbery sentences under the persistent felony offender statute as there was no double enhancement. Oro-Jimenez v. Commonwealth, 412 S.W.3d 174, 2013 Ky. LEXIS 459 ( Ky. 2013 ).

23.Due Process.

Where one charged with grand larceny as well as being an habitual criminal was tried upon the indictment as a whole, concurrent trial of both counts in the indictment was not prejudicial. (Decided under prior law) Winn v. Commonwealth, 303 S.W.2d 275, 1957 Ky. LEXIS 243 ( Ky. 1957 ).

It was not error to try the defendant for grand larceny and violation of the habitual criminal act in the same trial where the defendant did not ask for separate trials. (Decided under prior law) Ingram v. Commonwealth, 427 S.W.2d 815, 1968 Ky. LEXIS 695 ( Ky. 1968 ).

A fair trial was not denied to the accused where the was tried jointly for armed robbery and violation of the habitual criminal statute. (Decided under prior law) Murray v. Commonwealth, 474 S.W.2d 359, 1971 Ky. LEXIS 102 ( Ky. 1971 ); Stewart v. Commonwealth, 479 S.W.2d 23, 1972 Ky. LEXIS 289 ( Ky. 1972 ).

Because defendant, petitioning for habeas corpus on grounds that his due process rights were violated because his PFO conviction was obtained without proof of the date he committed an offense, failed to move for a directed verdict on the PFO count at state trial, defendant’s due process claim was procedurally defaulted under Kentucky law and federal habeas review of that claim was barred unless petitioner can demonstrate that cause and prejudice will excuse the procedural default or that failure to consider that claim will result in a fundamental miscarriage of justice. Simpson v. Sparkman, 94 F.3d 199, 1996 FED App. 0276P, 1996 U.S. App. LEXIS 21739 (6th Cir. Ky. 1996 ).

By entering a persistent felony offender conviction to which defendant neither pled guilty to nor was found guilty, the trial court denied defendant the right to exercise the full panoply of the relevant protections, which due process guaranteed in state criminal proceedings; thus, the conviction was vacated. O'Neil v. Commonwealth, 114 S.W.3d 860, 2003 Ky. App. LEXIS 62 (Ky. Ct. App. 2003).

Defendant’s due process rights were violated when the Commonwealth indicted defendant on a persistent felony offender offense during his trial on the underlying substantive offense. Clark v. Commonwealth, 324 S.W.3d 747, 2010 Ky. App. LEXIS 202 (Ky. Ct. App. 2010).

24.—Appeal.

Where a defendant who was convicted and sentenced under the habitual criminal law attacked the act on the ground that it was unconstitutional, his remedy was by appeal from his conviction rather than by a petition for habeas corpus. (Decided under prior law) Hampton v. Whaley, 313 Ky. 611 , 233 S.W.2d 273, 1950 Ky. LEXIS 949 ( Ky. 1950 ).

Under former habitual criminal law, one convicted as a habitual criminal who did not raise the issue on direct appeal could not thereafter base a collateral attack on that conviction upon an assertion that one of the prior convictions upon which the habitual criminal conviction was based was void. (Decided under prior law) Canary v. Bland, 583 F.2d 887, 1978 U.S. App. LEXIS 9181 (6th Cir. Ky. 1978 ).

25.Elements.

Under this section as it existed prior to the 1976 amendment, a conviction could not stand where there was no proof that a defendant had been discharged from probation or parole for the felonies for which he was last convicted, since each element of the offense prescribed by the legislature is equally essential to support a conviction. (Decided under prior law) Newton v. Commonwealth, 558 S.W.2d 167, 1977 Ky. LEXIS 550 ( Ky. 1977 ).

Each element of the offense of being a persistent felony offender must be proven, beyond a reasonable doubt, by direct evidence. Callison v. Commonwealth, 706 S.W.2d 434, 1986 Ky. App. LEXIS 1073 (Ky. Ct. App. 1986).

Unlike the age provision of this section which requires that a defendant must have been at least 18 years old on the date a prior felony was committed, the parole status/release from sentence provisions are in the alternative, any one of which may be an element of the offense. Callison v. Commonwealth, 706 S.W.2d 434, 1986 Ky. App. LEXIS 1073 (Ky. Ct. App. 1986).

26.—Discharge of Defendant Twice.

Proof that the defendant was discharged from supervision or probation twice, not proof of two (2) or more prior convictions, is mandatory under the persistent felony statute. Martin v. Commonwealth, 571 S.W.2d 613, 1978 Ky. LEXIS 392 ( Ky. 1978 ).

27.Evidence.

In a prosecution under former habitual criminal law testimony of the clerk of the court, who produced records of defendant’s former trials and testified that defendant had been indicted, tried and convicted of two (2) crimes set out in the indictment, and that judgments had not been appealed from or set aside, was competent to establish prior convictions. (Decided under prior law) Stodghill v. Commonwealth, 305 Ky. 451 , 204 S.W.2d 570, 1947 Ky. LEXIS 830 ( Ky. 1947 ).

In a prosecution under former habitual criminal law, it was not error to exclude evidence that the governor had commuted the defendant’s original sentence and had restored him to citizenship. (Decided under prior law) Green v. Commonwealth, 281 S.W.2d 637, 1955 Ky. LEXIS 199 ( Ky. 1955 ).

Where the defendant was convicted of malicious cutting and wounding with intent to kill and was also charged with two (2) prior felony convictions, he might have been sentenced to life imprisonment under former habitual criminal law but received only a ten (10) year sentence and, therefore, there was no prejudice to the defendant in excluding evidence that the victim had been intimate with the defendant’s former wife. (Decided under prior law) Lewis v. Commonwealth, 318 S.W.2d 857, 1958 Ky. LEXIS 151 ( Ky. 1958 ).

Where an indictment charged cattle theft and a prior felony conviction, the prior conviction was sufficiently proved where the clerk of the Circuit Court, who was identified as the custodian of the records of that court, was introduced and testified that the defendant had been previously convicted, testified to the date and place of the recordation of the conviction, and read the record of conviction to the jury. (Decided under prior law) Pennington v. Commonwealth, 328 S.W.2d 549, 1959 Ky. LEXIS 133 ( Ky. 1959 ).

Where at the trial, the chief deputy circuit court clerk read the indictment to the jury, which charged the defendant with a prior crime of armed robbery, and then testified that the record reflected that the defendant had been tried and convicted on the charge, the method of introducing a prior conviction was proper. (Decided under prior law) Johnson v. Commonwealth, 431 S.W.2d 857, 1968 Ky. LEXIS 376 ( Ky. 1968 ).

Where the dates proved that previous crimes were committed prior to the present crime, further proof to that effect was unnecessary. (Decided under prior law) Howard v. Commonwealth, 487 S.W.2d 689, 1972 Ky. LEXIS 72 ( Ky. 1972 ).

Where the official records were not introduced into evidence but were present in court and a deputy circuit clerk examined them and testified as to the defendant’s previous convictions, the procedure was sufficient to prove the habitual criminal charge. (Decided under prior law) Stewart v. Commonwealth, 479 S.W.2d 23, 1972 Ky. LEXIS 289 ( Ky. 1972 ).

Proof of prior felony convictions in an habitual criminal case is established by reading into evidence the judgments of prior convictions contained in the order books of the trial court and it was error for the trial court to permit the reading of the indictments upon which the prior convictions were based in addition to the introduction of the judgments. (Decided under prior law) Johnson v. Commonwealth, 516 S.W.2d 648, 1974 Ky. LEXIS 137 ( Ky. 1974 ).

In trial for being an habitual criminal, it was unnecessary and improper for the clerk to read to the jury the indictments upon which defendant’s prior felony convictions were had and to portray before the jury the investigation which led to defendant’s arrest and conviction; however, these errors did not affect the action of the jury in considering defendant’s guilt or innocence of the two (2) principal offenses but were prejudicial to the nature or extent of the penalty that could be imposed. (Decided under prior law) Berning v. Commonwealth, 550 S.W.2d 561, 1977 Ky. LEXIS 448 ( Ky. 1977 ).

Where the references by the Circuit Court clerk to the nature of the prior felony convictions were fleeting and were utilized only for purposes of differentiating between the various felonies, the cumulative effect of such evidence did not render the trial unfair. Berning v. Commonwealth, 565 S.W.2d 443, 1978 Ky. LEXIS 352 ( Ky. 1978 ).

Defendant was not denied due process under Ky. Const., § 11, where trial court refused to allow him to introduce character evidence by a psychologist and family members, since character evidence would not support or refute the status of a persistent felony offender under this section, but rather would, in effect, grant the defendant a retrial on past felony convictions. White v. Commonwealth, 611 S.W.2d 529, 1980 Ky. App. LEXIS 419 (Ky. Ct. App. 1980), cert. denied, 452 U.S. 966, 101 S. Ct. 3119, 69 L. Ed. 2d 978, 1981 U.S. LEXIS 2563 (U.S. 1981).

Where testimony showed that defendant had previously been convicted as a second-degree persistent felony offender, and while reference was made to this fact, the “PFO” conviction itself was clearly not one of the crimes used to enhance the present conviction, the jury’s knowledge that he had previously been found to be a PFO was not unduly prejudicial. Malicoat v. Commonwealth, 637 S.W.2d 640, 1982 Ky. LEXIS 287 ( Ky. 1982 ).

In persistent felony offender proceedings, the necessity requirement for the introduction of hearsay evidence in the form of record entries made in the regular course of duty by officials of the bureau of corrections was satisfied by the very nature of the evidence sought to be introduced, and therefore the trial court did not err when it allowed a probation and parole officer to testify from the duly proven records of the bureau of corrections in order to prove two (2) elements required by this section, the age and parole status of the defendant. Garner v. Commonwealth, 645 S.W.2d 705, 1983 Ky. LEXIS 216 ( Ky. 1983 ).

Under RCr 7.24(2), defendant challenging validity of prior conviction in persistent offender proceedings is entitled to move for inspection and copying of all documents which will be used to establish the previous conviction; such documents as well as any countervailing documents should be made available and should be examined at preliminary hearing. Commonwealth v. Gadd, 665 S.W.2d 915, 1984 Ky. LEXIS 214 ( Ky. 1984 ), overruled in part, Commonwealth v. Fugate, 527 S.W.3d 43, 2017 Ky. LEXIS 373 ( Ky. 2017 ), overruled in part, Commonwealth v. Fugate, 2017 Ky. LEXIS 202 (Ky. Apr. 27, 2017).

Permitting a probation officer to testify concerning defendants’ dates of birth and probationary status on the date of the offense, during the persistent felony offenders portion of the trial was proper, since both defendants and their attorneys consented to the presentence investigation and the information objected to was not known only by the defendants for dates of birth and prior criminal history are matters of public record; the probation officer was merely attempting to verify that the information he had obtained in his investigation was accurate and it was in the interest of each defendant that such was the case; therefore, there was no requirement that the defendants be advised of their rights. Booth v. Commonwealth, 675 S.W.2d 856, 1984 Ky. LEXIS 266 ( Ky. 1984 ).

Testimony as to when defendant was released from confinement from prior offenses was relevant to sentencing and admissible under subdivision (2)(a)3 of KRS 532.055 , and the jury properly used evidence of his probation and parole history to enhance his sentence under this section. Lemon v. Commonwealth, 760 S.W.2d 94, 1988 Ky. App. LEXIS 96 (Ky. Ct. App. 1988).

The rule in Garner v. Commonwealth , 645 S.W.2d 705, 1983 Ky. LEXIS 216 (1983), which held that hearsay testimony based on Department of Corrections records was admissible in a persistent felony offender proceeding to prove the defendant’s age and parole status, was extended, when the defendant’s identity is not manifest, to include the defendant’s home address, social security number, and parents’ names. Johnson v. Commonwealth, 883 S.W.2d 482, 1994 Ky. LEXIS 53 ( Ky. 1994 ).

Subsections (2) and (3) of this section require proof of the fact of “previous felony convictions” and not their underlying validity. McGuire v. Commonwealth, 885 S.W.2d 931, 1994 Ky. LEXIS 123 ( Ky. 1994 ).

Where the direct evidence established persistent felony offender (PFO) status beyond a reasonable doubt and the jury decision as to the PFO charge was based on a reasonable inference which was a logical consequence of the evidence presented to it, the evidence was properly admitted. Martin v. Commonwealth, 13 S.W.3d 232, 1999 Ky. LEXIS 143 ( Ky. 1999 ).

Evidence of defendant’s persistent felony offender status was sufficient to have sustained his drug felony convictions where the evidence in the case established that defendant had been placed on probation for previously committed crimes. Such evidence created a reasonable inference that defendant was on probation when he committed the drug felony crimes. Shabazz v. Commonwealth, 153 S.W.3d 806, 2005 Ky. LEXIS 1 ( Ky. 2005 ).

Age as recited in a prior judgment of conviction was probably sufficient circumstantial evidence to indicate that defendant was over 18 at the time of a prior felony, but failure of either side to append such information in the record further led the Supreme Court to presume that the conviction judgment was accurate; furthermore, defendant’s testimony indicated the existence of several prior felony convictions, presumably as an adult. Moody v. Commonwealth, 170 S.W.3d 393, 2005 Ky. LEXIS 243 ( Ky. 2005 ).

Trial court erroneously allowed the Commonwealth to prove defendant criminal history during the penalty phase with testimony based upon CourtNet, a product compiled by the Administrative Office of the Courts that was not intended as an official record of that background, because CourtNet was not an appropriate document to use to influence a jury’s decision on fixing a penalty when it lacked the requisite indicia of reliability necessary to reliably prove a defendant’s prior convictions, and it could not be said that the evidence had no effect on defendant’s persistent felony offender penalty as well as that for the underlying offenses; evidence based on a document such as CourtNet, which proclaims that it is not official, may not reflect the true status of cases, and whose accuracy cannot be guaranteed, is not competent to be weighed in fixing a penalty. Finnell v. Commonwealth, 295 S.W.3d 829, 2009 Ky. LEXIS 254 ( Ky. 2009 ).

28.—Pretrial Challenge.

The defendant is apprised of the previous conviction that will be used against him by the face of the indictment and, at this point, he should challenge by motion any conviction so appearing if he has evidence that it was obtained by means constitutionally impermissible; the question of some underlying constitutional invalidity should be raised by the defendant and decided before the trial as a threshold issue to the admissibility of the evidence of conviction at the trial itself. Commonwealth v. Gadd, 665 S.W.2d 915, 1984 Ky. LEXIS 214 ( Ky. 1984 ), overruled in part, Commonwealth v. Fugate, 527 S.W.3d 43, 2017 Ky. LEXIS 373 ( Ky. 2017 ), overruled in part, Commonwealth v. Fugate, 2017 Ky. LEXIS 202 (Ky. Apr. 27, 2017).

Despite persistent felony offender’s claim that he was not granted a hearing regarding the validity of certain prior convictions, and that his guilty pleas concerning those convictions were not knowingly and intelligently entered, there was no due process violation where defendant did not challenge those convictions at a hearing that was granted to provide him with an opportunity to make such a challenge, and where defendant admitted that prior to pleading guilty, he had spoken to a lawyer, that he was satisfied with the representation so provided, that he understood he had a right to a jury trial, and that he was pleading guilty because he was in fact guilty of the crime charged. Pottinger v. Warden, Northpoint Training Center, 716 F. Supp. 1005, 1989 U.S. Dist. LEXIS 7965 (W.D. Ky. 1989 ), aff'd, 899 F.2d 1222 (6th Cir. Ky. 1990 ).

Where the charge of being a persistent felony offender (PFO) in the second degree to which defendant pled guilty in 1983, was predicated upon his 1980 convictions, had he considered those convictions to be infirm, the time to attack them was in 1983 when the challenge was a live issue; once he acquiesced to this charge, the validity of his conviction as a PFO in the second degree became final and could not be resurrected subsequent to his 1988 plea to being a PFO in the first degree. Howard v. Commonwealth, 777 S.W.2d 888, 1989 Ky. LEXIS 70 ( Ky. 1989 ), cert. denied, 494 U.S. 1068, 110 S. Ct. 1787, 108 L. Ed. 2d 789, 1990 U.S. LEXIS 1735 (U.S. 1990).

29.—When Presented.

The question of a former conviction is to be presented to the jury during the trial and not after a verdict is returned on the present offense charged. (Decided under prior law) Sweeney v. Commonwealth, 39 S.W. 22, 18 Ky. L. Rptr. 1020 (1897).

The introduction of former convictions to the jury for joint consideration with the issue of a specific crime charged was not denial of due process. (Decided under prior law) Wilson v. Commonwealth, 403 S.W.2d 705, 1966 Ky. LEXIS 345 ( Ky. 1966 ).

The jury is permitted to consider evidence of the previous felony convictions along with the current charge. (Decided under prior law) Cole v. Commonwealth, 405 S.W.2d 753, 1966 Ky. LEXIS 271 ( Ky. 1966 ).

Allowing the jury to hear evidence of previous convictions before it had heard any evidence as to the present offense did not violate the defendant’s right to a fair trial or deny him due process. (Decided under prior law) Hamm v. Commonwealth, 407 S.W.2d 138, 1966 Ky. LEXIS 146 ( Ky. 1966 ).

30.Guilty Pleas.

Where former conviction of felony is pleaded and the defendant admits the fact on the trial, it is unnecessary for the Commonwealth to introduce evidence upon this point, and the jury is warranted in finding him to be an habitual criminal. (Decided under prior law) Anderson v. Commonwealth, 176 Ky. 373 , 195 S.W. 794, 1917 Ky. LEXIS 59 ( Ky. 1917 ).

In a petition for habeas corpus, the prisoner’s allegation that he pleaded guilty to a three (3) count indictment where the last two (2) counts charged previous felony convictions without being advised of the significance of the charges of previous convictions and being aware of pleading guilty to only the first charge was sufficient to raise a question of fact as to his knowledge of the consequences of his plea so as to entitle him to a hearing. (Decided under prior law) Holt v. Kentucky, 284 F.2d 395, 1960 U.S. App. LEXIS 3065 (6th Cir. Ky. 1960 ).

Where the defendant offered a plea of guilty to an indictment charging forgery and two (2) former convictions, it was not necessary for the state to offer proof in support of the indictment. (Decided under prior law) Lloyd v. Jones, 192 F. Supp. 501, 1961 U.S. Dist. LEXIS 3121 (W.D. Ky. 1961 ); Nash v. Commonwealth, 272 S.W.2d 464, 1954 Ky. LEXIS 1106 ( Ky. 1954 ); Lloyd v. Jones, 339 S.W.2d 479, 1960 Ky. LEXIS 470 ( Ky. 1960 ), cert. denied, 364 U.S. 938, 81 S. Ct. 389, 5 L. Ed. 2d 370, 1961 U.S. LEXIS 1927 (U.S. 1961); Nolan v. Thomas, 370 S.W.2d 825, 1963 Ky. LEXIS 82 ( Ky. 1963 ).

Where the defendant entered a plea of guilty to an indictment charging assault with a deadly weapon and intent to rob and 11 previous felony convictions, he cannot complain that the prosecution offered no evidence against him. (Decided under prior law) Irvin v. Commonwealth, 407 S.W.2d 122, 1966 Ky. LEXIS 136 ( Ky. 1966 ).

Where it was apparent from the record that, faced with possible prosecution on a persistent felony offender first-degree charge, the defendant chose to waive his right to appeal the underlying conviction in return for the Commonwealth’s agreement not to pursue the persistent felony offender first-degree charge, the plea of guilty to the persistent felony offender second-degree charge was voluntary and the waiver of his constitutionally guaranteed right of appeal was properly obtained. Weatherford v. Commonwealth, 703 S.W.2d 882, 1986 Ky. LEXIS 232 ( Ky. 1986 ).

In recidivist proceeding where defendant challenged prior conviction used to determine persistent offender sentencing under this section and such guilty plea was fairly supported by the evidence within the meaning of federal law and evidence showed that defendant understood the charges against him and the full consequences of his plea, use of such plea was not error. Parke v. Raley, 506 U.S. 20, 113 S. Ct. 517, 121 L. Ed. 2d 391, 1992 U.S. LEXIS 7661 (U.S. 1992).

In recidivist proceeding where defendant challenged prior conviction used to determine persistent offender sentencing under this section, where defendant never appealed such conviction and where there was no transcript of the proceeding, since in Kentucky transcripts of guilty plea proceedings are normally made only if a direct appeal is taken or upon the orders of the trial judge, fact that there was no record of such plea did not mean that defendant was not advised of his rights or that such plea for purposes of sentence enhancement was not validily obtained; therefore, burden was on defendant to prove the invalidity of such plea and where he failed to do so such plea could be used to determine sentencing under this section. Parke v. Raley, 506 U.S. 20, 113 S. Ct. 517, 121 L. Ed. 2d 391, 1992 U.S. LEXIS 7661 (U.S. 1992).

Defendant knowingly and voluntarily waived his right to appeal his underlying conviction for the manufacture of methamphetamine when he accepted a plea bargain that amended a first-degree persistent offender charge and reduced the charge to a second-degree offender charge; surrender of his right to appeal was not constitutionally prohibited. Johnson v. Commonwealth, 120 S.W.3d 704, 2003 Ky. LEXIS 159 ( Ky. 2003 ).

31.Instructions.

In prosecution for housebreaking where the evidence authorized habitual criminal instruction, it was error to fail to give instruction permitting jury to impose penalty for housebreaking alone, since jury had discretion to impose only penalty for single crime and could disregard the former convictions. (Decided under prior law) Coleman v. Commonwealth, 276 Ky. 802 , 125 S.W.2d 728, 1939 Ky. LEXIS 595 ( Ky. 1939 ); Green v. Commonwealth, 281 S.W.2d 637, 1955 Ky. LEXIS 199 ( Ky. 1955 ).

Since the jury could find defendant guilty of the particular crime charged without being required to find him guilty under former habitual criminal law, failure to instruct on the specific penalty for the crime charged was error. (Decided under prior law) Allen v. Commonwealth, 277 Ky. 168 , 125 S.W.2d 1013, 1939 Ky. LEXIS 620 ( Ky. 1939 ); Green v. Commonwealth, 281 S.W.2d 637, 1955 Ky. LEXIS 199 ( Ky. 1955 ).

An instruction to the jury which stated that if it found the defendant guilty of murder or manslaughter and also believed he had been convicted of two (2) prior felonies, it might give a life sentence under former habitual offender law was not erroneous as leading the jury to believe that it must sentence the defendant under such law if it found him guilty of murder or manslaughter. (Decided under prior law) Mitchell v. Commonwealth, 282 Ky. 844 , 140 S.W.2d 624, 1940 Ky. LEXIS 266 ( Ky. 1940 ).

Where the accused pleaded guilty to a charge of being an habitual criminal, a life sentence was mandatory and the court properly so instructed the jury. (Decided under prior law) Ward v. Hurst, 300 Ky. 464 , 189 S.W.2d 594, 1945 Ky. LEXIS 567 ( Ky. 1945 ).

Instructions in prosecution under former habitual criminal law which did not require that the jury find that the offenses were committed in succession after each conviction were erroneous. (Decided under prior law) Parker v. Commonwealth, 238 S.W.2d 998, 1951 Ky. LEXIS 826 ( Ky. 1951 ).

In a prosecution for rape where two (2) previous felony convictions were properly proven under former habitual criminal law, the failure of the court to admonish the jury that such evidence should not be considered in connection with the charge of rape was not erroneous. (Decided under prior law) Adams v. Commonwealth, 261 S.W.2d 811, 1953 Ky. LEXIS 1062 ( Ky. 1953 ).

In a prosecution under the habitual criminal statute, an instruction that the defendant had been convicted previously of voluntary manslaughter and his punishment fixed at 21 years was sufficient even though it did not state that the former conviction was a felony. (Decided under prior law) Green v. Commonwealth, 281 S.W.2d 637, 1955 Ky. LEXIS 199 ( Ky. 1955 ).

Where the jury, in a homicide prosecution, was given instructions under habitual criminal law and other instructions pertaining to possible sentences for murder and its lesser degrees, the instructions were not erroneous as imposing a mandatory requirement on the jury to return a verdict under such law, because the jury was at liberty to sentence under either set of instructions. (Decided under prior law) Green v. Commonwealth, 281 S.W.2d 637, 1955 Ky. LEXIS 199 ( Ky. 1955 ).

Instructions as to punishment to be imposed, if jury found that defendant had been convicted of only one felony, was not authorized where the Commonwealth proved conclusively and defendant admitted that he had twice previously been convicted of a felony. (Decided under prior law) Hill v. Commonwealth, 296 S.W.2d 221, 1956 Ky. LEXIS 193 ( Ky. 1956 ).

Where a jury came in to question instructions regarding prior felony convictions and the judge failed to state that the jury was required to find beyond a reasonable doubt that the defendant had been convicted of felonies on two (2) previous occasions, there was no error where these oral instructions were merely supplemental to the written instructions which did refer to reasonable doubt. (Decided under prior law) Lee v. Commonwealth, 306 S.W.2d 258, 1957 Ky. LEXIS 23 ( Ky. 1957 ).

An instruction requiring the jury to sentence the defendant to life imprisonment if it found him guilty of the immediate offense and if it found beyond a reasonable doubt that he had two (2) previous felony convictions was not prejudicially erroneous as denying the jury discretion, because the instruction correctly stated the law which required life imprisonment on conviction of a third felony. (Decided under prior law) Hamm v. Commonwealth, 300 S.W.2d 562, 1957 Ky. LEXIS 459 ( Ky. 1957 ), cert. denied, 354 U.S. 924, 77 S. Ct. 1388, 1 L. Ed. 2d 1439, 1957 U.S. LEXIS 703 (U.S. 1957), overruled, Etherton v. Commonwealth, 335 S.W.2d 899, 1960 Ky. LEXIS 288 ( Ky. 1960 ).

An instruction which failed to require that the jury find that the defendant’s conviction in 1957 was subsequent to his conviction in 1952 was prejudicially erroneous despite the fact that there had been a stipulation made showing the defendant’s previous convictions in 1952 and 1957. (Decided under prior law) Etherton v. Commonwealth, 335 S.W.2d 899, 1960 Ky. LEXIS 288 ( Ky. 1960 ).

An habitual criminal instruction which emphasized acts rather than convictions was erroneous. (Decided under prior law) White v. Commonwealth, 379 S.W.2d 448, 1964 Ky. LEXIS 239 ( Ky. 1964 ).

Where the trial court did not admonish the jury that evidence of a former conviction should not be considered by them unless they first found the defendant guilty of the principal offense of which he was charged, but the defendant did not request such an admonition, no error was committed that was preserved for review. (Decided under prior law) Taylor v. Commonwealth, 449 S.W.2d 208, 1969 Ky. LEXIS 28 ( Ky. 1969 ).

Where the defendant was charged with three (3) previous felony convictions and where there was no evidence that any of the convictions were for an offense committed after the first conviction, the instructions relating to enhanced punishment under former habitual criminal law should have been limited to one (1) previous conviction rather than two (2). (Decided under prior law) Lynch v. Commonwealth, 472 S.W.2d 263, 1971 Ky. LEXIS 188 ( Ky. 1971 ).

Where, in the first phase of the trial, the jury was given the option of finding the defendant guilty or not guilty of the principal offenses and in the second phase was given the option of finding him guilty or not guilty of the habitual criminal charge, the jury was given all required alternatives. (Decided under prior law) Covington v. Commonwealth, 481 S.W.2d 62, 1972 Ky. LEXIS 222 ( Ky. 1972 ).

In defendant’s prosecution as an habitual criminal on charges of armed robbery, where defense motions to separate the habitual criminal charge from the armed robbery charge and to exclude evidence of four (4) prior felony convictions were denied, it was error for the court to fail to instruct the jury not to consider evidence of prior convictions in determining guilt or innocence on the primary charge even though defendant requested no such limiting instruction. (Decided under prior law) Evans v. Cowan, 506 F.2d 1248, 1974 U.S. App. LEXIS 5784 (6th Cir. Ky. 1974 ).

Both the first and second prior felony convictions must be the subject of an habitual criminal instruction, separate and apart from the principal offense. (Decided under prior law) Berning v. Commonwealth, 550 S.W.2d 561, 1977 Ky. LEXIS 448 ( Ky. 1977 ).

Trial court did not err by refusing request to instruct the jury that it could acquit defendant on persistent felony offender charge even if it found that the offense had been proven beyond a reasonable doubt, where other instructions adequately covered the law of the case. Williams v. Commonwealth, 644 S.W.2d 335, 1982 Ky. LEXIS 328 ( Ky. 1982 ).

A jury is entitled to disbelieve evidence of prior convictions put on by the Commonwealth on a persistent felony offender charge; however, once the jury is persuaded that the defendant has been convicted of two (2) or more felonies, the language of subsection (1) of this section is mandatory: the jury must fix a sentence within the ranges specified in the statute. Therefore, the trial court did not err in refusing to give the defendant’s tendered instruction that the jury could disregard conclusively established proof of prior convictions and leave the punishment as previously fixed. Adkins v. Commonwealth, 647 S.W.2d 502, 1982 Ky. App. LEXIS 286 (Ky. Ct. App. 1982); Medley v. Commonwealth, 704 S.W.2d 190, 1985 Ky. LEXIS 298 ( Ky. 1985 ).

Instruction on persistent felony offender in the second degree need not be given where there is no evidence to justify the giving of the lower-degree instruction; first-degree felony offender is one charge and the fact that two (2) convictions must be proven does not justify breaking down the charge into two (2) parts so as to give the jury the opportunity to pass on each prior conviction in the absence of some evidence bringing one (1) or both prior convictions into dispute. Payne v. Commonwealth, 656 S.W.2d 719, 1983 Ky. LEXIS 295 ( Ky. 1983 ).

Where evidence of two (2) previous convictions was not challenged in any way, there was no evidentiary basis for instructing on both convictions, and trial court did not err in instructing only on persistent felony offender in the first degree and refusing to instruct on persistent felony offender in the second degree. Payne v. Commonwealth, 656 S.W.2d 719, 1983 Ky. LEXIS 295 ( Ky. 1983 ).

It is improper to instruct the jury that it has a right to find the defendant not guilty even though the evidence proves his guilt beyond a reasonable doubt, a rule that applies to the charge of being a persistent felony offender as well as the principal charge. Medley v. Commonwealth, 704 S.W.2d 190, 1985 Ky. LEXIS 298 ( Ky. 1985 ).

The defendants were not deprived of a fair and impartial trial as a result of the trial court’s refusal to allow the jury to be informed as to the conditions under which they would be eligible for parole following a persistent felony offender conviction. Burchett v. Commonwealth, 734 S.W.2d 818, 1987 Ky. App. LEXIS 528 (Ky. Ct. App. 1987).

Where the instructions allowed the jury to find the defendants guilty as persistent felons and enhance their sentences as such without requiring that the jury first set sentences for the underlying offense, it was at most a procedural matter which was unobjected to at the time of trial and which did not result in an enhancement of the penalty. Montgomery v. Commonwealth, 819 S.W.2d 713, 1991 Ky. LEXIS 154 ( Ky. 1991 ).

Trial court’s jury instruction for first-degree persistent felony offender conviction was incorrect because KRS 532.080(8) was unambiguous that a conviction for possession of drug paraphernalia under KRS 218A.500 could not be used as a predicate for first-degree persistent felony offender status. Sanders v. Commonwealth, 301 S.W.3d 497, 2009 Ky. LEXIS 344 ( Ky. 2009 ).

32.Prior Convictions.

It is not necessary to show that the former convictions were for the same character of felonies as that for which he was finally convicted, and prior convictions of different felonies authorize application of former habitual offender law. (Decided under prior law) Blair v. Commonwealth, 181 Ky. 218 , 204 S.W. 67, 1918 Ky. LEXIS 505 ( Ky. 1918 ).

Where an indictment for murder also charged accused with two previous convictions of felony, it was proper, in introducing records of previous convictions, to show that defendant’s probation on one of the previous convictions had been revoked, since, having charged the defendant with previous convictions, it was necessary for the Commonwealth to prove the complete record of the previous convictions. (Decided under prior law) Calhoun v. Commonwealth, 301 Ky. 789 , 193 S.W.2d 420, 1946 Ky. LEXIS 574 ( Ky. 1946 ).

In a prosecution under former habitual offender law, evidence of former convictions may have been limited to the verdict, judgment of conviction and sentence, if they showed the essential facts. (Decided under prior law) Stodghill v. Commonwealth, 305 Ky. 451 , 204 S.W.2d 570, 1947 Ky. LEXIS 830 ( Ky. 1947 ).

Although Commonwealth need only prove two (2) felony criminal convictions for habitual criminal act purposes, there is no limit placed on the number of prior felony convictions which may be established and evidence of more than two (2) may be introduced. (Decided under prior law) McGill v. Commonwealth, 365 S.W.2d 470, 1963 Ky. LEXIS 221 ( Ky. 1963 ).

It was not error to charge 11 prior convictions when the law required only two (2) because the law merely prescribes the minimum number of prior convictions necessary to impose a sentence of life imprisonment. (Decided under prior law) Irvin v. Commonwealth, 407 S.W.2d 122, 1966 Ky. LEXIS 136 ( Ky. 1966 ).

It was not necessary that the Commonwealth prove that the previous crimes were committed but only that the defendant had been previously convicted. (Decided under prior law) Jones v. Commonwealth, 401 S.W.2d 68, 1966 Ky. LEXIS 404 ( Ky. 1966 ).

Where previous convictions are charged, it will be presumed that the judges presiding over those former trials signed the conviction orders. (Decided under prior law) Jones v. Commonwealth, 401 S.W.2d 68, 1966 Ky. LEXIS 404 ( Ky. 1966 ).

In proceeding under former law on habitual criminals, failure of counsel to assert invalidity of transfer proceedings from juvenile court in prior felony case constituted a denial of the Sixth Amendment right to counsel where the deficiencies in the transfer proceedings were manifest from the face of the juvenile court order and would have eliminated the use of the prior conviction in the habitual criminal proceedings. (Decided under prior law) Canary v. Bland, 583 F.2d 887, 1978 U.S. App. LEXIS 9181 (6th Cir. Ky. 1978 ).

Under former habitual criminal law, the failure to timely assert a constitutional challenge to the validity of transfer proceedings from juvenile court resulting in a previous conviction foreclosed reliance upon the same claim in a federal habeas corpus proceeding challenging the habitual criminal conviction absent a showing of cause and prejudice. (Decided under prior law) Canary v. Bland, 583 F.2d 887, 1978 U.S. App. LEXIS 9181 (6th Cir. Ky. 1978 ).

Where defendant testified without objection on cross-examination about two (2) prior felony convictions, trial court admonished jury only to consider the testimony as to how it bore on defendant’s truthfulness as a witness, and where no request for a hearing in chambers was made, trial judge was under no obligation to voluntarily conduct a hearing on whether admission of a prior felony was entered voluntarily, knowingly and intelligently. Caise v. Commonwealth, 610 S.W.2d 605, 1980 Ky. LEXIS 285 ( Ky. 1980 ).

Where defendant’s convictions for robbery in 1950, for assault with intent to rob in 1954, and for armed assault with the intent to rob and habitual criminality in 1964 were validly obtained, the convictions were properly before the jury in a 1975 proceeding for habitual criminality. (Decided under prior law) Montgomery v. Bordenkircher, 620 F.2d 127, 1980 U.S. App. LEXIS 18176 (6th Cir. Ky.), cert. denied, 449 U.S. 857, 101 S. Ct. 155, 66 L. Ed. 2d 71, 1980 U.S. LEXIS 3056 (U.S. 1980).

For all purposes, except supervision, or the lack thereof, there is no difference between conditional discharge and probation and the legislature meant to include both in the persistent felony offender law; accordingly, a prior felony for which defendant had received a conditional discharge could properly be used in persistent offender trial. Pedigo v. Commonwealth, 644 S.W.2d 355, 1982 Ky. App. LEXIS 279 (Ky. Ct. App. 1982).

Where an accused has been previously convicted of the crime of possession of a handgun by a convicted felon, that conviction assumes the status of any offense at a subsequent trial, and both the felony conviction which was the basis of the handgun offense and the handgun offense may be utilized under this section in the persistent felony phase of the trial. Jackson v. Commonwealth, 650 S.W.2d 250, 1983 Ky. LEXIS 244 ( Ky. 1983 ).

Where a defendant is convicted at his trial for possession of a handgun by a convicted felon and has been previously convicted of more than one prior felony, those convictions in excess of that for a single felony may be utilized for the purpose of persistent felony offender sentencing pursuant to this section. Eary v. Commonwealth, 659 S.W.2d 198, 1983 Ky. LEXIS 280 ( Ky. 1983 ).

Where the nature of the record of prior conviction did not show the conviction was obtained by constitutionally impermissible means, the fact of conviction was sufficient evidence to satisfy the requirement of proof that defendant had been convicted of a previous felony. Commonwealth v. Gadd, 665 S.W.2d 915, 1984 Ky. LEXIS 214 ( Ky. 1984 ), overruled in part, Commonwealth v. Fugate, 527 S.W.3d 43, 2017 Ky. LEXIS 373 ( Ky. 2017 ), overruled in part, Commonwealth v. Fugate, 2017 Ky. LEXIS 202 (Ky. Apr. 27, 2017).

There is no statutory requirement under this section that any judgment be entered into the record when proving the prior conviction. Jackson v. Commonwealth, 703 S.W.2d 883, 1986 Ky. LEXIS 234 ( Ky. 1986 ).

Although probation and parole records may be used to prove the age and parole status of defendants in a persistent felony offender trial, such records may not be used to prove prior felony convictions under this section. Callison v. Commonwealth, 706 S.W.2d 434, 1986 Ky. App. LEXIS 1073 (Ky. Ct. App. 1986).

Where it was shown that in previous prosecutions defendant’s guilty pleas were intelligently and voluntarily made, he failed to prove that the trial judge failed to advise him of the import of his guilty pleas in previous prosecutions, where the record showed the defendant was represented by retained and capable counsel on all occasions and there was an experienced and highly respected trial judge presiding at the proceedings. Corbett v. Commonwealth, 717 S.W.2d 831, 1986 Ky. LEXIS 288 ( Ky. 1986 ).

The defendant was properly convicted as a persistent felony offender even though he was not incarcerated on either of his prior convictions. Stamps v. Rees, 834 F.2d 1269, 1987 U.S. App. LEXIS 15882 (6th Cir. Ky. 1987 ), cert. denied, 485 U.S. 980, 108 S. Ct. 1279, 99 L. Ed. 2d 489, 1988 U.S. LEXIS 1476 (U.S. 1988).

Where the defendant conceded the validity of enough convictions to convict him under this section, the error committed by the trial court in admitting the three (3) invalid guilty pleas which lacked transcripts evincing a voluntary waiver of the right to a jury trial was harmless. Rudolph v. Parke, 856 F.2d 738, 1988 U.S. App. LEXIS 12055 (6th Cir. Ky. 1988 ).

A felony conviction resulting in an initial sentence of one (1) year or more, which sentence is subsequently modified by the trial court pursuant to subsection (2) of this section, is a “previous felony conviction” for enhancement of sentence purposes under the Persistent Felony Offender statute, KRS 532.080 . Hamilton v. Commonwealth, 754 S.W.2d 870, 1988 Ky. App. LEXIS 72 (Ky. Ct. App. 1988).

Where a defendant is first sentenced to an indeterminate term of imprisonment under KRS 532.030 , and the judge sets aside that tentative sentence and further sentences the defendant to probation or conditional discharge under KRS 532.040 , such a sentence, either within this Commonwealth, or without, qualifies as a previous felony conviction. Hamilton v. Commonwealth, 754 S.W.2d 870, 1988 Ky. App. LEXIS 72 (Ky. Ct. App. 1988).

A prior conviction may not be utilized under KRS 532.055 or under this section (felony offender act) unless: (1) The time for appealing the convictions has expired without appeal having been taken, or (2) matter of right appeal has been taken pursuant to Ky. Const., § 115 and the judgment of conviction has been affirmed. This does not apply to collateral attacks, such as motions under RCr 11.42, nor does it apply to pending motions for discretionary review. If discretionary review has been granted, the conviction shall not be utilized until the case is disposed of by the reviewing court. Melson v. Commonwealth, 772 S.W.2d 631, 1989 Ky. LEXIS 58 ( Ky. 1989 ).

The defendant’s two (2) prior convictions in North Carolina qualified as “previous felony convictions” under subsection (3), notwithstanding that North Carolina designated the offenses committed by the defendant as misdemeanors, since sentences of one (1) year or more were imposed for each previous conviction. Ware v. Commonwealth, 47 S.W.3d 333, 2001 Ky. LEXIS 113 ( Ky. 2001 ).

Where the only prior convictions for operating a motor vehicle while under the influence of intoxicants (DUI), KRS 189A.010 , and operating a motor vehicle while license is revoked or suspended for operating a motor vehicle while under the influence of alcohol (OSI/DUI), KRS 189A.090 , that were used to obtain a persisent felony offender (PFO) enhancement of defendant’s present convictions were not the convictions used to enhance defendant’s present DUI and DUI/OSL convictions to Class D felonies, they were properly used for PFO enhancement under KRS 532.080(6)(b). Parson v. Commonwealth, 144 S.W.3d 775, 2004 Ky. LEXIS 158 ( Ky. 2004 ).

Trial court properly entered a nunc pro tunc pretrial order memorializing defendant’s arraignment and plea of not guilty to a charge of being a persistent felony offender, second degree, after the conviction on that charge had previously been reversed for lack of arraignment, where the Commonwealth discovered evidence of the arraignment and plea after the reversal; the reversal did not require dismissal of the charge, so the trial court had jurisdiction to enter the order pursuant to CR 76.30. Hutson v. Commonwealth, 215 S.W.3d 708, 2006 Ky. App. LEXIS 353 (Ky. Ct. App. 2006).

Previously-dismissed conviction was not introduced at defendant’s sentencing for being a persistent felony offender because a reversal of a trial court’s decision denying defendant an evidentiary hearing on defendant’s RCr P. 11.42 motion as to the conviction did not vacate the conviction. Allen v. Commonwealth, 410 S.W.3d 125, 2013 Ky. LEXIS 395 ( Ky. 2013 ).

Defendant’s prior possession convictions were properly characterized as prior felony offenses, plus he entered a guilty plea to another felony, trafficking, which met the first sentence of the statute as it was not a conviction of possession. Boone v. Commonwealth, 412 S.W.3d 883, 2013 Ky. App. LEXIS 165 (Ky. Ct. App. 2013).

Under Kentucky’s scheme for trying a persistent felony offense (PFO) charge, evidence of prior felonies is introduced only after the defendant has been convicted of a subsequent felony offense; the Commonwealth may base a PFO charge on a prior felony possession conviction when the indictment includes a felony charge other than a felony possession charge. Boone v. Commonwealth, 412 S.W.3d 883, 2013 Ky. App. LEXIS 165 (Ky. Ct. App. 2013).

33.—Attack on Validity of.

A defendant who fails to attack the validity of a previous conviction at the time he is subsequently indicted as a persistent felon waives his right to raise the issue post-trial by an RCr 11.42 proceeding attacking the earlier conviction; the constitutional validity of a previous conviction must be made by pretrial motion. Commonwealth v. Jones, 704 S.W.2d 203, 1986 Ky. LEXIS 231 ( Ky. 1986 ), overruled, Thompson v. Commonwealth, 736 S.W.2d 319, 1987 Ky. LEXIS 231 ( Ky. 1987 ).

Because there was no evidence that defendant alleged that he was completely denied the assistance of counsel in any of the prior convictions used by the Commonwealth to establish his persistent felony offender status, and because the trial court was not the proper forum for a collateral attack on those convictions, the denial of defendant’s motion to suppress evidence of those convictions was proper. Bumphis v. Commonwealth, 235 S.W.3d 562, 2007 Ky. App. LEXIS 144 (Ky. Ct. App. 2007), overruled, Hobson v. Commonwealth, 306 S.W.3d 478, 2010 Ky. LEXIS 67 ( Ky. 2010 ).

Trial court’s order suppressing use of defendant’s 2000 conviction for enhancement purposes was reversed and remanded where, under KRS §§ 189A.010 or 532.080 , having failed to attack his 2000 conviction in 2001, prior to pleading guilty to DUI, second offense, defendant could not launch such an attack now. Commonwealth v. Lamberson, 304 S.W.3d 72, 2010 Ky. App. LEXIS 8 (Ky. Ct. App. 2010).

Defendant’s conviction as a first-degree persistent felony offender (PFO) was invalid as to Count 1 of the indictment because the evidence established that defendant had only one prior felony conviction at the time defendant committed the offense charged in Count 1. Blane v. Commonwealth, 364 S.W.3d 140, 2012 Ky. LEXIS 54 ( Ky. 2012 ), overruled in part, Roe v. Commonwealth, 2015 Ky. LEXIS 2080 (Ky. Sept. 24, 2015).

Essential elements of being a persistent felony offender under this section were adequately proven by testimony from a representative of the probation and parole office regarding defendant's prior felony convictions. Gray v. Commonwealth, 479 S.W.3d 94, 2015 Ky. App. LEXIS 174 (Ky. Ct. App. 2015).

34.—Different Names.

Pleading and proving the name of the victim of the former crime is not necessary. (Decided under prior law) Flemming v. Commonwealth, 175 Ky. 655 , 194 S.W. 788, 1917 Ky. LEXIS 358 ( Ky. 1917 ); Green v. Commonwealth, 213 Ky. 323 , 280 S.W. 1094, 1926 Ky. LEXIS 507 ( Ky. 1926 ).

Defendant was properly convicted though former convictions were under different names, he being identified as the same person. (Decided under prior law) Lovan v. Commonwealth, 261 Ky. 198 , 87 S.W.2d 381, 1935 Ky. LEXIS 627 ( Ky. 1935 ).

35.—Foreign State.

A prior conviction of a felony in another state may be shown by certified indictment, records and sentences. (Decided under prior law) Fennen v. Commonwealth, 240 Ky. 530 , 42 S.W.2d 744, 1931 Ky. LEXIS 448 ( Ky. 1931 ); Allen v. Commonwealth, 272 Ky. 533 , 114 S.W.2d 757, 1938 Ky. LEXIS 155 ( Ky. 1938 ); Allen v. Commonwealth, 277 Ky. 168 , 125 S.W.2d 1013, 1939 Ky. LEXIS 620 ( Ky. 1939 ).

To increase defendant’s punishment by showing a previous conviction of crime in another state, the indictment must allege, and proof must establish, that the crime was a felony in that state and that the court convicting him had jurisdiction. (Decided under prior law) Allen v. Commonwealth, 277 Ky. 168 , 125 S.W.2d 1013, 1939 Ky. LEXIS 620 ( Ky. 1939 ).

It is the general rule that a conviction in a federal tribunal will support the raising of a penalty under the habitual criminal laws of a state for a conviction in a state court. (Decided under prior law) Hill v. Commonwealth, 296 S.W.2d 221, 1956 Ky. LEXIS 193 ( Ky. 1956 ).

Conviction for being a persistent felony offender was reversed, because defendant’s prior Florida offenses carrying terms of imprisonment of 60 days or less did not qualify for use. Johnson v. Commonwealth, 277 S.W.3d 635, 2009 Ky. App. LEXIS 15 (Ky. Ct. App. 2009).

Defendant’s conviction on a Texas misdemeanor charge did not qualify as a felony for purposes of a persistent felony offender (PFO) charge even though defendant was sentenced to one-year in prison; the one-year sentence was the maximum sentence allowed for the conviction, making it a misdemeanor under both Texas and Kentucky law. Clark v. Commonwealth, 324 S.W.3d 747, 2010 Ky. App. LEXIS 202 (Ky. Ct. App. 2010).

For purposes of KRS 532.080 , when considering a conviction from another state, a conviction for a misdemeanor in that state qualifies as a felony in Kentucky where the maximum penalty that can be imposed is greater that one-year. Clark v. Commonwealth, 324 S.W.3d 747, 2010 Ky. App. LEXIS 202 (Ky. Ct. App. 2010).

Enhancement of defendant’s first-degree rape sentence pursuant to the jury finding defendant guilty of being a first-degree persistent felony offender was appropriate because, although it was better practice to have introduced the minor victim’s age into evidence as part of the proof, the Commonwealth of Kentucky introduced sufficient evidence to permit the jury to draw a reasonable inference that defendant was previously convicted in Georgia of committing a sex crime against a minor. Bullitt v. Commonwealth, 595 S.W.3d 106, 2019 Ky. LEXIS 543 ( Ky. 2019 ).

36.—Offense Committed While Imprisoned.

“Imprisonment,” as used in subsection (4) of this section, contemplates jail custody while awaiting trial as well as imprisonment in a penitentiary. Damron v. Commonwealth, 687 S.W.2d 138, 1985 Ky. LEXIS 251 ( Ky. 1985 ).

Escape from jail is “an offense committed while that person was imprisoned,” within the meaning of subsection (4) of this section. Damron v. Commonwealth, 687 S.W.2d 138, 1985 Ky. LEXIS 251 ( Ky. 1985 ).

37.—Pardon.

The fact that defendant was pardoned for the offense for which he was first convicted does not operate to prevent the imposition of the sentence authorized for subsequent conviction. (Decided under prior law) Herndon v. Commonwealth, 105 Ky. 197 , 48 S.W. 989, 20 Ky. L. Rptr. 1114 , 1899 Ky. LEXIS 195 ( Ky. 1899 ).

38.—Parole Violations.

It was proper to use defendant’s prior conviction in convicting him as a first degree persistent felon, although according to a schedule of “good time” awarded each prisoner, his sentence would have resulted in a minimum expiration date more than five (5) years prior to commission of the latest crime, if completely served, where he violated the provisions of his parole for the prior conviction, was returned to prison, was paroled for a second time and received his final discharge from parole less than five (5) years prior to the latest offense. Hobbs v. Commonwealth, 690 S.W.2d 771, 1985 Ky. App. LEXIS 596 (Ky. Ct. App. 1985).

39.—Presumption of Regularity.

Where the records of past felony convictions did not show that the guilty pleas were voluntarily entered or that the judgments were signed by the trial court, but the defendant was represented by able counsel in both instances, the presumption of regularity of court records precluded the defendant, who was sentenced as a persistent offender upon being convicted of a third felony, from speculating that the recorded convictions were invalid. Kendricks v. Commonwealth, 557 S.W.2d 417, 1977 Ky. LEXIS 582 ( Ky. 1977 ), overruled, Hon v. Commonwealth, 670 S.W.2d 851, 1984 Ky. LEXIS 227 ( Ky. 1984 ).

This section does not specify that the Commonwealth must affirmatively prove both the fact of conviction and that the previous conviction was not obtained by constitutionally impermissible means. Commonwealth v. Gadd, 665 S.W.2d 915, 1984 Ky. LEXIS 214 ( Ky. 1984 ), overruled in part, Commonwealth v. Fugate, 527 S.W.3d 43, 2017 Ky. LEXIS 373 ( Ky. 2017 ), overruled in part, Commonwealth v. Fugate, 2017 Ky. LEXIS 202 (Ky. Apr. 27, 2017).

Where duly certified copies of the court records were entered proving the prior convictions and sentence, the presumption of regularity of said records precluded the defendant from speculating that there was any invalidity attached to his prior convictions. Jackson v. Commonwealth, 703 S.W.2d 883, 1986 Ky. LEXIS 234 ( Ky. 1986 ).

Once it has been established that the evidence is being taken from a proper copy of an official record, no formal foundation need be laid, so long as there is no challenge to the accuracy of the information contained in the record; the testimony of the defendant’s probation and parole officer was therefore properly admitted. Callison v. Commonwealth, 706 S.W.2d 434, 1986 Ky. App. LEXIS 1073 (Ky. Ct. App. 1986).

40.—When Obtained.

In order to constitute a third offense, it is necessary that the defendant’s present offense must have followed the second felony conviction and that the second felony conviction was subsequent to the first conviction and, therefore, one prior indictment charging two (2) offenses for which the defendant was convicted would constitute only one prior conviction. (Decided under prior law) Cobb v. Commonwealth, 267 Ky. 176 , 101 S.W.2d 418, 1936 Ky. LEXIS 760 ( Ky. 1936 ); Allen v. Commonwealth, 277 Ky. 168 , 125 S.W.2d 1013, 1939 Ky. LEXIS 620 ( Ky. 1939 ).

The previous crimes and the one with which the accused was presently charged must have been committed progressively after each conviction before former habitual offender law applied, and the indictment, evidence and instructions must have made that status clear. (Decided under prior law) Coleman v. Commonwealth, 276 Ky. 802 , 125 S.W.2d 728, 1939 Ky. LEXIS 595 ( Ky. 1939 ); Denham v. Commonwealth, 311 Ky. 320 , 224 S.W.2d 180, 1949 Ky. LEXIS 1147 ( Ky. 1949 ).

It is the commission of a second felony after conviction of a first felony and the commission of a third felony after conviction of a second that is required to be established in order to make the habitual criminal act applicable to a defendant. (Decided under prior law) Ross v. Commonwealth, 384 S.W.2d 324, 1964 Ky. LEXIS 95 ( Ky. 1964 ).

The previous crimes and the one with which the defendant is presently charged must have been committed progressively in order to find the defendant to be an habitual criminal. (Decided under prior law) White v. Commonwealth, 379 S.W.2d 448, 1964 Ky. LEXIS 239 ( Ky. 1964 ); Hardin v. Commonwealth, 428 S.W.2d 224, 1968 Ky. LEXIS 716 ( Ky. 1968 ).

Under the Habitual Criminal Act it is the commission of a second felony after a conviction of the first felony and the commission of a third felony after conviction for a second felony that is required to support a conviction imposing a life sentence. (Decided under prior law) Boyd v. Commonwealth, 521 S.W.2d 84, 1975 Ky. LEXIS 150 ( Ky. 1975 ), overruled, Payne v. Commonwealth, 656 S.W.2d 719, 1983 Ky. LEXIS 295 ( Ky. 1983 ).

This section requires that all prior felony convictions used as a basis for enhancing a present felony conviction must have been obtained prior to the date of the commission of the present felony. Dillingham v. Commonwealth, 684 S.W.2d 307, 1984 Ky. App. LEXIS 640 (Ky. Ct. App. 1984).

Conviction of defendant as a persistent felony offender in the first degree constituted reversible error where the proof adduced by the Commonwealth in the persistent felony offender phase of the bifurcated trial showed that defendant had been convicted of a felony in Kansas in 1978 and of a felony conviction in Kentucky on February 13, 1984, while the commission of the underlying felony took place on January 25, 1984, before the second felony conviction on February 13, 1984, so that the essential progressive requirement of the act was not met. Bray v. Commonwealth, 703 S.W.2d 478, 1985 Ky. LEXIS 270 ( Ky. 1985 ).

Trial court properly treated defendant’s three prior convictions as separate ones for purposes of a persistent felony offender charge, since he began serving his sentence on the first two convictions before being charged and sentenced on the third, and the third conviction did not merge with the previous sentence, regardless of whether his probation was revoked. Thacker v. Commonwealth, 194 S.W.3d 287, 2006 Ky. LEXIS 174 ( Ky. 2006 ).

Denial of defendant’s motion for a directed verdict on a persistent felony offender (PFO) under KRS 532.080(2) count was proper as: (1) defendant’s father testified that defendant was born in 1976; (2) defendant was convicted on the PFO charge in 2007; (3) the jury could infer defendant was over 18 when defendant committed the first offense as the indictment for possession of a controlled substance was returned in 2003; and (4) when defendant received a one-year sentence after pleading guilty in 2004, defendant had been in custody for 124 days. Cantrell v. Commonwealth, 288 S.W.3d 291, 2009 Ky. LEXIS 162 ( Ky. 2009 ).

Trial court did not err in denying defendant's directed verdict motion as it related to the persistent felony offender charge because the Commonwealth introduced evidence in the form of judgments from defendant's prior felony convictions; the jury could infer that a prior prosecution was timely and that defendant was over age 18 at the time of the prior offense. Culver v. Commonwealth, 2017 Ky. App. LEXIS 534 (Ky. Ct. App. Sept. 22, 2017, sub. op., 2017 Ky. App. Unpub. LEXIS 952 (Ky. Ct. App. Sept. 22, 2017).

41.Proportionality Analysis.

To determine whether punishment of recidivists exceeds constitutional limits, it is necessary to apply the Eighth Amendment’s proportionality analysis as guided by the following objective criteria: (1) the gravity of the offense and the harshness of the penalty; (2) the sentences imposed on other criminals in the same jurisdiction; and (3) the sentences imposed for commission of the same crime in other jurisdictions. Collett v. Commonwealth, 686 S.W.2d 822, 1984 Ky. App. LEXIS 641 (Ky. Ct. App. 1984).

Defendant’s twenty-year sentence for the Class D felony of assaulting a police officer invoked no sense of fundamental unfairness and did not constitute an exercise of absolute and arbitrary power as proscribed by the Kentucky Constitution because he offered nothing that indicated that he had been arbitrarily singled out for severe punishment, and because nothing in the record suggested that he had been subjected to unequal, disparate, or arbitrary treatment; defendant himself conceded that the sentencing evidence showed that he was almost always in trouble with the law. Thornton v. Commonwealth, 421 S.W.3d 372, 2013 Ky. LEXIS 401 ( Ky. 2013 ).

42.Representation by Counsel.

The absence of counsel at the time of sentencing on a prior conviction in Kentucky is no basis for attack on the efficacy of that prior conviction as it relates to the application of the habitual criminal act. (Decided under prior law) Thomas v. Commonwealth, 437 S.W.2d 512, 1968 Ky. LEXIS 163 ( Ky. 1968 ), cert. denied, 397 U.S. 956, 90 S. Ct. 949, 25 L. Ed. 2d 142, 1970 U.S. LEXIS 2920 (U.S. 1970).

Where the defendant was found guilty of a violation of the habitual criminal act after the clerk of court produced two (2) judgments, each showing a prior conviction but not indicating if the defendant was represented by counsel, and the defendant did not question the clerk nor introduce any evidence to show lack of counsel, the court must presume that the prior convictions were correct and not void for lack of counsel. (Decided under prior law) Ingram v. Commonwealth, 427 S.W.2d 815, 1968 Ky. LEXIS 695 ( Ky. 1968 ).

Where the deputy clerk of the Circuit Court read the convictions against the defendant from the official records and each stated “Comes his attorney” and either “orally the argument of counsel heard” or “agreed to by the defendant in person and by counsel,” such constituted prima facie evidence that the defendant was represented by counsel on his former convictions. (Decided under prior law) Johnson v. Commonwealth, 445 S.W.2d 704, 1969 Ky. LEXIS 177 ( Ky. 1969 ).

Absence of counsel at sentencing on a prior conviction did not prevent the conviction from being used as a basis for increased punishment. (Decided under prior law) Wilson v. Commonwealth, 476 S.W.2d 622, 1971 Ky. LEXIS 63 ( Ky. 1971 ).

Where nothing had been produced or filed in the record indicating that the petitioner was represented by an attorney at either of previous trials resulting in convictions upon which his habitual criminal conviction was based and the respondent was unable to offer any evidence tending to show that the petitioner had knowingly and intelligently waived his right to counsel, petitioner’s habitual criminal conviction was unconstitutional and void. (Decided under prior law) Ingram v. Wingo, 320 F. Supp. 1032, 1971 U.S. Dist. LEXIS 14996 (E.D. Ky. 1971 ).

Where the defendant objected to the introduction of two (2) prior convictions on the grounds that they did not affirmatively show that he had been represented by counsel, but the defendant refused to state specifically that he had not in fact been represented by an attorney, the prior judgments were properly admitted and the defendant’s conviction as a persistent offender was affirmed. Phillips v. Commonwealth, 559 S.W.2d 724, 1977 Ky. LEXIS 557 ( Ky. 1977 ).

Where defendant did not request counsel in two (2) prior felony convictions, and never charged that he sought counsel and was refused, his constitutional right to the advice of counsel was not denied him and the prior convictions provided a basis for a persistent felony offender conviction, even though the records of the prior convictions did not show that defendant was represented by counsel at every step of the proceedings. Williams v. Commonwealth, 644 S.W.2d 335, 1982 Ky. LEXIS 328 ( Ky. 1982 ).

Where defendant did not prove that counsel was requested and denied in prior convictions, or that, in the absence of counsel, defendant was not intelligently, competently, understandably, or voluntarily informed, and where, during the sentencing portion of appellant’s bifurcated proceeding, he admitted that in at least one (1) of the prior convictions he was represented by counsel, the trial court did not err in admitting in evidence the fact that, while uncounseled, the defendant had three (3) former felony convictions. Williams v. Commonwealth, 644 S.W.2d 335, 1982 Ky. LEXIS 328 ( Ky. 1982 ).

Although the failure of trial counsel to properly investigate and discover the dismissal of the underlying felony charge used to support the persistent felony offender conviction was a deficient performance, no prejudice resulted from the deficiency where at the time the guilty plea was accepted, the defendant admitted commission of the qualifying felonies. Taylor v. Commonwealth, 724 S.W.2d 223, 1986 Ky. App. LEXIS 1475 (Ky. Ct. App. 1986).

43.Status as Persistent Felony Offender.

A person who is a persistent felony offender has attained a status and, having attained such status, is subject to treatment afforded others in that status and which is inapplicable to those not of that status. Hardin v. Commonwealth, 573 S.W.2d 657, 1978 Ky. LEXIS 415 ( Ky. 1978 ).

The Commonwealth was permitted to use one count of a 1983 conviction to establish the offense of subsequent offender pursuant to KRS 218A.990 (now repealed), and to use the remaining counts of that indictment to establish persistent felony offender in the first degree (PFO 1) status where the count used to establish the offense of subsequent offender never merged with the other counts and thus, was independently used to obtain the subsequent offender conviction. Howard v. Commonwealth, 777 S.W.2d 888, 1989 Ky. LEXIS 70 ( Ky. 1989 ), cert. denied, 494 U.S. 1068, 110 S. Ct. 1787, 108 L. Ed. 2d 789, 1990 U.S. LEXIS 1735 (U.S. 1990).

Where defendant was convicted of a felony in 1980 and, in 1983, after being convicted of two (2) felonies whose sentences were run concurrently, for purposes of being adjudicated a persistent felony offender (PFO 1) in the first degree, was convicted of one (1) more felony, those two (2) felony convictions, along with defendant’s 1988 felony conviction, gave him the minimum number of felonies to be convicted as a PFO 1. Howard v. Commonwealth, 777 S.W.2d 888, 1989 Ky. LEXIS 70 ( Ky. 1989 ), cert. denied, 494 U.S. 1068, 110 S. Ct. 1787, 108 L. Ed. 2d 789, 1990 U.S. LEXIS 1735 (U.S. 1990).

Defendant’s conviction for promoting contraband failed to meet the requirements of subsection (2)(c)(1) of this section because he did not complete service of the sentence imposed for that offense within five (5) years of the offense date alleged for his burglary conviction, as such, defendant’s persistent felony offender conviction was reversed. Lienhart v. Commonwealth, 953 S.W.2d 70, 1997 Ky. LEXIS 112 ( Ky. 1997 ).

Defendant could be retried on a charge of being a persistent felony offender (PFO) where his PFO conviction was reversed for the failure to authenticate documents evidencing defendant’s prior convictions and probation in another State; the conviction was reversed for incompetent, not insufficient, evidence, and the retrial did not violate double jeopardy principles. Merriweather v. Commonwealth, 99 S.W.3d 448, 2003 Ky. LEXIS 39 ( Ky. 2003 ).

Trial court erred by imposing a sentence of 105 years with regard to defendant’s multiple convictions for incest, sodomy, and other sexual abuse charges because KRS 532.080(6)(b) only permitted a maximum of 20 years imprisonment. As a result, the appellate court remanded the case to the trial court for re-sentencing. Gibbs v. Commonwealth, 208 S.W.3d 848, 2006 Ky. LEXIS 239 ( Ky. 2006 ), overruled in part, Padgett v. Commonwealth, 312 S.W.3d 336, 2010 Ky. LEXIS 71 ( Ky. 2010 ).

Trial court properly denied defendant’s CR 60.02 motion, seeking dismissal of his conviction for being a second-degree persistent felony offender (PFO-2nd) because any one of defendant’s five (5) prior felony convictions could have been used to support his conviction for possession of a handgun by a convicted felon, and any remaining prior felony conviction could have then been used to support his PFO-2nd conviction. Contrary to defendant’s contention, KRS 532.080(4) did not apply as it applied only to PFO-1st convictions, not PFO-2nd. Bates v. Commonwealth, 270 S.W.3d 410, 2008 Ky. App. LEXIS 314 (Ky. Ct. App. 2008).

Under KRS 532.080 , defendant’s rape conviction, which triggered a sex offender classification and a corresponding obligation to register as a sex offender, could not also be used for a persistent felony offender enhancement purposes in a prosecution for violation of defendant’s obligation to register as a sex offender. France v. Commonwealth, 320 S.W.3d 60, 2010 Ky. LEXIS 205 ( Ky. 2010 ).

44.—Proof.

The status information required to prove the charges concerning the sentencing of persistent felony offenders is not privileged and may be testified to by any witness, including probation and parole officers; the 1976 amendment to this section, which made the dates of imprisonment and discharge from probation, parole or imprisonment, as well as probation and parole status, essential elements of proof for persistent felony offender status, cannot be presumed to be nullified by the prohibition against disclosure of the same information in KRS 439.510 . Tabor v. Commonwealth, 625 S.W.2d 571, 1981 Ky. LEXIS 301 ( Ky. 1981 ).

It is sufficient to show that the defendant was released on parole on a given date, and that he committed a second felony within five (5) years of that date in order to find him guilty of being a persistent felony offender; it is not necessary to present direct evidence of the defendant’s parole status. Callison v. Commonwealth, 706 S.W.2d 434, 1986 Ky. App. LEXIS 1073 (Ky. Ct. App. 1986).

A court may take judicial notice of its own records where the prosecution is attempting to establish the persistent felony offender status of a defendant. Pottinger v. Warden, Northpoint Training Center, 716 F. Supp. 1005, 1989 U.S. Dist. LEXIS 7965 (W.D. Ky. 1989 ), aff'd, 899 F.2d 1222 (6th Cir. Ky. 1990 ).

The trial court erred in permitting proof of the essential facts regarding the date of commission of prior offenses through the records of the Bureau of Corrections to establish persistent felony offender status; therefore, case was remanded requiring only that upon retrial the Commonwealth must sustain the persistent felony offender charges by competent evidence. Montgomery v. Commonwealth, 819 S.W.2d 713, 1991 Ky. LEXIS 154 ( Ky. 1991 ).

A conviction obtained by an Alford plea (North Carolina v. Alford, 400 U.S. 25, 91 S. Ct. 160, 27 L. Ed. 2d 162, 56 Ohio Op. 2d 85, 1970 U.S. LEXIS 3 (1970)) is admissible as evidence in determining persistent felony offender status, just as is a conviction where the accused has entered a plea of not guilty. Pettiway v. Commonwealth, 860 S.W.2d 766, 1993 Ky. LEXIS 111 ( Ky. 1993 ).

Where documents relating to defendant’s former convictions in another state were not self authenticating under Kentucky Rules of Evidence, failed to meet the requirements of RCr 9.44, CR 44.01, or KRS 422.040 , and no witness authenticated the documents, evidence of the defendant’s prior convictions was insufficient to support the persistent felony offender conviction. Davis v. Commonwealth, 899 S.W.2d 487, 1995 Ky. LEXIS 47 ( Ky. 1995 ), overruled in part, Merriweather v. Commonwealth, 99 S.W.3d 448, 2003 Ky. LEXIS 39 ( Ky. 2003 ).

Where trial witness did not testify that earlier robberies were committed while defendant was on parole, probation or were within five (5) years of completion of an earlier sentence, and no information appeared in trial record indicating terms of defendant’s release, defendant’s first degree persistent felony offender conviction was error. Davis v. Commonwealth, 899 S.W.2d 487, 1995 Ky. LEXIS 47 ( Ky. 1995 ), overruled in part, Merriweather v. Commonwealth, 99 S.W.3d 448, 2003 Ky. LEXIS 39 ( Ky. 2003 ).

Where defendant was convicted of trafficking in a controlled substance in the first degree and of being a persistent felony offender in the second degree, the appropriate remedy to challenge 1985 and 1991 convictions that were used for the persistent felony charge was through a RCr 11.42 proceeding as subsections (2) and (3) of this section require proof of the present fact of previous felony convictions and not their underlying validity. Webb v. Commonwealth, 904 S.W.2d 226, 1995 Ky. LEXIS 92 ( Ky. 1995 ), modified, 1995 Ky. LEXIS 89 (Ky. Aug. 24, 1995).

Supreme Court of Kentucky overrules its decision in Davis v. Commonwealth, Ky., 899 S.W.2d 487, 1995 Ky. LEXIS 47 (1995), to the extent that it would prohibit retrial of a prior felony offender charge where there is sufficient evidence, albeit improperly admitted, to sustain the verdict. Merriweather v. Commonwealth, 99 S.W.3d 448, 2003 Ky. LEXIS 39 ( Ky. 2003 ).

Proof of defendant’s prior felony offense status was properly admitted during defendant’s trial for sodomy and gun possession where a probation and parole officer employed by the Department of Corrections testified from DOC records that defendant was released from prison less than five (5) years prior to the commission of the offense for which he was on trial. Dickerson v. Commonwealth, 174 S.W.3d 451, 2005 Ky. LEXIS 325 ( Ky. 2005 ).

Because the evidence was sufficient to establish defendant’s prior felony conviction for drug trafficking, the evidence was also sufficient to support his conviction of being a first degree persistent felony offender based on his current controlled substance convictions. Stewart v. Commonwealth, 306 S.W.3d 502, 2010 Ky. LEXIS 57 ( Ky. 2010 ).

There was sufficient proof that defendant was a persistent felony offender under the theory that defendant had been released from supervision within five years of committing the abuse charge in question because proof was presented that defendant had been released from federal supervision within five years of committing the abuse charge. Likewise, a portion of an exhibit, combined with guilt phase testimony of a social worker, provided sufficient evidence that defendant was over twenty-one years old when the abuse conviction occurred and was over eighteen years old when the federal felony offense was committed. Mason v. Commonwealth, 331 S.W.3d 610, 2011 Ky. LEXIS 3 ( Ky. 2011 ).

Commonwealth introduced evidence that proved defendant had been convicted of the required two previous felonies necessary for a jury to find that defendant was a first-degree persistent felony offender under KRS 532.080 and, thus, defendant could not show the jury’s finding that defendant was such was error, let alone palpable error under RCr P. 10.26. The evidence showed that defendant had convictions for the separate felonies of driving a motor vehicle with a suspended license and for fleeing or evading police arising out of an offense committed more than two years after defendant was sentenced for the first offense. Blades v. Commonwealth, 339 S.W.3d 450, 2011 Ky. LEXIS 73 ( Ky. 2011 ).

Trial court erred by failing to grant defendant’s motion for a directed verdict on the persistent felony offender (PFO) charge because the Commonwealth failed to prove that he had been sentenced to a term of one year or more imprisonment, as the documents failed to clearly indicate that defendant was sentenced to one year or more for the Michigan felony. The only reference in the documents to imposition of a sentence of a year or more was that two and one-half years was written in the settlement offer and notice of acceptance, but that was never signed by the judge, and the Commonwealth did not present a certified copy of a judgment of the Michigan court sentencing defendant after his probation was revoked. Jenkins v. Commonwealth, 607 S.W.3d 601, 2020 Ky. LEXIS 290 ( Ky. 2020 ).

45.Sentence.

Where the jury was not instructed as to the consequences under former habitual offender law of finding the defendant guilty of the present offense and of a prior conviction, it was error for the judge to sentence the defendant to 36 years when the jury had handed in a verdict of one (1) year, despite the fact that the jury found that the defendant had been previously convicted of a felony and sentenced to 18 years. (Decided under prior law) Morrison v. Commonwealth, 56 S.W. 516, 21 Ky. L. Rptr. 1814 , 1900 Ky. LEXIS 483 (Ky. Ct. App. 1900); In re Channels, 131 Ky. 737 , 100 S.W. 214, 30 Ky. L. Rptr. 1248 , 1909 Ky. LEXIS 8 ( Ky. 1909 ).

Where the judgment stated that the defendant was guilty of the present felony and of two (2) previous convictions and the verdict merely stated that the jury had found the defendant guilty, the conviction will not be reversed because of this variance where the defendant received a 12 year sentence when he could have received a life sentence under habitual criminal law and, therefore, the defendant cannot say he was prejudiced by the variance. (Decided under prior law) Smith v. Commonwealth, 284 Ky. 80 , 143 S.W.2d 859, 1940 Ky. LEXIS 441 ( Ky. 1940 ).

A verdict of ten (10) years for voluntary manslaughter was not excessive where defendant had twice previously been convicted of a felony, since a life sentence might have been imposed upon him under habitual criminal law. (Decided under prior law) Mills v. Commonwealth, 305 Ky. 44 , 202 S.W.2d 1005, 1947 Ky. LEXIS 762 ( Ky. 1947 ).

Where prisoner was convicted of (1) armed assault with intent to rob and (2) storehouse breaking and three (3) previous felony convictions, he was properly sentenced to two (2) life sentences to run consecutively. (Decided under prior law) Wingo v. Ringo, 408 S.W.2d 469, 1966 Ky. LEXIS 115 ( Ky. 1966 ), cert. denied, 386 U.S. 946, 87 S. Ct. 983, 17 L. Ed. 2d 876, 1967 U.S. LEXIS 2185 (U.S. 1967).

Where the defendant was given a life sentence for his conviction for murder and a life sentence for his conviction as an habitual criminal, the judgment was modified to reflect the imposition of only one (1) life sentence for murder, the principal offense. (Decided under prior law) Johnson v. Commonwealth, 445 S.W.2d 704, 1969 Ky. LEXIS 177 ( Ky. 1969 ).

In those cases where the penalty provided by the habitual criminal statute is an “increased penalty” or, in other words, operates to enhance the penalty otherwise provided for the commission of the principal offense, only the penalty provided by the habitual criminal act shall be imposed but, where the penalty inflicted for the principal offense is greater than or equal to the penalty provided by the habitual criminal act, only the penalty under the principal offense should be imposed. (Decided under prior law) Johnson v. Commonwealth, 445 S.W.2d 704, 1969 Ky. LEXIS 177 ( Ky. 1969 ).

Where defendant was convicted of aiding and abetting armed robbery and of being an habitual offender, the trial court erred in imposing sentence for the principal conviction in addition to the habitual offender conviction since only the penalty prescribed by the habitual criminal statute could be imposed. (Decided under prior law) Newcomb v. Commonwealth, 531 S.W.2d 489, 1975 Ky. LEXIS 34 ( Ky. 1975 ).

Rules for the sentencing of an habitual criminal fell within the province of the legislature and the state was largely free to determine the amount of time that the recidivist would be isolated from society; thus, defendant’s life imprisonment following his third felony conviction as mandated by the former recidivist statute was not so disproportionate as to be cruel and unusual punishment where defendant had been convicted of detaining a female against her will with the intent to have carnal knowledge, robbery and uttering a forged instrument while on probation for the robbery conviction. (Decided under prior law) Hayes v. Bordenkircher, 621 F.2d 846, 1980 U.S. App. LEXIS 17142 (6th Cir. Ky. 1980 ).

Where defendant was a first offender with 105 convictions and sentences for class D felonies, 15-year cumulative sentence was proper. Milner v. Commonwealth, 655 S.W.2d 31, 1983 Ky. App. LEXIS 333 (Ky. Ct. App. 1983).

The trial court lacked authority to sentence defendant as a persistent felony offender in the absence of the jury’s recommendation as to punishment. Commonwealth v. Crooks, 655 S.W.2d 475, 1983 Ky. LEXIS 289 ( Ky. 1983 ).

Inasmuch as sentencing discretion is given to the trial court in capital murder cases, the trial court did not err in sentencing the defendant to life on the capital murder and 20 years for first-degree burglary, the sentences to be served consecutively. Rackley v. Commonwealth, 674 S.W.2d 512, 1984 Ky. LEXIS 263 ( Ky. 1984 ), overruled, Bedell v. Commonwealth, 870 S.W.2d 779, 1993 Ky. LEXIS 179 ( Ky. 1993 ).

Even though the jury believed that the minimum sentence was too severe, once it found the defendant guilty, it was compelled by law to assess the minimum penalty at the least. Medley v. Commonwealth, 704 S.W.2d 190, 1985 Ky. LEXIS 298 ( Ky. 1985 ).

Although the criminal defendant has not right to jury sentencing under the United States Constitution, the General Assembly of Kentucky has created a statutory right for criminal defendants. White v. Commonwealth, 770 S.W.2d 222, 1989 Ky. LEXIS 19 ( Ky. 1989 ).

Sentence of ten (10) years was not manifestly unfair and did not constitute cruel and unusual punishment where the sentence for repeated property-related offenses, such as theft by deception, fit the gravity of the offense, was ten (10) years less than the 20 year maximum allowed, and the sentence was similar to sentences imposed on other persistent nonviolent, property-related felony offenders in Kentucky and in other jurisdictions. Brown v. Commonwealth, 818 S.W.2d 600, 1991 Ky. LEXIS 75 ( Ky. 1991 ).

No sentence can be ordered to run consecutively with a life sentence in any case, capital or non-capital, overruling Rackley v. Commonwealth, 674 S.W.2d 512, 1984 Ky. LEXIS 263 ( Ky. 1984 ).Bedell v. Commonwealth, 870 S.W.2d 779, 1993 Ky. LEXIS 179 ( Ky. 1993 ).

Whereas defendant was convicted of trafficking in marijuana and driving under the influence and being a second degree persistent felony offender was sentenced under this section which prohibits the imposition of probation or conditional discharge, his appeal of his prison sentence under KRS 533.010 and the more recently enacted KRS 500.095 , which allow for probation and community service respectively, if either statute were held to be controlling, would make a nullity out of this section and would produce an absurd and prohibited result. Renaker v. Commonwealth, 889 S.W.2d 819, 1994 Ky. App. LEXIS 156 (Ky. Ct. App. 1994).

KRS 532.110(1)(c) refers in general to this section in establishing the longest extended term, and the longest extended term for a Class D felony under this section is set at 20 years. Commonwealth v. Durham, 908 S.W.2d 119, 1995 Ky. LEXIS 126 ( Ky. 1995 ).

There was no fault with the trifurcated proceeding where the finding of guilt was followed by a determination of whether defendant was a persistent felony offender (PFO) and then the jury was informed of the range of penalties defined and submitted for its deliberation along with a stipulation that defendant’s trafficking offenses were subsequent offenses. Peyton v. Commonwealth, 931 S.W.2d 451, 1996 Ky. LEXIS 87 ( Ky. 1996 ), overruled, Kirkland v. Commonwealth, 2001 Ky. LEXIS 165 (Ky. Sept. 27, 2001), overruled, Murphy v. Commonwealth, 50 S.W.3d 173, 2001 Ky. LEXIS 81 ( Ky. 2001 ), overruled, Kirkland v. Commonwealth, 53 S.W.3d 71, 2001 Ky. LEXIS 97 ( Ky. 2001 ).

The persistent felony offender (PFO) statute is applicable to a violation of the Controlled Substance Act, even if the Act is outside the penal code and has its own specific sentencing structure; however, trial court could not sentence defendant under both statutes, albeit concurrently, but could choose one or the other. Peyton v. Commonwealth, 931 S.W.2d 451, 1996 Ky. LEXIS 87 ( Ky. 1996 ), overruled, Kirkland v. Commonwealth, 2001 Ky. LEXIS 165 (Ky. Sept. 27, 2001), overruled, Murphy v. Commonwealth, 50 S.W.3d 173, 2001 Ky. LEXIS 81 ( Ky. 2001 ), overruled, Kirkland v. Commonwealth, 53 S.W.3d 71, 2001 Ky. LEXIS 97 ( Ky. 2001 ).

Upon defendant’s conviction of two counts of trafficking in a controlled substance, second offense, pursuant to KRS 218A.1412 (2)(b) and one count of possessing a controlled substance, second offense, pursuant to KRS 218A.1415 (2)(b), defendant was sentenced as a first-degree persistent felony offender to a maximum term of twenty years in prison. Since judgment was pronounced against defendant in 2010 prior to the July 2011 effective date of amendments to the sentencing statutes—KRS 218A.1412 , 218A.1415 , 532.080 —he was not entitled to resentencing under KRS 446.110 . Rogers v. Commonwealth, 366 S.W.3d 446, 2012 Ky. LEXIS 72 ( Ky. 2012 ).

Supreme Court of Kentucky’s precedent not only stands for its explicit holding, i.e., that life imprisonment is the longest extended term permissible under KRS 532.080 , but also its implicit acknowledgement that life imprisonment is, in fact, a term of imprisonment under KRS 532.080 . Castle v. Commonwealth, 411 S.W.3d 754, 2013 Ky. LEXIS 460 ( Ky. 2013 ).

Trial court did not exceed the statutory limits set forth in KRS 532.080 and 532.110 in sentencing appellant to an aggregated, consecutive sentence of 60 years where he had been convicted of a Class B felony, case law held that the maximum consecutive sentence for Class A and B felony offenders was 70 years based on the KRS 532.110 (1)(c) limitation, and his aggregate sentence was below 70 years. Castle v. Commonwealth, 411 S.W.3d 754, 2013 Ky. LEXIS 460 ( Ky. 2013 ).

46.—Correction.

An erroneous sentence would be corrected on appeal despite the fact that trial counsel failed to object to it at the time of the judgment’s entry, since sentencing is jurisdictional and cannot be waived by failure to object. Wellman v. Commonwealth, 694 S.W.2d 696, 1985 Ky. LEXIS 235 ( Ky. 1985 ).

47.—Enhancement.

Defendant having been for the third time convicted of a felony and having served the two (2) previous sentences was liable to the penalty imposed by the jury which in this case was life imprisonment. (Decided under prior law) Hawkins v. Commonwealth, 70 S.W. 640, 24 Ky. L. Rptr. 1034 (1902).

Where the conviction of possession of a handgun by a convicted felon in violation of KRS 527.040 was specifically excluded from the persistent felony offender proceedings, the use of two (2) prior felony convictions to establish the offense of possession of a handgun by a convicted felon did not preclude the use of those convictions to enhance the robbery sentence under this section. Dale v. Commonwealth, 715 S.W.2d 227, 1986 Ky. LEXIS 284 ( Ky. 1986 ), cert. denied, 481 U.S. 1004, 107 S. Ct. 1626, 95 L. Ed. 2d 200, 1987 U.S. LEXIS 1544 (U.S. 1987).

Whereas this section, the general recidivist statute, is all-inclusive with respect to prior felony convictions and specifically includes foreign convictions, KRS 189A.010 is silent with respect to driving under the influence convictions from a sister state and, as such, the enhancement of DUI punishment can only be had by the use of prior DUI convictions obtained in Kentucky. Suttle v. Commonwealth, 774 S.W.2d 454, 1989 Ky. App. LEXIS 40 (Ky. Ct. App. 1989).

A persistent felony offender enhancement is not permissible following a conviction for murder. Murder is a capital crime and is not subject to such enhancement. Berry v. Commonwealth, 782 S.W.2d 625, 1990 Ky. LEXIS 7 ( Ky. 1990 ), overruled in part, Chestnut v. Commonwealth, 250 S.W.3d 288, 2008 Ky. LEXIS 113 ( Ky. 2008 ).

A sentence imposed upon conviction for murder is not subject to persistent felony offender enhancement. Offutt v. Commonwealth, 799 S.W.2d 815, 1990 Ky. LEXIS 44 ( Ky. 1990 ).

Defendant’s sentence of 145 years was not disproportionate to his crime in violation of the Eighth Amendment of the United States Constitution and Ky. Const., § 17, where defendant was an accomplice in three (3) burglaries and his status as a persistent felon provided the basis for his enhanced sentence. Harrison v. Commonwealth, 858 S.W.2d 172, 1993 Ky. LEXIS 82 ( Ky. 1993 ), cert. denied, 512 U.S. 1238, 114 S. Ct. 2746, 129 L. Ed. 2d 864, 1994 U.S. LEXIS 4948 (U.S. 1994).

Because defendant was also convicted of being a second-degree persistent felony offender pursuant to this section, her sentence for first-degree trafficking in a controlled substance under KRS 218A.1412 was correctly enhanced pursuant to this section. Brooks v. Commonwealth, 905 S.W.2d 861, 1995 Ky. LEXIS 104 ( Ky. 1995 ).

When a single prior felony is utilized to create an offense or enhance a punishment at the trial of the second crime, that same prior felony cannot be used at that trial to prosecute the defendant as a persistent felony offender; if, however, the prior felony used to underlie persistent felony offender (PFO) conviction is a separate prior felony from the one used to create the offense or enhance its punishment, the offense can be further enhanced under the PFO statute. Corman v. Commonwealth, 908 S.W.2d 122, 1995 Ky. App. LEXIS 82 (Ky. Ct. App. 1995).

Method of enhancement of defendant’s sentence following conviction as a second-degree felony offender was proper pursuant to Class A felony provisions. Stroud v. Commonwealth, 922 S.W.2d 382, 1996 Ky. LEXIS 53 ( Ky. 1996 ).

Pursuant to KRS 532.110 , defendant who was convicted of three (3) Class C felonies, enhanced to 20 years each pursuant to this section, should have been sentenced to three (3) concurrent 20-year sentences, not three (3) consecutive 20-year sentences. Young v. Commonwealth, 968 S.W.2d 670, 1998 Ky. LEXIS 82 ( Ky. 1998 ), overruled in part, Matthews v. Commonwealth, 163 S.W.3d 11, 2005 Ky. LEXIS 161 ( Ky. 2005 ).

Because defendant had two (2) prior convictions for first-degree trafficking in a controlled substance, the trial court properly enhanced his sentence as both a “second or subsequent offense” and a persistent felony offender. Morrow v. Commonwealth, 77 S.W.3d 558, 2002 Ky. LEXIS 133 ( Ky. 2002 ).

General Assembly only excluded first-degree possession of a controlled substance from persistent felony offender (PFO) enhancement eligibility, demonstrating that trafficking in a controlled substance in the second degree is eligible for PFO enhancement. Commonwealth v. Gamble, 453 S.W.3d 716, 2015 Ky. LEXIS 15 ( Ky. 2015 ).

Circuit court could enhance defendant's sentence beyond the three-year cap set forth in Ky. Rev. Stat. Ann. § 218A.1413(2)(b)(1) because the statute did not prohibit defendant's sentence from being enhanced to five years imprisonment by virtue of his status as a persistent felony offender conviction. Commonwealth v. Gamble, 453 S.W.3d 716, 2015 Ky. LEXIS 15 ( Ky. 2015 ).

In a second-degree drug trafficking case, a circuit court's decision to sentence defendant to four consecutive, one-year terms for a total of four years' imprisonment fell within the permitted sentencing range since the longest term the circuit court was authorized to impose was twenty years; the portion of the drug trafficking statute relating to first time offenders was subject to a persistent felony offender enhancement. Eldridge v. Commonwealth, 479 S.W.3d 614, 2015 Ky. App. LEXIS 181 (Ky. Ct. App. 2015).

48.—In Lieu of Sentence for Principal Offense.

If the jury finds the defendant guilty of the principal offense and of the previous convictions, only the penalty prescribed by the habitual criminal statute shall be imposed and not the penalty for the principal offense. (Decided under prior law) Hardin v. Commonwealth, 428 S.W.2d 224, 1968 Ky. LEXIS 716 ( Ky. 1968 ).

The final judgment was required to reflect that defendant’s sentence was only a single life imprisonment for the persistent felony offender conviction, and not life imprisonment “on each count,” as the final judgment had indicated. Such sentence was contrary to subsection (1) of this section, which provides that the sentence for a persistent felony offender shall be in lieu of the sentence imposed for the principal offense. Wellman v. Commonwealth, 694 S.W.2d 696, 1985 Ky. LEXIS 235 ( Ky. 1985 ).

Where the excluded evidence was offered to mitigate the sentence on the original charge, defendant was not prejudiced where he was sentenced as a persistent felony offender in the first degree with that sentence to be served in lieu of the sentence assigned by the jury on the principal charge. Dunn v. Commonwealth, 703 S.W.2d 874, 1985 Ky. LEXIS 297 ( Ky. 1985 ), cert. denied, 479 U.S. 832, 107 S. Ct. 121, 93 L. Ed. 2d 67, 1986 U.S. LEXIS 3579 (U.S. 1986), overruled in part, Commonwealth v. Fugate, 527 S.W.3d 43, 2017 Ky. LEXIS 373 ( Ky. 2017 ), overruled in part, Commonwealth v. Fugate, 2017 Ky. LEXIS 202 (Ky. Apr. 27, 2017).

Defendant was convicted of a cocaine trafficking charge under KRS 218A.990 (now repealed). During his jury trial, defendant testified that he had been convicted of at least one previous felony. Rather than go through the separate proceeding on the persistent felony offender (PFO) charge, defendant reached an agreement with the prosecution whereby he would plead guilty to the PFO charge in exchange for the minimum sentence allowed by statute—ten (10) years—being fixed as the penalty for the offense. Defendant thereupon moved for permission to enter a plea of guilty to PFO, first degree. Without formally fixing a sentence on the underlying cocaine trafficking conviction, the court sustained the motion. While as a pro forma matter it might be a better practice for the court to expressly assess a sentence on the underlying cocaine trafficking conviction, in defendant’s case the failure of the court to memorialize the necessary predicate of its actions worked no harm. Hulett v. Commonwealth, 834 S.W.2d 688, 1992 Ky. App. LEXIS 138 (Ky. Ct. App. 1992).

49.—Maximum Aggregate Penalty.

Subsection (1) of KRS 532.110 requires that this section be used to establish the maximum aggregate sentence for a person convicted of multiple offenses, without regard to whether the penalties for those offenses have been enhanced. When this section is applied to determine the maximum aggregate penalty, as opposed to being used to enhance a penalty, the appropriate reference in a case where the underlying felonies are Class D or C felonies is to subsection (6)(b) of KRS 523.080 rather than to subsection (5) of this section. Commonwealth v. Durham, 908 S.W.2d 119, 1995 Ky. LEXIS 126 ( Ky. 1995 ).

Trial court erred in sentencing defendant to an aggregate sentence of 35 years in prison upon defendant’s convictions on two counts of second-degree sodomy and three counts of first-degree sexual aubse, rather than the maximum twenty-year sentence under KRS 532.110(1)(c) and 532.080 (6)(b), as the 35-year-sentence exceeded in length the longest extended term authorized by KRS 532.080 for the Class C felony conviction of second-degree sodomy, the highest class of crimes of which defendant was convicted. Sanderson v. Commonwealth, 291 S.W.3d 610, 2009 Ky. LEXIS 96 ( Ky. 2009 ).

50.—Presentence Investigation Report.

Given that defendant’s acceptance of the ten (10) year persistent felony offender (PFO) sentence rendered the issues of probation and conditional discharge moot, and that defendant agreed to the PFO sentence to avoid the possibility of a higher sentence in the upcoming sentencing proceeding, any error that the court committed in allowing defendant to waive the presentence investigation report was harmless. Hulett v. Commonwealth, 834 S.W.2d 688, 1992 Ky. App. LEXIS 138 (Ky. Ct. App. 1992).

51.—Probated.

A probated felony sentence was properly used as a prior conviction in accordance with the provisions of this statute. Commonwealth v. Richardson, 674 S.W.2d 515, 1984 Ky. LEXIS 264 ( Ky. 1984 ).

Where Commonwealth sought to use probated sentences as prior felony convictions for the purpose of showing defendant to be a persistent felony offender, this section will not prevent their use. Commonwealth v. Hinton, 678 S.W.2d 388, 1984 Ky. LEXIS 288 ( Ky. 1984 ).

Cited in:

Poteet v. Commonwealth, 556 S.W.2d 893, 1977 Ky. LEXIS 530 ( Ky. 1977 ); Alcorn v. Commonwealth, 557 S.W.2d 624, 1977 Ky. LEXIS 534 ( Ky. 1977 ); Newman v. Commonwealth, 559 S.W.2d 162, 1977 Ky. LEXIS 547 (Ky. 1977); Rudolph v. Commonwealth, 564 S.W.2d 1, 1977 Ky. LEXIS 580 (Ky. 1977); Luna v. Commonwealth, 571 S.W.2d 88, 1977 Ky. App. LEXIS 929 (Ky. Ct. App. 1977); Bordenkircher v. Hayes, 434 U.S. 357, 98 S. Ct. 663, 54 L. Ed. 2d 604, 1978 U.S. LEXIS 56 (1978); Whorton v. Commonwealth, 570 S.W.2d 627, 1978 Ky. LEXIS 391 ( Ky. 1978 ); Robinson v. Commonwealth, 572 S.W.2d 606, 1978 Ky. App. LEXIS 600 (Ky. Ct. App. 1978); Carter v. Kentucky, 450 U.S. 288, 101 S. Ct. 1112, 67 L. Ed. 2d 241, 1981 U.S. LEXIS 77 (1981); Wiley v. Sowders, 647 F.2d 642, 1981 U.S. App. LEXIS 13929 (6th Cir. 1981); Murray v. Superintendent, Kentucky State Penitentiary, 651 F.2d 451, 1981 U.S. App. LEXIS 12316 (6th Cir. 1981); Hayes v. Commonwealth, 625 S.W.2d 575, 1981 Ky. LEXIS 303 ( Ky. 1981 ); Marshall v. Commonwealth, 625 S.W.2d 581, 1981 Ky. LEXIS 306 ( Ky. 1981 ); Smith v. Commonwealth, 634 S.W.2d 411, 1982 Ky. LEXIS 259 ( Ky. 1982 ); Malone v. Commonwealth, 636 S.W.2d 647, 1982 Ky. LEXIS 276 ( Ky. 1982 ); Henderson v. Commonwealth, 636 S.W.2d 648, 1982 Ky. LEXIS 277 (Ky. 1982); Taylor v. Commonwealth, 652 S.W.2d 863, 1983 Ky. LEXIS 259 ( Ky. 1983 ); Alcorn v. Smith, 724 F.2d 37, 1983 U.S. App. LEXIS 14309 (6th Cir. 1983); Devore v. Commonwealth, 662 S.W.2d 829, 1984 Ky. LEXIS 201 ( Ky. 1984 ); Wilson v. Commonwealth, 695 S.W.2d 854 ( Ky. 1985 ); Green v. Commonwealth, 684 S.W.2d 13, 1984 Ky. App. LEXIS 558 (Ky. Ct. App. 1984); Commonwealth v. Liuzzi, 685 S.W.2d 556, 1985 Ky. LEXIS 206 ( Ky. 1985 ); Johnson v. Commonwealth, 709 S.W.2d 838, 1986 Ky. App. LEXIS 1063 (Ky. Ct. App. 1986); Commonwealth v. Willis, 719 S.W.2d 440, 1986 Ky. LEXIS 327 ( Ky. 1986 ); Commonwealth v. Hayes, 734 S.W.2d 467, 1987 Ky. LEXIS 224 ( Ky. 1987 ); Commonwealth v. Reneer, 734 S.W.2d 794, 1987 Ky. LEXIS 232 ( Ky. 1987 ); Bagby v. Sowders, 853 F.2d 1340, 1988 U.S. App. LEXIS 10845 (6th Cir. 1988); Revenue Cabinet, Commonwealth v. Samani, 757 S.W.2d 199, 1988 Ky. App. LEXIS 64 (Ky. Ct. App. 1988); Newton v. Commonwealth, 760 S.W.2d 100, 1988 Ky. App. LEXIS 129 (Ky. Ct. App. 1988); Williamson v. Commonwealth, 767 S.W.2d 323, 1989 Ky. LEXIS 24 ( Ky. 1989 ); Dale v. Haeberlin, 878 F.2d 930, 1989 U.S. App. LEXIS 9500 (6th Cir. 1989); Dick v. Scroggy, 882 F.2d 192, 1989 U.S. App. LEXIS 12120 (6th Cir. 1989); George v. Seabold, 909 F.2d 157, 1990 U.S. App. LEXIS 12169 (6th Cir. 1990); Hatfield v. Daugherty, 837 F. Supp. 852, 1993 U.S. Dist. LEXIS 16221 (E.D. Ky. 1993 ); McCarthy v. Commonwealth, 867 S.W.2d 469, 1993 Ky. LEXIS 139 ( Ky. 1993 ); Botkin v. Commonwealth, 890 S.W.2d 292, 1994 Ky. LEXIS 141 ( Ky. 1994 ); Reardon v. Commonwealth, 906 S.W.2d 360, 1995 Ky. App. LEXIS 93 (Ky. Ct. App. 1995); Gordon v. Commonwealth, 916 S.W.2d 176, 1995 Ky. LEXIS 144 ( Ky. 1995 ); Adams v. Commonwealth, 931 S.W.2d 465, 1996 Ky. App. LEXIS 157 (Ky. Ct. App. 1996); Manning v. Commonwealth, 23 S.W.3d 610, 2000 Ky. LEXIS 46 ( Ky. 2000 ); Carter v. Commonwealth, — S.W.3d —, 2003 Ky. App. LEXIS 26 (Ky. Ct. App. 2003); Stacey v. Commonwealth, — S.W.3d —, 2004 Ky. App. LEXIS 150 (Ky. Ct. App. 2004); Donatelli v. Commonwealth, 175 S.W.3d 103, 2005 Ky. App. LEXIS 49 (Ky. Ct. App. 2005), review denied, — S.W.3d —, 2005 Ky. LEXIS 1014 (Ky. Nov. 16, 2005); Williams v. Commonwealth, 233 S.W.3d 206, 2007 Ky. App. LEXIS 326 (Ky. Ct. App. 2007); Turner v. Commonwealth, 248 S.W.3d 543, 2008 Ky. LEXIS 59 ( Ky. 2008 ); Jones v. Commonwealth, 279 S.W.3d 522, 2009 Ky. LEXIS 65 ( Ky. 2009 ); Weaver v. Commonwealth, 298 S.W.3d 851, 2009 Ky. LEXIS 328 ( Ky. 2009 ); Bishop v. Commonwealth, 357 S.W.3d 549, 2011 Ky. App. LEXIS 168 (Ky. Ct. App. 2011).

Notes to Unpublished Decisions

1.Sentence.
2.— Maximum Aggregate Penalty.

Unpublished decision: It must be evident from the record that defendant has consented to a punishment that is mitigated by a new law in order to benefit from the same; since there was no evidence in the record that defendant requested to be sentenced under the new law that would have mitigated his sentence, he was correctly sentenced under KRS 532.110 as it read prior to its amendment in 1998, and read in tandem with KRS 532, setting the maximum term for defendant’s sentence at life imprisonment. Neace v. Commonwealth, 2002 Ky. LEXIS 272 (Ky. Nov. 21, 2002).

Opinions of Attorney General.

A defendant may be convicted and sentenced as a persistent felony offender only immediately after he has been convicted of a new felony and he may not be indicted, tried and convicted as a persistent felon as a separate independent offense without violating the double jeopardy clause of the 5th amendment, United States Constitution. OAG 75-601 .

Where a defendant received consecutive sentences of 10 years and 20 years as a persistent felony offender in the first degree, according to KRS 197.045(2) the two (2) sentences are merged for the purpose of computing dates of expiration of sentence, thus, the defendant would be eligible for parole after serving the 10 years prescribed in subsection (7) of this section. OAG 80-185 .

Research References and Practice Aids

Kentucky Bench & Bar.

Davis, Recent Developments in Persistent Felony Offender Cases, Vol. 46, No. 3, July 1982, Ky. Bench & Bar 10.

Coy, A Brief Look at the Kentucky Parole System., Vol. 70, No. 5, September 2006, Ky. Bench & Bar 13.

Kentucky Law Journal.

Kentucky Law Survey: Quick, Criminal Procedure, 66 Ky. L.J. 605 (1977-1978).

Comments, The Contemporaneous Objection Rule: Time for a Re-Examination, 67 Ky. L.J. 212 (1978-1979).

Kentucky Law Survey, Fritz, Criminal Procedure, 67 L.J. 599 (1978-1979).

Kentucky Law Survey, Fortune, Criminal Procedure, 71 Ky. L.J. 367 (1982-83).

Kentucky Law Survey, Read, Criminal Law, 72 Ky. L.J. 365 (1983-84).

Kentucky Law Survey, Fortune, Criminal Procedure, 73 Ky. L.J. 347 (1984-85).

West, Criminal Law, 74 Ky. L.J. 403 (1985-86).

Gillig, Kentucky Post-Conviction Remedies and the Judicial Development of Kentucky Rule of Criminal Procedure 11.42, 83 Ky. L.J. 265 (1994-95).

Note: Cost Conscious Justice: The Case for Wholly-Informed Discretionary Sentencing in Kentucky, 100 Ky. L.J. 391 (2011/2012).

Northern Kentucky Law Review.

Notes, Search and Seizures — Kentucky’s Constitutional Requirement of a Search Warrant to Inventory an Automobile — The Exceptions, 7 N. Ky. L. Rev. 125 (1980).

Johnson, The Changing Face of Criminal Procedure for the General Practitioner, 12 N. Ky. L. Rev. 233 (1985).

Bartlett, Alternative Sanctions and the Governor’s Crime Bill of 1998 (HB 455): Another Attempt at Providing a Framework for Efficient and Effective Sentencing, 27 N. Ky. L. Rev. 283 (2000).

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Controlled Substances, Part 4 Miscellaneous KRS 218A Offenses, § 9.34C.

Kentucky Instructions To Juries (Criminal), 5th Ed., Penalty Phase Instructions, Part 2 Capital Offenses, § 12.04A.

Kentucky Instructions To Juries (Criminal), 5th Ed., Penalty Phase Instructions, Part 3 Felony Offenses, § 12.19A.

Kentucky Instructions To Juries (Criminal), 5th Ed., Penalty Phase Instructions, Part 4 Subsequent Offender Enhancement, § 12.25.

Kentucky Instructions To Juries (Criminal), 5th Ed., Penalty Phase Instructions, Part 5 Persistent Felony Offenders, §§ 12.26 — 12.45.

Petrilli, Kentucky Family Law, Juvenile Court, § 32.24.

532.090. Sentence of imprisonment for misdemeanor.

A sentence of imprisonment for a misdemeanor shall be a definite term and shall be fixed within the following maximum limitations:

  1. For a Class A misdemeanor, the term shall not exceed twelve (12) months; and
  2. For a Class B misdemeanor, the term shall not exceed ninety (90) days.

History. Enact. Acts 1974, ch. 406, § 281, effective January 1, 1975.

NOTES TO DECISIONS

1.In General.

A sentence for a misdemeanor is a definite term, since it must be fixed within listed maximum limitations. Prather v. Commonwealth, 2007 Ky. App. LEXIS 421 (Ky. Ct. App. Nov. 2, 2007).

Cited:

Powell v. Payton, 544 S.W.2d 1, 1976 Ky. LEXIS 147 ( Ky. 1976 ); United States v. Sturgill, 563 F.2d 307, 1977 U.S. App. LEXIS 11273 (6th Cir. 1977); Wood v. Commonwealth, 567 S.W.2d 121, 1978 Ky. LEXIS 366 ( Ky. 1978 ); James v. Commonwealth, 647 S.W.2d 794, 1983 Ky. LEXIS 230 ( Ky. 1983 ); Woods v. Commonwealth, 712 S.W.2d 363, 1986 Ky. App. LEXIS 1144 (Ky. Ct. App. 1986); Posey v. Commonwealth, 185 S.W.3d 170, 2006 Ky. LEXIS 53 ( Ky. 2006 ).

Notes to Unpublished Decisions

1.Search and seizure.

Unpublished decision: Where defendant dropped a baggie of crack cocaine in anticipation of a strip-search at a jail, suppression was not warranted, because, inter alia, the police did not need reasonable suspicion or probable cause of defendant’s commission of any other crime to take defendant into custody and search defendant incident to arrest since police could properly arrest defendant for driving on a suspended license. United States v. Warfield, 404 Fed. Appx. 994, 2011 FED App. 0002N, 2011 U.S. App. LEXIS 55 (6th Cir. Ky. 2011 ).

Research References and Practice Aids

Cross-References.

Felonies and misdemeanors defined, KRS 431.060 .

Kentucky Law Journal.

Kentucky Law Survey, Fortune, Criminal Rules, 70 Ky. L.J. 395 (1981-82).

Kentucky Law Survey, Sellars, Criminal Law, 71 Ky. L.J. 355 (1982-83).

Cooper and Lawson, Self-Defense in Kentucky: A Need for Clarification or Revision, 76 Ky. L.J. 167 (1987-88).

Weigand and Farr, Part of the Moving Stream: State Constitutional Law, Sodomy, and Beyond, 81 Ky. L.J. 449 (1992-93).

Article: Drug Law Reform-Retreating from an Incarceration Addiction, 98 Ky. L.J. 201 (2009/2010).

Northern Kentucky Law Review.

Lotz, A Survey of Criminal Law Statutes Enacted in 1992, 20 N. Ky. L. Rev. 745 (1993).

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Penalty Phase Instructions, Part 1 Misdemeanor Offenses, §§ 12.01A, 12.02A.

Petrilli, Kentucky Family Law, Support of the Family, § 16.18.

532.100. Place of imprisonment — Commitment when death sentence imposed — Housing for female state inmates — Transfer of prisoners when jail is over capacity — Reduction in per diem upon jailer’s refusal to transfer — Per diem increase for each day of prisoner attendance in department-approved program — Incarceration of certain Class C and D felons and felons convicted of sex crimes — Work release for certain inmates.

  1. As used in this section, “jail” means a “jail” or “regional jail” as defined in KRS 441.005 .
  2. When an indeterminate term of imprisonment is imposed, the court shall commit the defendant to the custody of the Department of Corrections for the term of his or her sentence and until released in accordance with the law.
  3. When a definite term of imprisonment is imposed, the court shall commit the defendant to a jail for the term of his or her sentence and until released in accordance with the law.
  4. When a sentence of death is imposed, the court shall commit the defendant to the custody of the Department of Corrections with directions that the sentence be carried out according to law.
    1. The provisions of KRS 500.080(5) notwithstanding, if a Class D felon is sentenced to an indeterminate term of imprisonment of five (5) years or less, he or she shall serve that term in a jail in a county in which the fiscal court has agreed to house state prisoners; except that, when an indeterminate sentence of two (2) years or more is imposed on a Class D felon convicted of a sexual offense enumerated in KRS 197.410(1), or a crime under KRS 17.510(11) or (12), the sentence shall be served in a state institution. Counties choosing not to comply with the provisions of this paragraph shall be granted a waiver by the commissioner of the Department of Corrections. (5) (a) The provisions of KRS 500.080(5) notwithstanding, if a Class D felon is sentenced to an indeterminate term of imprisonment of five (5) years or less, he or she shall serve that term in a jail in a county in which the fiscal court has agreed to house state prisoners; except that, when an indeterminate sentence of two (2) years or more is imposed on a Class D felon convicted of a sexual offense enumerated in KRS 197.410(1), or a crime under KRS 17.510(11) or (12), the sentence shall be served in a state institution. Counties choosing not to comply with the provisions of this paragraph shall be granted a waiver by the commissioner of the Department of Corrections.
    2. The provisions of KRS 500.080(5) notwithstanding, a Class D felon who received a sentence of more than five (5) years for nonviolent, nonsexual offenses, but who currently has less than five (5) years remaining to be served, may serve the remainder of his or her term in a jail in a county in which the fiscal court has agreed to house state prisoners.
      1. The provisions of KRS 500.080(5) notwithstanding, and except as provided in subparagraph 2. of this paragraph, a Class C or D felon with a sentence of more than five (5) years who is classified by the Department of Corrections as community custody shall serve that term in a jail in a county in which the fiscal court has agreed to house state prisoners if: (c) 1. The provisions of KRS 500.080(5) notwithstanding, and except as provided in subparagraph 2. of this paragraph, a Class C or D felon with a sentence of more than five (5) years who is classified by the Department of Corrections as community custody shall serve that term in a jail in a county in which the fiscal court has agreed to house state prisoners if:
        1. Beds are available in the jail;
        2. State facilities are at capacity; and
        3. Halfway house beds are being utilized at the contract level as of July 15, 2000.
      2. When an indeterminate sentence of two (2) years or more is imposed on a felon convicted of a sex crime, as defined in KRS 17.500 , or any similar offense in another jurisdiction, the sentence shall be served in a state institution.
      3. Counties choosing not to comply with the provisions of this paragraph shall be granted a waiver by the commissioner of the Department of Corrections.
    3. Any jail that houses state inmates under this subsection shall offer programs as recommended by the Jail Standards Commission. The Department of Corrections shall adopt the recommendations of the Jail Standards Commission and promulgate administrative regulations establishing required programs for a jail that houses state inmates under this subsection. The Department of Corrections shall approve programming offered by jails to state inmates for sentencing credits in accordance with KRS 197.045 .
    4. Before housing any female state inmate, a jail shall be certified pursuant to KRS 197.020 .
      1. a. If a jail is at or over one hundred fifty percent (150%) capacity, the Department of Corrections may direct the jail to transfer a specified number of state prisoners to vacant beds at other designated jails or state institutions. As used in this paragraph, “capacity” means the capacity listed on the certificate of occupancy issued each year to the jail by the Department of Corrections. (f) 1. a. If a jail is at or over one hundred fifty percent (150%) capacity, the Department of Corrections may direct the jail to transfer a specified number of state prisoners to vacant beds at other designated jails or state institutions. As used in this paragraph, “capacity” means the capacity listed on the certificate of occupancy issued each year to the jail by the Department of Corrections.
      2. If the Department of Corrections directs the transfer of a state prisoner pursuant to subparagraph 1. of this paragraph, the jailer has fourteen (14) days to transfer the state prisoner. If the jailer refuses to release custody of the state prisoner to the receiving jail within fourteen (14) days, the department shall reduce the per diem for the jail for an amount equal to the per diem of that prisoner for each day the jailer refuses to comply with the direction.
      3. If the Department of Corrections directs the transfer of a state prisoner pursuant to subparagraph 1. of this paragraph, the jailer of the receiving jail shall accept the transfer and transport the state prisoner in accordance with subparagraph 1.f. of this paragraph. If, after receiving a copy of the direction, the jailer refuses to accept and transport the state prisoner, the Department of Corrections shall reduce the per diem for the receiving jail for an amount equal to the per diem of that prisoner for each day the jailer refuses to comply with the direction.
      4. If a jail has a vacant bed and has a Class C or Class D felon who, based on the Department of Corrections classification system, is eligible to be housed in that vacant bed, the department may direct the jail to transfer the state prisoner to that bed. If the jailer refuses to transfer the state prisoner to the vacant bed, the Department of Corrections shall reduce the per diem for the jail for an amount equal to the per diem of that prisoner for each day the jailer refuses to comply with the direction.
      5. The per diem reduced pursuant to subparagraph 2., 3., or 4. of this paragraph shall be enforced by withholding the amount from the per diem paid to the jail pursuant to KRS 431.215(2).
      6. If a jail that is at or over one hundred fifty percent (150%) capacity requests the transfer of a specified number of state prisoners, the Department of Corrections may, if vacant beds are available at other jails, direct the transfer in accordance with subparagraph 1. of this paragraph.
      b. The Department of Corrections shall choose which state prisoners are eligible for transfer based on the security level of the vacant bed at the receiving jail or state institution. c. State prisoners who are approved for transfer to a Department of Corrections facility for necessary medical treatment and care pursuant to KRS 441.560 shall not be transferred to another jail. d. State prisoners enrolled in a Department of Corrections approved program pursuant to KRS 197.045 shall not be transferred. e. State prisoners awaiting trial in the county they are being housed shall not be transferred. f. Jails that receive state prisoners pursuant to this subparagraph shall be responsible for the transportation of those prisoners to the jail.
    5. If a jail has vacant beds in an area of the jail usually reserved for state prisoners, the jail may house county prisoners in that area.
  5. The jailer of a county in which a Class D felon or a Class C felon is incarcerated may request the commissioner of the Department of Corrections to incarcerate the felon in a state corrections institution if the jailer has reasons to believe that the felon is an escape risk, a danger to himself or herself or other inmates, an extreme security risk, or needs protective custody beyond that which can be provided in a jail. The commissioner of the Department of Corrections shall evaluate the request and transfer the inmate if he or she deems it necessary. If the commissioner refuses to accept the felon inmate, and the Circuit Judge of the county that has jurisdiction of the offense charged is of the opinion that the felon cannot be safely kept in a jail, the Circuit Judge, with the consent of the Governor, may order the felon transferred to the custody of the Department of Corrections.
    1. Class D felons and Class C felons serving their time in a jail shall be considered state prisoners, and, except as provided in subsection (5)(f) of this section, the Department of Corrections shall pay the jail in which the prisoner is incarcerated a per diem amount determined according to KRS 431.215(2). For other state prisoners and parole violator prisoners, the per diem payments shall also begin on the date prescribed in KRS 431.215(2), except as provided in subsection (5)(f) of this section. (7) (a) Class D felons and Class C felons serving their time in a jail shall be considered state prisoners, and, except as provided in subsection (5)(f) of this section, the Department of Corrections shall pay the jail in which the prisoner is incarcerated a per diem amount determined according to KRS 431.215(2). For other state prisoners and parole violator prisoners, the per diem payments shall also begin on the date prescribed in KRS 431.215(2), except as provided in subsection (5)(f) of this section.
      1. The per diem amount paid to the jail shall be increased by two dollars ($2) per day of program attendance for those inmates enrolled in and attending evidence-based programs approved by the department and that do not require instructors to have completed any postsecondary education. (b) 1. The per diem amount paid to the jail shall be increased by two dollars ($2) per day of program attendance for those inmates enrolled in and attending evidence-based programs approved by the department and that do not require instructors to have completed any postsecondary education.
      2. The per diem amount paid to the jail shall be increased by ten dollars ($10) per day of program attendance for those inmates enrolled in and attending evidence-based programs approved by the department and that require instructors to have completed particular postsecondary courses.
    2. Any amount beyond the base per diem paid under paragraph (a) of this subsection that is paid under a contract to the jail for an inmate’s attendance at an evidence-based program shall be credited toward the ten dollars ($10) increase in per diem required under paragraph (b) of this subsection.
  6. State prisoners, excluding the Class D felons and Class C felons qualifying to serve time in jails, shall be transferred to the state institution within forty-five (45) days of final sentencing.
    1. Class D felons eligible for placement in a jail may be permitted by the warden or jailer to participate in any approved community work program or other form of work release with the approval of the commissioner of the Department of Corrections. (9) (a) Class D felons eligible for placement in a jail may be permitted by the warden or jailer to participate in any approved community work program or other form of work release with the approval of the commissioner of the Department of Corrections.
    2. The authority to release an inmate to work under this subsection may be exercised at any time during the inmate’s sentence, including the period when the court has concurrent authority to permit work release pursuant to KRS 439.265 .
    3. The warden or jailer may require an inmate participating in the program to pay a fee to reimburse the warden or jailer for the cost of operating the community work program or any other work release program. The fee shall not exceed the lesser of fifty-five dollars ($55) per week or twenty percent (20%) of the prisoner’s weekly net pay earned from the community work program or work release participation. In addition, the inmate may be required to pay for any drug testing performed on the inmate as a requirement of the community work program or work release participation.
    4. This subsection shall not apply to an inmate who:
      1. Is not eligible for work release pursuant to KRS 197.140 ;
      2. Has a maximum or close security classification as defined by administrative regulations promulgated by the Department of Corrections;
      3. Is subject to the provisions of KRS 532.043 ; or
      4. Is in a reentry center as defined in KRS 441.005 .

HISTORY: Enact. Acts 1974, ch. 406, § 282, effective January 1, 1975; 1974, ch. 74, Art. V, § 24(14); 1976 (Ex. Sess.), ch. 15, § 5, effective December 22, 1976; 1986, ch. 331, § 58, effective July 15, 1986; 1992, ch. 211, § 134, effective July 14, 1992; 1992, ch. 262, § 8, effective July 14, 1992; 1996, ch. 108, § 7, effective July 15, 1996; 2000, ch. 384, § 3, effective July 14, 2000; 2000, ch. 401, § 36, effective April 11, 2000; 2006, ch. 182, § 46, effective July 12, 2006; 2011, ch. 2, § 40, effective June 8, 2011; 2017 ch. 158, § 85, effective June 29, 2017; 2018 ch. 115, § 4, effective January 1, 2019; 2020 ch. 109, § 3, effective April 24, 2020; 2021 ch. 194, § 6, effective April 7, 2021.

NOTES TO DECISIONS

1.Acceptance of Custody.

Correction Cabinet’s defense to contempt charges based on its inability to comply with orders to take custody of certain prisoners was fundamentally flawed; the Kentucky Constitution assigns the responsibility for care and custody of convicted felons to state government as a whole; therefore, state government, which bears the burden for correcting overcrowding in prisons, was not unable to perform, even if this individual agency of the government could claim otherwise. Campbell County v. Commonwealth, Kentucky Corrections Cabinet, 762 S.W.2d 6, 1988 Ky. LEXIS 50 ( Ky. 1988 ).

2.Controlled Intake Policy.

Rule of Criminal Procedure 11.22, KRS 431.215 and this section, and §§ 253 and 254 of the Kentucky Constitution, dictate the Correction Cabinet must accept custody or transfer of convicted felons and parole violators, despite that body’s promulgation of a controlled intake policy pursuant to KRS 196.030 and 197.110 . Campbell County v. Commonwealth, Kentucky Corrections Cabinet, 762 S.W.2d 6, 1988 Ky. LEXIS 50 ( Ky. 1988 ).

3.Service of Term in County Jail.

Court of Appeals erred in finding that defendant was not eligible for home incarceration because he pled guilty to two non-violent Class D felonies, DUI, fourth offense, and driving on a DUI-suspended license, second offense, was sentenced to an indeterminate term of imprisonment of five years or less, and, he was to serve his sentence in the county jail. Rice v. Commonwealth, 492 S.W.3d 563, 2016 Ky. LEXIS 252 ( Ky. 2016 ).

Cited in:

Tate v. Frey, 735 F.2d 986, 1984 U.S. App. LEXIS 21936 (6th Cir. 1984); Rowan County v. Sloas, 201 S.W.3d 469, 2006 Ky. LEXIS 237 ( Ky. 2006 ).

Opinions of Attorney General.

The judge has the primary duty to determine where the defendant is to be committed and to enter an order directing such commitment; however, the court may order the sheriff to keep it informed of what facilities are available for housing the prisoners, and where the judges have ordered the sheriff to keep them informed of what facilities are available to house prisoners, he must do so. OAG 80-482 .

Research References and Practice Aids

2020-2022 Budget Reference.

See State/Executive Branch Budget, 2020 Ky. Acts ch. 92, Pt. I, H, 5, b, (2) at 889.

Kentucky Law Journal.

Lawson, Turning Jails Into Prisons — Collateral Damage from Kentucky’s “War on Crime.”, 95 Ky. L.J. 1 (2006/2007).

Northern Kentucky Law Review.

Lotz, A Survey of Criminal Law Statutes Enacted in 1992, 20 N. Ky. L. Rev. 745 (1993).

532.110. Concurrent and consecutive terms of imprisonment.

  1. When multiple sentences of imprisonment are imposed on a defendant for more than one (1) crime, including a crime for which a previous sentence of probation or conditional discharge has been revoked, the multiple sentences shall run concurrently or consecutively as the court shall determine at the time of sentence, except that:
    1. A definite and an indeterminate term shall run concurrently and both sentences shall be satisfied by service of the indeterminate term;
    2. The aggregate of consecutive definite terms shall not exceed one (1) year;
    3. The aggregate of consecutive indeterminate terms shall not exceed in maximum length the longest extended term which would be authorized by KRS 532.080 for the highest class of crime for which any of the sentences is imposed. In no event shall the aggregate of consecutive indeterminate terms exceed seventy (70) years; and
    4. The sentences of a defendant convicted of two (2) or more felony sex crimes, as defined in KRS 17.500 , involving two (2) or more victims shall run consecutively.
  2. If the court does not specify the manner in which a sentence imposed by it is to run, the sentence shall run concurrently with any other sentence which the defendant must serve unless the sentence is required by subsection (3) of this section or KRS 533.060 to run consecutively.
  3. Notwithstanding any provision in this section to the contrary, if a person is convicted of an offense that is committed while he is imprisoned in a penal or reformatory institution, during an escape from imprisonment, or while he awaits imprisonment, the sentence imposed for that offense may be added to the portion of the term which remained unserved at the time of the commission of the offense. The sentence imposed upon any person convicted of an escape or attempted escape offense shall run consecutively with any other sentence which the defendant must serve.
  4. Notwithstanding any provision in this chapter to the contrary, if a person is convicted of an offense that is committed while he is imprisoned in a penal or reformatory institution, the sentence imposed for that offense may, upon order of the trial court, be served in that institution. The person may be transferred to another institution pursuant to administrative regulations of the Department of Corrections.

History. Enact. Acts 1974, ch. 406, § 283, effective January 1, 1975; 1974, ch. 74, Art. V, § 24(14); 1982, ch. 405, § 3, effective July 15, 1982; 1986, ch. 331, § 59, effective July 15, 1986; 1992, ch. 211, § 135, effective July 14, 1992; 1998, ch. 606, § 114, effective July 15, 1998; 2002, ch. 11, § 5, effective July 15, 2002; 2006, ch. 182, § 47, effective July 12, 2006.

NOTES TO DECISIONS

Analysis

1.Applicability.

Pursuant to KRS 446.110 , KRS 532.110(1)(c), which includes a 70-year cap on consecutive sentences, governed the sentence even on those offenses defendant committed prior to the effective date of KRS 532.110(1)(c). Cummings v. Commonwealth, 226 S.W.3d 62, 2007 Ky. LEXIS 130 ( Ky. 2007 ).

Even if the trial court had not failed to timely correct defendant’s sentence upon the revocation of defendant’s probation, from a sentence in accord with the written sentencing judgment to the lengthier sentence it told defendant about at defendant’s sentencing hearing, the trial court could only impose a three-year sentence rather than the 20-year sentence it wanted to impose. The trial court was obligated under KRS 532.030 to fix the punishment to be imposed at the time a defendant was convicted, and, indeed had to determine pursuant to KRS 532.110(1) at the time of sentencing whether multiple sentences would be concurrent or consecutive. Machniak v. Commonwealth, 351 S.W.3d 648, 2011 Ky. LEXIS 147 ( Ky. 2011 ).

2.Construction.

Subdivision (1)(c) of this section refers in general to KRS 532.080 in establishing the longest extended term, and the longest extended term for a Class D felony under KRS 532.080 is set at 20 years. Commonwealth v. Durham, 908 S.W.2d 119, 1995 Ky. LEXIS 126 ( Ky. 1995 ).

Retroactive application of KRS 532.110(1)(d) is prohibited by the ex post facto clauses of the state and federal constitutions, Ky. Const. § 19 and U.S. Const. art. I, § 9. By removing the possibility of concurrent sentences, subsection (1)(d) creates a new standard of punishment that is more onerous than that under the former statute. Cecil v. Commonwealth, 297 S.W.3d 12, 2009 Ky. LEXIS 245 ( Ky. 2009 ).

3.—With Other Laws.

Where a defendant was sentenced to three (3) years confinement in the state reformatory, that sentence being probated for five (5) years, and subsequently was convicted of a second felony with a sentence of five (5) years, it was improper for the lower court to provide that the first sentence, which was reinstated after revocation of probation, should run concurrently with the second sentence; under the rule that the later of two (2) conflicting enactments prevails, the provisions of subsection (2) of KRS 533.060 , which became effective in June 1976, and prohibits such a concurrent sentence, controls over the contradictory provisions of subsection (1) of this section, which became effective in January, 1975. Commonwealth v. Hunt, 619 S.W.2d 733, 1981 Ky. App. LEXIS 277 (Ky. Ct. App. 1981).

The pretext for enacting KRS 532.055 was to supply more information to jurors to use in setting sentences, not to enhance the severity of the sentences rendered. Nor does its existence destroy the rule of lenity that applies to interpreting criminal statutes. Nor does it overrule expressly or by implication the principles controlling concurrent and consecutive sentencing expounded in KRS 532.110 and its commentary. Stoker v. Commonwealth, 828 S.W.2d 619, 1992 Ky. LEXIS 45 ( Ky. 1992 ).

Since defendant had already pled guilty in an earlier case and was awaiting sentencing, defendant did not fit within the scope of KRS 533.060(3). The plain language of KRS 533.060(3) provides a gap which makes it inapplicable to defendant’s situation and subsection (1) of this section was therefore applicable, giving the trial judge some discretion in deciding whether to run the sentences concurrently or consecutively. Commonwealth v. Brasher, 842 S.W.2d 535, 1992 Ky. App. LEXIS 244 (Ky. Ct. App. 1992), overruled, Cosby v. Commonwealth, 147 S.W.3d 56, 2004 Ky. LEXIS 174 ( Ky. 2004 ).

Although concurrent sentencing is the general rule under this section, an exception is created by KRS 533.040 for cases in which probation is revoked; by providing this exception, the General Assembly has implied that consecutive sentencing is an option when probation is revoked. Walker v. Commonwealth, 10 S.W.3d 492, 1999 Ky. App. LEXIS 164 (Ky. Ct. App. 1999).

KRS 533.060(2) takes priority over this section, and there is no merit to the argument that the re-enactment of this section in 1998 allows the trial court discretion to impose a concurrent sentence for an offense committed while the defendant was on probation in contravention of KRS 533.060(2). White v. Commonwealth, 32 S.W.3d 83, 2000 Ky. App. LEXIS 45 (Ky. Ct. App. 2000).

KRS 532.110(4) creates a specific exception to KRS 533.040(3) where the two come into conflict and the more specific statutory language pertaining to escape in KRS 532.110(4), which mandates consecutive sentencing for escape, must pre-empt KRS 533.040(3), the more general statute dealing with the 90-day period in which to bring a probation revocation hearing. Wilson v. Commonwealth, 78 S.W.3d 137, 2001 Ky. App. LEXIS 895 (Ky. Ct. App. 2001).

KRS 533.060(2), which bars concurrent sentences if the offender committed a felony while on probation for the commission of another felony, did not preclude application of the 70-year sentencing cap on defendant’s consecutive sentences in KRS 532.110(1)(c), because under KRS 635.040 defendant’s juvenile adjudication was not deemed a “felony.” Cummings v. Commonwealth, 226 S.W.3d 62, 2007 Ky. LEXIS 130 ( Ky. 2007 ).

4.Aggregate Sentence.

Where defendant was a first offender with 105 convictions and sentences for class D felonies, 15-year cumulative sentence was proper. Milner v. Commonwealth, 655 S.W.2d 31, 1983 Ky. App. LEXIS 333 (Ky. Ct. App. 1983).

Sentence of 105 years imprisonment for multiple convictions of sodomy and sexual abuse did not constitute cruel and unusual punishment; whether to run the sentence concurrently or consecutively was within the trial court’s discretion. Hampton v. Commonwealth, 666 S.W.2d 737, 1984 Ky. LEXIS 219 ( Ky. 1984 ).

No term of years, regardless of length, conflicts technically with the terms of a sentencing statute which expresses no limitation on the number of years; accordingly, sentence of 105 years for offenses which carried maximum term of life imprisonment did not violate this section even though, as a practical matter, 105 years exceeded defendant’s life expectancy. Hampton v. Commonwealth, 666 S.W.2d 737, 1984 Ky. LEXIS 219 ( Ky. 1984 ).

Subsection (1)(c) of this section requires that KRS 532.080 be used to establish the maximum aggregate sentence for a person convicted of multiple offenses, without regard to whether the penalties for those offenses have been enhanced. When KRS 532.080 is applied to determine the maximum aggregate penalty, as opposed to being used to enhance a penalty, the appropriate reference in a case where the underlying felonies are Class D or C felonies is to subsection (6)(b) of KRS 532.080 rather than to subsection (5) of KRS 532.080. Commonwealth v. Durham, 908 S.W.2d 119, 1995 Ky. LEXIS 126 ( Ky. 1995 ).

Subdivision (1)(c) of this section which deals with concurrent and consecutive terms of imprisonment, when read in tandem with KRS 532.080 which deals with persistent felony sentencing, indicates that there is no upper limit on the term of years sentenced for a Class A felony. Consequently, there is no upper limit on the length of the aggregate of the consecutive indeterminate terms. Violett v. Commonwealth, 907 S.W.2d 773, 1995 Ky. LEXIS 129 ( Ky. 1995 ), cert. denied, 522 U.S. 1151, 118 S. Ct. 1172, 140 L. Ed. 2d 181, 1998 U.S. LEXIS 1545 (U.S. 1998).

A defendant may validly waive the maximum aggregate sentence limitation in subdivision (1)(c) that otherwise would operate to his benefit. Myers v. Commonwealth, 42 S.W.3d 594, 2001 Ky. LEXIS 7 ( Ky. 2001 ), cert. denied, Hardin v. Action Graphics, Inc., 535 U.S. 1054, 122 S. Ct. 1910, 152 L. Ed. 2d 820, 2002 U.S. LEXIS 3240 (U.S. 2002), overruled in part, McClanahan v. Commonwealth, 308 S.W.3d 694, 2010 Ky. LEXIS 98 ( Ky. 2010 ).

Trial court erred in sentencing defendant to an aggregate sentence of 35 years in prison upon conviction on two counts of second-degree sodomy and three counts of first-degree sexual aubse, rather than the maximum twenty-year sentence under KRS 532.110(1)(c) and 532.080 (6)(b), as the 35-year-sentence exceeded in length the longest extended term authorized by KRS 532.080 for the Class C felony conviction of second-degree sodomy, the highest class of crimes of which defendant was convicted. Sanderson v. Commonwealth, 291 S.W.3d 610, 2009 Ky. LEXIS 96 ( Ky. 2009 ).

Because second-degree robbery under KRS 515.030 was the highest class of crime for which defendant was convicted, the aggregate of the sentences to be imposed upon defendant for convictions of one count of second-degree robbery, four counts of third-degree burglary, and one count of theft over $300 could not lawfully exceed 20 years; KRS 532.110(1)(c) did not give the trial court leeway to impose a greater sentence, and explicitly stated, through its incorporation of KRS 532.080(6)(b), that the sentence “shall not exceed” 20 years. Thus, defendant’s 35-year sentence was not within the statutorily prescribed range of punishment and the plea agreement authorizing that sentence should have been rejected pursuant to RCr P. 8.10. McClanahan v. Commonwealth, 308 S.W.3d 694, 2010 Ky. LEXIS 98 ( Ky. 2010 ).

5.Concurrent Misdemeanor and Felony Sentences.

When an offender is sentenced for a misdemeanor conviction by a Circuit Court other than a Circuit Court that has imposed a sentence for a felony conviction the misdemeanor conviction must run concurrently with the previously imposed felony sentence. Powell v. Payton, 544 S.W.2d 1, 1976 Ky. LEXIS 147 ( Ky. 1976 ).

Although concurrent sentencing, this section, is the general rule, KRS 533.040(3) creates an exception for cases in which probation is revoked. By providing this exception, the General Assembly has implied that consecutive sentencing is an option when probation is revoked within the required 90-day period. Snow v. Commonwealth, 927 S.W.2d 841, 1996 Ky. App. LEXIS 127 (Ky. Ct. App. 1996).

The requirement of concurrent sentencing in subdivision (1)(a) does not apply to terms imposed as punishment for contempt of court. Norton v. Commonwealth, 37 S.W.3d 750, 2001 Ky. LEXIS 20 ( Ky. 2001 ).

Although sentences for misdemeanor drug possession and drug paraphernalia convictions normally ran concurrently with felony convictions, under KRS 532.110(1)(a), the application of KRS 218A.992(1), for possession of a firearm during the commission of those crimes, resulted in enhanced sentences that ran consecutively. Johnson v. Commonwealth, 105 S.W.3d 430, 2003 Ky. LEXIS 117 ( Ky. 2003 ).

Inmate’s motion for additional jail time credit, pursuant to KRS 532.110(1)(a), for the six months he served for his misdemeanor convictions while his felony charge was diverted, was properly denied because the inmate was not actually incarcerated for the felony conviction until after he had served out the misdemeanor sentence. Prather v. Commonwealth, 2007 Ky. App. LEXIS 421 (Ky. Ct. App. Nov. 2, 2007).

Under KRS 533.256(1), defendant had the right to a sentencing hearing as if he had pled guilty without the diversion agreement, then final sentencing on the felony had to be, for concurrent sentencing purposes, as if he had been sentenced at the same time as his misdemeanors, and KRS 532.110(1)(a) would be applicable. Prather v. Commonwealth, 301 S.W.3d 20, 2009 Ky. LEXIS 286 ( Ky. 2009 ).

6.Concurrent Sentences.

This section required sentences for trafficking in cocaine and for trafficking in marijuana to run concurrently, and defendant should be given credit on his misdemeanor term for the time served on the felony conviction. Romans v. Brooks, 637 S.W.2d 662, 1982 Ky. App. LEXIS 234 (Ky. Ct. App. 1982).

As defendant was on probation from a felony conviction when he committed two (2) counts of manslaughter and other felonies, pursuant to KRS 533.060(2), his sentences could not run concurrently, and KRS 532.110(1)(c) did not act as a sentencing cap. Page v. Commonwealth, 149 S.W.3d 416, 2004 Ky. LEXIS 278 ( Ky. 2004 ).

Although the judgment and sentence orders noted that the jury recommended that a life sentence and a 5 year term were to run consecutively, there was no order designating that the sentences were to run consecutively. Since KRS 532.110(2) clearly stated that sentences ran concurrently when an order did not specify the manner in which sentences were to run, the sentences were to run concurrently pursuant to KRS 532.110(2), not consecutively as asserted by defendant. Major v. Commonwealth, 275 S.W.3d 706, 2009 Ky. LEXIS 342 ( Ky. 2009 ).

7.Consecutive Sentences.

This section prohibited the courts from imposing consecutive terms of imprisonment to run for more than one (1) year. Hardy v. Commonwealth, 590 S.W.2d 879, 1979 Ky. LEXIS 307 ( Ky. 1979 ).

Subsection (1)(c) of this section prohibits consecutive life sentences, and where the defendant was convicted of raping and strangling two (2) women, the two murder sentences would only run concurrently. Young v. Commonwealth, 585 S.W.2d 378, 1979 Ky. LEXIS 269 ( Ky. 1979 ).

Where defendant was convicted of second-degree robbery under KRS 515.030 and sentenced to enhanced term of 20 years as persistent felony offender, his sentence of 10 years for theft of property under this section could not be made to run consecutively since the aggregate consecutive terms allowed by subsection (1)(c) of this section is limited to the longest term authorized by KRS 532.080 , which in this case would be 20 years for the second-degree robbery. Tabor v. Commonwealth, 613 S.W.2d 133, 1981 Ky. LEXIS 221 ( Ky. 1981 ).

To the extent that subdivision (1)(a) of this section cannot be reconciled with KRS 533.060 (3), KRS 533.060 as the statute later in time controls; accordingly, where the defendant while awaiting trial in Franklin County on five (5) counts of forgery committed the offense of and pled guilty to criminal possession of a forged instrument in Jefferson County, the court in Franklin County did not err when if refused to run the defendant’s sentence on the five (5) counts of forgery concurrently with his sentence in Jefferson County for criminal possession of a forged instrument. Handley v. Commonwealth, 653 S.W.2d 165, 1983 Ky. App. LEXIS 299 (Ky. Ct. App. 1983).

Where the defendant was sentenced to life imprisonment; the other sentences, in accordance with subdivision (1)(c) of this section, could not run consecutively to the life sentence. See v. Commonwealth, 746 S.W.2d 401, 1988 Ky. LEXIS 19 ( Ky. 1988 ).

Trial court did not abuse its discretion in running rape sentences consecutively, even though jury had recommended the sentences run concurrently; the sentence returned by the jury was no more than a recommendation and was not binding upon the trial court at defendant’s final sentencing. Wombles v. Commonwealth, 831 S.W.2d 172, 1992 Ky. LEXIS 76 ( Ky. 1992 ).

The recent decision of the Supreme Court of Kentucky in Bedell v. Commonwealth , 870 S.W.2d 779, 1993 Ky. LEXIS 179 ( Ky. 1994 ), prohibits a sentence of years to be entered consecutive to a life sentence. Wells v. State, 892 S.W.2d 299, 1995 Ky. LEXIS 16 ( Ky. 1995 ).

A defendant who escaped from home detention and, unable to make bond on his escape charge, spent time in jail could receive credit against the underlying sentence for nonsupport for that jail time but could not also receive credit against his prison sentence for the escape charge, which was to run consecutively with the prison time for the underlying misdemeanor. Martin v. Commonwealth, 957 S.W.2d 262, 1997 Ky. App. LEXIS 61 (Ky. Ct. App. 1997).

Subsection (4) is an exception to the sentencing limit set forth in KRS 532.110(1)(c) and mandates that a sentence imposed for an escape or attempted escape offense shall run consecutively with any other sentence imposed. Gaither v. Commonwealth, 963 S.W.2d 621, 1998 Ky. LEXIS 47 ( Ky. 1998 ).

It was error for the Court of Appeals to reverse a trial judge’s order that a jury’s recommended sentences on three (3) misdemeanor convictions were to run consecutively; the jury’s acquittal of defendant on all felonies meant the requirement in KRS 532.055(2) of a jury recommendation for consecutive sentencing was inapplicable. Because defendant was convicted of only misdemeanors, the trial judge properly sentenced defendant according to the statutory guidelines of KRS 532.110 , and properly imposed consecutive sentencing without a jury recommendation. Commonwealth v. Stinnett, 144 S.W.3d 829, 2004 Ky. LEXIS 217 ( Ky. 2004 ).

Where a state prisoner did not pursue state remedies under CR 60.02 or RCr 11.42 to clarify his sentence, he was not entitled to habeas relief regarding his claim that the department of corrections’ recalculation of his sentence from concurrent terms to consecutive terms violated KRS 532.110 . Collins v. Million, 121 Fed. Appx. 628, 2005 U.S. App. LEXIS 1585 (6th Cir. Ky. 2005 ).

Trial court erred by imposing a sentence of 105 years with regard to defendant’s multiple convictions for incest, sodomy, and other sexual abuse charges because KRS 532.080(6)(b) only permitted a maximum of 20 years imprisonment. As a result, the appellate court remanded the case to the trial court for re-sentencing. Gibbs v. Commonwealth, 208 S.W.3d 848, 2006 Ky. LEXIS 239 ( Ky. 2006 ), overruled in part, Padgett v. Commonwealth, 312 S.W.3d 336, 2010 Ky. LEXIS 71 ( Ky. 2010 ).

Upon the revocation of defendant’s probation, the trial court was correct in ordering that defendant’s twelve-month misdemeanor sentence should run consecutively with a three-year felony sentence for offenses committed while she was awaiting trial in the misdemeanor case. KRS 533.060(3), which prohibited concurrent sentencing, was the controlling statute; KRS 532.110(1)(a) did not apply. Brown v. Commonwealth, 295 S.W.3d 854, 2009 Ky. App. LEXIS 174 (Ky. Ct. App. 2009).

Circuit court’s imposition of consecutive sentences, but with a maximum aggregate of 20 years, was not erroneous for a defendant convicted on four separate charges of first-degree sexual abuse of three different victims less than 12 years of age, pursuant to the statutory cap on sentences found in KRS 532.110(1)(c). Commonwealth v. Stambaugh, 327 S.W.3d 435, 2010 Ky. LEXIS 219 ( Ky. 2010 ).

Trial court did not exceed the statutory limits set forth in KRS 532.080 and 532.110 in sentencing appellant to an aggregated, consecutive sentence of 60 years where he had been convicted of a Class B felony, case law held that the maximum consecutive sentence for Class A and B felony offenders was 70 years based on the KRS 532.110 (1)(c) limitation, and his aggregate sentence was below 70 years. Castle v. Commonwealth, 411 S.W.3d 754, 2013 Ky. LEXIS 460 ( Ky. 2013 ).

In a second-degree drug trafficking case, a circuit court's decision to sentence defendant to four consecutive, one-year terms for a total of four years' imprisonment fell within the permitted sentencing range since the longest term the circuit court was authorized to impose was twenty years; the portion of the drug trafficking statute relating to first time offenders was subject to a persistent felony offender enhancement. Eldridge v. Commonwealth, 479 S.W.3d 614, 2015 Ky. App. LEXIS 181 (Ky. Ct. App. 2015).

8.—Erroneous.

Where the highest class of crime for which sentence was imposed was second-degree manslaughter, a Class C felony, KRS 532.080(6)(b) limited the defendant’s sentence to no more than 20 years and it was error to order two (2) sentences for manslaughter and one for third-degree arson to run consecutively so as to impose an aggregate sentence of 25 years. Hendley v. Commonwealth, 573 S.W.2d 662, 1978 Ky. LEXIS 416 ( Ky. 1978 ).

Where the defendant committed a felony while on probation for a misdemeanor offense, rather than a felony offense, KRS 533.060(2) concerning the running of sentences was inapplicable; accordingly, the trial court erred when, after revoking the defendant’s probated misdemeanor sentence, it ordered that the misdemeanor sentence was to run consecutively not concurrently with the felony sentence. Harris v. Commonwealth, 674 S.W.2d 528, 1984 Ky. App. LEXIS 553 (Ky. Ct. App. 1984).

Where defendant’s crime of possession of a Schedule II narcotic, second offense, subsequently enhanced, was a Class C felony and persistent felony offender enhancement elevated the possession conviction to a Class B felony for which the maximum penalty was 20 years, a consecutive sentence of 30 years for three (3) offenses, the possession conviction being the highest class of crime, violated subdivision (1)(c) of this section, and the matter had to be remanded for resentencing for all three (3) offenses to a maximum term of 20 years. Dawson v. Commonwealth, 756 S.W.2d 935, 1988 Ky. LEXIS 55 ( Ky. 1988 ).

Where erroneous jury instruction and form of verdict resulted in consecutive sentences, the sentences were set aside and the sentencing phase of the trial was remanded to the trial court to enter new judgments ordering all sentences to be run concurrently. Stoker v. Commonwealth, 828 S.W.2d 619, 1992 Ky. LEXIS 45 ( Ky. 1992 ).

It was error for the trial judge to run a life sentence consecutively to a 290 year sentence. A term-of-years sentence cannot run consecutively with a life sentence. Therefore sentences for terms of years may run consecutively with each other but must run concurrently with a life sentence. Yarnell v. Commonwealth, 833 S.W.2d 834, 1992 Ky. LEXIS 155 ( Ky. 1992 ).

It was erroneous to run the sentence of life imprisonment for first-degree sodomy consecutively with the sentence of five (5) years’ imprisonment for first-degree sexual abuse. Hall v. Commonwealth, 862 S.W.2d 321, 1993 Ky. LEXIS 137 ( Ky. 1993 ).

Jury should have been instructed at the conclusion of the sentencing phase of the trial that it could have recommended imposition of concurrent or consecutive sentences and the trial court erred in determining that consecutive sentences were mandated under KRS 533.060 , because defendant was not awaiting trial under KRS 533.060 until he was indicted and since he was only charged with an offense the charge was not sufficient to invoke the KRS 533.060 prohibition against concurrent sentences. Whalen v. Commonwealth, 891 S.W.2d 86, 1995 Ky. App. LEXIS 9 (Ky. Ct. App. 1995).

Pursuant to this section, defendant who was convicted of three (3) Class C felonies, enhanced to 20 years each pursuant to KRS 532.080 , should have been sentenced to three (3) concurrent 20-year sentences, not three (3) consecutive 20-year sentences. Young v. Commonwealth, 968 S.W.2d 670, 1998 Ky. LEXIS 82 ( Ky. 1998 ), overruled in part, Matthews v. Commonwealth, 163 S.W.3d 11, 2005 Ky. LEXIS 161 ( Ky. 2005 ).

After revoking defendant’s probation, a trial court erred in ordering that defendant’s sentences run consecutively to sentences in a neighboring county because the sentencing decision had already been made at the initial sentencing hearing when the trial court did not specify whether the sentences would run concurrently or consecutively; by operation of KRS 532.110(2), they had to run concurrently. Goldsmith v. Commonwealth, 363 S.W.3d 330, 2012 Ky. LEXIS 24 ( Ky. 2012 ).

It was error to order defendant’s probation revocation sentence for escape to run consecutively to defendant’s sentence from another state because, when defendant’s probation sentence was imposed, subsequent criminal convictions upon which the revocation was based did not exist, as sentence was not imposed when defendant’s probation was revoked. Starks v. Commonwealth, 2020 Ky. App. LEXIS 19 (Ky. Ct. App. Feb. 14, 2020).

9.—Life Sentences.

No sentence can be ordered to run consecutively with a life sentence in any case, capital or non-capital. (overruling Rackley v. Commonwealth , 674 S.W.2d 512, 1984 Ky. LEXIS 263 ( Ky. 1984 )).Bedell v. Commonwealth, 870 S.W.2d 779, 1993 Ky. LEXIS 179 ( Ky. 1993 ).

10.Discretion of Court.

Where defendant had been convicted of four (4) prior felonies before his conviction for rape and burglary, it was no abuse of discretion to make his two (2) sentences consecutive. Wilhite v. Commonwealth, 574 S.W.2d 304, 1978 Ky. LEXIS 447 ( Ky. 1978 ).

Inasmuch as sentencing discretion is given to the trial court in capital murder cases, the trial court did not err in sentencing the defendant to life on the capital murder and 20 years for first-degree burglary, the sentences to be served consecutively. Rackley v. Commonwealth, 674 S.W.2d 512, 1984 Ky. LEXIS 263 ( Ky. 1984 ), overruled, Bedell v. Commonwealth, 870 S.W.2d 779, 1993 Ky. LEXIS 179 ( Ky. 1993 ).

Where the judge imposed a sentence of two (2) 20 terms to be served consecutively, whereas the jury recommended that the two (2) 20 terms be served concurrently, no error was involved, for the trial judge has wide discretion when imposing sentencing. Jones v. Commonwealth, 833 S.W.2d 839, 1992 Ky. LEXIS 106 ( Ky. 1992 ).

11.Hearing.

The trial court’s discretion to impose concurrent or consecutive sentences must be exercised only after the defendant has had a fair opportunity to present evidence at a meaningful hearing in favor of having the sentences run concurrently or present other matters in mitigation of punishment. Edmonson v. Commonwealth, 725 S.W.2d 595, 1987 Ky. LEXIS 194 ( Ky. 1987 ).

Where the trial judge told defendant that he would receive the maximum sentence allowed under the plea agreement should he violate the terms of his presentence release, the trial judge committed to the imposition of a specific sentence in a way that precluded true compliance with KRS 532.050(1), 532.110(1), and 533.010(1) and (2), and RCr P. 11.02 because the sentencing decision had been made prior to the sentencing hearing and was made before due consideration could have been given to the nature and circumstances of the crime; to the history, character and condition of the defendant; to the presentence report; and to the alternatives to incarceration. McClanahan v. Commonwealth, 308 S.W.3d 694, 2010 Ky. LEXIS 98 ( Ky. 2010 ).

12.Maximum Sentence.

Defendant was entitled to postconviction relief under Ky. RCr P. 11.42 because trial counsel was ineffective for failing to object to testimony by a probation and parole officer during the sentencing phase that the maximum possible sentence was 120 years in prison when, in fact, under KRS 532.110(1)(c) it was only 70 years. The prosecution used the erroneous information to ask the jury to give defendant a mid-range sentence of 60 years, which was what the jury finally recommended. Fegley v. Commonwealth, 337 S.W.3d 657, 2011 Ky. App. LEXIS 60 (Ky. Ct. App. 2011).

Trial court erred in imposing a 30-year sentence because, as to first-degree trafficking in a controlled substance, cocaine, defendant, as a persistent felony offender, could have been sentenced to 10 to 20 years in prison; thus, the maximum allowable sentence permissible under KRS 532.110(1)(c) was 20 years. Blane v. Commonwealth, 364 S.W.3d 140, 2012 Ky. LEXIS 54 ( Ky. 2012 ), overruled in part, Roe v. Commonwealth, 2015 Ky. LEXIS 2080 (Ky. Sept. 24, 2015).

Circuit court properly denied defendant’s motion alleging that 70-year sentence imposed in 2013 was illegal because defendant pleaded guilty to first-degree robbery, a Class B felony, and the only statutory limitation on the aggregate length of consecutive sentences for defendants whose highest class of crime was a Class A or Class B felony was a 70-year cap. Grady v. Commonwealth, 561 S.W.3d 357, 2018 Ky. App. LEXIS 124 (Ky. Ct. App. 2018).

13.Modification of Maximum Sentence.

Subsection (3) of this section modifies the limit, or cap, placed on the sentence maximum set out in subdivision (1)(c) of this section. Devore v. Commonwealth, 662 S.W.2d 829, 1984 Ky. LEXIS 201 ( Ky. 1984 ), cert. denied, 469 U.S. 836, 105 S. Ct. 132, 83 L. Ed. 2d 72, 1984 U.S. LEXIS 3310 (U.S. 1984), overruled in part, Peyton v. Commonwealth, 253 S.W.3d 504, 2008 Ky. LEXIS 130 ( Ky. 2008 ).

14.Offenses Committed by Parolee.

The impact of KRS 533.060(2) and subsection (3) of this section is to single out and authorize special treatment to those felons who commit felonies while on parole. Devore v. Commonwealth, 662 S.W.2d 829, 1984 Ky. LEXIS 201 ( Ky. 1984 ), cert. denied, 469 U.S. 836, 105 S. Ct. 132, 83 L. Ed. 2d 72, 1984 U.S. LEXIS 3310 (U.S. 1984), overruled in part, Peyton v. Commonwealth, 253 S.W.3d 504, 2008 Ky. LEXIS 130 ( Ky. 2008 ).

The defendant’s ten (10) consecutive 15 year sentences for receiving stolen property did not violate subdivision (1)(c) of this section, as the crimes were committed while the defendant was on parole from a life sentence, and subsection (2) of KRS 533.060 provides for consecutive sentences for persistent felons convicted while on parole, probation, or conditional discharge. Corbett v. Commonwealth, 717 S.W.2d 831, 1986 Ky. LEXIS 288 ( Ky. 1986 ).

Where, at the times of their convictions, both defendants were on parole from previous offenses, and both judgments were silent as to whether the former and present prison terms should run consecutively or concurrently, the Corrections Cabinet did not exceed its authority in setting the defendants’ sentences to run consecutively. Riley v. Parke, 740 S.W.2d 934, 1987 Ky. LEXIS 267 ( Ky. 1987 ).

15.Offenses Committed While Awaiting Trial.

The maximum sentence provision of subdivision (1)(c) of this section is not applicable to those individuals who fall within the terms of KRS 533.060(3). Devore v. Commonwealth, 662 S.W.2d 829, 1984 Ky. LEXIS 201 ( Ky. 1984 ), cert. denied, 469 U.S. 836, 105 S. Ct. 132, 83 L. Ed. 2d 72, 1984 U.S. LEXIS 3310 (U.S. 1984), overruled in part, Peyton v. Commonwealth, 253 S.W.3d 504, 2008 Ky. LEXIS 130 ( Ky. 2008 ).

The trial judge did not err in denying the defendant credit for the time served on the misdemeanor committed while the defendant was released on bail awaiting trial on the felony. Rose v. Commonwealth, 738 S.W.2d 835, 1987 Ky. App. LEXIS 549 (Ky. Ct. App. 1987).

The legislative intent expressed by KRS 533.060(3) calls for stricter sentencing for offenses committed while released on bail and when an individual awaiting trial commits another offense, it is KRS 533.060(3) and not this section that applies. Commonwealth v. Martin, 777 S.W.2d 236, 1989 Ky. App. LEXIS 126 (Ky. Ct. App. 1989).

16.Shock Probation.

Shock probation does not constitute service of a sentence as envisioned by this section. The trial court properly required defendant who was granted shock probation on felony sentence to serve the remainder of his misdemeanor sentence subject to receipt of credit for time served on the felony term. Romans v. Brooks, 637 S.W.2d 662, 1982 Ky. App. LEXIS 234 (Ky. Ct. App. 1982).

17.Waiver.

Defendant, who was convicted of two (2) counts of first-degree trafficking in a controlled substance and sentenced to consecutive 10 year terms, and was convicted in a second trial of being a convicted felon in possession of a firearm. Under KRS 532.110(1)(c), he could not have received a greater total sentence than the longest sentence for the most serious crime of which he was convicted, but he waived this provision when he agreed to a sentence after the second trial which imposed a greater sentence. As the defendant was not waiving a constitutional right, the trial court did not have to inquire into the validity of his waiver. Johnson v. Commonwealth, 90 S.W.3d 39, 2002 Ky. LEXIS 228 ( Ky. 2002 ), overruled in part, McClanahan v. Commonwealth, 308 S.W.3d 694, 2010 Ky. LEXIS 98 ( Ky. 2010 ).

18.Jury Recommendation.

Trial court erred in failing to instruct the jury on the maximum allowable 70-year sentence under KRS 532.055(2) and KRS 532.110(1)(c) where defendant was convicted of multiple felony offenses. Allen v. Commonwealth, 276 S.W.3d 768, 2008 Ky. LEXIS 290 ( Ky. 2008 ).

20.Illegal Sentence.

Courts must not be complicit in a violation of the public policy embedded in the sentencing statutes by turning a blind eye to an unlawful sentence that exceeds the statutory maximum, regardless of a defendant’s consent by plea agreement. To the extent they hold otherwise, Myers v. Commonwealth, 42 S.W.3d 594, 2001 Ky. LEXIS 7 ( Ky. 2001 ), and Johnson v. Commonwealth, 90 S.W.3d 39, 2002 Ky. LEXIS 228 ( Ky. 2002 ), are overruled, along with any other decisions so holding. McClanahan v. Commonwealth, 308 S.W.3d 694, 2010 Ky. LEXIS 98 ( Ky. 2010 ).

Cited in:

Woods v. Commonwealth, 712 S.W.2d 363, 1986 Ky. App. LEXIS 1144 (Ky. Ct. App. 1986); Souder v. Commonwealth, 719 S.W.2d 730, 1986 Ky. LEXIS 303 ( Ky. 1986 ); Buchanan v. Kentucky, 483 U.S. 402, 107 S. Ct. 2906, 97 L. Ed. 2d 336, 1987 U.S. LEXIS 2877 (1987); George v. Seabold, 909 F.2d 157, 1990 U.S. App. LEXIS 12169 (6th Cir. 1990); Lattimore v. Corrections Cabinet, 790 S.W.2d 238, 1990 Ky. App. LEXIS 78 (Ky. Ct. App. 1990); Smith v. Commonwealth, 806 S.W.2d 647, 1991 Ky. LEXIS 29 ( Ky. 1991 ); Williams v. Commonwealth, 829 S.W.2d 942, 1992 Ky. App. LEXIS 32 (Ky. Ct. App. 1992); Nichols v. Commonwealth, 839 S.W.2d 263, 1992 Ky. LEXIS 143 ( Ky. 1992 ); Sanders v. Commonwealth, 844 S.W.2d 391, 1992 Ky. LEXIS 171 ( Ky. 1992 ); Collins v. Commonwealth, — S.W.3d —, 2007 Ky. App. LEXIS 468 (Ky. Ct. App. 2007); Propes v. Commonwealth, 257 S.W.3d 119, 2008 Ky. App. LEXIS 174 (Ky. Ct. App. 2008); Brown v. Commonwealth, 297 S.W.3d 557, 2009 Ky. LEXIS 256 ( Ky. 2009 ); Commonwealth v. Perry, 507 S.W.3d 588, 2016 Ky. App. LEXIS 119 (Ky. Ct. App. 2016).

Notes to Unpublished Decisions

1.Effective date of amendment.

Unpublished decision: Courts are required to sentence a defendant in accordance with the laws in effect at the time the offense was committed unless the defendant specifically consents to the application of the new law that mitigates his punishment, and it must be evident from the record that the defendant has consented to a punishment that is mitigated by a new law in order to benefit from the same; although the amendment to KRS 532.110 was in effect when defendant was tried and sentenced, there was no evidence in the record that he requested to be sentenced under the new law that would have mitigated his sentence, and he was correctly sentenced under KRS 532.110 as it read prior to its amendment in 1998. Neace v. Commonwealth, 2002 Ky. LEXIS 272 (Ky. Nov. 21, 2002).

Opinions of Attorney General.

If a person stands convicted of multiple offenses, he is to be sentenced in accordance with the provisions of this section which states that multiple offenses shall run concurrently or consecutively as the court shall determine. OAG 78-167 .

When a defendant has been convicted on two (2) or more felonies while on parole, probation, shock probation or conditional discharge, the trial court may run such sentences concurrent with each and must run them consecutively with any other sentence. OAG 78-167 .

Research References and Practice Aids

Cross-References.

Contents of judgment, concurrent or consecutive sentences, RCr 11.04.

Recommitment of parolee, effect, KRS 439.352 .

Kentucky Bench & Bar.

Combs, The Calculation and Application of Prison Sentences, Vol. 70, No. 5, September 2006, Ky. Bench & Bar 7.

Kentucky Law Journal.

Kentucky Law Survey, Fortune, Criminal Procedure, 71 Ky. L.J. 367 (1982-83).

Northern Kentucky Law Review.

Bartlett, Alternative Sanctions and the Governor’s Crime Bill of 1998 (HB 455): Another Attempt at Providing a Framework for Efficient and Effective Sentencing, 27 N. Ky. L. Rev. 283 (2000).

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Penalty Phase Instructions, Part 3 Felony Offenses, § 12.19A.

532.115. Concurrent sentencing with federal sentencing or another state’s felony sentencing.

The court in sentencing a person convicted of a felony, shall be authorized to run the sentence concurrent with any federal sentence received by that defendant for a federal crime and any sentence received by that defendant in another state for a felony offense. The time spent in federal custody and the time spent in custody in another state under the concurrent sentencing shall count as time spent in state custody; but the federal custody and custody in another state shall not include time spent on probation or parole or constraint incidental to release on bail. If the court does not specify that its sentence is to run concurrent with a specific federal sentence or sentence of another state, the sentence shall not run concurrent with any federal sentence or sentence of another state.

History. Enact. Acts 1978, ch. 78, § 8, effective June 17, 1978; 1992, ch. 445, § 13, effective July 14, 1992.

NOTES TO DECISIONS

1.Construction With Other Law.

KRS 532.115 authorizes a trial court to order that a Kentucky sentence run concurrently with a federal sentence or sentence from another state, while KRS 533.060(2) specifically deals with a situation in which a defendant had been convicted of a felony while on probation or parole for a previous felony; the trial court properly held that it could not order defendant’s sentences to run concurrently since he was on probation for previous felony convictions from Indiana when he was convicted, and KRS 533.060(2) controlled. Rodefer v. Commonwealth, 2004 Ky. App. LEXIS 140 (Ky. Ct. App. May 14, 2004), sub. op., 2004 Ky. App. LEXIS 213 (Ky. Ct. App. July 16, 2004).

2.Jurisdiction.

Because this situation was one where defendant’s maximum out-of-state sentence had expired and not one where he possibly remained under the jurisdiction of out-of-state authorities and because his Kentucky sentence was longer than the maximum out-of-state sentence, he was now lawfully under the jurisdiction of the Kentucky prison system and incarcerated. Hudson v. Commonwealth, 932 S.W.2d 371, 1996 Ky. LEXIS 104 ( Ky. 1996 ).

3.Revocation of Probation.

Where the defendant was convicted and sentenced on a federal felony charge while on probation from several state felony convictions, for purposes of revoking the defendant’s probation and sentencing him, KRS 533.040(3) and this section were controlling; accordingly, since the defendant’s sentencing to the penitentiary by the state court was after the federal conviction and the order of probation revoked was within 90 days after the grounds for revocation came to the attention of the Bureau of Corrections (now Corrections Cabinet), the trial judge was authorized to order the state sentence to run concurrently or consecutively with the federal sentence. Gavel v. Commonwealth, 674 S.W.2d 953, 1984 Ky. LEXIS 225 ( Ky. 1984 ).

After defendant’s probation was revoked, a trial court improperly ordered his sentence for first-degree trafficking to run consecutive to a one-year Ohio sentence pursuant to KRS 533.060(2). KRS 533.040(3) and 532.115 , rather than KRS 533.060(2), applied, so the trial court’s authority to run the sentences concurrently or consecutively was conditioned upon a determination of whether the revocation occurred within ninety 90 days after the grounds for revocation came to the attention of the Department of Corrections. Ware v. Commonwealth, 326 S.W.3d 464, 2010 Ky. App. LEXIS 196 (Ky. Ct. App. 2010).

Cited:

Brock v. Sowders, 610 S.W.2d 591, 1980 Ky. LEXIS 279 ( Ky. 1980 ).

Research References and Practice Aids

Kentucky Bench & Bar.

Combs, The Calculation and Application of Prison Sentences., Vol. 70, No. 5, September 2006, Ky. Bench & Bar 7.

532.120. Calculation of terms of imprisonment — Inmate’s right to challenge Department of Corrections.

  1. An indeterminate sentence of imprisonment commences when the prisoner is received in an institution under the jurisdiction of the Department of Corrections. When a person is under more than one (1) indeterminate sentence, the sentences shall be calculated as follows:
    1. If the sentences run concurrently, the maximum terms merge in and are satisfied by discharge of the term which has the longest unexpired time to run; or
    2. If the sentences run consecutively, the maximum terms are added to arrive at an aggregate maximum term equal to the sum of all the maximum terms.
  2. A definite sentence of imprisonment commences when the prisoner is received in the institution named in the commitment. When a person is under more than one (1) definite sentence, the sentences shall be calculated as follows:
    1. If the sentences run concurrently, the terms merge in and are satisfied by discharge of the term which has the longest unexpired time to run; or
    2. If the sentences run consecutively, the terms are added to arrive at an aggregate term and are satisfied by discharge of the aggregate term.
  3. Time spent in custody prior to the commencement of a sentence as a result of the charge that culminated in the sentence shall be credited by the Department of Corrections toward service of the maximum term of imprisonment in cases involving a felony sentence and by the sentencing court in all other cases. If the sentence is to an indeterminate term of imprisonment, the time spent in custody prior to the commencement of the sentence shall be considered for all purposes as time served in prison.
  4. If a person has been in custody due to a charge that culminated in a dismissal, acquittal, or other disposition not amounting to a conviction, the amount of time that would have been credited under subsection (3) of this section if the defendant had been convicted of that charge shall be credited as provided in subsection (3) of this section against any sentence based on a charge for which a warrant or commitment was lodged during the pendency of that custody.
  5. If a person serving a sentence of imprisonment escapes from custody, the escape shall interrupt the sentence. The interruption shall continue until the person is returned to the institution from which he escaped or to an institution administered by the Department of Corrections. Time spent in actual custody prior to return under this subsection shall be credited against the sentence if custody rested solely on an arrest or surrender for the escape itself.
  6. As used in subsections (3) and (4) of this section, time spent in custody shall include time spent in the intensive secured substance abuse recovery program developed under KRS 196.285 and may include, at the discretion of the sentencing court, time spent in a different residential substance abuse treatment or recovery facility pursuant to KRS 431.518 or 533.251 , if under each option allowed by this subsection, the person has successfully completed the program offered by the intensive secured substance abuse recovery program or the residential substance abuse treatment or recovery facility. If the defendant fails to complete a program, the court may still award full or partial sentence credit if the defendant demonstrates that good cause existed for the failure to complete the program.
  7. As used in subsections (3) and (4) of this section, time spent in custody shall include time spent in pretrial home incarceration pursuant to KRS 431.517 , subject to the conditions imposed by KRS 532.245 .
  8. In lieu of an award by the Department of Corrections in felony cases, if a presentence report indicates that a defendant has accumulated sufficient sentencing credits under this section to allow for an immediate discharge from confinement upon pronouncement of sentence, the court may confirm the amount of the credit and award the credit at pronouncement.
  9. An inmate may challenge a failure of the Department of Corrections to award a sentencing credit under this section or the amount of credit awarded by motion made in the sentencing court no later than thirty (30) days after the inmate has exhausted his or her administrative remedies.

History. Enact. Acts 1974, ch. 406, § 284, effective January 1, 1975; 1974, ch. 74, Art. V, § 24(14); 1986, ch. 331, § 60, effective July 15, 1986; 1992, ch. 211, § 136, effective July 14, 1992; 2009, ch. 96, § 6, effective March 24, 2009; 2011, ch. 2, § 98, effective June 8, 2011; 2012, ch. 156, § 25, effective July 12, 2012.

NOTES TO DECISIONS

Analysis

1.Constitutionality.

Law that provided for credit toward a sentence was not unconstitutional as a denial of equal protection because it did not apply to sentences imposed prior to its enactment. (Decided under prior law) Harrell v. Wingo, 434 S.W.2d 49, 1968 Ky. LEXIS 227 ( Ky. 1968 ).

2.Construction.

The word “shall” in subsection (3) of this section precludes any discretion on the part of the trial court in crediting time for preconviction custody. Bartrug v. Commonwealth, 582 S.W.2d 61, 1979 Ky. App. LEXIS 413 (Ky. Ct. App. 1979).

By employing Ky. Rev. Stat. Ann. § 532.120 to define the way multiple consecutive sentences are to be summed into an aggregate, a single whole or total formed by combining several elements, the General Assembly made clear its intent that the several consecutive sentences imposed in a judgment be viewed as a single unit. Thus, a violent offender confined under consecutive sentences must be regarded as undergoing a single, continuous term of confinement, which is satisfied by discharge of that unit of time, rather than a series of distinct, independent terms. Without authority in either the general sentencing statute or Ky. Rev. Stat. Ann. § 197.047 for unpacking an aggregate sentence, neither the Kentucky Department of Corrections nor the courts are at liberty to do so. Ky. Dep't of Corr. v. Dixon, 572 S.W.3d 46, 2019 Ky. LEXIS 141 ( Ky. 2019 ).

When a criminal defendant is serving consecutive, indeterminate sentences, Ky. Rev. Stat. Ann. § 532.120(1)(b) directs that those sentences are to be combined into an aggregate term, i.e., a single, continuous sentence. The disallowance of work-time sentence credit to a violent offender in Ky. Rev. Stat. Ann. § 197.047 applies to the single, continuous sentence; the violent offender cannot receive work-time credit on nonviolent sentences which have merged into the whole. Ky. Dep't of Corr. v. Dixon, 572 S.W.3d 46, 2019 Ky. LEXIS 141 ( Ky. 2019 ).

3.Credit on Sentence.

Law that provided for credit toward a sentence was not unconstitutional as a denial of equal protection because it did not apply to sentences imposed prior to its enactment. (Decided under prior law) Harrell v. Wingo, 434 S.W.2d 49, 1968 Ky. LEXIS 227 ( Ky. 1968 ).

The prisoner was not entitled to credit on his sentence for time served in Texas prior to his being returned to Kentucky where his confinement in Texas was not as a result of the charge upon which he later was convicted in Kentucky. (Decided under prior law) Haney v. Wingo, 453 S.W.2d 556, 1970 Ky. LEXIS 314 ( Ky. 1970 ).

Where a defendant spent 317 days in county jail prior to the commencement of his sentence, this section mandated that he receive “good time” credit for that time and there was no conflict between the mandate of this section and KRS 197.045 . Polsgrove v. Kentucky Bureau of Corrections, 559 S.W.2d 736, 1977 Ky. LEXIS 560 ( Ky. 1977 ).

This section entitled a defendant to credit for time served prior to re-sentencing and the judgment must so provide. Doolan v. Commonwealth, 566 S.W.2d 413, 1978 Ky. LEXIS 360 ( Ky. 1978 ).

Where defendant waited one and one-half (1 1/2) years from entry of trial court’s judgment to request credit under this section for time spent in confinement beginning from the date of indictment and ending with the date he pleaded guilty, he was bound by the provisions of CR 60.02 since he was challenging the extent of time he should be credited rather than the sentence itself; thus, he was precluded from relief, since CR 60.02 provides that motion must be made within one (1) year of judgment and letter written to trial court within one (1) year of judgment, but which did not appear in the record, could not be treated as motion pro se under this section. Duncan v. Commonwealth, 614 S.W.2d 701, 1980 Ky. App. LEXIS 432 (Ky. Ct. App. 1981), overruled in part, Winstead v. Commonwealth, 327 S.W.3d 479, 2010 Ky. LEXIS 289 ( Ky. 2010 ).

Where the defendant had been incarcerated in Indiana prior to his transfer to Kentucky to face charges of theft by unlawful taking, the defendant was not in the Kentucky county jail for his inability to make bond on the theft charge, but because he was released to the county jail in Kentucky by Indiana where he was serving time for another criminal conviction. Therefore, upon his conviction for theft by unlawful taking, the defendant was not entitled to credit for the time spent in the county jail. Houston v. Commonwealth, 641 S.W.2d 42, 1982 Ky. App. LEXIS 257 (Ky. Ct. App. 1982).

Under subsection (3) of this section credit for time spent in custody prior to the commencement of a sentence applies only where the custody was a result of the charge that culminated in the defendant’s sentence; accordingly, where the defendant’s time spent in the Jefferson County jail had nothing whatsoever to do with his indictment and subsequent conviction in Franklin County, any time spent in the Jefferson County jail was not applicable nor; to be credited to the defendant’s Franklin County sentence. Handley v. Commonwealth, 653 S.W.2d 165, 1983 Ky. App. LEXIS 299 (Ky. Ct. App. 1983).

A second judgment which provides that its sentence shall run concurrently with a prior sentence accords the convicted defendant the right to have the time served on the first sentence credited against the second sentence. Lemon v. Corrections Cabinet, 712 S.W.2d 370, 1986 Ky. App. LEXIS 1157 (Ky. Ct. App. 1986).

Subsection (3) of this section is only mandatory if the accused spends time in custody relating to a charge which ultimately culminates in a conviction; therefore, a trial court is not usually required to give credit for time served as a result of other charges, but such credit lies within the sound discretion of the trial court, which remains free to impose any sentence otherwise authorized by statute. Lemon v. Corrections Cabinet, 712 S.W.2d 370, 1986 Ky. App. LEXIS 1157 (Ky. Ct. App. 1986).

Where the trial court specifically granted the defendant credit “for all time served” as a result of his Jefferson County conviction pursuant to a plea bargain, the defendant’s sentence in Hardin County had to be credited with all jail time properly credited toward the Jefferson County sentence, the time spent in prison prior to shock probation, the time spent in prison from the defendant’s date of return from shock probation until the date he was released to the Hardin County jail, and the time spent in the Hardin County jail as a result of the Hardin County charge. Lemon v. Corrections Cabinet, 712 S.W.2d 370, 1986 Ky. App. LEXIS 1157 (Ky. Ct. App. 1986).

The defendant was not entitled to credit for his term of imprisonment due to parole revocation. Mills v. Commonwealth, 723 S.W.2d 859, 1986 Ky. App. LEXIS 1225 (Ky. Ct. App. 1986).

The trial judge did not err in denying the defendant credit for the time served on the misdemeanor committed while the defendant was released on bail awaiting trial on the felony. Rose v. Commonwealth, 738 S.W.2d 835, 1987 Ky. App. LEXIS 549 (Ky. Ct. App. 1987).

Home incarceration is an alternative to confinement in a penitentiary after the fact of release of sentencing by a court and release on bond precedes the fact of conviction and attachment of jeopardy, and moreover a defendant released on bond would not be subject to prosecution for escape should he violate the terms of his release, thus a defendant on court ordered yard restriction was not entitled to credit for the time served under such order. Cooper v. Commonwealth, 902 S.W.2d 833, 1995 Ky. App. LEXIS 35 (Ky. Ct. App. 1995).

A defendant who escaped from home detention and, unable to make bond on his escape charge, spent time in jail could receive credit against the underlying sentence for nonsupport for that jail time but could not also receive credit against his prison sentence for the escape charge, which was to run consecutively with the prison time for the underlying misdemeanor. Martin v. Commonwealth, 957 S.W.2d 262, 1997 Ky. App. LEXIS 61 (Ky. Ct. App. 1997).

Six months during which the defendant was in custody prior to sentencing was properly credited toward the defendant’s maximum sentence of five years imprisonment, rather than toward a six month period he was to spend in a juvenile detention facility as a condition of probation. Commonwealth v. Walker, 989 S.W.2d 165, 1999 Ky. LEXIS 27 ( Ky. 1999 ).

Defendant’s hospital confinement as a result of his commitment under Chapter 202A did not qualify for credit under subsection (3) of this section, because the use of the word “shall” in subsection (3) precludes any discretion on the part of the trial court in crediting time for preconviction custody. Commonwealth v. Todd, 12 S.W.3d 695, 1999 Ky. App. LEXIS 39 (Ky. Ct. App. 1999).

Sentences for convictions, committed while defendant was on parole, ran consecutively to earlier sentences, as required under KRS 533.060(2), and while defendant was entitled to receive credit for time served on an out-of-state sentence, defendant was not entitled to automatic release upon completion of the out-of-state sentence; the maximum terms of the consecutive sentences were added to arrive at an aggregate maximum term equal to the sum of all the maximum terms from the consecutive sentences, pursuant to KRS 532.120(1)(b). McKinney v. Commonwealth, 2003 Ky. App. Unpub. LEXIS 599 (Ky. Ct. App. May 30, 2003).

Although KRS 197.045(4) was applied retrospectively in an inmate’s case, as the statute was passed after the inmate’s initial conviction and sentence, the statute’s requirement of the inmate successfully completing the Sex Offender Treatment Program for the inmate’s eligibility to earn discretionary good time credits towards his subsequent concurrently running sentences following two (2) later convictions for sexual offenses, was not an increase in punishment prohibited by the Ex Post Facto Clause. Martin v. Chandler, 122 S.W.3d 540, 2003 Ky. LEXIS 265 ( Ky. 2003 ).

Because the trial court failed to hold a hearing before finding defendant in contempt, and because defendant was clearly entitled to credit under KRS 532.120(3) for the time served in jail while in a drug program, the court erred in denying defendant’s CR 60.02 motion for postjudgment relief. Nicely v. Commonwealth, 2009 Ky. App. LEXIS 54 (Ky. Ct. App. Apr. 24, 2009).

Defendant was entitled to custody credit against the maximum term of his sentence on the underlying offense for all the days he served as drug court sanctions; days served as modifications of probation were days served before the commencement of imprisonment, and were thus treated as time spent in custody pursuant to KRS 532.120(3). Commonwealth v. Nicely, 326 S.W.3d 441, 2010 Ky. LEXIS 277 ( Ky. 2010 ).

Ky. Rev. Stat. Ann. § 532.120 no longer authorizes trial courts to credit sentence for time spent in custody before sentencing. Caraway v. Commonwealth, 459 S.W.3d 849, 2015 Ky. LEXIS 1612 ( Ky. 2015 ).

In answering a certified question from a federal district court, the Supreme Court concluded that Bard v. Commonwealth did not control movant's case and that the Department of Corrections was not barred from awarding movant jail-time credit to which movant was legally entitled. Under the present version of Ky. Rev. Stat. Ann. § 532.120(3), the Department could award movant jail-time credit that was mistakenly left off the judgment of conviction and sentence. Bowling v. White, 480 S.W.3d 911, 2015 Ky. LEXIS 1858 ( Ky. 2015 ).

Although Ky. Rev. Stat. Ann. §§ 532.120(7) and 532.245 now expressly provide sentencing credit for time spent on pretrial home incarceration, such credit is available to defendants sentenced on or after July 12, 2012. Defendant was sentenced in 2011 and was not entitled to sentencing credit for time spent on home incarceration. McKinzie v. Commonwealth, 2018 Ky. App. LEXIS 245 (Ky. Ct. App. Oct. 5, 2018, sub. op., 2018 Ky. App. Unpub. LEXIS 966 (Ky. Ct. App. Oct. 5, 2018).

Trial court did not err in denying defendant’s motion for jail-time credit because defendant was subject to the terms of the pretrial services supervised release order for 391 days and even if credited, this time would not have entitled him to immediate discharge. Thus, the trial court was not required or authorized to order credit for time served in custody before sentencing and it was the prerogative of the Department of Corrections to make an initial determination, a determination defendant was required to exhaust at the administrative level before seeking redress with the trial court. Sanders v. Commonwealth, 600 S.W.3d 266, 2020 Ky. App. LEXIS 13 (Ky. Ct. App. 2020).

4.— Conviction of Escape.

Where the 72 days defendant spent at the metro detention center was the result of the indictment for second-degree escape, credit for that time would be given against the sentence for conviction of second-degree escape, but not against the sentence being served at the time of the escape. Bailey v. Commonwealth, 598 S.W.2d 472, 1980 Ky. App. LEXIS 313 (Ky. Ct. App. 1980).

When defendant pled guilty to and was sentenced for escape, he was not entitled to jail credit against that sentence for time he was incarcerated on another offense prior to committing the escape. Teague v. Commonwealth, 2003 Ky. App. Unpub. LEXIS 695 (Ky. Ct. App. May 23, 2003).

5.— In Custody.

Where a warrant was issued while defendant was in the hospital but was not served until his release, there was neither a lawful arrest, nor detention, nor an order of court constituting “custody.” The request by a detective that he be notified when the appellant would be released from the hospital, and the hospital’s agreement to do so, did not amount to the restraint contemplated by the “in custody” as provided in subsection (3) of this section; accordingly, defendant would not be credited with time spent in the hospital. Bartrug v. Commonwealth, 582 S.W.2d 61, 1979 Ky. App. LEXIS 413 (Ky. Ct. App. 1979).

Court ordered yard restriction does not constitute custody for which credit for time served must be given, for subsection (2) of KRS 520.010 in defining “custody” specifically excludes incidental constraints pursuant to release on bail such as a court imposed condition on yard restraint. Cooper v. Commonwealth, 902 S.W.2d 833, 1995 Ky. App. LEXIS 35 (Ky. Ct. App. 1995).

6.— Release Pending Appeal.

A defendant who has filed a notice of appeal and requested a stay of execution of judgment pursuant to RCr 12.76(2), electing not to commence service of sentence, is granted the right to remain in jail rather than be transported to prison and not the right to be released from custody pending appeal. Blanton v. Commonwealth, 690 S.W.2d 128, 1985 Ky. LEXIS 216 ( Ky. 1985 ).

7.— Restrictions While Released on Bond.

Release on bond is indeed a privilege granted to an arrestee allowing the court broad discretion to impose conditions sufficient to guarantee his appearance later for trial, and the alternative to release on bond, regardless of how stringent, is the ultimately restrictive confinement in the county jail prior to trial, which must by statute be credited later against a sentence upon conviction and sentencing for the same crime; however, time released on bond, regardless of the restrictive conditions imposed such as yard-restriction, simply is not the same as jail time and is specifically excluded by statutory definition as a substitute for jail time. Cooper v. Commonwealth, 902 S.W.2d 833, 1995 Ky. App. LEXIS 35 (Ky. Ct. App. 1995).

8.— Waiver.

Defendant’s plea bargain operated to waive his right to receive credits for time spent in custody prior to the commencement of a sentence against the maximum aggregate sentence limitation found in KRS 532.120(3). Propes v. Commonwealth, 257 S.W.3d 119, 2008 Ky. App. LEXIS 174 (Ky. Ct. App. 2008).

Because a plea bargain waiver of KRS 532.120(3) did not constitute a constitutional waiver, there was no constitutional prohibition against presuming that defendant’s waiver was valid. Propes v. Commonwealth, 257 S.W.3d 119, 2008 Ky. App. LEXIS 174 (Ky. Ct. App. 2008).

Although KRS 532.120(3) provided credit for time in custody prior to commencement of a sentence, nothing precluded a voluntary, knowing, and intelligent waiver of the statute’s operation in a plea bargain. Propes v. Commonwealth, 257 S.W.3d 119, 2008 Ky. App. LEXIS 174 (Ky. Ct. App. 2008).

9.— Modification of Credit Awarded.

Defendant remained entitled to the 3,086 days of presentence confinement credit originally awarded by the trial court because, although the Department of Corrections (DOC) asserted that there was an error in calculation of presentence confinement credit, under former KRS 532.120(3), as it then existed, the responsibility to award credit belonged exclusively to the trial court, the DOC did not have the power to set or modify presentencing custody credit, and its attempt to do so was an invalid usurpation of the trial court’s power; defendant thus remained entitled to the 3,086 days of credit originally awarded. At this point in time and in this instance, the trial court also lacked the authority to correct any error in defendant’s presentencing custody credit as, under CR 59.05, the trial court lost jurisdiction to amend its judgment ten days after entry, and neither RCr P. 10.10 nor CR 60.02 could have been used to correct this sort of judicial error. Bard v. Commonwealth, 359 S.W.3d 1, 2011 Ky. LEXIS 154 ( Ky. 2011 ).

Under the version of KRS 532.120(3) in effect when defendant was sentenced, it was error for the Department of Corrections to modify defendant’s presentencing custody credit six years after defendant was sentenced because (1) a trial court had sole responsibility to credit a defendant for presentencing jail time, and (2) Corrections’ attempt to modify the credit was an invalid usurpation of the trial court’s power. Bard v. Commonwealth, 2011 Ky. LEXIS 675 (Ky. Oct. 27, 2011).

Trial court lacked authority to amend a final judgment to correct an alleged error in custody credit; because there was no indication in the record about how the error in jail-time credit came to be, there was a presumption that the written judgment’s custody credit award was the trial court’s judicial determination on the subject. It was considered a judicial error, and the trial court lacked the power to amend the judgment more than 10 days after its entry. Fagan v. Commonwealth, 374 S.W.3d 274, 2012 Ky. LEXIS 110 ( Ky. 2012 ).

10.Habeas Corpus.

Where defendant, through plea bargain with Commonwealth’s attorney, was sentenced to three (3) ten (10) year sentences for armed robbery to run concurrently with sentence then being served in Indiana, was returned to Indiana and served three (3) years, was paroled and immediately was arrested by Kentucky officials and served three (3) years in Kentucky, he was entitled to habeas corpus and release since under KRS 197.035 and this section, his Kentucky sentence began the day he was confined in Indiana on his Indiana conviction and since he was entitled to Kentucky credit for all time served in Indiana and his Kentucky sentence terminated at the discharge of the term of his longest sentence, a date not apparent from the record. Brock v. Sowders, 610 S.W.2d 591, 1980 Ky. LEXIS 279 ( Ky. 1980 ).

Denial of habeas corpus was proper because this situation was one where defendant’s maximum out-of-state sentence had expired and not one where he possibly remained under the jurisdiction of out-of-state authorities and because his Kentucky sentence was longer than the maximum out-of-state sentence, he was now lawfully under the jurisdiction of the Kentucky prison system and incarcerated. Hudson v. Commonwealth, 932 S.W.2d 371, 1996 Ky. LEXIS 104 ( Ky. 1996 ).

11.Registration Requirement.

Because defendant had no liberty interest in parole, and because defendant was serving a sentence for rape and sodomy when the 1998 and 2000 amendments to KRS 17.500 –17.540 went into effect, there were no due process or ex post facto violations in defendant’s parole denial; consequently, defendant was required to register as a sex offender under KRS 532.120(1)(b). Phillips v. Commonwealth, 2011 Ky. App. LEXIS 221 (Ky. Ct. App. Nov. 10, 2011), sub. op., 382 S.W.3d 52, 2012 Ky. App. LEXIS 38 (Ky. Ct. App. 2012).

Cited:

Belt v. Commonwealth, 2 S.W.3d 790, 1999 Ky. App. LEXIS 136 (Ky. Ct. App. 1999); Kassulke v. Briscoe-Wade, 105 S.W.3d 403, 2003 Ky. LEXIS 44 ( Ky. 2003 ); Martin v. Chandler, 122 S.W.3d 540, 2003 Ky. LEXIS 265 ( Ky. 2003 ); Prather v. Commonwealth, 301 S.W.3d 20, 2009 Ky. LEXIS 286 ( Ky. 2009 ).

Notes to Unpublished Decisions

1.Credit on Sentence.

Unpublished decision: Although defendant received a probated sentence, it was nonetheless a “sentence of imprisonment” for purposes of U.S. Sentencing Guidelines Manual § 4A1.2(b) because it was conditioned on an 85-day term of incarceration (time that defendant had already served); although the state court was required to grant credit for time served, it was not required to make the time served a condition of probation (time served typically has nothing to do with probation, unless the time already spent in custody was what prompted the judge to impose probation in lieu of incarceration). United States v. Roark, 403 Fed. Appx. 1, 2010 FED App. 0608N, 2010 U.S. App. LEXIS 19260 (6th Cir. Ky. 2010 ).

Opinions of Attorney General.

This section must be read in pari materia with KRS 439.340 and, although this section requires that all jail time be credited for all purposes as time served in prison, the parole board may by regulation require that a specified time actually be served by the prisoner in the institution to which he was sentenced before he is eligible for parole consideration. OAG 75-399 .

Although the parole board does have the statutory authority to adopt rules or regulations with respect to the eligibility of prisoners for parole, KRS 439.340(3) may not be stretched to the point of administratively disregarding an incorrect order of a Circuit Court concerning jail time credit. OAG 79-221 .

By operation of subsection (3) of this section what is in essence a security measure — jail awaiting trial — is recognized, retroactively, as a penal condition in that the jail time is considered part of the penalty adjudged so as to reduce the final sentence to be served. OAG 79-221 .

In view of the statutory limits on the authority of the parole board, KRS 439.330 , the board cannot file a motion to intervene so as to correct or modify an erroneous sentence in regard to jail time credit. OAG 79-221 .

No matter how many felony convictions one is convicted of and no matter if the sentences are ordered to run concurrently or consecutively, the person gets but one day’s credit for each day spent in jail awaiting trial. OAG 79-221 .

Subsection (3) of this section is directed toward the Circuit Court and not to the bureau of corrections (now Corrections Cabinet) nor the parole board. OAG 79-221 .

A judgment is to contain the sentence, including the number of days to be served and the number of days which are to be credited towards the sentence term as a result of confinement preceding conviction, but need not contain the date of release which the jailer is to calculate from the data which is set forth in the judgment. OAG 80-23 .

It is presumed that the prisoner has been sentenced to ordinary confinement, which means consecutive and continuous confinement. OAG 80-23 .

Once a convict has been committed to the jailer’s care, he may be released only upon a lawful discharge, which occurs only when the term of the sentence has expired or where the judgment or court order states that the period of confinement is not to be consecutive and continuous by stating when the jailer is authorized to release the prisoner. OAG 80-23 .

Research References and Practice Aids

Cross-References.

Credit on sentence for good conduct or meritorious service, KRS 197.045 .

Kentucky Bench & Bar.

Combs, The Calculation and Application of Prison Sentences., Vol. 70, No. 5, September 2006, Ky. Bench & Bar 7.

Coy, A Brief Look at the Kentucky Parole System., Vol. 70, No. 5, September 2006, Ky. Bench & Bar 13.

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Penalty Phase Instructions, Part 3 Felony Offenses, § 12.19A.

Petrilli, Kentucky Family Law, Juvenile Court, § 32.24.

532.130. Definitions for KRS 532.135 and 532.140.

  1. An adult, or a minor under eighteen (18) years of age who may be tried as an adult, convicted of a crime and subject to sentencing, is referred to in KRS 532.135 and 532.140 as a defendant.
  2. A defendant with significant subaverage intellectual functioning existing concurrently with substantial deficits in adaptive behavior and manifested during the developmental period is referred to in KRS 532.135 and 532.140 as a defendant with a serious intellectual disability. “Significantly subaverage general intellectual functioning” is defined as an intelligence quotient (I.Q.) of seventy (70) or below.

History. Enact. Acts 1990, ch. 488, § 1, effective July 13, 1990; 2012, ch. 146, § 133, effective July 12, 2012.

NOTES TO DECISIONS

Analysis

1.Constitutionality.

Kentucky General Assembly’s adoption of a bright-line maximum intelligence quotient of 70 as the ceiling for mental retardation generally conforms to the clinical definitions approved in Atkins v. Virginia , 536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002); thus, it does not implicate the Eighth Amendment’s proscription against “cruel and unusual” punishment. Bowling v. Commonwealth, 163 S.W.3d 361, 2005 Ky. LEXIS 95 (Ky.), cert. denied, 546 U.S. 1017, 126 S. Ct. 652, 163 L. Ed. 2d 528, 2005 U.S. LEXIS 8412 (U.S. 2005).

Kentucky’s procedures for establishing whether capital offenders were mentally retarded did not violate defendant’s due process rights. Wilson v. Commonwealth, 381 S.W.3d 180, 2012 Ky. LEXIS 64 ( Ky. 2012 ).

Trial court erred in denying the inmate’s post-conviction motion requesting he be declared intellectual disabled, which would preclude imposition of the death penalty, because this section was unconstitutional under the Eighth Amendment and an evidentiary hearing was needed to consider whether the inmate was intellectual disabled using the prevailing medical standards rather than only an IQ score. Woodall v. Commonwealth, 2018 Ky. LEXIS 540 (Ky. June 14, 2018).

2.Burden of Proof.

Kentucky now applies the “preponderance of the evidence” standard to the defendant’s burden to prove at an evidentiary hearing that defendant is entitled to the mental retardation exemption described in KRS 532.130 et seq. Bowling v. Commonwealth, 163 S.W.3d 361, 2005 Ky. LEXIS 95 (Ky.), cert. denied, 546 U.S. 1017, 126 S. Ct. 652, 163 L. Ed. 2d 528, 2005 U.S. LEXIS 8412 (U.S. 2005).

Requiring a capital defendant to prove to a trial court by a preponderance of the evidence that he or she is mentally retarded, for purposes of a motion to prohibit execution of the death sentence, does not violate a defendant’s rights under the federal or state constitutions. Wilson v. Commonwealth, 381 S.W.3d 180, 2012 Ky. LEXIS 64 ( Ky. 2012 ).

Defendant was entitled to an evidentiary hearing on his mental retardation motion because he produced some evidence that he was mentally retarded. Defendant submitted school records indicating that at age 14, he had an IQ of 62, was reading at a third-grade level, and was performing work at a first- and second-grade level. The fact that there were also positive indications of defendant’s adaptive behavior went to the weight and credibility of the evidence. Wilson v. Commonwealth, 381 S.W.3d 180, 2012 Ky. LEXIS 64 ( Ky. 2012 ).

To find that a capital offender is mentally retarded and, therefore, exempt from the death penalty, proof that the offender had an IQ of 70 or below near the time of the crime or post-conviction is relevant to whether the offender had an IQ of 70 or below during his developmental stage; but such proof is not required. Wilson v. Commonwealth, 381 S.W.3d 180, 2012 Ky. LEXIS 64 ( Ky. 2012 ).

3.Capital Punishment.

Kentucky Supreme Court’s conclusion that a prisoner failed to prove by a preponderance of the evidence that he was mentally retarded, and thus was not subject to the death penalty, was not contrary to Atkins v. Virginia, 536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d 335, 2002 U.S. LEXIS 4648 (2002), and thus provided no basis for federal habeas relief. The prisoner presented no credible evidence of an intelligence score below 70 which, pursuant to KRS 532.130(2), was the bright-line test for identifying mentally retarded defendants. Woodall v. Simpson, 2009 U.S. Dist. LEXIS 14328 (W.D. Ky. Feb. 23, 2009).

Court of Appeals found that an inmate who was convicted of murdering two (2) people and sentenced to death was not entitled to relief on his claim that he could not be executed because he was mentally retarded because evidence the inmate submitted, including evidence that he had scores on intelligence quotient tests that were four (4) to seventeen (17) points higher than the score of 70 which KRS 532.130 established as the score for people who were mentally retarded, did not prove he was mentally retarded, and it denied his application for a writ of habeas corpus. Bowling v. Haeberline (In re Bowling), 422 F.3d 434, 2005 FED App. 0379P, 2005 U.S. App. LEXIS 19247 (6th Cir. 2005), cert. denied, 546 U.S. 1180, 126 S. Ct. 1353, 164 L. Ed. 2d 65, 2006 U.S. LEXIS 1285 (U.S. 2006).

Death row inmate with an IQ of 79 should have attacked a ruling that the inmate was not exempt from the death penalty because of mental retardation on the inmate’s direct appeal instead of in a motion under RCr P. 11.42; nevertheless, an IQ of 70 was the cut-off for mental retardation in Atkins and Kentucky’s statutory scheme for applying Atkins, KRS 532.130 532.140 . Parrish v. Commonwealth, 272 S.W.3d 161, 2008 Ky. LEXIS 338 ( Ky. 2008 ).

Writ of prohibition was denied where a death row inmate was seeking to prevent a judge from enforcing an order requiring a mental retardation evaluation by the Kentucky Correctional Psychiatric Center (KCPC) because this was not precluded by KRS 31.185(3) where there was a functional finding that the use of KCPC was not impractical. Even assuming that the trial court was acting erroneously as alleged by the inmate, he did not demonstrate an irreparable injury that would have resulted from the KCPC mental retardation evaluation and which could not have been redressed by appeal from a final determination of the case on the merits; the inmate’s rights under U.S. Const. amend. V were minimally implicated because the inmate had already been convicted and safeguards could have been used, the inmate’s claim that he would have been permanently deprived of his right to a full and fair hearing was vague, speculative, and unpersuasive, and there was no real threat to confidential defense communications. White v. Payne, 332 S.W.3d 45, 2010 Ky. LEXIS 314 ( Ky. 2010 ).

Dismissal of defendant’s petition for a declaratory judgment challenging the implementation of his death sentences upon the grounds that he was mentally retarded was appropriate because it was the law of the case that he had procedurally defaulted on his mental retardation claim and that he failed to show adequate cause for his default. He could not make a prima facie showing that he was able to meet the statutory definition for mental retardation because IQ scores taken around the time of trial reflected that he had an IQ in the 86-87 range, which foreclosed any reasonable possibility that he could be found mentally retarded following an evidentiary hearing on the issue. Bowling v. Commonwealth, 377 S.W.3d 529, 2012 Ky. LEXIS 76 ( Ky. 2012 ).

4.Applicability.

Defendant who was convicted in 1988 could not have procedurally defaulted on his mental retardation claim because KRS 532.130 to 532.140 do not apply post-conviction to capital offenders tried before the statutes’ effective date of July 13, 1990. Wilson v. Commonwealth, 381 S.W.3d 180, 2012 Ky. LEXIS 64 ( Ky. 2012 ).

Cited:

Hunter v. Commonwealth, 869 S.W.2d 719, 1994 Ky. LEXIS 14 ( Ky. 1994 ); Woodall v. Commonwealth, 63 S.W.3d 104, 2001 Ky. LEXIS 14 2 ( Ky. 2001 ), cert. denied, Woodall v. Kentucky, 537 U.S. 835, 123 S. Ct. 145, 154 L. Ed. 2d 54, 2002 U.S. LEXIS 6199, 71 U.S.L.W. 3236 (2002).

532.135. Determination by court that defendant has a serious intellectual disability.

  1. At least thirty (30) days before trial, the defendant shall file a motion with the trial court wherein the defendant may allege that he is a defendant with a serious intellectual disability and present evidence with regard thereto. The Commonwealth may offer evidence in rebuttal.
  2. At least ten (10) days before the beginning of the trial, the court shall determine whether or not the defendant is a defendant with a serious intellectual disability in accordance with the definition in KRS 532.130 .
  3. The decision of the court shall be placed in the record.
  4. The pretrial determination of the trial court shall not preclude the defendant from raising any legal defense during the trial. If it is determined the defendant is an offender with a serious intellectual disability, he shall be sentenced as provided in KRS 532.140 .

History. Enact. Acts 1990, ch. 488, § 2, effective July 13, 1990; 2012, ch. 146, § 134, effective July 12, 2012.

NOTES TO DECISIONS

1.Determination.

There is nothing unconstitutional or contrary to Atkins v. Virginia , 536 U.S. 304, 122 S. Ct. 2242, 153 L. Ed. 2d 335 (2002), in the requirement in KRS 532.135 that mental retardation be determined prior to trial. Of course, that requirement would be unconstitutional if applied to a defendant who was tried and sentenced to death prior to July 13, 1990, and, thus, who had never been afforded an opportunity to assert and prove entitlement to the exemption. Bowling v. Commonwealth, 163 S.W.3d 361, 2005 Ky. LEXIS 95 (Ky.), cert. denied, 546 U.S. 1017, 126 S. Ct. 652, 163 L. Ed. 2d 528, 2005 U.S. LEXIS 8412 (U.S. 2005).

Dismissal of defendant’s petition for a declaratory judgment challenging the implementation of his death sentences upon the grounds that he was mentally retarded was appropriate because it was the law of the case that he had procedurally defaulted on his mental retardation claim and that he failed to show adequate cause for his default. He could not make a prima facie showing that he was able to meet the statutory definition for mental retardation because IQ scores taken around the time of trial reflected that he had an IQ in the 86-87 range, which foreclosed any reasonable possibility that he could be found mentally retarded following an evidentiary hearing on the issue. Bowling v. Commonwealth, 377 S.W.3d 529, 2012 Ky. LEXIS 76 ( Ky. 2012 ).

2.Right to Jury.

In the absence of some specific language indicating an intent to have the mental retardation exemption issue decided by both judge and jury, the language in KRS 532.135(4) refers to other statutory defenses presented at trial in defense; an otherwise death-eligible defendant is not entitled to have a jury decide the mental retardation exemption claim. Bowling v. Commonwealth, 163 S.W.3d 361, 2005 Ky. LEXIS 95 (Ky.), cert. denied, 546 U.S. 1017, 126 S. Ct. 652, 163 L. Ed. 2d 528, 2005 U.S. LEXIS 8412 (U.S. 2005).

532.140. Offender with a serious intellectual disability not subject to execution — Authorized sentences.

  1. KRS 532.010 , 532.025 , and 532.030 to the contrary notwithstanding, no offender who has been determined to be an offender with a serious intellectual disability under the provisions of KRS 532.135 , shall be subject to execution. The same procedure as required in KRS 532.025 and 532.030 shall be utilized in determining the sentence of the offender with a serious intellectual disability under the provisions of KRS 532.135 and 532.140 .
  2. The provisions of KRS 532.135 and 532.140 do not preclude the sentencing of an offender with a serious intellectual disability to any other sentence authorized by KRS 532.010 , 532.025 , or 532.030 for a crime which is a capital offense.
  3. The provisions of KRS 532.135 and 532.140 shall apply only to trials commenced after July 13, 1990.

History. Enact. Acts 1990, ch. 488, § 3, effective July 13, 1990; 2012, ch. 146, § 135, effective July 12, 2012.

NOTES TO DECISIONS

1.Burden of Proof.

To be entitled to an evidentiary hearing on a claim of entitlement to the mental retardation exemption provided by KRS 532.140 , a defendant must produce some evidence creating a doubt as to whether defendant is mentally retarded; an inmate was not entitled to such a hearing where there was no test showing an intelligence quotient anywhere near the 70 mark. Bowling v. Commonwealth, 163 S.W.3d 361, 2005 Ky. LEXIS 95 (Ky.), cert. denied, 546 U.S. 1017, 126 S. Ct. 652, 163 L. Ed. 2d 528, 2005 U.S. LEXIS 8412 (U.S. 2005).

2.Evidence Insufficient.

Court of appeals found that an inmate who was convicted of murdering two (2) people and sentenced to death was not entitled to relief on his claim that he could not be executed because he was mentally retarded because evidence the inmate submitted, including evidence that he had scores on intelligence quotient tests that were four (4) to seventeen (17) points higher than the score of 70 which KRS 532.130 established as the score for people who were mentally retarded, did not prove he was mentally retarded, and it denied his application for a writ of habeas corpus. Bowling v. Haeberline (In re Bowling), 422 F.3d 434, 2005 FED App. 0379P, 2005 U.S. App. LEXIS 19247 (6th Cir. 2005), cert. denied, 546 U.S. 1180, 126 S. Ct. 1353, 164 L. Ed. 2d 65, 2006 U.S. LEXIS 1285 (U.S. 2006).

Dismissal of defendant’s petition for a declaratory judgment challenging the implementation of his death sentences upon the grounds that he was mentally retarded was appropriate because he could not make a prima facie showing that he was able to meet the statutory definition for mental retardation since IQ scores taken around the time of trial reflected that he had an IQ in the 86-87 range, which foreclosed any reasonable possibility that he could be found mentally retarded following an evidentiary hearing on the issue. Bowling v. Commonwealth, 377 S.W.3d 529, 2012 Ky. LEXIS 76 ( Ky. 2012 ).

3.Waiver.

Where a capital trial commenced after the effective date of Kentucky’s mental retardation exemption statute, KRS 532.140 , and mental examinations were conducted prior to trial, an inmate waived the opportunity to present the claim later because it was not brought to the trial court’s attention; the inmate was unable to show that the miscarriage of justice applied because the evidence did not support the claim of mental retardation. Bowling v. Commonwealth, 163 S.W.3d 361, 2005 Ky. LEXIS 95 (Ky.), cert. denied, 546 U.S. 1017, 126 S. Ct. 652, 163 L. Ed. 2d 528, 2005 U.S. LEXIS 8412 (U.S. 2005).

Defendant who was convicted in 1988 could not have procedurally defaulted on his mental retardation claim because KRS 532.140(3) specifically states that the statutory scheme does not apply to trials commenced before July 13, 1990. Wilson v. Commonwealth, 381 S.W.3d 180, 2012 Ky. LEXIS 64 ( Ky. 2012 ).

Dismissal of defendant’s petition for a declaratory judgment challenging the implementation of his death sentences upon the grounds that he was mentally retarded was appropriate because it was the law of the case that he had procedurally defaulted on his mental retardation claim and that he failed to show adequate cause for his default. Bowling v. Commonwealth, 377 S.W.3d 529, 2012 Ky. LEXIS 76 ( Ky. 2012 ).

4.Evaluation.

Writ of prohibition was denied where a death row inmate was seeking to prevent a judge from enforcing an order requiring a mental retardation evaluation by the Kentucky Correctional Psychiatric Center (KCPC) because this was not precluded by KRS 31.185(3) where there was a functional finding that the use of KCPC was not impractical. Even assuming that the trial court was acting erroneously as alleged by the inmate, he did not demonstrate an irreparable injury that would have resulted from the KCPC mental retardation evaluation and which could not have been redressed by appeal from a final determination of the case on the merits; the inmate’s rights under U.S. Const. amend. V were minimally implicated because the inmate had already been convicted and safeguards could have been used, the inmate’s claim that he would have been permanently deprived of his right to a full and fair hearing was vague, speculative, and unpersuasive, and there was no real threat to confidential defense communications. White v. Payne, 332 S.W.3d 45, 2010 Ky. LEXIS 314 ( Ky. 2010 ).

Cited:

Hunter v. Commonwealth, 869 S.W.2d 719, 1994 Ky. LEXIS 14 ( Ky. 1994 ); Woodall v. Commonwealth, 63 S.W.3d 104, 2001 Ky. LEXIS 14 2 ( Ky. 2001 ), cert. denied, Woodall v. Kentucky, 537 U.S. 835, 123 S. Ct. 145, 154 L. Ed. 2d 54, 2002 U.S. LEXIS 6199, 71 U.S.L.W. 3236 (2002).

532.160. Criminal garnishment.

  1. If a convicted person is unable to pay all court costs, fees, fines, and other monetary penalties at the time of sentencing, then the sentencing court may, consistent with KRS 23A.205, 24A.175, 534.020 , and KRS 534.060 , issue a criminal garnishment order for all fines under KRS Chapter 534 or KRS 49.480 and for court costs, restitution, and reimbursement charges in this chapter.
  2. A criminal garnishment applies to any of the following:
    1. A convicted person’s earnings as defined in KRS 427.005 ;
    2. Indebtedness that is owed to a convicted person by a garnishee for amounts that are not earnings;
    3. Money that is held by a garnishee on behalf of a convicted person;
    4. The convicted person’s personal property that is in the possession of a garnishee; or
    5. If the garnishee is a corporation, shares or securities of a corporation or a proprietary interest in a corporation that belongs to a convicted person.
  3. The debt associated with a criminal garnishment shall constitute a charge against the estate of any decedent owing moneys under this chapter.
  4. The sentencing court shall combine all fines, court costs, restitution, and reimbursement charges in a single order of garnishment.
  5. The sentencing court shall require payment of restitution to the victim of the offense before payments of any moneys to the government or a government agency.
  6. The court shall order payments made under this section to be paid by the defendant directly to the person or organization specified by written order of the court. The court shall not order payments of an order of criminal garnishment to be made through the circuit clerk, except for those payments due from a person under the supervision of the Department of Corrections.

HISTORY: Enact. Acts 1998, ch. 606, § 172, effective July 15, 1998; 2002, ch. 183, § 31, effective August 1, 2002; 2017 ch. 74, § 103, effective June 29, 2017.

NOTES TO DECISIONS

Cited:

Hearn v. Commonwealth, 80 S.W.3d 432, 2002 Ky. LEXIS 135 ( Ky. 2002 ).

532.162. Order as lien upon earnings — Circuit clerk to disburse — Fee.

  1. If the criminal garnishment is made upon the convicted person’s earnings, the order of garnishment shall be a lien upon the earnings from the date of service on the garnishee until an order discontinuing the lien is entered. A convicted person may challenge the garnishment by filing a challenge to the garnishment with the sentencing court. The challenge shall be heard within ten (10) days of its filing or the nearest court date thereafter. Before the hearing, garnishment shall continue. Any moneys which the court determines were improperly garnished shall be repaid to the garnishee not later than thirty (30) days after the determination.
  2. The circuit clerk’s office shall disburse all collected reimbursement, restitution, and fees to the victim, the Crime Victims Compensation Board, or the local government, whichever is appropriate. The clerk shall be entitled to collect a fee of two dollars and fifty cents ($2.50) from each account for which a disbursement is made at the time of disbursement. In the event of challenge to a garnishment, the appropriate clerk’s office shall not disburse those sums associated with the challenged garnishment until determination by the sentencing court regarding the propriety of the garnishment.

History. Enact. Acts 1998, ch. 606, § 173, effective July 15, 1998; 2013, ch. 69, § 6, effective June 25, 2013; 2017 ch. 74, § 104, effective June 29, 2017; 2021 ch. 185, § 91, effective June 29, 2021.

532.164. Lien on real property.

  1. Any convicted person owing fines, court costs, restitution, or reimbursement before or after his release from incarceration shall be subject to a lien upon his interest, present or future, in any real property.
  2. The real property lien shall be filed in the circuit clerk’s office of the county in which the person was convicted and shall also be filed by the Commonwealth in any county in which the convicted person is known to own property or reside.
  3. The lien may be foreclosed upon in the manner prescribed in KRS Chapter 426 and shall remain valid until satisfied. The lien shall constitute a charge against the estate of any decedent owing moneys under this chapter.
  4. The attorney for the Commonwealth, and not the crime victim, shall prepare and file lien documents for moneys to be restored to the crime victim. The manner of filing, recording, and releasing the lien shall be consistent with the provisions of KRS Chapter 376.
  5. The attorney for the Commonwealth shall pay to the county clerk a fee pursuant to KRS 64.012 for filing the lien and subsequent release, which shall be assessed as court costs for the filing of any lien upon real estate. The attorney for the Commonwealth shall notify the appropriate county clerk that the lien has been satisfied within ten (10) days of satisfaction.
  6. A lien under this section shall bear interest at the same rate as for a civil judgment unless the court orders that interest not be awarded. In considering whether interest shall be awarded, the court shall consider the following factors, among others:
    1. The defendant’s ability to pay the amount of the interest;
    2. The hardship likely to be imposed on the defendant’s dependents by paying the amount of the interest and the time and method of paying it;
    3. The impact that the amount of the interest will have on the defendant’s ability to make reparation or restitution to the victim; and
    4. The amount of the defendant’s gain, if any, derived from the commission of the offense.

History. Enact. Acts 1998, ch. 606, § 174, effective July 15, 1998; 2006, ch. 255, § 35, effective January 1, 2007.

NOTES TO DECISIONS

1.Enforceability.

Trial court erred in distributing proceeds from the sale of property to a state agency; the agency’s lien on the property was unenforceable pursuant to KRS 532.164(4) since the lien resulted from a criminal action, and the agency did not have standing to enforce the lien after it was abandoned by the Commonwealth. Rolan G. Taylor Funeral Home, Inc. v. Commonwealth Cabinet for Families & Children, 237 S.W.3d 206, 2007 Ky. App. LEXIS 234 (Ky. Ct. App. 2007).

Cited:

Hearn v. Commonwealth, 80 S.W.3d 432, 2002 Ky. LEXIS 135 ( Ky. 2002 ).

532.166. Transfer of property from garnishee.

  1. If the garnishee holds property or moneys of the defendant, the garnishee shall immediately transfer the property or moneys to the person or official named in the garnishment.
  2. If the garnishee holds personal property or stock of the defendant, the court shall hold the personal property or stock of the defendant pending an order of the court.
  3. The party who obtains the garnishment shall deliver by personal service or by first class mail a copy of the order to the garnishee and to the defendant.
  4. A bank deposit in the name of two (2) or more persons, one (1) of whom is the convicted person, is subject to garnishment.

History. Enact. Acts 1998, ch. 606, § 175, effective July 15, 1998.

532.168. Show cause hearing for failure to comply with criminal garnishment order.

If a garnishee fails to comply with the terms of the order of criminal garnishment within thirty (30) days after its issuance, the attorney for the Commonwealth may move the court to order the garnishee to show cause why he should not be held in contempt. If the court finds that the failure was willful or grossly negligent, the court shall find the garnishee in contempt and shall award reasonable attorney’s fees and costs, in addition to any contempt sanction it imposes.

History. Enact. Acts 1998, ch. 606, § 176, effective July 15, 1998.

Home Incarceration

532.200. Definitions for KRS 532.210 to 532.250.

As used in KRS 532.210 to 532.250 , unless the context otherwise requires:

  1. “Home” means the temporary or permanent residence of a defendant consisting of the actual living area. If more than one (1) residence or family is located on a single piece of property, “home” does not include the residence of any other person who is not part of the social unit formed by the defendant’s immediate family. A hospital, nursing care facility, hospice, half-way house, group home, residential treatment facility, or boarding house may serve as a “home” under this section;
  2. “Home incarceration” means the use of a monitoring device approved by the commissioner of the Department of Corrections to facilitate a prisoner’s ability to maintain gainful employment or to participate in programs approved as a condition of his or her incarceration, or both, using the person’s home for purposes of confinement;
  3. “Violent felony offense” means an offense defined in KRS 507.020 (murder), 507.030 (manslaughter in the first degree), 508.010 (assault in the first degree), 508.020 (assault in the second degree), 509.040 (kidnapping), 510.040 (rape in the first degree), 510.070 (sodomy in the first degree), 510.110 (sexual abuse in the first degree), 511.020 (burglary in the first degree), 513.020 (arson in the first degree), 513.030 (arson in the second degree), 513.040 (arson in the third degree), 515.020 (robbery in the first degree), 515.030 (robbery in the second degree), 520.020 (escape in the first degree), any criminal attempt to commit the offense (KRS 506.010 ), or conviction as a persistent felony offender (KRS 532.080 ) when the offender has a felony conviction for any of the above-listed offenses within the five (5) year period preceding the date of the latest conviction;
  4. “Terminal illness” means a medically recognized disease for which the prognosis is death within six (6) months to a reasonable degree of medical certainty; and
  5. “Approved monitoring device” means an electronic device or apparatus which is capable of recording, tracking, or transmitting information as to the prisoner’s location or verifying the prisoner’s presence or non-presence in the home, or both. The devices shall be minimally intrusive. Devices shall not be used without the prisoner’s knowledge to record or transmit:
    1. Visual images other than the defendant’s face;
    2. Oral or wire communications or any auditory sound other than the defendant’s voice; or
    3. Information as to the prisoner’s activities while inside the home.

History. Enact. Acts 1986, ch. 243, § 1, effective July 15, 1986; 1992, ch. 211, § 137, effective July 14, 1992; 1996, ch. 45, § 2, effective July 15, 1996; 2008, ch. 158, § 8, effective July 1, 2008; repealed and reenact., Acts 2010, ch. 107, § 10, effective July 15, 2010.

Legislative Research Commission Note.

(7/15/2010). 2008 Ky. Acts ch. 107, sec. 12, provides that “The intent of the General Assembly in repealing and reenacting KRS 439.320 , 439.340 , and 532.200 in Sections 4, 5, and 10 of this Act is to affirm the amendments made to these sections in 2008 Ky. Acts ch. 158. The specific textual provisions of Sections 4, 5, and 10 of this Act which reflect amendments made to those sections by 2008 Ky. Acts ch. 158 shall be deemed effective as of April 24, 2008, and those provisions are hereby made expressly retroactive to that date, with the remainder of the text from those sections being unaffected by the provisions of this section.” This statute is affected by that language.

NOTES TO DECISIONS

1.Home incarceration.

Under the plain meaning of KRS 520.010(4), a residence to which a defendant is confined as part of the Home Incarceration Program (HIP) constitutes a detention facility. The statute describing the conditions of home incarceration, KRS 532.220(1), states that the home incarceree shall be confined to his home at all times except when participating in a permitted activity, and the definition of “home incarceration” under KRS 532.200(2) makes it clear that the home is used as the place of confinement. Thus, in the home incarceration program, the home is the building used for the confinement of a person, and so it meets the definition of detention facility in KRS 520.010(4). Lawton v. Commonwealth, 354 S.W.3d 565, 2011 Ky. LEXIS 155 ( Ky. 2011 ).

Notes to Unpublished Decisions

1.Home incarceration.

Unpublished decision: Trial court erred in granting defendant’s motion to dismiss upon concluding that defendant’s home incarceration program that defendant was confined to following defendant’s arrest was not “custody” for purposes of the second-degree escape statute as “custody” was interpreted more broadly under that statute than in other situations and home incarceration was defined as the use of a person’s home for the purposes of confinement. Commonwealth v. Weaver, 2003 Ky. App. LEXIS 74 (Ky. Ct. App. Apr. 11, 2003), aff'd, 156 S.W.3d 270, 2005 Ky. LEXIS 44 ( Ky. 2005 ).

Opinions of Attorney General.

A prior conviction must fall into one of the listed offenses set out in this section and that conviction must have been within five (5) years of the latest conviction for it to constitute a “violent felony offense” as used in the home incarceration statutes. OAG 89-4 .

Home incarceration may be lawfully imposed by a trial court as a penalty for a first, second, or third violation of this section, unless the defendant has been convicted of a violent felony offense within the previous five (5) years, as defined by subsection (3) of this section; a person convicted of a fourth or subsequent violation of this section is not eligible for home incarceration, since the statutes do not permit a court to sentence a felon to home incarceration. OAG 94-49 .

Research References and Practice Aids

Cross-References.

Home incarceration authorized as a form of pretrial release, KRS 431.517 .

Northern Kentucky Law Review.

Bartlett, Alternative Sanctions and the Governor’s Crime Bill of 1998 (HB 455): Another Attempt at Providing a Framework for Efficient and Effective Sentencing, 27 N. Ky. L. Rev. 283 (2000).

532.210. Petition — Study of record — Order.

  1. Any misdemeanant or a felon who has not been convicted of, pled guilty to, or entered an Alford plea to a violent felony offense may petition the sentencing court for an order directing that all or a portion of a sentence of imprisonment in the county jail be served under conditions of home incarceration. Such petitions may be considered and ruled upon by the sentencing court prior to and throughout the term of the defendant’s sentence.
  2. The sentencing judge shall study the record of all persons petitioning for home incarceration and, in his discretion, may:
    1. Cause additional background or character information to be collected or reduced to writing by the county jailer or misdemeanor supervision department;
    2. Conduct hearings on the desirability of granting home incarceration;
    3. Impose on the home incarceree such conditions as are fit, including restitution;
    4. Order that all or a portion of a sentence of imprisonment in the county jail be served under conditions of home incarceration at whatever time or intervals, consecutive or nonconsecutive, as the court shall determine. The time actually spent in home incarceration pursuant to this provision shall not exceed six (6) months or the maximum term of imprisonment assessed pursuant to this chapter whichever is the shorter;
    5. Issue warrants for persons when there is reason to believe they have violated the conditions of home incarceration, conduct hearings on such matters, and order reimprisonment in the county jail upon proof of violation; and
    6. Grant final discharge from incarceration.
  3. All home incarcerees shall execute a written agreement with the court setting forth all of the conditions of home incarceration. The order of home incarceration shall incorporate that agreement and order compliance with its terms. The order and agreement shall be transmitted to the supervising authority and to the appropriate jail official.
  4. Time spent in home incarceration under this subsection shall be credited against the maximum term of imprisonment assessed for the defendant pursuant to this chapter.
  5. Home incarcerees shall be under the supervision of the county jailer except in counties establishing misdemeanor supervision departments, wherein they shall be under the supervision of such departments. Home incarcerees shall be subject to the decisions of such authorities during the period of supervision. Fees for supervision or equipment usage shall be paid directly to the supervising authority.

History. Enact. Acts 1986, ch. 243, § 2, effective July 15, 1986; 1998, ch. 606, § 81, effective July 15, 1998.

NOTES TO DECISIONS

1.Credit for Time Served.

Home incarceration is an alternative to confinement in a penitentiary after the fact of release of sentencing by a court and release on bond precedes the fact of conviction and attachment of jeopardy, and moreover a defendant released on bond would not be subject to prosecution for escape should he violate the terms of his release, thus a defendant on court ordered yard restriction was not entitled to credit for the time served under such order. Cooper v. Commonwealth, 902 S.W.2d 833, 1995 Ky. App. LEXIS 35 (Ky. Ct. App. 1995).

2.— Pretrial Home Incarceration.

Defendants were not entitled to jail-time credit for time in pretrial home incarceration because home incarceration could only be credited against a sentence where it was imposed after conviction, not where it was a form of pretrial release. Buford v. Commonwealth, 58 S.W.3d 490, 2001 Ky. App. LEXIS 1051 (Ky. Ct. App. 2001).

3.Release on Bond.

Release on bond is indeed a privilege granted to an arrestee allowing the court broad discretion to impose conditions sufficient to guarantee his appearance later for trial, and the alternative to release on bond, regardless of how stringent, is the ultimately restrictive confinement in the county jail prior to trial, which must by statute be credited later against a sentence upon conviction and sentencing for the same crime; however, time released on bond, regardless of the restrictive conditions imposed such as yard-restriction, simply is not the same as jail time and is specifically excluded by statutory definition as a substitute for jail time. Cooper v. Commonwealth, 902 S.W.2d 833, 1995 Ky. App. LEXIS 35 (Ky. Ct. App. 1995).

4.Eligibility for Home Incarceration.

Court of Appeals erred in finding that defendant was not eligible for home incarceration because he pled guilty to two non-violent Class D felonies, DUI, fourth offense, and driving on a DUI-suspended license, second offense, was sentenced to an indeterminate term of imprisonment of five years or less, and, he was to serve his sentence in the county jail. Rice v. Commonwealth, 492 S.W.3d 563, 2016 Ky. LEXIS 252 ( Ky. 2016 ).

Cited:

Aviles v. Commonwealth, 17 S.W.3d 534, 2000 Ky. App. LEXIS 35 (Ky. Ct. App. 2000).

Opinions of Attorney General.

A prior conviction must fall into one of the listed offenses set out in KRS 532.200(3) and that conviction must have been within five (5) years of the latest conviction for it to constitute a “violent felony offense” as used in the home incarceration statutes. OAG 89-4 .

Home incarceration may be lawfully imposed by a trial court as a penalty for a first, second, or third violation of this section, unless the defendant has been convicted of a violent felony offense within the previous five (5) years, as defined by KRS 532.200(3); a person convicted of a fourth or subsequent violation of this section is not eligible for home incarceration, since the statutes do not permit a court to sentence a felon to home incarceration. OAG 94-49 .

532.220. Conditions of home incarceration.

The conditions of home incarceration shall include the following:

  1. The home incarceree shall be confined to his home at all times except when:
    1. Working at approved employment or traveling directly to and from such employment;
    2. Seeking employment;
    3. Undergoing available medical, psychiatric, or mental health treatment or approved counseling and after care programs;
    4. Attending an approved educational institution or program;
    5. Attending a regularly scheduled religious service at a place of worship; and
    6. Participating in an approved community work service program;
  2. Violation of subsection (1) of this section may subject the home incarceree to prosecution under KRS 520.030 (escape);
  3. The home incarceree shall conform to a schedule prepared by a designated officer of the supervising authority specifically setting forth the times when he may be absent from the home and the locations where he may be during those times;
  4. The home incarceree shall not commit another offense during the period of time for which he is subject to the conditions of home incarceration;
  5. The home incarceree shall not change the place of home incarceration or the schedule without prior approval of the supervising authority;
  6. The home incarceree shall maintain a telephone or other approved monitoring device in the home or on his person at all times;
  7. Any other reasonable conditions set by the court or the supervising authority including:
    1. Restitution under KRS 533.030 ;
    2. Supervision fees under KRS 439.315 ; and
    3. Any of the conditions imposed on persons on probation or conditional discharge under KRS 533.030 (2);
  8. A written and notarized consent agreement shall be filed with the court by every adult who will share the offender’s home during the term of home incarceration; and
  9. Any supervision fee or other monetary condition, except restitution, shall be paid by the defendant directly to the person or organization specified by the court in a written order, except that any such fees or monetary conditions owed to the Department of Corrections shall be paid through the circuit clerk.

History. Enact. Acts 1986, ch. 243, § 3, effective July 15, 1986; 2002, ch. 183, § 32, effective August 1, 2002.

NOTES TO DECISIONS

Analysis

1.Credit for Time Served.

Home incarceration is an alternative to confinement in a penitentiary after the fact of release of sentencing by a court and release on bond precedes the fact of conviction and attachment of jeopardy, and moreover a defendant released on bond would not be subject to prosecution for escape should he violate the terms of his release, thus a defendant on court ordered yard restriction was not entitled to credit for the time served under such order. Cooper v. Commonwealth, 902 S.W.2d 833, 1995 Ky. App. LEXIS 35 (Ky. Ct. App. 1995).

2.Escape.

Despite defendant’s contention that his participation in the home incarceration program was a constraint incidental to release on bail, thereby excepting him from the escape statute, defendant was not released on bail; thus, the trial court erred in dismissing said charge filed against him. Weaver v. Commonwealth, 156 S.W.3d 270, 2005 Ky. LEXIS 44 ( Ky. 2005 ).

For an incarceree in the Home Incarceration Program (HIP), leaving the specified home without permission or failing to return to the home after a temporary authorized leave is escape from a detention facility under KRS 520.030(1). Escape from such a home can therefore constitute second-degree escape. This reading of the statute is consistent with the HIP statutes, including KRS 532.220 , which specifically notes that violation of HIP conditions can result in a second-degree escape charge. Lawton v. Commonwealth, 354 S.W.3d 565, 2011 Ky. LEXIS 155 ( Ky. 2011 ).

Word “may” in KRS 532.220(2) is merely an acknowledgment of prosecutorial discretion; the Commonwealth does not have to prosecute an incarceree who escapes from home incarceration, but if it does, second-degree escape is the appropriate statute. The clear effect of the sentence is to put a Home Incarceration Program (HIP) participant on additional notice that he can be subject to a second-degree escape charge. Lawton v. Commonwealth, 354 S.W.3d 565, 2011 Ky. LEXIS 155 ( Ky. 2011 ).

3.Release on Bond.

Release on bond is indeed a privilege granted to an arrestee allowing the court broad discretion to impose conditions sufficient to guarantee his appearance later for trial, and the alternative to release on bond, regardless of how stringent, is the ultimately restrictive confinement in the county jail prior to trial, which must by statute be credited later against a sentence upon conviction and sentencing for the same crime; however, time released on bond, regardless of the restrictive conditions imposed such as yard-restriction, simply is not the same as jail time and is specifically excluded by statutory definition as a substitute for jail time. Cooper v. Commonwealth, 902 S.W.2d 833, 1995 Ky. App. LEXIS 35 (Ky. Ct. App. 1995).

Notes to Unpublished Decisions

1.Violation of Home Incarceration.

Unpublished decision: Trial court erred in concluding that defendant could not be prosecuted for second-degree escape when defendant removed his electronic monitoring device and made and unauthorized departure from defendant’s home because defendant had not escaped from custody, as defendant’s violations of defendant’s home incarceration expressly permitted defendant to be prosecuted for escape under the provisions of KRS 520.030 . Commonwealth v. Weaver, 2003 Ky. App. LEXIS 74 (Ky. Ct. App. Apr. 11, 2003), aff'd, 156 S.W.3d 270, 2005 Ky. LEXIS 44 ( Ky. 2005 ).

532.230. Ineligibility.

No person being held under a detainer, warrant, or process issued by some other jurisdiction shall be eligible for home incarceration. No person convicted of a violent felony offense shall be eligible for home incarceration.

History. Enact. Acts 1986, ch. 243, § 4, effective July 15, 1986.

Opinions of Attorney General.

A prior conviction must fall into one of the listed offenses set out in KRS 532.200(3) and that conviction must have been within five years of the latest conviction for it to constitute a “violent felony offense” as used in the home incarceration statutes. OAG 89-4 .

532.240. Responsibilities of persons held in home incarceration.

Any person serving his sentence under conditions of home incarceration shall be responsible for his food, housing, clothing, and medical care expenses, and shall be eligible for government benefits to the same extent as a person on probation, parole, postincarceration supervision, or conditional discharge.

History. Enact. Acts 1986, ch. 243, § 5, effective July 15, 1986; 2011, ch. 2, § 96, effective June 8, 2011.

532.245. Credit for time spent in pretrial home incarceration.

  1. Time spent in pretrial home incarceration pursuant to KRS 431.517 shall be credited against the maximum term of imprisonment assessed to the defendant upon conviction. Time credited under this section shall be calculated in accordance with KRS 532.120 .
  2. Violation of the terms of pretrial home incarceration shall be deemed an interruption of the defendant’s home incarceration. The interruption shall begin at the time of the violation and shall continue until a court revokes home incarceration or otherwise acts on the violation. Time spent in pretrial home incarceration prior to the violation shall be credited against the maximum term of imprisonment assessed to the defendant upon conviction for the original charge.
  3. This section shall apply to defendants sentenced on or after July 12, 2012.

History. Enact. Acts 2012, ch. 156, § 24, effective July 12, 2012.

NOTES TO DECISIONS

1Generally.

Although Ky. Rev. Stat. Ann. §§ 532.120(7) and 532.245 now expressly provide sentencing credit for time spent on pretrial home incarceration, such credit is available to defendants sentenced on or after July 12, 2012. Defendant was sentenced in 2011 and was not entitled to sentencing credit for time spent on home incarceration. McKinzie v. Commonwealth, 2018 Ky. App. LEXIS 245 (Ky. Ct. App. Oct. 5, 2018, sub. op., 2018 Ky. App. Unpub. LEXIS 966 (Ky. Ct. App. Oct. 5, 2018).

532.250. Monthly list of incarcerees provided to local law enforcement agencies.

At least once every thirty (30) days, the supervising authority shall provide all local and county law enforcement agencies with a list of the offenders under home incarceration in their jurisdictions. This list shall include the following information:

  1. The prisoner’s place of home incarceration;
  2. The crime for which the prisoner was convicted;
  3. The date that the sentence of home incarceration will be completed; and
  4. The name, address and phone number of the officer of the authority supervising the prisoner.

History. Enact. Acts 1986, ch. 243, § 6, effective July 15, 1986.

532.260. Home incarceration or conditional release for certain Class C or Class D felons — Eligibility — Consequence of violation — Administrative regulations.

  1. Any Class C or Class D felon who is serving a sentence in a state-operated prison, contract facility, or county jail shall, at the discretion of the commissioner, be eligible to serve the remainder of his or her sentence outside the walls of the detention facility under terms of home incarceration or conditional release to an appropriate housing alternative specified by KRS 532.262 using an approved monitoring device as defined in KRS 532.200 , if the felon:
      1. Has not been convicted of, pled guilty to, or entered an Alford plea to a violent felony as defined by the Department of Corrections classification system; or (a) 1. Has not been convicted of, pled guilty to, or entered an Alford plea to a violent felony as defined by the Department of Corrections classification system; or
      2. Has not been convicted of, pled guilty to, or entered an Alford plea to a sex crime as defined in KRS 17.500 ;
    1. Has nine (9) months or less to serve on his or her sentence;
    2. Has voluntarily participated in a discharge planning process with the department to address his or her:
      1. Education;
      2. Employment, technical, and vocational skills;
      3. Housing, medical, and mental health needs; and
      4. Criminal risk factors; and
    3. Has needs that may be adequately met in the community where he or she will reside upon release.
  2. A person who is placed under terms of home incarceration pursuant to subsection (1) of this section shall remain in the custody of the Department of Corrections. Any unauthorized departure from the terms of home incarceration may be prosecuted as an escape pursuant to KRS Chapter 520 and shall result in the person being returned to prison.
  3. The Department of Corrections shall promulgate administrative regulations to implement the provisions of this section.

History. Enact. Acts 2005, ch. 173, Part I, I.2.b(1), § 1, effective March, 20, 2005; 2006, ch. 252, Part XXII, § 1, effective April 25, 2006; 2010, ch. 107, § 11, effective July 15, 2010; 2011, ch. 2, § 43, effective June 8, 2011.

Research References and Practice Aids

2010-2012 Budget Reference.

See State/Executive Branch Budget, 2010 (1st Extra. Sess.) Ky. Acts ch. 1, Pt. I, H, 5, c, (6) at 46.

532.262. Department to approve any acceptable housing for prisoners granted conditional release.

When considering appropriate housing for a prisoner who is considered for or who is granted conditional release pursuant to KRS 532.260 , the Department of Corrections shall approve any form of acceptable housing, including but not limited to apartments, shelters for the homeless or other persons, county jails or restricted custody facilities that a county approves for persons granted conditional release, educational institutions with dormitories if the releasee is enrolled or accepted for enrollment at an educational institution, halfway houses, reentry centers, residential treatment or other programs in which the releasee is enrolled or accepted for enrollment, and other forms of transitional housing meeting the requirements of applicable statutes.

HISTORY: Enact. Acts 2011, ch. 2, § 42, effective June 8, 2011; 2017 ch. 158, § 95, effective June 29, 2017.

532.300. Prohibition against death sentence being sought or given on the basis of race — Procedures for dealing with claims.

  1. No person shall be subject to or given a sentence of death that was sought on the basis of race.
  2. A finding that race was the basis of the decision to seek a death sentence may be established if the court finds that race was a significant factor in decisions to seek the sentence of death in the Commonwealth at the time the death sentence was sought.
  3. Evidence relevant to establish a finding that race was the basis of the decision to seek a death sentence may include statistical evidence or other evidence, or both, that death sentences were sought significantly more frequently:
    1. Upon persons of one race than upon persons of another race; or
    2. As punishment for capital offenses against persons of one race than as punishment for capital offenses against persons of another race.
  4. The defendant shall state with particularity how the evidence supports a claim that racial considerations played a significant part in the decision to seek a death sentence in his or her case. The claim shall be raised by the defendant at the pre-trial conference. The court shall schedule a hearing on the claim and shall prescribe a time for the submission of evidence by both parties. If the court finds that race was the basis of the decision to seek the death sentence, the court shall order that a death sentence shall not be sought.
  5. The defendant has the burden of proving by clear and convincing evidence that race was the basis of the decision to seek the death penalty. The Commonwealth may offer evidence in rebuttal of the claims or evidence of the defendant.

History. Enact. Acts 1998, ch. 252, § 1, effective July 15, 1998.

Research References and Practice Aids

Northern Kentucky Law Review.

2010 Death Penalty Issue: Article: Race, Death and Disproportionality, 37 N. Ky. L. Rev. 213 (2010).

2010 Death Penalty Issue: Article: The Continuing Role of Race in Capital Cases, Notwithstanding President Obama’s Election, 37 N. Ky. L. Rev. 243 (2010).

2010 Death Penalty Issue: Article: The Racial Justice Act in Kentucky, 37 N. Ky. L. Rev. 273 (2010).

532.305. Application of KRS 532.300.

KRS 532.300 shall not apply to sentences imposed prior to July 15, 1998.

History. Enact. Acts 1998, ch. 252, § 2, effective July 15, 1998.

532.309. Short title for KRS 532.300 to 532.309.

KRS 532.300 to 532.309 shall be cited as the Kentucky Racial Justice Act.

History. Enact. Acts 1998, ch. 252, § 3, effective July 15, 1998.

532.350. Definitions for chapter.

As used in this chapter:

    1. “Restitution” means any form of compensation paid by a convicted person to a victim for counseling, medical expenses, lost wages due to injury, or property damage and other expenses suffered by a victim because of a criminal act; (1) (a) “Restitution” means any form of compensation paid by a convicted person to a victim for counseling, medical expenses, lost wages due to injury, or property damage and other expenses suffered by a victim because of a criminal act;
    2. “Reimbursement” means payment of expenses associated with incarceration, including but not limited to medical expenses, food, and lodging;
    3. “Sinking fund” means the fund created and used by local governments to provide maintenance of jail facilities and capital construction; improvement of law enforcement, jail, and judicial facilities; and other long-term expenditures associated with those areas; and
    4. “Local government” means any county, urban-county, or charter county government.
  1. Definitions in KRS 441.005 apply to this chapter.

History. Enact. Acts 1998, ch. 606, § 177, effective July 15, 1998.

NOTES TO DECISIONS

1.Restitution.

When a person commits the offense of flagrant nonsupport, he or she causes the party entitled to receive child support to incur expenses because of that criminal act. Money owed for past due child support constitutes “restitution” within the meaning of KRS 532.350 . As such, before probation or conditional discharge may be revoked based on a failure to pay child support, the requirements of Bearden v. Georgia, 461 U.S. 660, 103 S. Ct. 2064, 76 L. Ed. 2d 221, 1983 U.S. LEXIS 39 (1983), must be met. Gamble v. Commonwealth, 293 S.W.3d 406, 2009 Ky. App. LEXIS 74 (Ky. Ct. App. 2009).

Revocation of defendant’s probation for flagrant nonsupport under KRS 530.050(2) was proper as although the Bearden standard for the failure to pay restitution under KRS 532.350(1)(a) applied to revocation proceedings for the failure to pay child support, and the trial court was required to inquire into the reasons defendant failed to pay, the trial court was unable to do so because defendant refused to testify under the Fifth Amendment, U.S. Const. amend. V. Gamble v. Commonwealth, 293 S.W.3d 406, 2009 Ky. App. LEXIS 74 (Ky. Ct. App. 2009).

Trial court should have made specific findings on monetary damages suffered as result of defendant’s complicity to fraudulent insurance acts because under KRS 532.350(1) restitution was payable only in the amount of actual loss incurred from illegal conduct for which defendant was convicted; given that defendant only pled guilty to fraudulent insurance acts and not arson, the amount of restitution had to have a nexus with the crime to which defendant pled guilty. Morseman v. Commonwealth, 2011 Ky. App. LEXIS 36 (Ky. Ct. App. Feb. 25, 2011), rev'd, 379 S.W.3d 144, 2012 Ky. LEXIS 138 ( Ky. 2012 ).

When defendant entered a plea of guilty to Fraudulent Insurance Acts by Complicity, over $300, for making a fraudulent statement supporting an insurance claim for personal property under KRS 304.47-020 (1)(a), the trial court did not err by ordering him to pay restitution to the insurance company for proceeds distributed for property damage, alternative housing, and living expenses. These damages were not incurred as a result of defendant’s fraudulent insurance acts as required to support an order of restitution under KRS 532.350(1)(a); however, defendant was bound to the restitution provision in the plea agreement. Commonwealth v. Morseman, 379 S.W.3d 144, 2012 Ky. LEXIS 138 ( Ky. 2012 ).

Supreme Court of Kentucky adopts the Maryland rule that a trial court may not order a criminal defendant to pay restitution to a victim of a crime for which he was not convicted. This rule is subject to one very narrow exception: a restitution order under KRS 532.350(1)(a) regarding alleged crimes for which the defendant was not convicted is valid only if the defendant freely and voluntarily agrees to make restitution to victims of the other, alleged crimes as part of a plea agreement. Commonwealth v. Morseman, 379 S.W.3d 144, 2012 Ky. LEXIS 138 ( Ky. 2012 ).

American Society to Prevent Cruelty to Animals (ASPCA) was not properly characterized as a victim because it did not suffer direct pecuniary damages as a result of defendant’s criminal activity but voluntarily accepted the county’s request for assistance; “victim” is one who is directly harmed by the criminal conduct for which the defendant has pled or been found guilty. Blevins v. Commonwealth, 435 S.W.3d 637, 2014 Ky. App. LEXIS 107 (Ky. Ct. App. 2014).

In a drug case, it was improper to order defendant to pay restitution to a task force because it did not suffer direct or threatened financial harm as a result of defendant's crime. The task force was simply not a victim in the sense that the statutory scheme contemplated to be compensated for any harm it suffered. Hunt v. Commonwealth, 2016 Ky. App. LEXIS 65 (Ky. Ct. App. Apr. 29, 2016).

Restitution order was affirmed as to the value of the items stolen where the victim relied on her memory and photographs to find comparable items on the Internet, and any deficiency in the notice of additional items was cured when the trial court offered additional time to investigate their value before making its decision. Mitchell v. Commonwealth, 538 S.W.3d 326, 2017 Ky. App. LEXIS 810 (Ky. Ct. App. 2017).

Trial court erred in including sales tax in the restitution amount where there was no testimony that the victim paid any sales tax when she purchased the items or the cost to replace the items included sales tax. Mitchell v. Commonwealth, 538 S.W.3d 326, 2017 Ky. App. LEXIS 810 (Ky. Ct. App. 2017).

In a theft action, remand for a determination of the proper amount of restitution was necessary because the trial court’s measure of damages, which was more than the victim paid for entire building from which the sheet metal was removed, offended the most general principles of damages law since the award would clearly create a windfall in the victim’s favor at defendant’s detriment. Any such measure of damages would go far beyond compensating the victim for that of which he was wrongfully deprived and would clearly operate as a windfall profit. McMichael v. Commonwealth, 2021 Ky. App. LEXIS 33 (Ky. Ct. App. Mar. 19, 2021).

2.Hearing.

Implicit in Kentucky’s statutory scheme requiring restitution is an adversary hearing, ordinarily conducted in conjunction with the final sentencing hearing, at which the trial court will have broad discretion to make findings based upon reliable information but will not be bound by the rules of evidence or traditional rules of pleading; in the great majority of cases, restitution as defined in KRS 532.350(1)(a), when not agreed upon or clearly established from the evidence presented during trial, will be readily ascertained and easily verified by records and the issue can be summarily resolved. However, not every disputed issue of restitution can be fairly or efficiently resolved in a summary proceeding like the traditional sentencing hearing. KRS ch. 532 requires judges to impose restitution when applicable, but it does not compel trial judges to do so without conducting a proper hearing with whatever degree of formality is necessary in the particular circumstances to assure compliance with constitutional due process. Jones v. Commonwealth, 382 S.W.3d 22, 2011 Ky. LEXIS 180 ( Ky. 2011 ).

Defendant’s due process rights were violated where a trial court made a determination regarding what amount of restitution to impose on defendant prior to the time allowed for him to submit documentation on the issue had expired pursuant to KRS 532.350(1) and 532.033(3). Donovan v. Commonwealth, 376 S.W.3d 628, 2012 Ky. App. LEXIS 153 (Ky. Ct. App. 2012).

Cited:

Maddix v. Commonwealth, — S.W.3d —, 2013 Ky. App. LEXIS 20 (Ky. Ct. App. 2013).

532.352. Reimbursement for costs of incarceration.

  1. The sentencing court may order a person who is sentenced to a term of incarceration for any nonstatus juvenile offense, moving traffic violation, criminal violation, misdemeanor, or Class D felony offense to reimburse the state or local government for the costs of his incarceration. The reimbursements paid under this subsection shall be credited to the local government sinking fund.
  2. The sentencing court shall determine the amount of incarceration costs to be paid based on the following factors:
    1. The actual per diem, per person, cost of incarceration;
    2. The cost of medical services provided to a prisoner less any copayment paid by the prisoner; and
    3. The prisoner’s ability to pay all or part of his incarceration costs.
  3. Reimbursement of incarceration costs shall be paid by the defendant directly to the jailer in the amount specified by written order of the court. Incarceration costs owed to the Department of Corrections shall be paid through the circuit clerk.

History. Enact. Acts 1998, ch. 606, § 178, effective July 15, 1998; 2002, ch. 183, § 33, effective August 1, 2002.

532.354. Copayment for medical treatment.

  1. A local government may require prisoners to make a reasonable copayment in advance of medical treatment received through a regional jail facility. No prisoner shall be denied medical treatment by reason of indigency, but a prisoner may be required to pay for medical treatment as part of any reimbursement order entered by the sentencing court.
  2. Any copayment shall be collected by the jailer or his designee and, after it is properly accounted for, shall be paid to the appropriate local government authority.

History. Enact. Acts 1998, ch. 606, § 179, effective July 15, 1998.

532.356. Reimbursement and restitution as additional sanctions — Ineligibility to operate motor vehicle upon conviction of theft of fuels.

  1. Upon a person’s conviction and sentencing for any nonstatus juvenile offense, moving traffic violation, criminal violation, misdemeanor, or Class D felony offense, and, for the purposes of paragraph (b) of this subsection, any Class C felony offense listed in subsection (3) of this section, the court shall impose the following sanctions in addition to any imprisonment, fine, court cost, or community service:
    1. Reimbursement to the state or local government for the person’s incarceration, determined by the per person, per diem, expenses of each prisoner incarcerated by the respective local government, times the number of days he has spent or shall spend in confinement, plus any medical services received by the prisoner, less copayments paid by the prisoner. The convicted person’s ability to pay all or part of the reimbursement shall be considered by the sentencing court in imposing the sanction; and
    2. Restitution to the crime victim as set out in KRS 439.563 , 532.032 , and 532.033 .
  2. In addition to any other penalty allowed by law, a court may declare the defendant ineligible to operate a motor vehicle for a period of up to sixty (60) days where the defendant is being sentenced for a conviction of KRS 514.030 involving the theft of gasoline or special fuels from a retail establishment and the defendant has been previously convicted of KRS 514.030 for a theft of gasoline or special fuels from a retail establishment. A retail establishment may post a sign at the location where the fuel is dispensed apprising the public of the sanctions available under this subsection.
    1. In addition to any other penalty allowed by law, a court may declare the defendant ineligible to operate a motor vehicle for the period of time that any amount of restitution ordered under this section remains unpaid, where the restitution is imposed as the result of the commission of the following offenses: (3) (a) In addition to any other penalty allowed by law, a court may declare the defendant ineligible to operate a motor vehicle for the period of time that any amount of restitution ordered under this section remains unpaid, where the restitution is imposed as the result of the commission of the following offenses:
      1. KRS 434.650 ;
      2. KRS 434.655 ;
      3. KRS 434.660 ;
      4. KRS 434.670 ;
      5. KRS 434.690 ;
      6. KRS 514.030 ;
      7. KRS 514.040 ;
      8. KRS 514.050 ;
      9. KRS 514.060 ;
      10. KRS 514.070 ;
      11. KRS 514.080 ;
      12. KRS 514.090 ;
      13. KRS 514.110 ;
      14. KRS 514.120 ; or
      15. KRS 506.120 .
    2. Upon motion by the defendant with proper notice to the office of the attorney who represented the Commonwealth at sentencing, the court may authorize the defendant to obtain the hardship license authorized under KRS Chapter 189A. The defendant shall be subject to the same operating restrictions and penalties for noncompliance as are set out for a hardship license in that chapter. The court may waive compliance with provisions of KRS Chapter 189A relating to alcohol treatment, waiting periods, and ignition interlock installation for the purpose of authorizing issuance of a hardship license under this section.
  3. Sanctions imposed by the sentencing court shall become a judgment of the court. Reimbursement of incarceration costs shall be paid by the defendant directly to the jailer in the amount specified by written order of the court. Incarceration costs owed to the Department of Corrections shall be paid through the circuit clerk.

History. Enact. Acts 1998, ch. 606, § 180, effective July 15, 1998; 2001, ch. 139, § 2, effective June 21, 2001; 2002, ch. 183, § 34, effective August 1, 2002; 2009, ch. 106, § 16, effective June 25, 2009; 2010, ch. 38, § 1, effective July 15, 2010.

NOTES TO DECISIONS

Cited:

Hearn v. Commonwealth, 80 S.W.3d 432, 2002 Ky. LEXIS 135 ( Ky. 2002 ).

532.358. Prisoner to pay reimbursement and restitution.

Any prisoner who has completed his sentence in a county or regional jail or under condition of home incarceration shall, from the day incarceration ceases and within the time and amount designated by the sentencing court, pay restitution to his victim and reimbursement for his incarceration to the state or local government and his or her home incarceration fees, in addition to any other monetary and community service sanctions imposed by the sentencing court. The sentencing court may use its contempt sanctions to enforce its orders.

History. Enact. Acts 1998, ch. 606, § 181, effective July 15, 1998; 2000, ch. 489, § 1, effective July 14, 2000.

Postincarceration Supervision

532.400. Postincarceration supervision — Violation — Exclusions.

  1. In addition to the penalties authorized by law, any person who:
    1. Is convicted of a capital offense or a Class A felony;
    2. Has a maximum or close security classification as defined by administrative regulations promulgated by the department; or
    3. Is not eligible for parole by statute;

      shall be subject to a period of postincarceration supervision following release from incarceration upon expiration of sentence or completion of parole.

  2. The period of postincarceration supervision shall be one (1) year.
  3. During the period of postincarceration supervision, the defendant shall:
    1. Be subject to all orders specified by the Department of Corrections; and
    2. Comply with all education, treatment, testing, or combination thereof required by the Department of Corrections.
  4. Persons under postincarceration supervision pursuant to this section shall be subject to the supervision of the Division of Probation and Parole and under the authority of the Parole Board.
  5. If a person violates a provision specified in subsection (3) of this section, the violation shall be reported in writing by the Division of Probation and Parole. Notice of the violation shall be sent to the Parole Board to determine whether probable cause exists to revoke the defendant’s postincarceration supervision and reincarcerate the defendant as set forth in KRS 532.060 .
  6. The provisions of this section shall not apply to a person who is subject to the provisions of KRS 532.043 .
  7. The provisions of this section shall apply only to persons convicted, pleading guilty, or entering an Alford plea for an offense committed after June 8, 2011.

History. Enact. Acts 2011, ch. 2, § 35, effective June 8, 2011.

NOTES TO DECISIONS

1.Constitutionality.

Circuit court properly granted an inmate summary judgment in his action for declaratory and injunctive relief and held that the statute at issue was unconstitutional because the statute failed to describe the conduct that would subject the inmate to a close or maximum classification subsequently subjecting him to post-incarceration supervision, he was denied counsel in a “critical stage” in the prosecution, a hearing was not held, the statute failed to provide reasonably clear guidelines for the Department of Corrections (DOC) to follow, and allowed the DOC, an executive agency, to encroach on powers expressly enumerated to the judicial branch by issuing a criminal sentence resulting in incarceration without judicial review. Ky. Dep't of Corr. v. Mitchem, 586 S.W.3d 256, 2019 Ky. App. LEXIS 168 (Ky. Ct. App. 2019).

2.Evidence.

There was no error in the Commonwealth's failure to inform the jury that Ky. Rev. Stat. Ann. § 532.400 imposed a one year term of post-conviction supervision for persons convicted of a capital offense because Ky. Rev. Stat. Ann. § 532.055(2)(a) did not require it to do so; section 32.055(2)(a) provides evidence that may be offered by the Commonwealth. Smith v. Commonwealth, 454 S.W.3d 283, 2015 Ky. LEXIS 12 ( Ky. 2015 ).

CHAPTER 533 Probation and Conditional Discharge

533.010. Criteria for utilizing chapter — Alternative sentences — Monitoring by private agency — Work release.

  1. Any person who has been convicted of a crime and who has not been sentenced to death may be sentenced to probation, probation with an alternative sentencing plan, or conditional discharge as provided in this chapter.
  2. Before imposition of a sentence of imprisonment, the court shall consider probation, probation with an alternative sentencing plan, or conditional discharge. Unless the defendant is a violent felon as defined in KRS 439.3401 or a statute prohibits probation, shock probation, or conditional discharge, after due consideration of the defendant’s risk and needs assessment, nature and circumstances of the crime, and the history, character, and condition of the defendant, probation or conditional discharge shall be granted, unless the court is of the opinion that imprisonment is necessary for protection of the public because:
    1. There is substantial risk that during a period of probation or conditional discharge the defendant will commit another crime;
    2. The defendant is in need of correctional treatment that can be provided most effectively by his commitment to a correctional institution; or
    3. A disposition under this chapter will unduly depreciate the seriousness of the defendant’s crime.
  3. In the event the court determines that probation is not appropriate after due consideration of the defendant’s risk and needs assessment, nature and circumstances of the crime, and the history, character, and condition of the defendant, probation with an alternative sentencing plan shall be granted unless the court is of the opinion that imprisonment is necessary for the protection of the public because:
    1. There is a likelihood that during a period of probation with an alternative sentencing plan or conditional discharge the defendant will commit a Class D or Class C felony or a substantial risk that the defendant will commit a Class B or Class A felony;
    2. The defendant is in need of correctional treatment that can be provided most effectively by commitment to a correctional institution; or
    3. A disposition under this chapter will unduly depreciate the seriousness of the defendant’s crime.
  4. The court shall not determine that there is a likelihood that the defendant will commit a Class C or Class D felony based upon the defendant’s risk and needs assessment and the fact that:
    1. The defendant has never been convicted of, pled guilty to, or entered an Alford plea to a felony offense;
    2. If convicted of, having pled guilty to, or entered an Alford plea to a felony offense, the defendant successfully completed probation more than ten (10) years immediately prior to the date of the commission of the felony for which the defendant is now being sentenced and has had no intervening convictions, pleas of guilty, or Alford pleas to any criminal offense during that period; or
    3. The defendant has been released from incarceration for the commission of a felony offense more than ten (10) years immediately prior to the date of the commission of the felony for which the defendant is now being sentenced and has had no intervening convictions, pleas of guilty, or Alford pleas to any criminal offense during that period.
  5. In making a determination under subsection (4) of this section, the court may determine that the greater weight of the evidence indicates that there is a likelihood that the defendant will commit a Class C or Class D felony.
  6. Upon initial sentencing of a defendant or upon modification or revocation of probation, when the court deems it in the best interest of the public and the defendant, the court may order probation with the defendant to serve one (1) of the following alternative sentences:
    1. To a halfway house for no more than twelve (12) months;
    2. To home incarceration with or without work release for no more than twelve (12) months;
    3. To jail for a period not to exceed twelve (12) months with or without work release, community service and other programs as required by the court;
    4. To a residential treatment program for the abuse of alcohol or controlled substances;
    5. To a reentry center for no more than twelve (12) months; or
    6. To any other specified counseling program, rehabilitation or treatment program, or facility.
  7. If during the term of the alternative sentence the defendant fails to adhere to and complete the conditions of the alternative sentence, the court may modify the terms of the alternative sentence or may modify or revoke probation and alternative sentence and commit the defendant to an institution.
  8. In addition to those conditions that the court may impose, the conditions of alternative sentence shall include the following and, if the court determines that the defendant cannot comply with them, then they shall not be made available:
    1. A defendant sentenced to a halfway house shall:
      1. Be working or pursuing his or her education or be enrolled in a full-time treatment program;
      2. Pay restitution during the term of probation; and
      3. Have no contact with the victim of the defendant’s crime;
    2. A defendant sentenced to home incarceration shall:
      1. Be employed by another person or self-employed at the time of sentencing to home incarceration and continue the employment throughout the period of home incarceration, unless the court determines that there is a compelling reason to allow home incarceration while the defendant is unemployed;
      2. Pay restitution during the term of home incarceration;
      3. Enter a treatment program, if appropriate;
      4. Pay all or some portion of the cost of home incarceration as determined by the court;
      5. Comply with other conditions as specified; and
      6. Have no contact with the victim of the defendant’s crime;
    3. A defendant sentenced to jail with community service shall:
      1. Pay restitution during all or some part of the defendant’s term of probation; and
      2. Have no contact with the victim of the defendant’s crime;
    4. A defendant sentenced to a residential treatment program for drug and alcohol abuse shall:
      1. Undergo mandatory drug screening during term of probation;
      2. Be subject to active, supervised probation for a term of five (5) years;
      3. Undergo aftercare as required by the treatment program;
      4. Pay restitution during the term of probation; and
      5. Have no contact with the victim of the defendant’s crime; or
    5. A defendant sentenced to a reentry center shall:
      1. Be employed in the community or working in a vocational program at the reentry center;
      2. Be enrolled in a treatment program;
      3. Pay restitution, fees, and fines during the term of probation; and
      4. Comply with other conditions as specified.
  9. When the court deems it in the best interest of the defendant and the public, the court may order the person to work at community service related projects under the terms and conditions specified in KRS 533.070 . Work at community service related projects shall be considered as a form of conditional discharge.
  10. Probation with alternative sentence shall not be available as set out in KRS 532.045 and 533.060 , except as provided in KRS 533.030(6).
  11. The court may utilize a community corrections program authorized or funded under KRS Chapter 196 to provide services to any person released under this section.
  12. When the court deems it in the best interest of the defendant and the public, the court may order the defendant to placement for probation monitoring by a private agency. The private agency shall report to the court on the defendant’s compliance with his or her terms of probation or conditional discharge. The defendant shall be responsible for any reasonable charges which the private agency charges.
  13. The jailer in each county incarcerating Class C or D felons may deny work release privileges to any defendant for violating standards of discipline or other jail regulations. The jailer shall report the action taken and the details of the violation on which the action was based to the court of jurisdiction within five (5) days of the violation.
  14. The Department of Corrections shall, by administrative regulation, develop written criteria for work release privileges granted under this section.
  15. Reimbursement of incarceration costs shall be paid directly to the jailer in the amount specified by written order of the court. Incarceration costs owed to the Department of Corrections shall be paid through the circuit clerk.
  16. The court shall enter into the record written findings of fact and conclusions of law when considering implementation of any sentence under this section.

HISTORY: Enact. Acts 1974, ch. 406, § 285, effective January 1, 1975; 1990, ch. 459, § 2, effective July 13, 1990; 1990, ch. 497, § 4, effective July 13, 1990; 1998, ch. 606, § 73, effective July 15, 1998; 2002, ch. 183, § 35, effective August 1, 2002; 2003, ch. 150, § 6, effective June 24, 2003; 2011, ch. 2, § 83, effective June 8, 2011; 2017 ch. 158, § 96, effective June 29, 2017.

NOTES TO DECISIONS

1.In General.

Probation is a system whereby offenders may be released on suspended sentence during good behavior, and placed under the supervision of a probation officer, who acts as a friend and adviser, but who, in case of the failure of the probationer to fulfill the terms of his probation, can report him back to the court for execution of the sentence originally imposed. (Decided under prior law) Lovelace v. Commonwealth, 285 Ky. 326 , 147 S.W.2d 1029, 1941 Ky. LEXIS 386 ( Ky. 1941 ).

Probation merely suspends a judgment which rests upon a legal determination of guilt. (Decided under prior law) Jackson v. Commonwealth, 249 S.W.2d 20, 1952 Ky. LEXIS 778 ( Ky. 1952 ).

Under the Constitution, the manner of probation must be by withholding entry of judgment and suspending sentence. (Decided under prior law) Ridley v. Commonwealth, 287 S.W.2d 156, 1956 Ky. LEXIS 444 ( Ky. 1956 ).

Method of probating person convicted of a criminal offense is by postponing entry of final judgment and sentence upon the verdict. (Decided under prior law) Taylor v. Asher, 317 S.W.2d 895, 1958 Ky. LEXIS 117 ( Ky. 1958 ).

2.Constitutionality.

Law that authorized Circuit Courts to suspend judgment and place defendant on probation, was constitutional in keeping with Ky. Const., § 15. (Decided under prior law) Lovelace v. Commonwealth, 285 Ky. 326 , 147 S.W.2d 1029, 1941 Ky. LEXIS 386 ( Ky. 1941 ).

The theory of the statute is that, if directive to take the defendant to the penitentiary is withheld, the entry of judgment has in part been “postponed” so that the trial court constitutionally may exercise the power to probate. (Decided under prior law) Commonwealth v. Fanelli, 445 S.W.2d 126, 1969 Ky. LEXIS 145 ( Ky. 1969 ).

3.Applicability.

Where the crime of which a defendant was convicted occurred prior to the effective date of this section, the presentencing provisions would not apply even though the defendant was actually tried after the section went into effect. Green v. Commonwealth, 556 S.W.2d 684, 1977 Ky. LEXIS 527 ( Ky. 1977 ).

Where the crime of which the defendant was convicted was committed prior to January 1, 1975, he was not entitled to be sentenced in accord with KRS 532.050 and this section which were not then in effect. Kotas v. Commonwealth, 565 S.W.2d 445, 1978 Ky. LEXIS 353 ( Ky. 1978 ).

Where the judgment indicated that defendant and his counsel had an opportunity to make any statement they might choose to make in mitigation of punishment, and the judgment provided that the court was of the opinion that confinement was necessary for the protection of the public, the requirements of this section were met. Bell v. Commonwealth, 566 S.W.2d 785, 1978 Ky. App. LEXIS 529 (Ky. Ct. App. 1978).

The power to grant probation is not inherent in the courts, but is conferred by the legislature. Consequently, a trial court must construe both the language and intent of the legislature in considering the possibility of either probation or conditional discharge for a specific defendant; as such, the facts and circumstances relating to a particular crime must be examined in determining whether probation is appropriate or inappropriate. Commonwealth v. Reed, 680 S.W.2d 134, 1984 Ky. App. LEXIS 605 (Ky. Ct. App. 1984), overruled, Pruitt v. Commonwealth, 700 S.W.2d 68, 1985 Ky. LEXIS 288 ( Ky. 1985 ).

The Circuit Court correctly held that KRS 533.020(2) concerning probation with an alternative sentence applies only when a person who has been convicted is not sentenced to imprisonment; therefore, where defendant was sentenced to imprisonment for one (1) year, the granting of shock probation did not change that fact. The trial court was entirely correct to conclude that upon sentencing defendant to imprisonment it lost jurisdiction to sentence him to probation with an alternative sentence. Jones v. Commonwealth, 839 S.W.2d 569, 1992 Ky. App. LEXIS 205 (Ky. Ct. App. 1992).

Where expert testimony as to defendant juvenile’s progress and need for additional treatment was relevant to the issue of sentencing and because KRS 533.010(2), 532.050(6), and RCr 11.02 required the trial court to consider probation and alternative sentencing prior to sentencing, the trial court erred in failing to consider the evidence before sentencing pursuant to KRS 640.030(2). Finley v. Commonwealth, 2003 Ky. App. Unpub. LEXIS 954 (Ky. Ct. App. May 23, 2003).

4.Juveniles.

Trial court erred by sentencing defendant, a youthful offender, without first considering probation or another form of conditional discharge as a sentencing option because Kentucky’s Juvenile Code and the court’s holdings in Merriman, Buckner, and Edwards support the conclusion that the violent offender statute was not applicable to youthful offenders for purposes of consideration of probation, even if they were sentenced after they reached 18 years and five months. Thomas v. Commonwealth, 605 S.W.3d 545, 2020 Ky. LEXIS 279 ( Ky. 2020 ), cert. denied, 141 S. Ct. 1703, 209 L. Ed. 2d 473, 2021 U.S. LEXIS 1393 (U.S. 2021).

5.Construction.

KRS 533.060(1) controls subsections (1) and (2) of this section, even though the latter was amended subsequently to allow for “probation with an alternative sentencing plan,” since the former is the more specific statute. Hughes v. Commonwealth, 875 S.W.2d 99, 1994 Ky. LEXIS 42 ( Ky. 1994 ).

Whereas defendant was convicted of trafficking in marijuana and driving under the influence and being a second degree persistent felony offender was sentenced under KRS 532.080 which prohibits the imposition of probation or conditional discharge, his appeal of his prison sentence under this section and KRS 500.095 , which allow for probation and community service respectively, if either statute were held to be controlling, would make a nullity out of KRS 532.080 and would produce an absurd and prohibited result. Renaker v. Commonwealth, 889 S.W.2d 819, 1994 Ky. App. LEXIS 156 (Ky. Ct. App. 1994).

6.Consideration of Probation.

Probation is extended to a convicted criminal only where the circumstances justify it, as determined in the discretion of the court. (Decided under prior law) Darden v. Commonwealth, 277 Ky. 75 , 125 S.W.2d 1031, 1939 Ky. LEXIS 626 ( Ky. 1939 ).

Although the determination by the court to grant probation or conditional discharge is discretionary rather than mandatory, its feasibility must be considered and the record should clearly reflect the fact of such consideration prior to the entry of judgment. Brewer v. Commonwealth, 550 S.W.2d 474, 1977 Ky. LEXIS 417 ( Ky. 1977 ).

Judgment entered upon jury verdict finding defendant guilty of theft by unlawful taking was vacated where the record failed to reflect the fact that consideration had been given the presentence investigation and probation or conditional discharge before the judgment was entered. Brewer v. Commonwealth, 550 S.W.2d 474, 1977 Ky. LEXIS 417 ( Ky. 1977 ).

Where the mandatory sentencing procedures were not followed in a prosecution for robbery, the case would be remanded for proper sentencing. Mishler v. Commonwealth, 556 S.W.2d 676, 1977 Ky. LEXIS 525 ( Ky. 1977 ).

Where the trial court did not consider probation before sentencing two defendants convicted of rape, the case was remanded for resentencing after such consideration. Patterson v. Commonwealth, 555 S.W.2d 607, 1977 Ky. App. LEXIS 793 (Ky. Ct. App. 1977).

While the trial court does not have an obligation to provide presentencing reports in misdemeanor cases as it is required to provide in felony cases, the trail judge must comply with this section, and give due consideration to the possibility of probation after first considering the crime and the defendant and, to insure such compliance, the trial court must place in the record a statement sufficient to show that the necessary consideration has been given. Bell v. Commonwealth, 566 S.W.2d 785, 1978 Ky. App. LEXIS 529 (Ky. Ct. App. 1978).

Under the language of this section, probation is to be determined on an individual, ad hoc basis; the type of crime involved is one factor for a trial court to consider in determining whether to grant probation. Commonwealth v. Reed, 680 S.W.2d 134, 1984 Ky. App. LEXIS 605 (Ky. Ct. App. 1984), overruled, Pruitt v. Commonwealth, 700 S.W.2d 68, 1985 Ky. LEXIS 288 ( Ky. 1985 ).

Where, before considering defendant’s request for probation, the trial court stated that it intended to follow the jury’s recommendation of a 10-year prison sentence for engaging in organized crime, the trial court committed palpable error by failing to give proper consideration to the subject of probation as mandated by KRS 533.010(2). Layton v. Commonwealth, 2007 Ky. App. LEXIS 134 (Ky. Ct. App. May 4, 2007), review denied, ordered not published, 2008 Ky. LEXIS 45 (Ky. Jan. 16, 2008).

Where the trial judge told defendant that he would receive the maximum sentence allowed under the plea agreement should he violate the terms of his presentence release, the trial judge committed to the imposition of a specific sentence in a way that precluded true compliance with KRS 532.050(1), 532.110(1), and 533.010(1) and (2), and RCr P. 11.02 because the sentencing decision had been made prior to the sentencing hearing and was made before due consideration could have been given to the nature and circumstances of the crime; to the history, character and condition of the defendant; to the presentence report; and to the alternatives to incarceration. McClanahan v. Commonwealth, 308 S.W.3d 694, 2010 Ky. LEXIS 98 ( Ky. 2010 ).

7.— Conditions.

Although probation ordering banishment from the country is void, the conviction and judgment thereon are valid, and violation of the condition of probation would cause appellant to be taken in custody and sent to the penitentiary to serve his sentence. (Decided under prior law) Weigand v. Commonwealth, 397 S.W.2d 780, 1965 Ky. LEXIS 85 ( Ky. 1965 ), cert. denied, 384 U.S. 976, 86 S. Ct. 1870, 16 L. Ed. 2d 686, 1966 U.S. LEXIS 1460 (U.S. 1966).

A Circuit Court is without authority to mete a greater sentence when revoking probation than the sentence which had been prescribed originally. (Decided under prior law) Howard v. Ingram, 452 S.W.2d 410, 1970 Ky. LEXIS 362 ( Ky. 1970 ).

Where the defendant was originally sentenced for one (1) year and on revocation of his probation he was sentenced for two (2) years and he had fully served his one (1) year sentence when his petition for habeas corpus was brought, he was entitled to be released from custody. (Decided under prior law) Howard v. Ingram, 452 S.W.2d 410, 1970 Ky. LEXIS 362 ( Ky. 1970 ).

The trial court in a first-degree assault case did not err in making defendant’s probation conditional upon repaying the man he had shot in the legs a total of $10,000, payable in monthly installments of $167, and it was not improper for the judge to revoke the probation and jail the defendant when he refused to make the payments even though he was able to make them. Polk v. Commonwealth, 622 S.W.2d 223, 1981 Ky. App. LEXIS 291 (Ky. Ct. App. 1981).

8.— Discretion of Court.

Probation is purely within discretion of trial court, and Court of Appeals will not interfere except upon a showing of abuse of discretion. (Decided under prior law) Harms v. Commonwealth, 309 Ky. 772 , 219 S.W.2d 8, 1949 Ky. LEXIS 811 ( Ky. 1949 ).

The granting of probation is entirely within the discretion of the trial court and is regarded as a privilege or a species of grace extended to the convicted criminal for his welfare and the welfare of organized society. (Decided under prior law) Ridley v. Commonwealth, 287 S.W.2d 156, 1956 Ky. LEXIS 444 ( Ky. 1956 ).

Both defendant and his counsel were presumed to know that probation was a matter wholly within court’s discretion, and they had no right to assume result of exercise of that discretion. (Decided under prior law) Hurt v. Commonwealth, 333 S.W.2d 951, 1960 Ky. LEXIS 217 ( Ky. 1960 ).

Probation is a matter peculiarly within the discretion of the trial court, and the report of the probation officer does not authorize the appellate court to override the judgment of the trial court in regard to probation. (Decided under prior law) Hurt v. Commonwealth, 333 S.W.2d 951, 1960 Ky. LEXIS 217 ( Ky. 1960 ).

Where appellant was convicted of negligent homicide, but had no explanation why his car lurched to the left and struck oncoming motorcyclists, court had authority to reconsider motion to suspend execution of sentence and place appellant on probation. (Decided under prior law) Jordan v. Commonwealth, 371 S.W.2d 632, 1963 Ky. LEXIS 106 ( Ky. 1963 ).

In probationary cases a judgment on the verdict may be properly entered and a judgment imposing a sentence may be postponed. (Decided under prior law) Gossett v. Commonwealth, 384 S.W.2d 308, 1964 Ky. LEXIS 87 ( Ky. 1964 ).

Where defendant convicted of sexual abuse was denied probation by the trial judge on the basis of the nature of the crime and the history of the defendant, including defendant’s unapologetic attitude, his previous conviction for wanton endangerment, and the testimonies given both for and against probation, there was no abuse of discretion by the trial court. (Decided under prior law) Turner v. Commonwealth, 914 S.W.2d 343, 1996 Ky. LEXIS 8 ( Ky. 1996 ).

The 1998 amendments to this section did not make imposition of alternatives to incarceration mandatory for certain classes of offenders; instead, discretion to impose alternatives to incarceration remains with the trial court. Aviles v. Commonwealth, 17 S.W.3d 534, 2000 Ky. App. LEXIS 35 (Ky. Ct. App. 2000).

9.— Power of Court.

Court was without authority to split jury’s verdict fixing imprisonment at certain number of years by probating part of term, but power of probation must be exercised in toto and not in part only. (Decided under prior law) Woll v. Commonwealth, 284 Ky. 783 , 146 S.W.2d 59, 1940 Ky. LEXIS 588 ( Ky. 1940 ).

Where defendant pleaded guilty in accordance with agreement with prosecuting attorneys that they would recommend suspension of sentence and probation, and the prosecuting attorneys carried out the agreement but the judge refused to suspend sentence or grant probation, based largely on unfavorable report of probation officer, the defendant was not entitled, after sentence had been pronounced, to withdraw his plea of guilty and demand a new trial. (Decided under prior law) Franklin v. Commonwealth, 305 Ky. 111 , 203 S.W.2d 2, 1947 Ky. LEXIS 771 ( Ky. 1947 ).

Where defendant was convicted of voluntary manslaughter and sentenced to five (5) years, court had power, in the same term, to set aside judgment, suspend rendition of judgment, and place defendant on probation. (Decided under prior law) Commonwealth v. Kazee, 252 S.W.2d 20, 1952 Ky. LEXIS 965 ( Ky. 1952 ).

The Circuit Court may probate, after an appeal is prosecuted and the judgment is affirmed, only if the court, when the judgment was entered, withheld “incorporating in such judgment a directive that the defendant be taken by the chief law enforcement officer of the county to the penitentiary, there to be confined for the period set forth in the judgment.” (Decided under prior law) Commonwealth v. Fanelli, 445 S.W.2d 126, 1969 Ky. LEXIS 145 ( Ky. 1969 ).

Where in a judgment of conviction the court specifically incorporated the language that the defendants were to be taken to the penitentiary and confined, the Circuit Court had no power to probate the defendants after the final judgment had been entered. (Decided under prior law) Commonwealth v. Fanelli, 445 S.W.2d 126, 1969 Ky. LEXIS 145 ( Ky. 1969 ).

The trial court in a first-degree assault case did not err in making defendant’s probation conditional upon repaying the man he had shot in the legs a total of $10,000, payable in monthly installments of $167, and it was not improper for the judge to revoke the probation and jail the defendant when he refused to make the payments even though he was able to make them. Polk v. Commonwealth, 622 S.W.2d 223, 1981 Ky. App. LEXIS 291 (Ky. Ct. App. 1981).

10.— Remission of Fine.

Where judgment imposing a fine based on jury verdict was entered, remission of the fine as probation of the sentence was unauthorized. (Decided under prior law) Commonwealth v. Ballinger, 412 S.W.2d 576, 1967 Ky. LEXIS 431 ( Ky. 1967 ).

11.— Seriousness of Crime.

Trial court did not err in sentencing former juvenile offender, who had been sentenced to twenty (20) years for his participation in a murder, attempted murder and kidnapping, to continued incarceration following his eighteenth birthday, based on the seriousness of the offense, even though the court found in his favor on the other two (2) enumerated factors, likelihood of commission of another offense and benefits of continued correctional treatment. Johnson v. Commonwealth, 967 S.W.2d 12, 1998 Ky. LEXIS 60 ( Ky. 1998 ).

A defendant who pled guilty to trafficking in a controlled substance in the second degree, trafficking in a controlled substance in the third degree, and theft by unlawful taking over $300 was properly sentenced to imprisonment, rather than probation, home incarceration, or pretrial diversion on the basis of the likelihood that she would commit another offense during the period, the need of correctional treatment, and that an alternative disposition would unduly depreciate the seriousness of the crime. Aviles v. Commonwealth, 17 S.W.3d 534, 2000 Ky. App. LEXIS 35 (Ky. Ct. App. 2000).

The fact that a crime was nonviolent does not mandate that it cannot be the basis for determining that probation would unduly depreciate the seriousness of the offense. Aviles v. Commonwealth, 17 S.W.3d 534, 2000 Ky. App. LEXIS 35 (Ky. Ct. App. 2000).

Trial court did not abuse its discretion in refusing to grant defendant probation after he was convicted of first-degree sexual abuse as the trial court’s finding that granting probation to defendant would unduly depreciate the seriousness of the crime was supported by substantial evidence. Boone v. Commonwealth, 155 S.W.3d 727, 2004 Ky. App. LEXIS 252 (Ky. Ct. App. 2004).

12.—Conditions.

Condition of probation restricting a probationer’s access to the internet was constitutional under U.S. Const. amend. I, on an as-applied basis, because the probationer’s underlying offenses and failure to comply with sex offender registration did not involve use of the internet and the probation condition of no internet access was not narrowly tailored to serve a legitimate interest and was impermissibly vague. Jennings v. Commonwealth, 2019 Ky. App. LEXIS 64 (Ky. Ct. App. Apr. 12, 2019), rev'd, 613 S.W.3d 14, 2020 Ky. LEXIS 448 ( Ky. 2020 ).

13.Guilty Pleas.

Where defendant pleaded guilty in accordance with agreement with prosecuting attorneys that they would recommend suspension of sentence and probation, and the prosecuting attorneys carried out the agreement but the judge refused to suspend sentence or grant probation, based largely on unfavorable report of probation officer, the defendant was not entitled, after sentence had been pronounced, to withdraw his plea of guilty and demand a new trial. (Decided under prior law) Franklin v. Commonwealth, 305 Ky. 111 , 203 S.W.2d 2, 1947 Ky. LEXIS 771 ( Ky. 1947 ).

Withdrawal before judgment of a guilty plea and substitution of a plea of not guilty is not a matter of right upon the overruling of a motion for probation. (Decided under prior law) Hurt v. Commonwealth, 333 S.W.2d 951, 1960 Ky. LEXIS 217 ( Ky. 1960 ).

Withdrawal of guilty plea and substitution of a plea of not guilty is matter within sound judicial discretion of trial court. (Decided under prior law) Hurt v. Commonwealth, 333 S.W.2d 951, 1960 Ky. LEXIS 217 ( Ky. 1960 ).

In a sentencing for eight counts of robbery, the trial court improperly committed to imposing the maximum sentence of 20 years if a hammer clause in the plea agreement was violated, without considering the presentence investigation report and relevant factors under KRS 532.050 , RCr P. 11.02, and KRS 533.010 . Knox v. Commonwealth, 361 S.W.3d 891, 2012 Ky. LEXIS 28 ( Ky. 2012 ).

When presented with a plea agreement with a hammer clause, the trial judge should accord it no special deference, and shall make no commitment that compromises the court’s independence or impairs the proper exercise of judicial discretion. It is an abuse of discretion to impose a sentence based on a breach of a hammer clause condition, without proper consideration of the presentence investigation report and other relevant factors under KRS 532.050 , RCr P. 11.02, and KRS 533.010 . Knox v. Commonwealth, 361 S.W.3d 891, 2012 Ky. LEXIS 28 ( Ky. 2012 ).

Upon entry of a guilty plea, it is required (not merely suggested) that the trial court shall not threaten to impose a specific sentence, or announce an intention to impose a specific sentence, or otherwise commit to a specific sentence, but must simply accept the entry of the plea, note the recommendation or agreement concerning sentence, and set a date and time for sentencing based on all the underlying facts and circumstances, which include the presentence investigation report under KRS 532.050 , RCr P. 11.02, and the factors set forth in KRS 533.010 . Knox v. Commonwealth, 361 S.W.3d 891, 2012 Ky. LEXIS 28 ( Ky. 2012 ).

14.Habeas Corpus.

Where the trial court granted a habeas corpus petition that should have been dismissed on the grounds that a motion for post-conviction relief was the proper remedy, since the defendant was released from custody and being no longer a prisoner could not obtain relief under RCr 11.42, the granting of the petition for habeas corpus, though technically in error, would not be disturbed. (Decided under prior law) Howard v. Ingram, 452 S.W.2d 410, 1970 Ky. LEXIS 362 ( Ky. 1970 ).

15.Motion for New Trial.

A court order, following judgment and sentence against defendant, delaying action on a motion for new trial, contingent on the removal of defendant from this state, is a void attempt by the judiciary to exercise executive clemency. (Decided under prior law) Commonwealth, Dep't of Welfare v. Stevens, 378 S.W.2d 799, 1964 Ky. LEXIS 208 ( Ky. 1964 ).

16.Persistent Felony Offender.

Because KRS 532.080 prohibits a person convicted of being a Persistent Felony Offender (PFO) from being given any form of probation, parole or conditional discharge until he has served a minimum sentence of ten years, defendant was not eligible for probation under an alternative sentencing plan. Brown v. Commonwealth, 818 S.W.2d 600, 1991 Ky. LEXIS 75 ( Ky. 1991 ).

17.Revocation.

Where defendant voluntarily went to jail and because of illness spent his sentence in a hotel under custody of jailer, rather than in jail, but jailer was without authority to imprison him as judgment of court ordering probation of defendant was set aside but order of execution not yet issued, the judgment was not satisfied. (Decided under prior law) Commonwealth ex rel. Meredith v. Smith, 274 Ky. 202 , 118 S.W.2d 538, 1938 Ky. LEXIS 249 ( Ky. 1938 ).

Where convicted felon was placed on probation and such probation was subsequently revoked, he was entitled to execute bond pending appeal of order revoking probation. (Decided under prior law) Commonwealth v. Hardin, 317 S.W.2d 498, 1958 Ky. LEXIS 99 ( Ky. 1958 ).

Although court postponed judgment and placed defendant on probation, court could revoke probation and execute sentence against defendant upon his indictment on charge of possessing burglary tools and conviction on felony charge in another state during the period of his probation. (Decided under prior law) Hardin v. Commonwealth, 327 S.W.2d 93, 1959 Ky. LEXIS 69 ( Ky. 1959 ).

When appellee’s probation was set to expire on June 17, 2009, the Commonwealth filed a motion to revoke his probation on February 10, 2009 and appellee stipulated that he had violated the terms of his probation by using drugs and alcohol; in accordance with KRS 533.010(6), the circuit court entered a probation order with modified conditions on May 14, 2009, an placing him on work release while at the county jail until June 16, 2009. Although KRS 533.040(2) applied, appellee’s probation was not tolled beyond its initial expiration on June 17, 2009; the court had no jurisdiction to hold a revocation hearing after June 17, 2009. Conrad v. Evridge, 315 S.W.3d 313, 2010 Ky. LEXIS 145 ( Ky. 2010 ).

18.Victim’s Testimony.

Even though crime victim protection statute did not include defendant’s crimes in its list of offenses, third-degree burglary and harassing communications were not victimless crimes, such that victims should not have been allowed to testify in defendant’s sentencing hearing. Brand v. Commonwealth, 939 S.W.2d 358, 1997 Ky. App. LEXIS 16 (Ky. Ct. App. 1997).

19.Waiver.

Where the trial court specifically instructed the defendant as to his rights under this section and, in effect, conducted a presentence hearing even though a presentence report, as such, had never been ordered or considered, the defendant’s indication to the trial court that he did not want any further delay in sentencing specifically waived the sentencing procedures under this section. Risinger v. Commonwealth, 556 S.W.2d 177, 1977 Ky. App. LEXIS 815 (Ky. Ct. App. 1977).

Cited:

Scott v. Commonwealth, 555 S.W.2d 623, 1977 Ky. App. LEXIS 797 (Ky. Ct. App. 1977); Adams v. Commonwealth, 560 S.W.2d 825, 1977 Ky. App. LEXIS 885 (Ky. Ct. App. 1977); Smith v. Commonwealth, 567 S.W.2d 304, 1978 Ky. LEXIS 369 ( Ky. 1978 ); Hibbs v. Commonwealth, 570 S.W.2d 642, 1978 Ky. App. LEXIS 576 (Ky. Ct. App. 1978); Hampton v. Commonwealth, 666 S.W.2d 737, 1984 Ky. LEXIS 219 ( Ky. 1984 ); Bevins v. Commonwealth, 712 S.W.2d 932, 1986 Ky. LEXIS 252 ( Ky. 1986 ); Williams v. Commonwealth, 829 S.W.2d 942, 1992 Ky. App. LEXIS 32 (Ky. Ct. App. 1992); Commonwealth v. Jeffries, 95 S.W.3d 60, 2002 Ky. LEXIS 232 ( Ky. 2002 ); Spears v. Commonwealth, 134 S.W.3d 12, 2003 Ky. LEXIS 229 ( Ky. 2003 ); Brann v. Commonwealth, 2015 Ky. App. LEXIS 122 (Aug. 21, 2015).

Opinions of Attorney General.

In a habeas corpus proceeding, the circuit judge of the Common Pleas Division lacked the jurisdiction to set aside a judgment revoking the petitioner’s probation. OAG 76-508 .

A court procedure which would permit a defendant to waive his rights under this section would violate the requirement that the court consider probation or conditional discharge before imposing a sentence of imprisonment. OAG 77-489 .

The Circuit Court can place a defendant convicted under the Controlled Substances Act on probation even though his sentence would only be the imposition of a fine. OAG 78-18 .

At first glance at subsection (1) of this section, it appears any defendant who is not under penalty of death may be eligible for probation or conditional discharge. However, probation or conditional discharge is specifically limited by other provisions in the chapter; the entire chapter must be examined to determine if a defendant qualifies for probation or conditional discharge. OAG 83-168 .

Research References and Practice Aids

Cross-References.

Supervision of probationers from inferior court, KRS 439.550 .

Time period for placing defendant on probation upon defendant’s or court’s motion, jurisdiction, KRS 439.265 .

Kentucky Bench & Bar.

Combs, The Calculation and Application of Prison Sentences., Vol. 70, No. 5, September 2006, Ky. Bench & Bar 7.

Kentucky Law Journal.

West, Criminal Law, 74 Ky. L.J. 403 (1985-86).

Note: The Disregarding of the Rehabilitative Spirit of Juvenile Codes: Addressing Resentencing Hearings in Blended Sentencing Schemes, 99 Ky. L.J. 211 (2010/2011).

Northern Kentucky Law Review.

Bartlett, Alternative Sanctions and the Governor’s Crime Bill of 1998 (HB 455): Another Attempt at Providing a Framework for Efficient and Effective Sentencing, 27 N. Ky. L. Rev. 283 (2000).

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Penalty Phase Instructions, Part 5 Persistent Felony Offenders, § 12.30.

533.015. Alternatives to incarceration.

Whenever a statute mentions probation, shock probation, conditional discharge, home incarceration, or other form of alternative to incarceration, that alternative may include a community-based, faith-based, charitable, church-sponsored, or nonprofit residential or nonresidential counseling and treatment program or drug court, and, upon petition by the defendant, the court may sentence or permit the defendant to attend that program. This program may also be used for pretrial release and pretrial diversion.

History. Enact. Acts 1998, ch. 606, § 166, effective July 15, 1998; 2011, ch. 2, § 84, effective June 8, 2011.

533.017. Sentence to local day reporting program.

  1. As used in this section:
    1. “County jail” means all detention and penal facilities of a county, charter county, urban-county government, unified local government, or consolidated local government for adult offenders, together with all its rehabilitative facilities for adult offenders, including facilities operated by private agencies under contract with the county, charter county, urban- county government, unified local government, or consolidated local government;
    2. “Day reporting program” or “program” means a community-based, structured sentencing program operated by a county jail that combines enhanced community supervision with resources and services tailored to meet identified offender needs; and
    3. “Eligible defendant” means an individual convicted of a misdemeanor or a Class D felony who is eligible to serve all or part of his or her sentence in a county jail or who is found in contempt of court and who meets the intake criteria established by the day reporting program to which the person would be sentenced.
  2. A court may sentence an eligible defendant as part of an alternative sentencing plan or as a sentence for contempt to a local day reporting program for a period of time not longer than the defendant’s maximum potential period of incarceration if:
    1. The program utilizes whenever practicable a validated screening tool based on criminogenic risk factors to identify an individual’s likelihood of reoffending and his or her treatment needs in determining program eligibility;
    2. The program has agreed to accept the defendant;
    3. The defendant agrees in writing to comply with the program’s written terms and conditions; and
    4. The defendant, if additionally required by the court or the program to do so, agrees to be subject to the conditions of electronic monitoring pursuant to KRS 532.210 to 532.250 .
  3. In sentencing a defendant to a day reporting program under this section, a court may authorize a temporary release from the program for any of the purposes allowed for the release of a jail prisoner under KRS 439.179 .
  4. The day reporting program shall provide a weekly report of all violations of the program’s terms and conditions for each program participant to the sentencing court, to the prosecutor, and to the defendant in the case. If specified in the program’s written terms and conditions, the program may alter the terms and conditions of a person’s participation in the program in response to that person’s minor breach of the program’s terms and conditions.
  5. A court may alter or revoke a defendant’s participation in a day reporting program if written notice of the grounds for alteration or revocation is given to the defendant and a hearing is conducted at which the defendant is represented by counsel. Following the hearing, if the court finds that the defendant has without good cause failed to participate in the program or to comply with its terms and conditions, the court may impose any additional sentence or other sanction specified in the original sentencing order.
  6. The Administrative Office of the Courts shall prescribe forms to be utilized in the implementation of this section.
  7. A day reporting program may be referred to as a day reporting center or other appropriate nomenclature in its day-to-day operations.

HISTORY: 2017 ch. 158, § 86, effective June 29, 2017.

533.020. Probation and conditional discharge.

  1. When a person who has been convicted of an offense or who has entered a plea of guilty to an offense is not sentenced to imprisonment, the court shall place him on probation if he is in need of the supervision, guidance, assistance, or direction that the probation service can provide. Conditions of probation shall be imposed as provided in KRS 533.030 , but the court may modify or enlarge the conditions or, if the defendant commits an additional offense or violates a condition, revoke the sentence at any time prior to the expiration or termination of the period of probation. When setting conditions under this subsection, the court shall not order any defendant to pay incarceration costs or any other cost permitted to be ordered under KRS 533.010 or other statute, except restitution and any costs owed to the Department of Corrections, through the circuit clerk.
  2. When a person who has been convicted of an offense or who has entered a plea of guilty to an offense is not sentenced to imprisonment, the court may sentence him to probation with an alternative sentence if it is of the opinion that the defendant should conduct himself according to conditions determined by the court and that probationary supervision alone is insufficient. The court may modify or enlarge the conditions or, if the defendant commits an additional offense or violates a condition, revoke the sentence at any time prior to the expiration or termination of the alternative sentence.
  3. When a person who has been convicted of an offense or who has entered a plea of guilty to an offense is not sentenced to imprisonment, the court may sentence him to conditional discharge if it is of the opinion that the defendant should conduct himself according to conditions determined by the court but that probationary supervision is inappropriate. Conditions of conditional discharge shall be imposed as provided in KRS 533.030 , but the court may modify or enlarge the conditions or, if the defendant commits an additional offense or violates a condition, revoke the sentence at any time prior to the expiration or termination of the period of conditional discharge.
  4. The period of probation, probation with an alternative sentence, or conditional discharge shall be fixed by the court and at any time may be extended or shortened by duly entered court order or as modified by the Department of Corrections through the application of probation program credits under KRS 439.268 . Such period, with extensions thereof, shall not exceed five (5) years, or the time necessary to complete restitution, whichever is longer, upon conviction of a felony nor two (2) years, or the time necessary to complete restitution, whichever is longer, upon conviction of a misdemeanor. Upon completion of the probationary period, probation with an alternative sentence, or the period of conditional discharge, the defendant shall be deemed finally discharged, provided no warrant issued by the court is pending against him, and probation, probation with an alternative sentence, or conditional discharge has not been revoked.
  5. Notwithstanding the fact that a sentence to probation, probation with an alternative sentence, or conditional discharge can subsequently be modified or revoked, a judgment which includes such a sentence shall constitute a final judgment for purposes of appeal.

History. Enact. Acts 1974, ch. 406, § 286, effective January 1, 1975; 1990, ch. 497, § 5, effective July 13, 1990; 1998, ch. 606, § 48, effective July 15, 1998; 2002, ch. 183, § 36, effective August 1, 2002; 2020 ch. 44, § 8, effective July 15, 2020.

NOTES TO DECISIONS

1.Applicability.

Retrospective application of the law that specified period of probation to persons already placed on probation encroached upon a judicial function and was void, as it would have affected or nullified an active and current order of the court. (Decided under prior law) Taylor v. Asher, 317 S.W.2d 895, 1958 Ky. LEXIS 117 ( Ky. 1958 ).

Law that specified probation period did not affect orders of probation theretofore entered, and probationary period five (5) years beyond the time in which the appellant could have completed a prison sentence was not so unreasonable as to transgress any constitutional safeguard. (Decided under prior law) Lanham v. Commonwealth, 353 S.W.2d 201, 1962 Ky. LEXIS 9 (Ky.), cert. denied, 370 U.S. 948, 82 S. Ct. 1596, 8 L. Ed. 2d 814, 1962 U.S. LEXIS 936 (U.S. 1962).

Where sentence was imposed more than five (5) years after the conviction, and whereas law that specified period of probation required that the probation period should not extend more than five (5) years, the delay was unreasonable and appellant could have been discharged. (Decided under prior law) Green v. Commonwealth, 400 S.W.2d 206, 1966 Ky. LEXIS 419 ( Ky. 1966 ).

The Circuit Court correctly held that subsection (2) of this section concerning probation with an alternative sentence applies only when a person who has been convicted is not sentenced to imprisonment; therefore, where defendant was sentenced to imprisonment for one (1) year, the granting of shock probation did not change that fact. The trial court was entirely correct to conclude that upon sentencing defendant to imprisonment it lost jurisdiction to sentence him to probation with an alternative sentence. Jones v. Commonwealth, 839 S.W.2d 569, 1992 Ky. App. LEXIS 205 (Ky. Ct. App. 1992).

Dismissal of an appeal was appropriate where the district court's order plainly stated that restitution still had to be determined, defendant's conditional plea specifically reserving the issue of restitution did not obviate the need for a final judgment, and thus, the order was not final, appealable order under Ky. R. Civ. P. 54.01. Dillard v. Commonwealth, 475 S.W.3d 594, 2015 Ky. LEXIS 2008 ( Ky. 2015 ).

2.Construction.

Circuit Court may not remit a fine imposed by the jury on a verdict of guilty to a misdemeanor charge as a form of probation. (Decided under prior law) Commonwealth v. Ballinger, 412 S.W.2d 576, 1967 Ky. LEXIS 431 ( Ky. 1967 ).

KRS 532.030 and this section place a duty on the trial court to make a determination of punishment or sentence within a reasonable time after the guilty plea is accepted, and then consider probation; absent these determinations, later proceedings which attempt to revoke probation and impose punishment are invalid. Wilson v. Commonwealth, 577 S.W.2d 618, 1979 Ky. App. LEXIS 381 (Ky. Ct. App. 1979), overruled in part, Cole v. Commonwealth, 609 S.W.2d 371, 1980 Ky. App. LEXIS 390 (Ky. Ct. App. 1980).

Conditional discharge under this section and KRS 533.030 is the “functional equivalent” of an unsupervised probation under U.S.S.G. § 4A1.1(d) and the District Court did not err in basing defendant’s base offense level two (2) points higher based on this provision. United States v. Miller, 56 F.3d 719, 1995 FED App. 0169P, 1995 U.S. App. LEXIS 13616 (6th Cir. Ky. 1995 ).

Because KRS 532.030 required that a term of imprisonment be fixed, and because a term of imprisonment was not a term or condition of a sentence of probation subject to modification pursuant to KRS 533.020(1), KRS 533.050(2) could not give a District Court the authority to grant defendant’s request to amend her sentence in the form of amended terms and conditions of probation that included an increase in a term of imprisonment from 180 days to 12 months. Commonwealth v. Gaddie, 239 S.W.3d 59, 2007 Ky. LEXIS 243 ( Ky. 2007 ).

It would be contrary to legislative intent and lead to an absurd result if this statute were interpreted in a disjunctive way. Therefore, a trial court had jurisdiction to revoke defendant’s probation because defendant’s argument that he was discharged from probation if there was no warrant pending or if probation had not been revoked was rejected; about one month before defendant’s probation was set to expire, the Commonwealth moved the trial court to issue a warrant for defendant’s arrest. Robinson v. Commonwealth, 437 S.W.3d 153, 2013 Ky. App. LEXIS 166 (Ky. Ct. App. 2013).

3.Revocation of Probation.

Where court postponed a sentence and entered order to the effect that if the defendant would obey the law and absent himself from a certain county for one (1) year the court would sustain the motion for a new trial and dismiss the indictment against the defendant, the court had no power after more than one (1) year had elapsed to overrule the motion for a new trial and sentence the defendant to the reformatory. (Decided under prior law) Gossett v. Commonwealth, 384 S.W.2d 308, 1964 Ky. LEXIS 87 ( Ky. 1964 ).

It is not necessary that the Commonwealth obtain a conviction in order to accomplish revocation of probation. Tiryung v. Commonwealth, 717 S.W.2d 503, 1986 Ky. App. LEXIS 1196 (Ky. Ct. App. 1986).

Upon finding that the probationer had violated the condition of his probation, the trial court, in effect, temporarily revoked that probation by ordering him to jail for 30 days, and that same order reinstated the probation at the end of the 30 days by once again permitting the probationer to be at large; thus, later order revoking his probation was timely issued in spite of the fact that it was issued after his original probation had ended. Hawley v. Commonwealth, 908 S.W.2d 130, 1995 Ky. App. LEXIS 180 (Ky. Ct. App. 1995).

Revocation of defendant’s probation was proper because when defendant, who was serving in the armed forces, violated Unif. Code Mil. Justice art. 92, 10 U.S.C.S. § 892, he also committed an offense under Kentucky law, as a violation of Unif. Code Mil. Justice art. 92, 10 U.S.C.S. § 892, subjected the violator to up to two years’ imprisonment. Commonwealth v. Lopez, 292 S.W.3d 878, 2009 Ky. LEXIS 185 ( Ky. 2009 ).

While trial courts are not required to revoke probation each time a person on probation serving in the armed forces violates a military law, they can revoke probation if such a person violates military law and the possible punishment for that violation includes a fine or imprisonment. Commonwealth v. Lopez, 292 S.W.3d 878, 2009 Ky. LEXIS 185 ( Ky. 2009 ).

Where defendant was convicted of felony flagrant nonsupport, where he was sentenced to five years in prison but given probation on the condition that he pay child support, where the State moved to revoke probation based upon defendant’s nonpayment, where the sentencing court held a revocation hearing that was limited in scope to determining whether payment had been made, and where the sentencing court revoked defendant’s probation and ordered him to commence the five-year term of incarceration, the sentencing court’s revocation order was revoked because due process demanded that defendant be entitled to a hearing at which he could present evidence establishing his post-plea inability to satisfy the financial condition of his probation. Due process required that the sentencing court inquire into the reasons for defendant’s failure to pay, as the payment of money, as a condition of probation, differed from conditions that merely required one to control one’s conduct; because a person’s income was often not entirely within his control, the sentencing court was required to determine whether defendant’s post-plea financial conditions negated his ability to comply with the probation condition requiring the payment of money. Johnson v. Commonwealth, 2009 Ky. App. LEXIS 142 (Ky. Ct. App. Aug. 21, 2009).

Though the appellate court agreed that KRS 533.020(4) allowed felony probation to last the longer of either five years or the period required to make restitution, it could not conclude that the circuit court erred in declining to consider whether defendant’s probation should be revoked. Commonwealth v. Wright, 2012 Ky. App. LEXIS 82 (Ky. Ct. App. May 25, 2012, sub. op., 2012 Ky. App. Unpub. LEXIS 1006 (Ky. Ct. App. May 25, 2012).

Where an appellate court reversed a trial court’s order dismissing the Commonwealth’s motion to revoke a defendant’s probation, she failed to meet the requirements of KRS 533.020(4), thereby precluding an automatic discharge of her probation. Since the circuit court issued a warrant for defendant’s arrest within her five-year probationary period, it retained jurisdiction to conduct a probation revocation hearing. Whitcomb v. Commonwealth, 424 S.W.3d 417, 2014 Ky. LEXIS 89 ( Ky. 2014 ).

4.— Evidence.

Court did not abuse its discretion by revoking probation of defendant upon his indictment on charge of possessing burglary tools and conviction on felony charge in another state during the period of his probation. (Decided under prior law) Hardin v. Commonwealth, 327 S.W.2d 93, 1959 Ky. LEXIS 69 ( Ky. 1959 ).

One is not entitled to object to the admission of illegally seized evidence at his or her revocation hearing. Tiryung v. Commonwealth, 717 S.W.2d 503, 1986 Ky. App. LEXIS 1196 (Ky. Ct. App. 1986).

5.— Prior Criminal Acts.

Courts may revoke probation for criminal activity committed prior to defendant’s going on probation even though the defendant, not yet being on probation, could not technically violate a condition of probation. Brown v. Commonwealth, 564 S.W.2d 21, 1977 Ky. App. LEXIS 908 (Ky. Ct. App. 1977).

6.Timing.

Where defendant was convicted and sentenced for possession of burglary tools on February 20, 1968, and placed on probation for the maximum five (5) year period, the trial court could not revoke his probation after February 20, 1973, even though the trial court, on June 22, 1972, had an opportunity to revoke his probation but chose not to do so. (Decided under prior law) Curtsinger v. Commonwealth, 549 S.W.2d 515, 1977 Ky. LEXIS 410 ( Ky. 1977 ).

Where a defendant was convicted of two (2) separate crimes, with a probationary period on one (1) crime to commence after a term of imprisonment for the other crime, and where defendant escaped during such imprisonment and committed a third crime, the court could properly revoke the probation even though it had not actually begun to run. Brown v. Commonwealth, 564 S.W.2d 21, 1977 Ky. App. LEXIS 908 (Ky. Ct. App. 1977).

Court of Appeals of Kentucky acted properly by granting a writ of prohibition pursuant to CR 76.36(4) to restrain the circuit court from holding a probation revocation hearing after appellee’s probation expired. KRS 533.020(1) allowed revocation only prior to the expiration of probation. Conrad v. Evridge, 315 S.W.3d 313, 2010 Ky. LEXIS 145 ( Ky. 2010 ).

Where defendant’s sentence included a term of probation, which suspended execution of the term of imprisonment, the time for appealing it began to run when the judgment was entered; hence, a reviewing court was precluded under KRS 533.020(5) from scrutinizing the exercise of the trial judge’s discretion in imposing consecutive sentences after defendant’s probation was revoked. Goldsmith v. Commonwealth, 363 S.W.3d 330, 2012 Ky. LEXIS 24 ( Ky. 2012 ).

Motion to vacate a sentence under CR 60.02 should have been granted to appellant because the probationary term was not tolled under KRS 533.040(2) since only additional conditions were placed on appellant’s probation, and the probation expiration date was still April 23, 2008. The trial court did not issue a written order after two prior revocation hearings, and the trial court stated at both hearings that defendant was continuing on probation. Dulin v. Commonwealth, 2012 Ky. App. LEXIS 167 (Ky. Ct. App. Sept. 14, 2012).

When (1) defendant pled guilty to criminal attempt to commit first-degree unlawful transaction with a minor, under KRS 530.064(2)(a) and 506.010 (4)(d) and was placed on probation, on the condition that defendant participate in any recommended treatment, (2) it was recommended that defendant participate in a sex offender treatment program that lasted three years, and (3) the Court of Appeals reversed the trial court’s extension of defendant’s term of probation, the trial court could not revoke defendant’s probation on remand and had to deem defendant finally discharged because (1) the probation period could not exceed two years, under KRS 533.020(4), (2) defendant was not convicted of a sex crime, as criminal attempt was a separate, inchoate offense under KRS 506.010 , and only felony attempts at offenses listed in KRS 17.500(8)(a) were sex crimes under KRS 17.500(8)(b), so defendant was not statutorily required to complete sex offender treatment as a condition of probation, (3) defendant did not request or agree to an extension of defendant’s probation when accepting a plea bargain, as defendant only had to complete recommended counseling, was not told treatment would take more than two years, and, when treatment lasted more than two years, this did not trump the statutory length of misdemeanor probation in violation of the separation of powers in Ky. Const. §§ 27 and 28, (4) probation was unlawfully extended after probation expired, and (5) defendant did not violate probation. Miller v. Commonwealth, 391 S.W.3d 801, 2013 Ky. LEXIS 6 ( Ky. 2013 ).

Because appellant was placed on probation for five years on December 17, 1997, under KRS 533.020(1), the five-year period in which the trial court could revoke his probation expired on December 17, 2002, and therefore the trial court lacked jurisdiction on December 18, 2002, to revoke appellant’s probation. Grundy v. Commonwealth, 400 S.W.3d 752, 2013 Ky. App. LEXIS 80 (Ky. Ct. App. 2013).

7.Shock Probation.

This chapter discusses application of probation prior to sentencing, while KRS Chapter 439 discusses application of probation after sentencing and the two chapters should be read together; since shock probation is one form of probation given general coverage in this chapter and specific coverage in KRS Chapter 439 and the statutory factor that distinguishes shock probation is the timing of the Circuit Court’s order, shock probation is a form of probation; therefore, when Commonwealth in plea agreement agreed that in exchange for defendant’s plea of guilty the Commonwealth would recommend the minimum sentence and take no stand on probation, Commonwealth could not take stand against shock probation regardless of the fact that the recommendation was not binding on the Circuit Court. Wilson v. Commonwealth, 839 S.W.2d 17, 1992 Ky. App. LEXIS 171 (Ky. Ct. App. 1992).

8.Waiver of Limitation Period.

Where probationer knowingly and voluntarily requested an extension of his probationary period in exchange for avoidance of revocation, and he received such benefit, he had waived the statutory five (5) year limitation on probation periods. Commonwealth v. Griffin, 942 S.W.2d 289, 1997 Ky. LEXIS 33 ( Ky. 1997 ).

Trial court erred in dismissing a charge of probation violation against defendant for lack of jurisdiction due to defendant’s probationary period expiring because the facts of the case fit within the exception to the general rule; estoppel foreclosed the time limitation imposed by the statute because defendant intentionally absconded to avoid the authority of the trial court. Commonwealth v. Whitcomb, 2012 Ky. App. LEXIS 77 (Ky. Ct. App. May 25, 2012).

9.Extension of Probation.

Trial court improperly extended appellant’s probationary term beyond the two-year period set forth in KRS 533.020(4) based on his failure to complete a sex offender treatment program; appellant did not request the extension, KRS 532.045 only authorized the revocation of probation, and the last-minute citation to KRS 532.045 was problematic. On remand, jurisdiction was not lost in this case because the Commonwealth initiated probation revocation proceedings prior to the expiration of the two-year probationary period; appellant was on notice and litigating his probation revocation proceeding prior to October 27, 2008, the date probation was set to expire. Miller v. Commonwealth, 2010 Ky. App. LEXIS 227 (Ky. Ct. App. Dec. 10, 2010, sub. op., 2010 Ky. App. Unpub. LEXIS 1001 (Ky. Ct. App. Dec. 10, 2010).

Circuit court properly denied the Commonwealth’s motion to revoke defendant’s probation based upon his failure to pay restitution because the circuit court lacked jurisdiction to revoke defendant’s probation as his fixed probationary period had expired, and no statute automatically extended it. Commonwealth v. Wright, 415 S.W.3d 606, 2013 Ky. LEXIS 652 ( Ky. 2013 ).

Probation order stating that defendant’s probation was to be extended until all restitution was paid did not comply with the requirements of Ky. Rev. Stat. Ann. § 533.020(4) where defendant’s final judgment which imposed five years of probation did not contain a factual finding that additional time was necessary for him to complete restitution, and neither of the orders purporting to extend probation contained such a factual finding. Commonwealth v. Adams, 566 S.W.3d 225, 2018 Ky. App. LEXIS 278 (Ky. Ct. App. 2018).

10.Jurisdiction.

Court of Appeals properly vacated a circuit court's order revoking defendant's probation because the circuit court lacked jurisdiction to do so where the probationary period expired before the revocation hearing was held, a bench warrant was no longer pending after defendant made a court appearance, the circuit court no longer had the authority to revoke defendant's probation, and although defendant's traffic reports provided sufficient probable cause to support an extension of his probationary period until the court could hold a revocation hearing the court was statutorily required to hold a hearing before modifying the conditions of probation, the length of the probationary period was not a statutorily defined condition of probation. Commonwealth v. Tapp, 497 S.W.3d 239, 2016 Ky. LEXIS 427 ( Ky. 2016 ).

11.Conditions of probation.

Condition of probation restricting a probationer’s access to the internet was constitutional under U.S. Const. amend. I, on an as-applied basis, because the probationer’s underlying offenses and failure to comply with sex offender registration did not involve use of the internet and the probation condition of no internet access was not narrowly tailored to serve a legitimate interest and was impermissibly vague. Jennings v. Commonwealth, 2019 Ky. App. LEXIS 64 (Ky. Ct. App. Apr. 12, 2019), rev'd, 613 S.W.3d 14, 2020 Ky. LEXIS 448 ( Ky. 2020 ).

Cited:

Commonwealth v. Miller, 575 S.W.2d 467, 1978 Ky. LEXIS 456 ( Ky. 1978 ); McMillen v. Commonwealth, 717 S.W.2d 508, 1986 Ky. App. LEXIS 122 8 (Ky. Ct. App. 1986); Brann v. Commonwealth, 2015 Ky. App. LEXIS 122 (Aug. 21, 2015).

Opinions of Attorney General.

Since a sentence may be a fine or imprisonment, or both under KRS 534.040 , then, under this section, if the sentence is not one of imprisonment, it may be deduced that the sentence could involve a sentence of a fine, in which case the probation and conditional discharge provisions of this section would authorize the trial court to probate the defendant or give him a conditional discharge, which would suspend the payment of the fine in toto. OAG 79-202 .

This section does not contemplate splitting a sentence of fine, since there is no express provision to that effect. OAG 79-202 .

KRS 533.060(2) prohibits probation, shock probation or conditional discharge when the current criminal act for which the defendant was convicted occurred while the defendant was on parole or probation. OAG 83-168 .

KRS 150.990(14) is not in conflict with this section, since it expressly notes that no fines assessed under this chapter (150) shall be suspended “otherwise than expressly provided by law.” This section, in permitting probation of fines, is an express provision of law so permitting the suspension of fines. OAG 83-284 .

This section provides that the court may, where the defendant is not sentenced to imprisonment, probate such defendant or conditionally discharge the defendant, by imposing a sentence of probation or conditional discharge, under guidelines contained in KRS 533.030 ; accordingly, this section expressly permits the suspension of fines imposed by KRS Chapter 150. OAG 83-284 .

Research References and Practice Aids

Cross-References.

Time period for placing defendant on probation upon defendant’s or court’s motion, jurisdiction, KRS 439.265 .

Kentucky Law Journal.

Kentucky Law Survey, Fortune, Criminal Procedure, 71 Ky. L.J. 367 (1982-83).

Northern Kentucky Law Review.

Bartlett, Alternative Sanctions and the Governor’s Crime Bill of 1998 (HB 455): Another Attempt at Providing a Framework for Efficient and Effective Sentencing, 27 N. Ky. L. Rev. 283 (2000).

533.025. Rate of payment by department to county for incarceration of persons in jail — Payment of work release fees to jailer and deduction from department’s payment — Department’s custody of prisoner for specified medical conditions.

  1. When a person is convicted of, pleads guilty to, or enters an Alford plea to a felony offense and is sentenced to jail as a condition of conditional discharge or as a condition of probation, the Department of Corrections shall pay for the incarceration of that person in a jail at the same rate and under the same conditions as for a Class D felon who is incarcerated in the jail under KRS 532.100 .
  2. If a person incarcerated in a jail on conditional discharge or probation under subsection (1) of this section is granted work release, he or she shall pay the work release fees required by law to the jailer. The amount of work release fees paid by a prisoner shall be deducted from the amount which the Department of Corrections shall pay for the incarceration of that prisoner.
  3. The Department of Corrections may, during the prisoner’s period of incarceration in the jail, take custody of the prisoner and hold that person in a state prison facility for the purpose of treating the following medical conditions:
    1. Chronic heart and lung conditions;
    2. Psychiatric conditions;
    3. Acute medical conditions that require diagnostic testing or hospitalization;
    4. Acute surgical conditions;
    5. Pregnancy; or
    6. Any other medical condition which the Department of Corrections may set out by administrative regulation.

History. Enact. Acts 1998, ch. 606, § 115, effective July 15, 1998; 2000, ch. 345, § 10, effective July 14, 2000; 2020 ch. 109, § 9, effective April 24, 2020.

533.030. Conditions of probation and conditional discharge — Restitution to victim.

  1. The conditions of probation and conditional discharge shall be such as the court, in its discretion, deems reasonably necessary to insure that the defendant will lead a law-abiding life or to assist him to do so. The court shall provide as an explicit condition of every sentence to probation or conditional discharge that the defendant not commit another offense during the period for which the sentence remains subject to revocation.
  2. When imposing a sentence of probation or conditional discharge, the court may, in addition to any other reasonable condition, require that the defendant:
    1. Avoid injurious or vicious habits;
    2. Avoid persons or places of disreputable or harmful character;
    3. Work faithfully at suitable employment as far as possible;
    4. Undergo available medical or psychiatric treatment and remain in a specific institution as required for that purpose;
    5. Post a bond, without surety, conditioned on performance of any of the prescribed conditions;
    6. Support his dependents and meet other family responsibilities;
    7. Pay the cost of the proceeding as set by the court;
    8. Remain within a specified area;
    9. Report to the probation officer as directed;
    10. Permit the probation officer to visit him at his home or elsewhere;
    11. Answer all reasonable inquiries by the probation officer and promptly notify the probation officer of any change in address or employment;
    12. Submit to periodic testing for the use of controlled substances or alcohol, if the defendant’s record indicates a controlled substance or alcohol problem, and to pay a reasonable fee, as determined by the court, which fee shall not exceed the actual cost of the test and analysis and shall be paid directly to the agency or agencies responsible for testing and analysis as compensation for the cost of the testing and analysis, as specified by written order of the court, performed under this subsection. For good cause shown, the testing fee may be waived by the court;
    13. Use an alcohol monitoring device, as defined in KRS 431.068 . All costs associated with the device, including administrative and operating costs, shall be paid by the defendant. If the court determines that the defendant is indigent, and a person, county, or other organization has not agreed to pay the costs for the defendant in an attempt to reduce incarceration expenses and increase public safety, the court shall consider other conditions of probation or conditional discharge provided for in this section; or
    14. During all or part of the period of probation or conditional discharge, participate in a global positioning monitoring system program operated by a county pursuant to KRS 67.372 and 67.374 under the same terms and conditions as provided in KRS 431.517 .
  3. When imposing a sentence of probation or conditional discharge in a case where a victim of a crime has suffered monetary damage as a result of the crime due to his property having been converted, stolen, or unlawfully obtained, or its value substantially decreased as a result of the crime, or where the victim suffered actual medical expenses, direct out-of-pocket losses, or loss of earning as a direct result of the crime, or where the victim incurred expenses in relocating for the purpose of the victim’s safety or the safety of a member of the victim’s household, or if as a direct result of the crime the victim incurred medical expenses that were paid by the Cabinet for Health and Family Services, the Crime Victims Compensation Board, or any other governmental entity, the court shall order the defendant to make restitution in addition to any other penalty provided for the commission of the offense. Payment of restitution to the victim shall have priority over payment of restitution to any government agency. Restitution shall be ordered in the full amount of the damages, unless the damages exceed one hundred thousand dollars ($100,000) or twice the amount of the gain from the commission of the offense, whichever is greater, in which case the higher of these two (2) amounts shall be awarded. The court may, in lieu of ordering monetary restitution, order the defendant to make restitution by working for or on behalf of the victim. The court shall determine the number of hours of work necessary by applying the then-prevailing federal minimum wage to the total amount of monetary damage caused by or incidental to the commission of the crime. The court may, with the consent of the agency, order the defendant to work as specified in KRS 533.070 . Any work ordered pursuant to this section shall not be deemed employment for any purpose, nor shall the person performing the work be deemed an employee for any purpose. Where there is more than one (1) defendant or more than one (1) victim, restitution may be apportioned. Restitution shall be subject to the following additional terms and conditions:
    1. Where property which is unlawfully in the possession of the defendant is in substantially undamaged condition from its condition at the time of the taking, return of the property shall be ordered in lieu of monetary restitution;
    2. The circuit clerk shall assess an additional fee of five percent (5%) to defray the administrative costs of collection of payments or property. This fee shall be paid by the defendant and shall inure to a trust and agency account which shall not lapse and which shall be used to hire additional deputy clerks and office personnel or increase deputy clerk or office personnel salaries, or combination thereof;
    3. When a defendant fails to make restitution ordered to be paid through the circuit clerk or a court-authorized program run by the county attorney or the Commonwealth’s attorney, the circuit clerk or court-authorized program shall notify the court; and
    4. An order of restitution shall not preclude the owner of property or the victim who suffered personal physical or mental injury or out-of-pocket loss of earnings or support or other damages from proceeding in a civil action to recover damages from the defendant. A civil verdict shall be reduced by the amount paid under the criminal restitution order.
  4. When requiring fees for controlled substances or alcohol tests, or other fees and payments authorized by this section or other statute, except restitution, to be paid by the defendant, the court shall not order the payments to be paid through the circuit clerk.
  5. When a defendant is sentenced to probation or conditional discharge, he shall be given a written statement explicitly setting forth the conditions under which he is being released.
  6. When imposing a sentence of probation or conditional discharge, the court, in addition to conditions imposed under this section, may require as a condition of the sentence that the defendant submit to a period of imprisonment in the county jail or to a period of home incarceration at whatever time or intervals, consecutive or nonconsecutive, the court shall determine. The time actually spent in confinement or home incarceration pursuant to this provision shall not exceed twelve (12) months or the maximum term of imprisonment assessed pursuant to KRS Chapter 532, whichever is the shorter. Time spent in confinement or home incarceration under this subsection shall be credited against the maximum term of imprisonment assessed for the defendant pursuant to KRS Chapter 532, if probation or conditional discharge is revoked and the defendant is sentenced to imprisonment. Any prohibitions against probation, shock probation, or conditional discharge under KRS 533.060(2) or 532.045 shall not apply to persons convicted of a misdemeanor or Class D felony and sentenced to a period of confinement or home incarceration under this section.

History. Enact. Acts 1974, ch. 406, § 287, effective January 1, 1975; 1982, ch. 317, § 1, effective July 15, 1982; 1986, ch. 243, § 7, effective July 15, 1986; 1990, ch. 459, § 3, effective July 13, 1990; 1992, ch. 59, § 7, effective July 14, 1992; 1994, ch. 412, § 5, effective July 15, 1994; 1998, ch. 336, § 1, effective July 15, 1998; 1998, ch. 426, § 610, effective July 15, 1998; 1998, ch. 606, § 49, effective July 15, 1998; 2002, ch. 183, § 37, effective August 1, 2002; 2005, ch. 99, § 658, effective June 20, 2005; 2006, ch. 182, § 48, effective July 12, 2006; 2010, ch. 170, § 15, effective July 15, 2010; 2014, ch. 141, § 3, effective July 15, 2014; 2017 ch. 74, § 105, effective June 29, 2017; 2021 ch. 185, § 92, effective June 29, 2021.

NOTES TO DECISIONS

Analysis

1.In General.

Probation is not tantamount to pardon and probationer is not free, but is still substantially ward of state, and his liberty may be severely curtailed as provided by law. (Decided under prior law) Jordan v. Commonwealth, 371 S.W.2d 632, 1963 Ky. LEXIS 106 ( Ky. 1963 ).

Since defendant, when the court costs were imposed, was no longer to be incarcerated and courts may impose costs as a condition of probation, the imposition of $155 in court costs was not a manifest injustice in this case. Martin v. Commonwealth, 2011 Ky. App. LEXIS 157 (Ky. Ct. App. Sept. 16, 2011).

2.Construction.

Since this section is not solely employed to provide leverage to obtain payment from individuals, it does not conflict with the Bankruptcy Code and therefore does not violate the Supremacy Clause. Winkler v. Rickert, 151 B.R. 807, 1992 Bankr. LEXIS 2286 (Bankr. N.D. Ohio 1992).

Conditional discharge under KRS 533.020 and this section is the “functional equivalent” of an unsupervised probation under U.S.S.G. § 4A1.1(d) and the District Court did not err in basing defendant’s base offense level two points higher based on this provision. United States v. Miller, 56 F.3d 719, 1995 FED App. 0169P, 1995 U.S. App. LEXIS 13616 (6th Cir. Ky. 1995 ).

KRS 532.080(5) and subsection (7) control over KRS 533.060(2) and, therefore, the defendant was eligible for parole, notwithstanding that the offenses at issue were committed while he was on parole from a prior felony conviction, as the offenses at issue were all Class D nonviolent felonies. Adams v. Commonwealth, 46 S.W.3d 572, 2000 Ky. App. LEXIS 76 (Ky. Ct. App. 2000).

KRS 533.030(5), which applies to shock probation as well as probation, does not require that an order granting shock probation incorporate by reference the conditions of supervision that have been imposed on the defendant who is being granted shock probation pursuant to KRS 439.265 . United States v. Black, 2006 U.S. Dist. LEXIS 1598 (E.D. Ky. Jan. 17, 2006).

Trial court was not required to wait until criminal charges were resolved in order to determine whether defendant’s probation could be revoked. Under KRS 533.030 , the trial court was required to grant a probationer a revocation hearing and application of KRS 533.050 indicated that the timing of that hearing did not have to wait for a conviction on new charges since that statute spoke in terms of the not commission of another offense rather than a charge or conviction of another offense. Barker v. Commonwealth, 379 S.W.3d 116, 2012 Ky. LEXIS 132 ( Ky. 2012 ).

3.Alternative Forms of Punishment.

In view of unusual circumstances and distinct possibility that verdicts might have been less severe, if prejudicial evidence had been properly excluded, trial court should reconsider motions to suspend execution of sentences and place defendant on probation. (Decided under prior law) Jordan v. Commonwealth, 371 S.W.2d 632, 1963 Ky. LEXIS 106 ( Ky. 1963 ).

Where court agreed it would sustain defendant motion for new trial and dismiss indictment upon condition that he absent himself from the county for one (1) year, and probationary period passed without a warrant being issued, defendant was discharged and court had no right to enter judgment imposing sentence. (Decided under prior law) Gossett v. Commonwealth, 384 S.W.2d 308, 1964 Ky. LEXIS 87 ( Ky. 1964 ).

Court has no power to impose banishment as a condition of probation and order imposing such condition was appealable. (Decided under prior law) Weigand v. Commonwealth, 397 S.W.2d 780, 1965 Ky. LEXIS 85 ( Ky. 1965 ), cert. denied, 384 U.S. 976, 86 S. Ct. 1870, 16 L. Ed. 2d 686, 1966 U.S. LEXIS 1460 (U.S. 1966).

Where the court failed to consider whether alternative forms of punishment would be adequate to meet the state’s interest in punishment and deterrence and simply based its revocation of defendant’s shock probation on the bare fact that the defendant failed to make restitution payments, the court committed reversible error. Clayborn v. Commonwealth, 701 S.W.2d 413, 1985 Ky. App. LEXIS 702 (Ky. Ct. App. 1985).

Where the charges against defendant were no greater than Class D felonies, the trial court may and should have at least considered sentencing alternatives other than incarceration. Corman v. Commonwealth, 822 S.W.2d 421, 1991 Ky. App. LEXIS 143 (Ky. Ct. App. 1991).

Where defendant was convicted of sexual abuse in violation of KRS 510.110 , the trial court erred in holding that he was ineligible for probation due to the constraints of KRS 532.045 (b) because he was in a “position of authority” with the victim, as the more lenient language of KRS 533.030(6) indicated the legislative intent to allow probation in such situations in order to reduce prison overcrowding; however, as the trial court also relied on other more traditional reasons for denying probation, any error was harmless. Ebertshauser v. Commonwealth, 2005 Ky. App. Unpub. LEXIS 47 (Ky. Ct. App. Feb. 4, 2005).

Trial court abused its discretion in revoking defendant’s probation on the ground that she failed to pay the full amount of her weekly restitution obligation because the trial court had clearly stated in its oral ruling that she had made a bona fide effort to comply with the restitution payment schedule; absent from the trial court’s ruling was any indication that it gave consideration to any alternative form of punishment under KRS 533.030(3). Wills v. Commonwealth, 396 S.W.3d 319, 2013 Ky. App. LEXIS 47 (Ky. Ct. App. 2013).

4.Bankruptcy Proceedings.

It was inappropriate for the bankruptcy court to enjoin permanently the county attorney from pursuing further action in state criminal prosecution, for bad check charges, because the debt underlying that prosecution had not yet been discharged, instead, the bankruptcy court should have issued only a preliminary, injunction against the creditor for if the bankruptcy court later discharges the debt represented by the bad check given to the creditor, it should order the pursuance of the criminal proceeding permanently enjoined; if the bankruptcy court determines, however, that the debt is not dischargeable, it should dissolve the preliminary injunction against pursuance of the state court prosecution. Howard v. Allard, 122 B.R. 696, 1991 U.S. Dist. LEXIS 2956 (W.D. Ky. 1991 ).

Chapter 7 debtor’s attempt to enjoin a state criminal prosecution under Younger v. Harris, 401 U.S. 37, 91 S. Ct. 746, 27 L. Ed. 2d 669 (1971) was not warranted. Winkler v. Rickert, 151 B.R. 807, 1992 Bankr. LEXIS 2286 (Bankr. N.D. Ohio 1992).

5.Restitution.

When a person commits the offense of flagrant nonsupport, he or she causes the party entitled to receive child support to incur expenses because of that criminal act. Money owed for past due child support constitutes “restitution” within the meaning of KRS 532.350 . As such, before probation or conditional discharge may be revoked based on a failure to pay child support, the requirements of Bearden v. Georgia, 461 U.S. 660, 103 S. Ct. 2064, 76 L. Ed. 2d 221, 1983 U.S. LEXIS 39 (1983), must be met. Gamble v. Commonwealth, 293 S.W.3d 406, 2009 Ky. App. LEXIS 74 (Ky. Ct. App. 2009).

Subsection (3) of this section limits restitution to the actual out-of-pocket expenses which are paid by the victim, the Department for Human Resources (now Cabinet for Health Services), the crime victim compensation board or other governmental entity. Clayborn v. Commonwealth, 701 S.W.2d 413, 1985 Ky. App. LEXIS 702 (Ky. Ct. App. 1985).

Where insurer paid victim for impaired earnings and medical expenses, the victim had to produce an itemized statement of actual out-of-pocket expenses which exceeded the amount paid by the insurer, and the trial court erred in failing to order such itemization. Clayborn v. Commonwealth, 701 S.W.2d 413, 1985 Ky. App. LEXIS 702 (Ky. Ct. App. 1985).

The trial court’s holding that no valid reason was given why defendant could not have paid restitution and that defendant violated the terms of shock probation was clearly erroneous where it was based on income allegedly received after the date when the Commonwealth’s motion for revocation was filed. Clayborn v. Commonwealth, 701 S.W.2d 413, 1985 Ky. App. LEXIS 702 (Ky. Ct. App. 1985).

One hundred thousand dollar cap was not applicable to appellant’s restitution order in a case involving theft and criminal mischief because the trial court did not sentence appellant to probation or conditional discharge. Fagan v. Commonwealth, 374 S.W.3d 274, 2012 Ky. LEXIS 110 ( Ky. 2012 ).

When defendant entered a plea of guilty to Fraudulent Insurance Acts by Complicity, over $300, for making a fraudulent statement supporting an insurance claim for personal property under KRS 304.47-020 (1)(a), the trial court did not err by ordering him to pay restitution to the insurance company for proceeds distributed for property damage, alternative housing, and living expenses. These damages were not incurred as a result of defendant’s fraudulent insurance acts as required to support an order of restitution under KRS 533.030(3); however, defendant was bound to the restitution provision in the plea agreement. Commonwealth v. Morseman, 379 S.W.3d 144, 2012 Ky. LEXIS 138 ( Ky. 2012 ).

Supreme Court of Kentucky adopts the Maryland rule that a trial court may not order a criminal defendant to pay restitution to a victim of a crime for which he was not convicted. This rule is subject to one very narrow exception: a restitution order under KRS 533.030(3) regarding alleged crimes for which the defendant was not convicted is valid only if the defendant freely and voluntarily agrees to make restitution to victims of the other, alleged crimes as part of a plea agreement. Commonwealth v. Morseman, 379 S.W.3d 144, 2012 Ky. LEXIS 138 ( Ky. 2012 ).

When a juvenile was adjudicated for being complicit in criminal mischief, it was not plain error to hold the juvenile solely liable for restitution for the resulting damage because (1) KRS 635.060 granted such discretion, (2) an interpretation of KRS 533.030 granting such authority in adult cases applied to juvenile cases, and (3) the order did not contravene the Juvenile Code’s purposes or affect the juvenile’s substantial rights, nor was the order issued at a shocking or jurisprudentially intolerable proceeding. R.S. v. Commonwealth, 423 S.W.3d 178, 2014 Ky. LEXIS 6 ( Ky. 2014 ).

Defendant’s restitution obligation was governed by KRS 533.030(3), not KRS 431.200 , because (1) defendant’s plea agreement specified the statute, (2) defendant was told at sentencing defendant would have to pay restitution, (3) defendant sought no pre-sentence restitution decision, and (4) defendant did not object to setting a restitution hearing. Winkle v. Commonwealth, 2014 Ky. App. Unpub. LEXIS 1001 (Ky. Ct. App. Apr. 4, 2014), review denied, ordered not published, 2014 Ky. LEXIS 579 (Ky. Dec. 10, 2014).

Defendant’s restitution order did not err because (1) defendant accepted the risk that the restitution amount would exceed prior estimates, and (2) the order was based on credible testimony. Winkle v. Commonwealth, 2014 Ky. App. LEXIS 56 (Ky. Ct. App. Apr. 4, 2014, sub. op., 2014 Ky. App. Unpub. LEXIS 1001 (Ky. Ct. App. Apr. 4, 2014).

Trial court had jurisdiction to order defendant to pay restitution pursuant to KRS 533.030(3), instead of KRS 431.200 , because defendant was to remain on probation until the full restitution amount was paid, so KRS 431.200 did not apply. Winkle v. Commonwealth, 2014 Ky. App. LEXIS 56 (Ky. Ct. App. Apr. 4, 2014, sub. op., 2014 Ky. App. Unpub. LEXIS 1001 (Ky. Ct. App. Apr. 4, 2014).

Defendant received due process when ordered to pay restitution because (1) defendant had notice restitution would be sought, (2) defendant agreed to restitution, and (3) defendant had notice of a restitution hearing at which defendant appeared with counsel, who cross-examined the witness against defendant. Winkle v. Commonwealth, 2014 Ky. App. LEXIS 56 (Ky. Ct. App. Apr. 4, 2014, sub. op., 2014 Ky. App. Unpub. LEXIS 1001 (Ky. Ct. App. Apr. 4, 2014).

American Society to Prevent Cruelty to Animals (ASPCA) was not properly characterized as a victim because it did not suffer direct pecuniary damages as a result of defendant’s criminal activity but voluntarily accepted the county’s request for assistance; “victim” is one who is directly harmed by the criminal conduct for which the defendant has pled or been found guilty. Blevins v. Commonwealth, 435 S.W.3d 637, 2014 Ky. App. LEXIS 107 (Ky. Ct. App. 2014).

Trial court erred in ordering defendant, who pleaded guilty to receiving stolen property valued at $10,000 or more, to pay restitution to the victims' insurer because the insurer did not suffer “direct” out-of-pocket expenses as a result of defendant's crimes and instead paid damages under a contract of insurance; the insurer made payments to the victims under a contract of insurance and was not a victim of defendant's crimes. Bentley v. Commonwealth, 497 S.W.3d 253, 2016 Ky. App. LEXIS 133 (Ky. Ct. App. 2016).

6.— Interest on Award.

The statute clearly implies a legislative warrant for post-judgment interest and thus overcomes the common law presumption against applying interest to a judgment. Commonwealth v. Hearn, 2000 Ky. App. LEXIS 95 (Ky. Ct. App. Sept. 1, 2000).

For restitution to be considered in the full amount of the damages, as required by statute, the trial court had to add postjudgment interest to the principal amount of the restitution imposed upon defendants for theft by failure to make required disposition of property received and theft by deception. Hearn v. Commonwealth, 80 S.W.3d 432, 2002 Ky. LEXIS 135 ( Ky. 2002 ).

7.Sentencing Credit.

Because the trial court imposed home incarceration as a condition of bail, rather than in lieu of bail, defendant was not entitled to credit for that time under KRS 533.030(6). Tindell v. Commonwealth, 244 S.W.3d 126, 2008 Ky. App. LEXIS 1 (Ky. Ct. App. 2008).

8.Standing to Challenge Probation.

Widow of victim, killed by defendant subsequently convicted of reckless homicide and leaving the scene of an accident and granted shock probation pursuant to KRS 439.265 , did not have standing under either KRS 439.265 , 421.500 , 421.520(3), or this section to petition the court for writ of mandamus directing the trial judge to reconsider the decision granting shock probation. Schroering v. McKinney, 906 S.W.2d 349, 1995 Ky. LEXIS 102 ( Ky. 1995 ).

9.Status as Probationer.

One may retain his or her status as a probationer only as long as the trial court is satisfied that he or she has not violated the terms or conditions of the probation. Tiryung v. Commonwealth, 717 S.W.2d 503, 1986 Ky. App. LEXIS 1196 (Ky. Ct. App. 1986).

Although defendant claimed that defendant did not received a written statement of the conditions of defendant’s probation in accord with KRS 533.030(5), the written, final judgment in the case provided that defendant should neither use nor possess any alcohol, drugs, or prescription medication not specifically prescribed by a local physician; hence, the trial court did not err in revoking defendant’s probation. Jarrell v. Commonwealth, 384 S.W.3d 195, 2012 Ky. App. LEXIS 233 (Ky. Ct. App. 2012).

10.Personal Service of Revocation.

Circuit court abused its discretion in revoking defendant's probation where personal service of the probation conditions was required under Ky. Rev. Stat. Ann. § 533.030(5), but the court had only served the conditions on defense counsel. Flaugher v. Commonwealth, 526 S.W.3d 91, 2017 Ky. App. LEXIS 12 (Ky. Ct. App. 2017).

11.Additional condition.

Trial court did not err in denying defendant’s motion to withdraw his guilty plea based on the addition of a condition to the pretrial diversion agreement because the addition of jail time was a permissible condition under this section, and did not constitute imposition of a greater sentence than what was recommended by the Commonwealth. Bains v. Commonwealth, 568 S.W.3d 7, 2018 Ky. App. LEXIS 318 (Ky. Ct. App. 2018).

12.Conditions of probation.

Condition of probation restricting a probationer’s access to the internet was constitutional under U.S. Const. amend. I, on an as-applied basis, because the probationer’s underlying offenses and failure to comply with sex offender registration did not involve use of the internet and the probation condition of no internet access was not narrowly tailored to serve a legitimate interest and was impermissibly vague. Jennings v. Commonwealth, 2019 Ky. App. LEXIS 64 (Ky. Ct. App. Apr. 12, 2019), rev'd, 613 S.W.3d 14, 2020 Ky. LEXIS 448 ( Ky. 2020 ).

Cited:

Williams v. Commonwealth, 829 S.W.2d 942, 1992 Ky. App. LEXIS 32 (Ky. Ct. App. 1992); Commonwealth v. Lopez, 292 S.W.3d 878, 2009 Ky. LEXIS 185 ( Ky. 2009 ); Jones v. Commonwealth, 382 S.W.3d 22, 2011 Ky. LEXIS 180 ( Ky. 2011 ); Commonwealth v. Wright, — S.W.3d —, 2012 Ky. App. LEXIS 82 (Ky. Ct. App. 2012); Brann v. Commonwealth, 2015 Ky. App. LEXIS 122 (Aug. 21, 2015).

Notes to Unpublished Decisions

1.Sentencing Credit.

Unpublished decision: Although defendant received a probated sentence, it was nonetheless a “sentence of imprisonment” for purposes of U.S. Sentencing Guidelines Manual § 4A1.2(b) because it was conditioned on an 85-day term of incarceration (time that defendant had already served); although the state court was required to grant credit for time served, it was not required to make the time served a condition of probation (time served typically has nothing to do with probation, unless the time already spent in custody was what prompted the judge to impose probation in lieu of incarceration). United States v. Roark, 403 Fed. Appx. 1, 2010 FED App. 0608N, 2010 U.S. App. LEXIS 19260 (6th Cir. Ky. 2010 ).

Opinions of Attorney General.

Any order imposing as a condition of probation an obligation to repay to the court the cost of public defense must include a provision that the defendant cannot be required to meet such an obligation unless he can do so without hardship to himself or his dependents. OAG 74-428 .

When the state is required to expend moneys to provide legal services for an indigent criminal defendant, the state becomes an “aggrieved party” incurring “loss or damage” as a result of defendant’s offense such that the Circuit Court may make restitution to the state a condition for probation, within constitutional limits, and such condition is “reasonable.” OAG 74-428 .

Subdivision (2)(h) (now (2)(g)) of this section provides in part that the court “may” require the defendant to pay the costs, which suggests that the court may also suspend costs. OAG 79-202 .

If the court decides to probate a defendant who pleads guilty to violation of an ordinance requiring payment of a vehicle license tax, it could impose reasonable conditions such as securing the necessary license form from the city, but it cannot fine the defendant for the violation and impose additional requirements and restrictions outside the prescribed penalty limits. OAG 79-354 .

Once a convict has been committed to the jailer’s care, he may be released only upon a lawful discharge, which occurs only when the term of the sentence has expired or where the judgment or court order states that the period of confinement is not to be consecutive and continuous by stating when the jailer is authorized to release the prisoner. OAG 80-23 .

KRS 533.060(2) prohibits probation, shock probation or conditional discharge when the current criminal act for which the defendant was convicted occurred while the defendant was on parole or probation. OAG 83-168 .

Because no statute authorizes a court to order one convicted of a crime to make a donation to a sheriff’s drug and alcohol fund (or similar public purpose fund), the District Court would have no authority to enter such an order. OAG 91-224 .

Since insurers do not fall within the category of victims or aggrieved persons and where an insurer does not make its payment or settlement by virtue of being directly threatened or injured by a criminal defendant, an insurance payment or settlement is not a direct loss or injury as a result of criminal activity but is an indirect “loss” resulting from a contractual arrangement between the victim and the insurer; therefore, trial courts are not authorized to order restitution or reparation directly to an insurer as part of the criminal proceeding. OAG 94-57 .

Research References and Practice Aids

Cross-References.

Information obtained by probation, parole or conditional release officer to be privileged, KRS 439.510 .

Probation, parole and conditional release officers, duties, KRS 439.480 .

Prohibited activities of probation, parole or conditional release officers, KRS 439.500 .

Restitution, person convicted of taking or destroying property may be required to make, KRS 431.200 , 431.210 .

Rules of conduct for probationers; powers and duties of commissioner of corrections; probation officers, KRS 439.470 .

Supervision of probationers from inferior court, KRS 439.550 .

Northern Kentucky Law Review.

Bartlett, Alternative Sanctions and the Governor’s Crime Bill of 1998 (HB 455): Another Attempt at Providing a Framework for Efficient and Effective Sentencing, 27 N. Ky. L. Rev. 283 (2000).

533.040. Calculation of periods of probation and conditional discharge.

  1. A period of probation or conditional discharge commences on the day it is imposed. Multiple periods, whether imposed at the same or different times, run concurrently.
  2. If a court, as authorized by law, determines that a defendant violated the conditions of his probation or conditional discharge but reinstates probation or conditional discharge, the period between the date of the violation and the date of restoration of probation or conditional discharge shall not be computed as a part of the period of probation or conditional discharge.
  3. A sentence of probation or conditional discharge shall run concurrently with any federal or state jail, prison, or parole term for another offense to which the defendant is or becomes subject during the period, unless the sentence of probation or conditional discharge is revoked. The revocation shall take place prior to parole under or expiration of the sentence of imprisonment or within ninety (90) days after the grounds for revocation come to the attention of the Department of Corrections, whichever occurs first.

History. Enact. Acts 1974, ch. 406, § 288, effective January 1, 1975; 1974, ch. 74, Art. V, § 24(14); 1986, ch. 331, § 61, effective July 15, 1986; 1992, ch. 211, § 138, effective July 14, 1992.

NOTES TO DECISIONS

1.Purpose.

This section appears to be intended to deal with the calculation of periods of time for the running of sentences of probation or conditional discharge rather than setting a time limitation beyond which a court has no jurisdiction to revoke probation. Kiser v. Commonwealth, 829 S.W.2d 432, 1992 Ky. App. LEXIS 98 (Ky. Ct. App. 1992).

This section was intended to deal with the calculation of periods of time for the running of sentences of probation, rather than setting a time limit beyond which a court could not make a ruling. Sutherland v. Commonwealth, 910 S.W.2d 235, 1995 Ky. LEXIS 138 ( Ky. 1995 ).

The legislative intent of this section is to require the Department of Corrections to push for revocation proceedings in a speedy manner, if any subsequent term of sentence is to be served consecutive to any time spent in incarceration as a result of a revocation of probation. Sutherland v. Commonwealth, 910 S.W.2d 235, 1995 Ky. LEXIS 138 ( Ky. 1995 ).

2.Concurrent and Consecutive Sentences.

Probated sentences are to run concurrently unless the sentence of probation is revoked. In the case at bar, the defendant’s probation was revoked; thus, pursuant to subsection (3) of this section, the court had the authority to impose consecutive sentences. Myers v. Commonwealth, 836 S.W.2d 431, 1992 Ky. App. LEXIS 68 (Ky. Ct. App. 1992), overruled, Sutherland v. Commonwealth, 910 S.W.2d 235, 1995 Ky. LEXIS 138 ( Ky. 1995 ).

Defendant’s term of confinement which was reinstated following revocation of his probation was statutorily prohibited from running concurrently with defendant’s recent sentence for offense committed during defendant’s probation despite defendant’s contention that fact that probation was revoked well without the 90-day statutory limit mandated concurrent sentencing. Brewer v. Commonwealth, 922 S.W.2d 380, 1996 Ky. LEXIS 50 ( Ky. 1996 ).

Although concurrent sentencing, KRS 532.110 , is the general rule, subsection (3) of this section creates an exception for cases in which probation is revoked. By providing this exception, the General Assembly has implied that consecutive sentencing is an option when probation is revoked within the required 90-day period. Order imposing concurrent sentences to run consecutively with defendant’s 90-day sentence being served for misdemeanor convictions upheld. Snow v. Commonwealth, 927 S.W.2d 841, 1996 Ky. App. LEXIS 127 (Ky. Ct. App. 1996).

The statute was applied to allow a trial court to run a reinstated misdemeanor sentence consecutive to a felony sentence. Warren v. Commonwealth, 981 S.W.2d 134, 1998 Ky. App. LEXIS 64 (Ky. Ct. App. 1998).

Although concurrent sentencing is the general rule under KRS 532.110 , an exception is created by this section 533.040 for cases in which probation is revoked; by providing this exception, the General Assembly has implied that consecutive sentencing is an option when probation is revoked. Walker v. Commonwealth, 10 S.W.3d 492, 1999 Ky. App. LEXIS 164 (Ky. Ct. App. 1999).

KRS 532.110(4) creates a specific exception to KRS 533.040(3) where the two come into conflict and the more specific statutory language pertaining to escape in KRS 532.110(4), which mandates consecutive sentencing for escape, must pre-empt KRS 533.040(3), the more general statute dealing with the 90-day period in which to bring a probation revocation hearing. Wilson v. Commonwealth, 78 S.W.3d 137, 2001 Ky. App. LEXIS 895 (Ky. Ct. App. 2001).

Because the Department of Corrections knew of defendant’s subsequent Campbell County convictions more than ninety days prior to when her Kenton County case probation was revoked and her revocation took place after she was paroled on her Campbell County cases, her sentence on the Kenton County cases had to be imposed concurrently with the sentences on her Campbell County cases. Collinsworth v. Commonwealth, 2018 Ky. App. LEXIS 297 (Ky. Ct. App. Dec. 7, 2018).

3.Shock Probation.

Shock probation does not constitute service of a sentence as envisioned by KRS 532.110 . The trial court properly required defendant who was granted shock probation on felony sentence to serve the remainder of his misdemeanor sentence subject to receipt of credit for time served on the felony term. Romans v. Brooks, 637 S.W.2d 662, 1982 Ky. App. LEXIS 234 (Ky. Ct. App. 1982).

4.Time of Revocation.

Where the defendant was convicted and sentenced on a federal felony charge while on probation from several state felony convictions, for purposes of revoking the defendant’s probation and sentencing him, subsection (3) of this section and KRS 532.115 were controlling; accordingly, since the defendant’s sentencing to the penitentiary by the state court was after the federal conviction and the order of probation revoked was within 90 days after the grounds for revocation came to the attention of the Bureau of Corrections (now Corrections Cabinet), the trial judge was authorized to order the state sentence to run concurrently or consecutively with the federal sentence. Gavel v. Commonwealth, 674 S.W.2d 953, 1984 Ky. LEXIS 225 ( Ky. 1984 ).

Defendant claimed the revocation of his probationary sentence was violative of the 90-day requirement set out in this section. According to defendant’s rationale, the trial court violated this section when it revoked his probation over six (6) months after the “grounds for revocation came to the attention of the bureau of corrections . . . . . ” The rule, for judicial economy, should be to allow prosecutorial discretion to review the allegations and investigate the case for evidence or proof before a premature charge is filed. In the case sub judice, the ground for revocation was the conviction of the new offense, not the arrest. Myers v. Commonwealth, 836 S.W.2d 431, 1992 Ky. App. LEXIS 68 (Ky. Ct. App. 1992), overruled, Sutherland v. Commonwealth, 910 S.W.2d 235, 1995 Ky. LEXIS 138 ( Ky. 1995 ).

The Corrections Cabinet sought to have defendant’s probation revoked only after he had pled guilty to eight (8) counts of an indictment in the Circuit Court. The defendant pled guilty on March 9, 1990, and was sentenced on April 27, 1990. The revocation of defendant’s probationary sentence was entered on May 1, 1990. Since no detainer or notice was placed on the defendant until after he was convicted (and before he served or was paroled on his 21-year sentence), the conviction was notice and grounds which commenced the running of the statutory 90-day revocation period. Accordingly, the court’s determination to revoke appellant’s probation was within the 90-day statutory requirement. Myers v. Commonwealth, 836 S.W.2d 431, 1992 Ky. App. LEXIS 68 (Ky. Ct. App. 1992), overruled, Sutherland v. Commonwealth, 910 S.W.2d 235, 1995 Ky. LEXIS 138 ( Ky. 1995 ).

The defendant does have a right to a hearing within 90 days of the detainer being placed on him or within 90 days from the time an arrest warrant is secured. This is based on the fact that in cases where a detainer is placed on the defendant, the defendant will remain confined pending an arrest warrant or maybe until the hearing, and thus be prejudiced by such imprisonment. The defendant can waive this right to have the hearing within 90 days, but if he does not, he is entitled to a probation revocation hearing within 90 days of the time the Corrections Cabinet receives notice of the alleged violation. Myers v. Commonwealth, 836 S.W.2d 431, 1992 Ky. App. LEXIS 68 (Ky. Ct. App. 1992), overruled, Sutherland v. Commonwealth, 910 S.W.2d 235, 1995 Ky. LEXIS 138 ( Ky. 1995 ).

While a conviction for a new offense would be grounds for probation revocation, an arrest for the same offense may or may not be. The Corrections Cabinet may treat the arrest as grounds for revocation, and if a detainer is placed on the defendant by Probation and Parole at any time prior to the revocation hearing, it would constitute notice and the prosecutorial decision would commence the 90-day period for revocation. If, however, Corrections treats the arrest as a mere allegation and waits until a conviction is attained, seeking no detainer nor an arrest warrant on the defendant, then there is not notice of the grounds for revocation until conviction. Myers v. Commonwealth, 836 S.W.2d 431, 1992 Ky. App. LEXIS 68 (Ky. Ct. App. 1992), overruled, Sutherland v. Commonwealth, 910 S.W.2d 235, 1995 Ky. LEXIS 138 ( Ky. 1995 ).

Upon finding that the probationer had violated the condition of his probation, the trial court, in effect, temporarily revoked that probation by ordering him to jail for 30 days, and that same order reinstated the probation at the end of the 30 days by once again permitting the probationer to be at large; thus, later order revoking his probation was timely issued in spite of the fact that it was issued after his original probation had ended. Hawley v. Commonwealth, 908 S.W.2d 130, 1995 Ky. App. LEXIS 180 (Ky. Ct. App. 1995).

When appellee’s probation was set to expire on June 17, 2009, the Commonwealth filed a motion to revoke his probation on February 10, 2009 and appellee stipulated that he had violated the terms of his probation by using drugs and alcohol; in accordance with KRS 533.010(6), the circuit court entered a probation order with modified conditions on May 14, 2009, an placing him on work release while at the county jail until June 16, 2009. Although KRS 533.040(2) applied, appellee’s probation was not tolled beyond its initial expiration on June 17, 2009; the court had no jurisdiction to hold a revocation hearing after June 17, 2009. Conrad v. Evridge, 315 S.W.3d 313, 2010 Ky. LEXIS 145 ( Ky. 2010 ).

After defendant’s probation was revoked, a trial court improperly ordered his sentence for first-degree trafficking to run consecutive to a one-year Ohio sentence pursuant to KRS 533.060(2). KRS 533.040(3) and 532.115 , rather than KRS 533.060(2), applied, so the trial court’s authority to run the sentences concurrently or consecutively was conditioned upon a determination of whether the revocation occurred within ninety 90 days after the grounds for revocation came to the attention of the Department of Corrections. Ware v. Commonwealth, 326 S.W.3d 464, 2010 Ky. App. LEXIS 196 (Ky. Ct. App. 2010).

Motion to vacate a sentence under CR 60.02 should have been granted to appellant because the probationary term was not tolled under KRS 533.040(2) since only additional conditions were placed on appellant’s probation, and the probation expiration date was still April 23, 2008. The trial court did not issue a written order after two prior revocation hearings, and the trial court stated at both hearings that defendant was continuing on probation. Dulin v. Commonwealth, 2012 Ky. App. LEXIS 167 (Ky. Ct. App. Sept. 14, 2012).

5.Waiver.

If a defendant’s hearing is based on other pending charges, unrelated to the charges for which defendant was placed on probation, it may be in the defendant’s best interest to waive the 90-day period for probation revocation in order to postpone the revocation hearing until after the trial on the other charges. The reason is that the burden of proof required to revoke probation is “merely proof of an occurrence by a preponderance of the evidence,” whereas a conviction requires proof beyond a reasonable doubt. Myers v. Commonwealth, 836 S.W.2d 431, 1992 Ky. App. LEXIS 68 (Ky. Ct. App. 1992), overruled, Sutherland v. Commonwealth, 910 S.W.2d 235, 1995 Ky. LEXIS 138 ( Ky. 1995 ).

Cited:

Commonwealth v. Love, 334 S.W.3d 92, 2011 Ky. LEXIS 35 ( Ky. 2011 ); Jones v. Commonwealth, 382 S.W.3d 22, 2011 Ky. LEXIS 180 ( Ky. 2011 ).

Research References and Practice Aids

Kentucky Bench & Bar.

Combs, The Calculation and Application of Prison Sentences., Vol. 70, No. 5, September 2006, Ky. Bench & Bar 7.

533.050. Arrest of defendant on probation or conditional discharge — Notice and hearing — Exception under KRS 439.3108.

  1. At any time before the discharge of the defendant or the termination of the sentence of probation or conditional discharge:
    1. The court may summon the defendant to appear before it or may issue a warrant for his arrest upon a finding of probable cause to believe that he has failed to comply with a condition of the sentence; or
    2. A probation officer, or peace officer acting at the direction of a probation officer, who sees the defendant violate the terms of his probation or conditional discharge may arrest the defendant without a warrant.
  2. Except as provided in KRS 439.3108 , the court may not revoke or modify the conditions of a sentence of probation or conditional discharge except after a hearing with defendant represented by counsel and following a written notice of the grounds for revocation or modification.

History. Enact. Acts 1974, ch. 406, § 289, effective January 1, 1975; 2011, ch. 2, § 85, effective June 8, 2011.

NOTES TO DECISIONS

1.Due Process.

In proceeding to revoke probation and sentence accused, who had been convicted under a plea of guilty, Circuit Court had jurisdiction of the person of accused and subject matter and any error in the proceeding could be remedied on appeal. (Decided under prior law) Huff v. Diebold, 313 Ky. 655 , 233 S.W.2d 274, 1950 Ky. LEXIS 950 ( Ky. 1950 ).

Former statutory procedure for revocation of probation abundantly protected rights of probationer. (Decided under prior law) Ridley v. Commonwealth, 287 S.W.2d 156, 1956 Ky. LEXIS 444 ( Ky. 1956 ).

The fact that services of probationer’s attorney were expropriated by the state was not a ground to set aside an order of the court revoking probation. (Decided under prior law) Hargrove v. Commonwealth, 362 S.W.2d 37, 1962 Ky. LEXIS 254 ( Ky. 1962 ).

While the specific rules governing the conduct of revocation hearings have not been clearly formulated, such hearings must be conducted in accordance with minimum requirements of due process of law. Rasdon v. Commonwealth, 701 S.W.2d 716, 1986 Ky. App. LEXIS 1024 (Ky. Ct. App. 1986).

Because the trial court’s order revoking probation failed to adequately set out the evidence relied on or the reasons for revoking the probation, but rather provided only that the probation term was revoked because the probationer violated the terms and conditions of the probation, the court’s order violated the probationer’s due process rights, warranting reversal. Richardson v. Commonwealth, 2007 Ky. App. LEXIS 282 (Ky. Ct. App. Aug. 17, 2007), different results reached on reconsid., 323 S.W.3d 379, 2010 Ky. App. LEXIS 176 (Ky. Ct. App. 2010).

A probationer is not entitled to the Fifth Amendment right against self-incrimination as afforded to a defendant in a criminal trial. However, a probationer is protected by the Fifth Amendment from answering any questions where those answers could be used against him or her in any subsequent criminal proceedings. In this case, the probationer had no right to assert a Fifth Amendment privilege against self-incrimination in his probation revocation hearing in response to questions concerning why he had not paid past due child support which was a part of his probation. Gamble v. Commonwealth, 293 S.W.3d 406, 2009 Ky. App. LEXIS 74 (Ky. Ct. App. 2009).

Circuit court erred in voiding defendant's pretrial diversion because, regardless of whether defendant was entitled to waive his right to counsel at the pretrial diversion revocation hearing or whether he properly did so if he was so entitled, the same due process rights required for probation revocation applied in the context of a pretrial diversion revocation hearing, and the circuit court did not give defendant the opportunity to present witnesses and documentary evidence on his own behalf or to cross-examine adverse witnesses. Jones v. Commonwealth, 2017 Ky. App. LEXIS 502 (Ky. Ct. App. Sept. 8, 2017).

2.—Preliminary Hearing.

Minimal due process requirements do not necessitate a preliminary as well as a final hearing on probation revocation as long as an appropriate inquiry was conducted by a court of competent jurisdiction. Murphy v. Commonwealth, 551 S.W.2d 838, 1977 Ky. App. LEXIS 714 (Ky. Ct. App. 1977).

3.Evidence.

Hearsay testimony offered by the police officers was admissible in the revocation hearing. Rasdon v. Commonwealth, 701 S.W.2d 716, 1986 Ky. App. LEXIS 1024 (Ky. Ct. App. 1986).

Because there were a number of non-financial reasons supporting the decision to revoke probation, including the commission of another crime, defendant’s failure to attend and complete a drug treatment program, his failure to find and maintain employment, and his failure to obtain his GED or vocational educational training, the trial court did not abuse its discretion in revoking probation and imposing a sentence of imprisonment. Moore v. Commonwealth, 2008 Ky. App. LEXIS 96 (Ky. Ct. App. Mar. 28, 2008).

4.—Standard of Proof.

Revocation proceedings do not require proof beyond a reasonable doubt but merely proof of an occurrence by a preponderance of the evidence. Rasdon v. Commonwealth, 701 S.W.2d 716, 1986 Ky. App. LEXIS 1024 (Ky. Ct. App. 1986).

5.Findings.

Oral findings made by a trial court are sufficient to meet the written findings requirement of Morrissey v. Brewer , 408 U.S. 471, 92 S. Ct. 2593, 33 L. Ed. 2d 484, 1972 U.S. LEXIS 19 (1972), so long as the record of the oral findings is sufficient for due process purposes to permit the parties and the reviewing court to ascertain the basis of the trial court’s decision. Moore v. Commonwealth, 2008 Ky. App. LEXIS 96 (Ky. Ct. App. Mar. 28, 2008).

Findings are a prerequisite to any unfavorable decision and are a minimal requirement of due process of law. Rasdon v. Commonwealth, 701 S.W.2d 716, 1986 Ky. App. LEXIS 1024 (Ky. Ct. App. 1986).

Trial court’s order revoking defendant’s probation was improper because it did not contain written findings setting out the evidence which the trial court relied on or its reasons for revoking probation; the order stated only that defendant’s probation was revoked because he violated the conditions of his probation. Alleman v. Commonwealth, 2007 Ky. App. LEXIS 233 (Ky. Ct. App. July 27, 2007, sub. op., 2007 Ky. App. Unpub. LEXIS 1172 (Ky. Ct. App. July 27, 2007).

Oral findings and reasons for revocation as stated by the trial court from the bench at the conclusion of the revocation hearing satisfied defendant’s due process rights because the findings and reasons supported the revocation and the findings and reasons were preserved by video, which was a reliable means by which higher courts could review to determine the facts relied upon and the reasons for revoking probation. A formalist written order was not required. Commonwealth v. Alleman, 306 S.W.3d 484, 2010 Ky. LEXIS 69 (Ky.), cert. denied, 562 U.S. 983, 131 S. Ct. 418, 178 L. Ed. 2d 326, 2010 U.S. LEXIS 8166 (U.S. 2010).

6.Notice of Hearing.

Due process requires that defendant be served with notice that a hearing would be held in order to determine whether there exists probable cause to believe he had violated the terms of his probation. Murphy v. Commonwealth, 551 S.W.2d 838, 1977 Ky. App. LEXIS 714 (Ky. Ct. App. 1977).

It is not sufficient to serve notice of a hearing to terminate a sentence of probation upon a probationer’s attorney. Keith v. Commonwealth, 689 S.W.2d 613, 1985 Ky. App. LEXIS 560 (Ky. Ct. App. 1985).

Service of notice of intention to revoke probation which indicates the grounds therefor is to be served upon the party and not his or her attorney, especially if the representation by the attorney of record has been in a different concluded litigation. Messer v. Commonwealth, 754 S.W.2d 872, 1988 Ky. App. LEXIS 79 (Ky. Ct. App. 1988).

Trial court did not err under KRS 533.050(2) in revoking defendant’s probation because although it was error for the Commonwealth not to ensure that written notice of defendant’s probation violations were entered into the record with certification that the notice was mailed to defendant, the error was not palpable; the probation officer attested that defendant had admitted to the violation when defendant signed the form. Jarrell v. Commonwealth, 384 S.W.3d 195, 2012 Ky. App. LEXIS 233 (Ky. Ct. App. 2012).

7.—Insufficient Notice.

Where the notice of motion to revoke the 12-month conditionally discharged jail sentence advised the defendant that the motion was based upon his violation of the conditions of conditional discharge, and then it specified rearrest and probable cause to believe that he had committed a new crime, defendant was not given notice that his conditional discharge could be revoked on the ground that he had associated with a person of disreputable character. Rasdon v. Commonwealth, 701 S.W.2d 716, 1986 Ky. App. LEXIS 1024 (Ky. Ct. App. 1986).

Failure to notify the trial court of the service upon the defendant’s attorney instead of the defendant personally, until after the probation had been revoked and the action was on appeal, waived the error. Messer v. Commonwealth, 754 S.W.2d 872, 1988 Ky. App. LEXIS 79 (Ky. Ct. App. 1988).

8.Procedure.

Where issuance of bench warrants for arrest of probationer was ordered by court on motion of Commonwealth’s attorney to set aside probation, probationer was arrested, and court heard evidence concerning his conduct during period of probation, and upon such evidence set aside order of probation and entered judgment on original conviction for armed robbery, statutory procedure for revocation of probation was fully observed, and submission by probation officer of written report as to manner in which terms of probation had been violated was not necessary. (Decided under prior law) Ridley v. Commonwealth, 287 S.W.2d 156, 1956 Ky. LEXIS 444 ( Ky. 1956 ).

A state will waive its right to impose further punishment upon a prisoner by the act of any state official whereby the prisoner is caused to be released from the state penitentiary prior to the expiration of his term for the purpose of serving another sentence in federal penitentiary. (Decided under prior law) Jones v. Rayborn, 346 S.W.2d 743, 1961 Ky. LEXIS 329 ( Ky. 1961 ), limited, Baker v. Commonwealth, 378 S.W.2d 616, 1964 Ky. LEXIS 191 ( Ky. 1964 ), overruled, Commonwealth v. Hale, 96 S.W.3d 24, 2003 Ky. LEXIS 15 ( Ky. 2003 ).

Where the petitioner was given a one (1) year sentence for issuing check without sufficient funds but following his probation revocation he was given a two (2) year sentence under law that provided for revocation of probation under certain circumstances, although his proper remedy was under RCr 11.42 he was granted relief in his habeas corpus proceeding to prevent further controversies where the disposition would be the same. (Decided under prior law) Hardy v. Howard, 458 S.W.2d 764, 1970 Ky. LEXIS 183 ( Ky. 1970 ).

The defendant was not deprived of his right to due process as guaranteed by the state and federal constitutions when the trial court amended the order of conditional discharge without allowing him the opportunity to confront or cross-examine witnesses, as there is no requirement that the hearing include the confrontation and cross-examination of witnesses. McMillen v. Commonwealth, 717 S.W.2d 508, 1986 Ky. App. LEXIS 1228 (Ky. Ct. App. 1986).

Because KRS 532.030 required that a term of imprisonment be fixed, and because a term of imprisonment was not a term or condition of a sentence of probation subject to modification pursuant to KRS 533.020(1), KRS 533.050(2) could not give a District Court the authority to grant defendant’s request to amend her sentence in the form of amended terms and conditions of probation that included an increase in a term of imprisonment from 180 days to 12 months. Commonwealth v. Gaddie, 239 S.W.3d 59, 2007 Ky. LEXIS 243 ( Ky. 2007 ).

9.—Hearing.

Habeas corpus would not lie to obtain release from custody on ground that no hearing was conducted or evidence heard before entry of judgment revoking probation and imposing sentence, since such judgment would be, at most, erroneous and not void. (Decided under prior law) Huff v. Diebold, 313 Ky. 655 , 233 S.W.2d 274, 1950 Ky. LEXIS 950 ( Ky. 1950 ).

A probationer is entitled to a fair and impartial hearing before revocation of probation, but he is not entitled to observance of the formalities of an initial prosecution and trial upon a criminal charge, and if he is convicted of a subsequent offense in the same court, the trial resulting in such conviction may be a sufficient hearing on question of revocation of probation. (Decided under prior law) Ridley v. Commonwealth, 287 S.W.2d 156, 1956 Ky. LEXIS 444 ( Ky. 1956 ).

Submission of a written report by probation officer at revocation of probation hearing was not required where the court has heard other evidence sufficient to compel a revocation. (Decided under prior law) Ridley v. Commonwealth, 287 S.W.2d 156, 1956 Ky. LEXIS 444 ( Ky. 1956 ).

When a paroled prisoner is returned to custody for violation of the terms of his parole, he is being imprisoned to serve out the remainder of his sentence under his conviction and not for the charges made in the parole violation warrant. (Decided under prior law) Brown v. Department of Welfare, Div. Pf Probation & Parole, 351 S.W.2d 183, 1961 Ky. LEXIS 153 ( Ky. 1961 ).

Where court issued bench warrant for the apprehension of person theretofore placed on probation and a hearing was had two (2) days later with the result that defendant was ordered conveyed to the penitentiary, the accused had a hearing within meaning of this statute. (Decided under prior law) Wright v. Commonwealth, 391 S.W.2d 685, 1965 Ky. LEXIS 317 ( Ky. 1965 ).

Even if the defendant was entitled to counsel at the hearing held to determine if his probation should be revoked, the omission was cured by his subsequent conviction of another felony in the same court and was grounds for revocation without a hearing. (Decided under prior law) Brummett v. Commonwealth, 434 S.W.2d 326, 1968 Ky. LEXIS 234 ( Ky. 1968 ).

Trial court was not required to wait until criminal charges were resolved in order to determine whether defendant’s probation could be revoked. Under KRS 533.030 , the trial court was required to grant a probationer a revocation hearing and application of KRS 533.050 indicated that the timing of that hearing did not have to wait for a conviction on new charges since that statute spoke in terms of the not commission of another offense rather than a charge or conviction of another offense. Barker v. Commonwealth, 379 S.W.3d 116, 2012 Ky. LEXIS 132 ( Ky. 2012 ).

Trial court on remand was to conduct a hearing to determine if defendant was a danger to prior victims or the community at large and could not be appropriately managed in the community before revoking conditional discharge because the court's order of revocation of conditional discharge was silent as to the imposition of graduated sanctions. Williams v. Commonwealth, 462 S.W.3d 407, 2015 Ky. App. LEXIS 61 (Ky. Ct. App. 2015).

10.—Motion to Revoke.

Motion to revoke probation need not be as specific as an indictment, and it was sufficient to charge that the appellant had violated the special conditions of the probation. (Decided under prior law) Hargrove v. Commonwealth, 362 S.W.2d 37, 1962 Ky. LEXIS 254 ( Ky. 1962 ).

11.Revocation of Probation.

Revocation of probation and sentence of probationer to penitentiary for prior conviction of receiving stolen goods should be reversed, where probationer on subsequent prosecution for like offense was again convicted and judge in revoking probation was influenced by second conviction, which thereafter was reversed on appeal. (Decided under prior law) Blusinsky v. Commonwealth, 284 Ky. 395 , 144 S.W.2d 1038, 1940 Ky. LEXIS 506 ( Ky. 1940 ).

Revocation of probation of one convicted of armed robbery was not abuse of discretion, in view of uncontradicted evidence that upon being released from prison on parole from sentence for another offense, probationer immediately resumed a life of crime and had committed numerous crimes similar to that of which he had been convicted when placed on probation. (Decided under prior law) Ridley v. Commonwealth, 287 S.W.2d 156, 1956 Ky. LEXIS 444 ( Ky. 1956 ).

In proceeding to revoke probation of defendant who had pleaded guilty to two (2) charges of grand larceny and whose punishment had been fixed at two (2) years’ confinement in prison on each charge, judgment sentencing defendant could not be collaterally attacked by a motion to correct record to show that his punishment was to be for a total of only two (2) years’ imprisonment. (Decided under prior law) Hardin v. Commonwealth, 327 S.W.2d 93, 1959 Ky. LEXIS 69 ( Ky. 1959 ).

Where court postponed a sentence and entered order to effect that if the defendant would obey the law and absent himself from county for one (1) year the court would sustain motion for new trial and dismiss indictment against the defendant, the court had no power after more than one (1) year had elapsed to overrule the motion and impose sentence upon the defendant. (Decided under prior law) Gossett v. Commonwealth, 384 S.W.2d 308, 1964 Ky. LEXIS 87 ( Ky. 1964 ).

A trial court may not impose a greater punishment in its order revoking probation than was fixed in the original judgment of conviction. (Decided under prior law) Hord v. Commonwealth, 450 S.W.2d 530, 1970 Ky. LEXIS 456 ( Ky. 1970 ).

When a person commits the offense of flagrant nonsupport, he or she causes the party entitled to receive child support to incur expenses because of that criminal act. Money owed for past due child support constitutes “restitution” within the meaning of KRS 532.350 . As such, before probation or conditional discharge may be revoked based on a failure to pay child support, the requirements of Bearden v. Georgia, 461 U.S. 660, 103 S. Ct. 2064, 76 L. Ed. 2d 221, 1983 U.S. LEXIS 39 (1983), must be met. Gamble v. Commonwealth, 293 S.W.3d 406, 2009 Ky. App. LEXIS 74 (Ky. Ct. App. 2009).

Where defendant was convicted of felony flagrant nonsupport, where he was sentenced to five years in prison but given probation on the condition that he pay child support, where the State moved to revoke probation based upon defendant’s nonpayment, where the sentencing court held a revocation hearing that was limited in scope to determining whether payment had been made, and where the sentencing court revoked defendant’s probation and ordered him to commence the five-year term of incarceration, the sentencing court’s revocation order was revoked because due process demanded that defendant be entitled to a hearing at which he could present evidence establishing his post-plea inability to satisfy the financial condition of his probation. Due process required that the sentencing court inquire into the reasons for defendant’s failure to pay, as the payment of money, as a condition of probation, differed from conditions that merely required one to control one’s conduct; because a person’s income was often not entirely within his control, the sentencing court was required to determine whether defendant’s post-plea financial conditions negated his ability to comply with the probation condition requiring the payment of money. Johnson v. Commonwealth, 2009 Ky. App. LEXIS 142 (Ky. Ct. App. Aug. 21, 2009).

Defendant was denied due process at a probation revocation hearing where: 1) no sworn testimony was taken; 2) the circuit court impermissibly shifted the burden of proof to defendant to show cause why probation should not be revoked; and, 3) a short consultation with an attorney the morning of the hearing denied defendant the right to counsel. Hunt v. Commonwealth, 326 S.W.3d 437, 2010 Ky. LEXIS 204 ( Ky. 2010 ).

Defendant violated a condition of probation when he failed to complete drug court, which he admitted during the hearing; therefore, defendant violated a condition of probation and had a probation revocation hearing that comported with statutory requirements. Martin v. Commonwealth, 2011 Ky. App. LEXIS 157 (Ky. Ct. App. Sept. 16, 2011).

There was no violation of the Double Jeopardy Clause due to both the revocation of probation and a sanction by a social services clinician because appellant was sanctioned for a separate violation than the violation for which his probation was revoked; moreover, the Double Jeopardy Clause did not apply to probation revocation proceedings. Kaletch v. Commonwealth, 396 S.W.3d 324, 2013 Ky. App. LEXIS 49 (Ky. Ct. App. 2013).

Court of Appeals properly vacated a circuit court's order revoking defendant's probation because the circuit court lacked jurisdiction to do so where the probationary period expired before the revocation hearing was held, a bench warrant was no longer pending after defendant made a court appearance, the circuit court no longer had the authority to revoke defendant's probation, and although defendant's traffic reports provided sufficient probable cause to support an extension of his probationary period until the court could hold a revocation hearing the court was statutorily required to hold a hearing before modifying the conditions of probation, the length of the probationary period was not a statutorily defined condition of probation. Commonwealth v. Tapp, 497 S.W.3d 239, 2016 Ky. LEXIS 427 ( Ky. 2016 ).

12.—Arrest.

Where defendant previously convicted and placed on probation was arrested on another charge and next day appeared in court in response to order to show cause why probating order should not be revoked, and made no objection to jurisdiction of the court, he waived requirement of issuance of warrant for his arrest on charge of violating probation. (Decided under prior law) Darden v. Commonwealth, 277 Ky. 75 , 125 S.W.2d 1031, 1939 Ky. LEXIS 626 ( Ky. 1939 ).

Where copy of bench warrant issued by court on motion to revoke probation was not in the record, reviewing court could presume that warrant was in accordance with statute and informed probationer why he was being arrested. (Decided under prior law) Ridley v. Commonwealth, 287 S.W.2d 156, 1956 Ky. LEXIS 444 ( Ky. 1956 ).

13.—Discretion of Court.

Whether probation shall be revoked is within sound discretion of circuit judge after hearing. (Decided under prior law) Blusinsky v. Commonwealth, 284 Ky. 395 , 144 S.W.2d 1038, 1940 Ky. LEXIS 506 ( Ky. 1940 ).

Probation is a privilege or species of grace extended to a convicted criminal for his welfare and the welfare of society, and whether a convicted criminal shall be given his liberty conditionally on probation rests entirely within the discretion of trial court. (Decided under prior law) Ridley v. Commonwealth, 287 S.W.2d 156, 1956 Ky. LEXIS 444 ( Ky. 1956 ).

Trial court has broad discretion in the matter of revoking probation both in respect to initiation of a hearing and the disposition thereof. (Decided under prior law) Ridley v. Commonwealth, 287 S.W.2d 156, 1956 Ky. LEXIS 444 ( Ky. 1956 ).

Where probationer violated the terms of his probation by participating in unlawful activity during the period of his probation, his claim that the court abused its discretion in revoking his probation was without merit. (Decided under prior law) Hardin v. Commonwealth, 327 S.W.2d 93, 1959 Ky. LEXIS 69 ( Ky. 1959 ).

14.Prosecutor's Role.

Commonwealth's Attorney is entitled to receive proper notice of every court-initiated probation hearing, to attend all such hearings, and to participate therein; although the word “Commonwealth” is not mentioned in the statute relating to the modification or revocation of probation, the role of the Commonwealth's attorney is not reduced to a spectator at every court-initiated probation hearing. Commonwealth v. Goff, 472 S.W.3d 181, 2015 Ky. App. LEXIS 139 (Ky. Ct. App. 2015).

Research References and Practice Aids

Cross-References.

Arrest and detention of persons violating probation, KRS 439.430 .

533.060. Probation or conditional release — Effect of use of firearm — Other felonies.

  1. When a person has been convicted of an offense or has entered a plea of guilty to an offense classified as a Class A, B, or C felony and the commission of the offense involved the use of a weapon from which a shot or projectile may be discharged that is readily capable of producing death or other serious physical injury, the person shall not be eligible for probation, shock probation, or conditional discharge, except when the person establishes that the person against whom the weapon was used had previously or was then engaged in an act or acts of domestic violence and abuse as defined in KRS 403.720 against either the person convicted or a family member as defined in KRS 403.720 of the person convicted. If the person convicted claims to be exempt from this statute because that person was the victim of domestic violence and abuse as defined in KRS 403.720, the trial judge shall conduct a hearing and make findings to determine the validity of the claim and applicability of this exemption. The findings of the court shall be noted in the final judgment.
  2. When a person has been convicted of a felony and is committed to a correctional detention facility and released on parole or has been released by the court on probation, shock probation, or conditional discharge, and is convicted or enters a plea of guilty to a felony committed while on parole, probation, shock probation, or conditional discharge, the person shall not be eligible for probation, shock probation, or conditional discharge and the period of confinement for that felony shall not run concurrently with any other sentence.
  3. When a person commits an offense while awaiting trial for another offense, and is subsequently convicted or enters a plea of guilty to the offense committed while awaiting trial, the sentence imposed for the offense committed while awaiting trial shall not run concurrently with confinement for the offense for which the person is awaiting trial.

History. Enact. Acts 1976, ch. 180, § 2; 1986, ch. 331, § 62, effective July 15, 1986; 1992, ch. 173, § 3, effective July 14, 1992; 1992, ch. 211, § 139, effective July 14, 1992; 1994, ch. 418, § 14, effective July 15, 1994.

NOTES TO DECISIONS

1.Constitutionality.

The mandatory provisions of subsection (1) of this section neither inflict cruel and unusual punishment, nor deny equal protection of the law. Parrish v. Commonwealth, 581 S.W.2d 560, 1979 Ky. LEXIS 256 (Ky.), cert. denied, 444 U.S. 966, 100 S. Ct. 454, 62 L. Ed. 2d 378, 1979 U.S. LEXIS 3839 (U.S. 1979).

Firearms are inherently more dangerous to human life than other weapons, and the General Assembly has expressed a public policy in the terms of this section which does not violate either the Constitution of the United States or the Constitution of Kentucky. Parrish v. Commonwealth, 581 S.W.2d 560, 1979 Ky. LEXIS 256 (Ky.), cert. denied, 444 U.S. 966, 100 S. Ct. 454, 62 L. Ed. 2d 378, 1979 U.S. LEXIS 3839 (U.S. 1979).

2.Applicability.

Where the offenses for which a defendant was convicted were committed prior to the effective date of this section, he could not be denied shock probation on the basis of this section because its application to him constituted an ex post facto law in that it increased the punishment for the offense after its commission. Blondell v. Commonwealth, 556 S.W.2d 682, 1977 Ky. LEXIS 526 ( Ky. 1977 ).

Where defendant was convicted of offenses occurring prior to the effective date of this section, the application of this sentencing provision to him violated the U.S. Constitution’s bar against ex post facto laws. Wethington v. Commonwealth, 549 S.W.2d 530, 1977 Ky. App. LEXIS 672 (Ky. Ct. App. 1977).

The impact of KRS 532.110(3) and subsection (2) of this section is to single out and authorize special treatment to those felons who commit felonies while on parole. Devore v. Commonwealth, 662 S.W.2d 829, 1984 Ky. LEXIS 201 ( Ky. 1984 ), cert. denied, 469 U.S. 836, 105 S. Ct. 132, 83 L. Ed. 2d 72, 1984 U.S. LEXIS 3310 (U.S. 1984), overruled in part, Peyton v. Commonwealth, 253 S.W.3d 504, 2008 Ky. LEXIS 130 ( Ky. 2008 ).

The language in KRS 500.095 (1) is very specific when it directs that in every case the judge shall consider alternatives to prison, but subsection (1) of this section is very specific when it directs that anyone convicted of using a firearm in the commission of a Class A, B, or C felony must be sentenced to a term in prison. Resolving this conflict, this section is controlling over KRS 500.095 . Williams v. Commonwealth, 829 S.W.2d 942, 1992 Ky. App. LEXIS 32 (Ky. Ct. App. 1992).

Since defendant had already pled guilty in an earlier case and was awaiting sentencing, defendant did not fit within the scope of subsection (3) of this section. The plain language of subsection (3) of this section provides a gap which makes it inapplicable to defendant’s situation and KRS 532.110(1) was therefore applicable, giving the trial judge some discretion in deciding whether to run the sentences concurrently or consecutively. Commonwealth v. Brasher, 842 S.W.2d 535, 1992 Ky. App. LEXIS 244 (Ky. Ct. App. 1992), overruled, Cosby v. Commonwealth, 147 S.W.3d 56, 2004 Ky. LEXIS 174 ( Ky. 2004 ).

After defendant’s probation was revoked, a trial court improperly ordered his sentence for first-degree trafficking to run consecutive to a one-year Ohio sentence pursuant to KRS 533.060(2). KRS 533.040(3) and 532.115 , rather than KRS 533.060(2), applied, so the trial court’s authority to run the sentences concurrently or consecutively was conditioned upon a determination of whether the revocation occurred within ninety 90 days after the grounds for revocation came to the attention of the Department of Corrections. Ware v. Commonwealth, 326 S.W.3d 464, 2010 Ky. App. LEXIS 196 (Ky. Ct. App. 2010).

3.Construction.

The power to grant probation is not inherent in the courts, but is conferred by the legislature. Consequently, a trial court must construe both the language and intent of the legislature in considering the possibility of either probation or conditional discharge for a specific defendant; as such, the facts and circumstances relating to a particular crime must be examined in determining whether probation is appropriate or inappropriate. Commonwealth v. Reed, 680 S.W.2d 134, 1984 Ky. App. LEXIS 605 (Ky. Ct. App. 1984), overruled, Pruitt v. Commonwealth, 700 S.W.2d 68, 1985 Ky. LEXIS 288 ( Ky. 1985 ).

Subsection (1) of this section controls KRS 533.010(1) and (2), even though the latter was amended subsequently to allow for “probation with an alternative sentencing plan,” since the former is the more specific statute. Hughes v. Commonwealth, 875 S.W.2d 99, 1994 Ky. LEXIS 42 ( Ky. 1994 ).

“Awaiting trial” in KRS 533.060(3) includes the period of time following the establishment of guilt (whether by conviction or the entering of a guilty plea) and before sentencing; Commonwealth v. Brasher, 842 S.W.2d 535, 1992 Ky. App. LEXIS 244 (Ky. Ct. App. 1992), overruled, Cosby v. Commonwealth, 147 S.W.3d 56, 2004 Ky. LEXIS 174 ( Ky. 2004 ).

The language “the period of confinement for that felony shall not run concurrently with any other sentence” should be construed as meaning that subsequent felony offenses committed while on probation or parole may not be run concurrently with the sentence for which the individual is on probation or parole; in the instance of multiple-count subsequent felony offenses committed while on probation or parole, however, these subsequent offenses may be run either consecutively or concurrently, at the trial court’s discretion. Peyton v. Commonwealth, 253 S.W.3d 504, 2008 Ky. LEXIS 130 (Ky.), cert. denied, 555 U.S. 1035, 129 S. Ct. 604, 172 L. Ed. 2d 463, 2008 U.S. LEXIS 8474 (U.S. 2008).

4.— “That Felony” Defined.

Where the defendant was convicted and sentenced on a federal felony charge while on probation from several state court convictions, upon revoking the probation and sentencing the defendant on the state charges, the state trial court could run the state sentence concurrently or consecutively with the federal sentence because subsection (2) of this section was not applicable; the conviction referred to as “that felony” in that subsection is the subsequent one, not the first. Gavel v. Commonwealth, 674 S.W.2d 953, 1984 Ky. LEXIS 225 ( Ky. 1984 ).

5.— Use of Firearm.

Defendant’s admission to the use of a gun in the commission of an armed robbery, in answer to a direct question by the court, was sufficient to bring his application for probation within the purview of this statute. Fultz v. Commonwealth, 596 S.W.2d 28, 1979 Ky. App. LEXIS 522 (Ky. Ct. App. 1979).

The intent of the legislature was not to change the law that the definition is satisfied if the weapon is intended by its user to convince a victim that it is deadly and the victim is in fact convinced. Fultz v. Commonwealth, 596 S.W.2d 28, 1979 Ky. App. LEXIS 522 (Ky. Ct. App. 1979).

Possession of a firearm obtained during the commission of a burglary does not constitute “use of a weapon” as used in subsection (1) of this section so as to preclude eligibility for probation, shock probation, or conditional discharge under the terms of that subsection. Haymon v. Commonwealth, 657 S.W.2d 239, 1983 Ky. LEXIS 269 ( Ky. 1983 ).

The phrase “use of a weapon” as it is used in subsection (1) of this section is ambiguous in that it is subject to two (2) entirely different but nevertheless logical interpretations; mere possession of a weapon could be construed to include its “use” or, on the other hand, “use” of a weapon could be construed to mean that the weapon must have been employed in some manner in the commission of the offense. It is not possible to determine which meaning the General Assembly intended to be given to the phrase “use of a weapon” and for that reason a defendant who possessed a weapon but did not employ it in any manner is entitled to the benefit of the ambiguity. Haymon v. Commonwealth, 657 S.W.2d 239, 1983 Ky. LEXIS 269 ( Ky. 1983 ).

While this section pertains to “the use of a weapon” and there is a legitimate question as to the type of use contemplated, it does not concern itself at all with what person actually used the weapon; this section prohibits probation if the commission of the offense “involved the use of a weapon,” and the plain reading of the statute does not indicate any basis for a distinction based upon the identity of the person who uses the weapon. Pruitt v. Commonwealth, 700 S.W.2d 68, 1985 Ky. LEXIS 288 ( Ky. 1985 ).

A 17-year-old juvenile convicted of first degree manslaughter, but mentally ill, qualifies as an adult offender under KRS 635.020(4) because he committed a felony with a firearm, so is subject to the same penalties as an adult pursuant to RCr 3.07. Thus, the protection KRS 640.040(3) offers youthful offenders against the limitation on probation set out in subsection (1) of this section is withdrawn by KRS 635.020(4). Mullins v. Commonwealth, 956 S.W.2d 222, 1997 Ky. App. LEXIS 30 (Ky. Ct. App. 1997).

The use of a BB gun in the commission of an armed robbery precludes a grant of probation to the defendant. Ware v. Commonwealth, 34 S.W.3d 383, 2000 Ky. App. LEXIS 70 (Ky. Ct. App. 2000).

Trial court did not abuse its discretion in denying defendant’s motion for a continuance in a first-degree robbery case to allow for the preparation and submission of an alternative sentencing plan; the trial court was precluded from considering that sentencing option by KRS 533.060(1) because defendant used a gun in connection with the offenses. Spears v. Commonwealth, 134 S.W.3d 12, 2003 Ky. LEXIS 229 ( Ky. 2003 ).

6.— With Other Laws.

Subsection (2) takes priority over KRS 532.110 , and there is no merit to the argument that the re-enactment of KRS 532.110 in 1998 allows the trial court discretion to impose a concurrent sentence for an offense committed while the defendant was on probation in contravention of subsection (2). White v. Commonwealth, 32 S.W.3d 83, 2000 Ky. App. LEXIS 45 (Ky. Ct. App. 2000).

KRS 532.080(5) and KRS 533.030(7) control over subsection (2) of this section and, therefore, the defendant was eligible for parole, notwithstanding that the offenses at issue were committed while he was on parole from a prior felony conviction, as the offenses at issue were all Class D nonviolent felonies. Adams v. Commonwealth, 46 S.W.3d 572, 2000 Ky. App. LEXIS 76 (Ky. Ct. App. 2000).

KRS 532.115 authorizes a trial court to order that a Kentucky sentence run concurrently with a federal sentence or sentence from another state, while KRS 533.060(2) specifically deals with a situation in which a defendant had been convicted of a felony while on probation or parole for a previous felony; the trial court properly held that it could not order defendant’s sentences to run concurrently since he was on probation for previous felony convictions from Indiana when he was convicted, and KRS 533.060(2) controlled. Rodefer v. Commonwealth, 2004 Ky. App. LEXIS 140 (Ky. Ct. App. May 14, 2004), sub. op., 2004 Ky. App. LEXIS 213 (Ky. Ct. App. July 16, 2004).

KRS 403.720(2) was ambiguous in its method of determining kinship within the second degree, and since, in interpreting an ambiguous penal statute, doubt was to have been resolved in favor of the accused, the common law method for computing kinship was applied in interpreting KRS 403.720(2); use of the common law method for computing kinship brought defendant’s manslaughter case within the availability of the exception for victims of domestic violence, since the victim, defendant’s cousin, was related to defendant’s mother in the second degree, and defendant claimed that he shot the victim after the victim had attacked and choked defendant’s mother. Kirby v. Commonwealth, 132 S.W.3d 233, 2004 Ky. App. LEXIS 82 (Ky. Ct. App. 2004).

As defendant was on probation from a felony conviction when he committed two (2) counts of manslaughter and other felonies, pursuant to KRS 533.060(2), his sentences could not run concurrently, and KRS 532.110(1)(c) did not act as a sentencing cap. Page v. Commonwealth, 149 S.W.3d 416, 2004 Ky. LEXIS 278 ( Ky. 2004 ).

Matter was remanded to the trial court for further consideration over whether or not defendant was entitled to parole leniency pursuant to KRS 439.3401(5) because there was evidence that she had been the victim of domestic violence at the hands of her spouse around the time that she killed him. Defendant was not precluded from receiving the exemption simply because her crime did not involve the use of a weapon as contemplated by KRS 533.060 . Holland v. Commonwealth, 192 S.W.3d 433, 2005 Ky. App. LEXIS 290 (Ky. Ct. App. 2005).

KRS 533.060(2), which bars concurrent sentences if the offender committed a felony while on probation for the commission of another felony, did not preclude application of the 70-year sentencing cap on defendant’s consecutive sentences in KRS 532.110(1)(c), because under KRS 635.040 defendant’s juvenile adjudication was not deemed a “felony.” Cummings v. Commonwealth, 226 S.W.3d 62, 2007 Ky. LEXIS 130 ( Ky. 2007 ).

7.Concurrent Sentences.

Where a defendant was sentenced to three (3) years confinement in the state reformatory, that sentence being probated for five (5) years, and subsequently was convicted of a second felony with a sentence of five (5) years, it was improper for the lower court to provide that the first sentence, which was reinstated after revocation of probation, should run concurrently with the five (5) year second sentence; under the rule that the later of two (2) conflicting enactments prevails, subsection (2) of this section, which became effective in June 1976, and prohibits such a concurrent sentence, controls over the contradictory provisions of subsection (1) of KRS 532.110 , which became effective in January, 1975. Commonwealth v. Hunt, 619 S.W.2d 733, 1981 Ky. App. LEXIS 277 (Ky. Ct. App. 1981).

Jury should have been instructed at the conclusion of the sentencing phase of the trial that it could have recommended imposition of concurrent or consecutive sentences and the trial court erred in determining that consecutive sentences were mandated under this section because defendant was not awaiting trial until he was indicted and since he was only charged with an offense the charge was not sufficient to invoke this section’s prohibition against concurrent sentences. Whalen v. Commonwealth, 891 S.W.2d 86, 1995 Ky. App. LEXIS 9 (Ky. Ct. App. 1995).

Defendant’s term of confinement which was reinstated following revocation of his probation was statutorily prohibited from running concurrently with defendant’s recent sentence for offense committed during defendant’s probation despite defendant’s contention that fact that probation was revoked well without the ninety (90) day statutory limit mandated concurrent sentencing. Brewer v. Commonwealth, 922 S.W.2d 380, 1996 Ky. LEXIS 50 ( Ky. 1996 ).

Although inmate’s concurrent sentence imposed in Missouri was not prohibited under the law, Kentucky courts were not required to give the inmate a sentence credit on the inmate’s Kentucky sentence for time the inmate spent in a Missouri prison for a felony the inmate committed in Missouri while the inmate was on parole from the inmate’s Kentucky sentence, as Kentucky law did not grant parolees credit for the time spent on parole from that sentence and the Missouri trial courts could not create credit on the Kentucky sentence by designating that the Missouri sentence run concurrently with Kentucky’s sentence. Kassulke v. Briscoe-Wade, 105 S.W.3d 403, 2003 Ky. LEXIS 44 ( Ky. 2003 ), modified, 2003 Ky. LEXIS 134 (Ky. June 12, 2003).

Upon the revocation of defendant’s probation, the trial court was correct in ordering that defendant’s twelve-month misdemeanor sentence should run consecutively with a three-year felony sentence for offenses committed while she was awaiting trial in the misdemeanor case. KRS 533.060(3), which prohibited concurrent sentencing, was the controlling statute. Brown v. Commonwealth, 295 S.W.3d 854, 2009 Ky. App. LEXIS 174 (Ky. Ct. App. 2009).

As there was no dispute that an inmate was on parole when he committed further offenses, the period of confinement for those felonies could not run concurrently with any of the inmate’s other sentences pursuant to KRS 533.060(2). Hensley v. Commonwealth, 355 S.W.3d 473, 2011 Ky. App. LEXIS 225 (Ky. Ct. App. 2011).

8.Consecutive Sentences.

To the extent that KRS 532.110(1)(a) cannot be reconciled with subsection (3) of this section, this section as the statute later in time controls; accordingly, where the defendant while awaiting trial in Franklin County on five (5) counts of forgery committed the offense of and pled guilty to criminal possession of a forged instrument in Jefferson County, the court in Franklin County did not err when it refused to run the defendant’s sentence on the five (5) counts of forgery concurrently with his sentence in Jefferson County for criminal possession of a forged instrument. Handley v. Commonwealth, 653 S.W.2d 165, 1983 Ky. App. LEXIS 299 (Ky. Ct. App. 1983).

The statute does not apply to allow the Circuit Court to run a sentence for a misdemeanor offense consecutive to a sentence for a felony offense. Warren v. Commonwealth, 981 S.W.2d 134, 1998 Ky. App. LEXIS 64 (Ky. Ct. App. 1998).

The defendant’s 10 year sentence for manslaughter and assault was required to be served consecutively to a five (5) year sentence for two (2) prior convictions, notwithstanding that the court erroneously neglected to order such consecutive service, as the manslaughter and assault charges were brought at a time that the prior charges were pending and the defendant subsequently pleaded guilty to those prior charges. Cardwell v. Commonwealth, 12 S.W.3d 672, 2000 Ky. LEXIS 16 ( Ky. 2000 ).

Under KRS 533.060(3), a trial court could not impose a consecutive sentence as defendant pleaded guilty under a second plea agreement to offenses he was charged with after he failed to appear for sentencing on prior charges, to which he pleaded guilty under a first plea agreement. Cosby v. Commonwealth, 147 S.W.3d 56, 2004 Ky. LEXIS 174 ( Ky. 2004 ).

9.Domestic Violence.

The standard of proof necessary pursuant to KRS 403.720(1) to establish that a person is a victim of domestic violence and therefore exempt from the requirements of KRS 439.3401(3), the violent offender statute, is the preponderance of the evidence standard set forth in KRS 403.740 and merely requires that the evidence believed by the fact-finder be sufficient that the defendant was more likely than not to have been a victim of domestic violence. Commonwealth v. Anderson, 934 S.W.2d 276, 1996 Ky. LEXIS 121 ( Ky. 1996 ).

Where the evidence did not support a finding that defendant had been a victim of domestic violence in that he did not offer proof that he had ever suffered physical injury or serious physical injury or that he had been sexually abused or assaulted as a result of his wife’s actions and although wife had threatened to harm him and burn down their house, neither he nor other family members testified that they actually feared she would carry out her threats and defendant was not aware of her threats until after the shooting, the Circuit Court properly denied defendant’s motion for exemption from the restrictions of KRS 439.3401 and this section. Jacobs v. Commonwealth, 947 S.W.2d 416, 1997 Ky. App. LEXIS 7 (Ky. Ct. App. 1997).

When defendant was convicted of manslaughter, his counsel was not ineffective for not seeking probation or conditional discharge based on the domestic violence exception in KRS 533.060 to the rule that a defendant convicted of a crime involving the use of a firearm was not eligible for such sentences, because the trial court explicitly considered those options and rejected them, even if counsel did not specifically ask the court to consider if the exception applied. Fuston v. Commonwealth, 217 S.W.3d 892, 2007 Ky. App. LEXIS 70 (Ky. Ct. App. 2007).

10.Double Jeopardy.

The defendant was not subjected to double jeopardy and double enhancement by the use of his previous conviction as a basis for his conviction as a persistent felony offender under KRS 532.080 and its use again to impose consecutive sentences pursuant to subsection (2) of this section. Corbett v. Commonwealth, 717 S.W.2d 831, 1986 Ky. LEXIS 288 ( Ky. 1986 ).

11.Juveniles.

A juvenile offender’s sentence of life without the possibility of parole for twenty-five (25) years was permissible under KRS 640.040(3) because the limitations on probation and parole were imposed by the sentence and not as a function of KRS 533.060 or KRS 439.3401 ; therefore, at the juvenile offender’s 18-year-old hearing, the trial court did not have the option of ordering probation or conditional discharge, nor did it have the ability to return him to juvenile custody to complete a treatment program. By virtue of the sentence itself, the trial court’s only option was to transfer the offender to adult custody. Commonwealth v. Carneal, 274 S.W.3d 420, 2008 Ky. LEXIS 294 ( Ky. 2008 ), cert. denied, 558 U.S. 906, 130 S. Ct. 274, 175 L. Ed. 2d 184, 2009 U.S. LEXIS 5932 (U.S. 2009).

12.Misdemeanors.

Misdemeanors are to run consecutively with felonies when subsection (2) of this section is applicable. Harris v. Commonwealth, 674 S.W.2d 528, 1984 Ky. App. LEXIS 553 (Ky. Ct. App. 1984).

13.Offenses Committed While Awaiting Trial.

The maximum sentence provision of KRS 532.110(1)(c) is not applicable to those individuals who fall within the terms of subsection (3) of this section. Devore v. Commonwealth, 662 S.W.2d 829, 1984 Ky. LEXIS 201 ( Ky. 1984 ), cert. denied, Devore v. Kentucky, 469 U.S. 836, 105 S. Ct. 132, 83 L. Ed. 2d 72, 1984 U.S. LEXIS 3310 (1984), overruled in part, Peyton v. Commonwealth, 253 S.W.3d 504, 2008 Ky. LEXIS 130 ( Ky. 2008 ), overruled, Campbell v. Commonwealth, 316 S.W.3d 315, 2009 Ky. App. LEXIS 214 (Ky. Ct. App. 2009), overruled in part as stated, Blackburn v. Commonwealth, 394 S.W.3d 395, 2011 Ky. LEXIS 178 ( Ky. 2011 ).

The trial judge did not err in denying the defendant credit for the time served on the misdemeanor committed while the defendant was released on bail awaiting trial on the felony. Rose v. Commonwealth, 738 S.W.2d 835, 1987 Ky. App. LEXIS 549 (Ky. Ct. App. 1987).

The legislative intent expressed by subsection (3) of this section calls for stricter sentencing for offenses committed while released on bail and when an individual awaiting trial commits another offense, it is this section and not KRS 532.110(1) and (2) that applies. Commonwealth v. Martin, 777 S.W.2d 236, 1989 Ky. App. LEXIS 126 (Ky. Ct. App. 1989).

Subsection (3) of this section mandates consecutive sentences under the phrase “awaiting trial” when a defendant commits a second offense after he has been indicted but not yet arraigned. Moore v. Commonwealth, 990 S.W.2d 618, 1999 Ky. LEXIS 50 ( Ky. 1999 ).

Defendant who pled guilty to two third-degree rape offenses while on pretrial diversion for criminal facilitation to the manufacture of methamphetamine committed the rape offenses while “awaiting trial” pursuant to KRS 533.060(3), and thus defendant’s pretrial diversion was voided, he was subject to be sentenced in accordance with the guilty plea he entered into as a precondition to receiving his pretrial diversion, and his sentences were required to run consecutively under KRS 533.060(3). Williams v. Commonwealth, 354 S.W.3d 158, 2011 Ky. App. LEXIS 172 (Ky. Ct. App. 2011).

14.Offenses Committed While on Parole or Probation.

By obvious inference from subsection (3) of this section, the General Assembly has said that the prison sentence (for the second felony conviction) shall be run consecutively; the General Assembly has rather clearly shown its intention to provide stiff penalties for convicted and paroled felons who commit subsequent felonies while on parole. Devore v. Commonwealth, 662 S.W.2d 829, 1984 Ky. LEXIS 201 ( Ky. 1984 ), cert. denied, 469 U.S. 836, 105 S. Ct. 132, 83 L. Ed. 2d 72, 1984 U.S. LEXIS 3310 (U.S. 1984), overruled in part, Peyton v. Commonwealth, 253 S.W.3d 504, 2008 Ky. LEXIS 130 ( Ky. 2008 ).

Where the defendant committed a felony while on probation for a misdemeanor offense, rather than a felony offense, subsection (2) of this section concerning the running of sentences was inapplicable; accordingly, the trial court erred when, after revoking the defendant’s probated misdemeanor sentence, it ordered that the misdemeanor sentence was to run consecutively not concurrently with the felony sentence. Harris v. Commonwealth, 674 S.W.2d 528, 1984 Ky. App. LEXIS 553 (Ky. Ct. App. 1984).

The defendant’s ten (10) consecutive 15 year sentences for receiving stolen property did not violate subdivision (1)(c) of KRS 532.110 , as the crimes were committed while the defendant was on parole from a life sentence, and subsection (2) of this section provides for consecutive sentences for persistent felons convicted while on parole, probation, or conditional discharge. Corbett v. Commonwealth, 717 S.W.2d 831, 1986 Ky. LEXIS 288 ( Ky. 1986 ).

Where, at the times of their convictions, both defendants were on parole from previous offenses, and both judgments were silent as to whether the former and present prison terms should run consecutively or concurrently, the Corrections Cabinet did not exceed its authority in setting the defendants’ sentences to run consecutively. Riley v. Parke, 740 S.W.2d 934, 1987 Ky. LEXIS 267 ( Ky. 1987 ).

Where a defendant had been convicted of crimes committed both prior to, and subsequent to, the effective date of this section and he was convicted of a crime while on parole from the latter convictions, and those latter convictions were silent as to whether they were to be served concurrently or consecutively to the first sentence, then the court’s order that the latter two (2) convictions be served consecutively to the first sentence did not violate the ex post facto provision of the United States Constitution. Lattimore v. Corrections Cabinet, 790 S.W.2d 238, 1990 Ky. App. LEXIS 78 (Ky. Ct. App. 1990).

Sentences for convictions, committed while defendant was on parole, ran consecutively to earlier sentences, as required under KRS 533.060(2); while defendant was entitled to receive credit for time served on an out-of-state sentence, defendant was not entitled to automatic release upon completion of the out-of-state sentence. McKinney v. Commonwealth, 2003 Ky. App. Unpub. LEXIS 599 (Ky. Ct. App. May 30, 2003).

Trial court erred to defendant’s substantial prejudice in its determination of sentencing because the trial court erroneously applied KRS 533.060(2) by reading it as applicable to subsequent indictments, rather than to defendant’s original paroled or probated offenses; the trial court was not required under KRS 533.060(2) to run the sentences of the subsequent separate indictments consecutively. Peyton v. Commonwealth, 253 S.W.3d 504, 2008 Ky. LEXIS 130 (Ky.), cert. denied, 555 U.S. 1035, 129 S. Ct. 604, 172 L. Ed. 2d 463, 2008 U.S. LEXIS 8474 (U.S. 2008).

15.Prison Time in Another State.

A Kentucky parolee who commits a crime and serves a prison sentence in another state is not entitled to have that prison time credited against his Kentucky sentence. Rosenberg v. Defew, 862 S.W.2d 334, 1993 Ky. App. LEXIS 101 (Ky. Ct. App. 1993).

16.Sentencing Alternatives.

Since the Texas courts have ruled that an action under Article 42.12, Section 3d(a) of the Texas Code of Criminal Procedure is not a conviction, a probation pursuant to that section does not necessarily preclude probation for a second offense by virtue of subsection (2) of this section; thus, where the trial court mistakenly concluded that it was prohibited from any consideration of parole by subsection (2) of this section, the action had to be remanded so that the trial court could make an informed decision concerning the potential for probation. Potter v. Commonwealth, 718 S.W.2d 951, 1986 Ky. App. LEXIS 1213 (Ky. Ct. App. 1986).

Where the charges against defendant were no greater than Class D felonies, the trial court may and should have at least considered sentencing alternatives other than incarceration. Corman v. Commonwealth, 822 S.W.2d 421, 1991 Ky. App. LEXIS 143 (Ky. Ct. App. 1991).

Cited:

Anglian v. Sowders, 566 S.W.2d 789, 1978 Ky. App. LEXIS 530 (Ky. Ct. App. 1978); Pedigo v. Commonwealth, 644 S.W.2d 355, 1982 Ky. App. LEXIS 279 (Ky. Ct. App. 1982); Williams v. Commonwealth, 829 S.W.2d 942, 1992 Ky. App. LEXIS 32 (Ky. Ct. App. 1992); Commonwealth v. Wilcoxson, 846 S.W.2d 719, 1992 Ky. App. LEXIS 210 (Ky. Ct. App. 1992); Terhune v. Commonwealth, 907 S.W.2d 779, 1995 Ky. App. LEXIS 177 (Ky. Ct. App. 1995); Snow v. Commonwealth, 927 S.W.2d 841, 1996 Ky. App. LEXIS 127 (Ky. Ct. App. 1996); Springer v. Commonwealth, 998 S.W.2d 439, 1999 Ky. LEXIS 56 ( Ky. 1999 ); White v. Commonwealth, 5 S.W.3d 140, 1999 Ky. LEXIS 138 ( Ky. 1999 ); NCAA v. Lasege, 53 S.W.3d 77, 2001 Ky. LEXIS 118 ( Ky. 2001 ); Darden v. Commonwealth, 52 S.W.3d 574, 2001 Ky. LEXIS 135 ( Ky. 2001 ).

Opinions of Attorney General.

References to criminal misconduct in this section have application only to those offenses committed on or after June 19, 1976. OAG 76-498 .

This section would not apply to a defendant who had been convicted by a jury on November 25, 1975, of a Class C felony involving the use of a deadly weapon, but who did not file a motion for shock probation on April 20, 1977. OAG 77-279 .

A person convicted of armed robbery, where the weapon used was a water pistol, would be eligible for probation or conditional discharge. OAG 77-429 .

The language of subsection (3) of this section indicates that imposition of consecutive sentences is mandatory where a person commits and is convicted of another offense while awaiting trial. If, however, the trial court fails to comply with the statute and imposes concurrent sentences, the parole board has no authority to alter that designation for the purpose of determining parole eligibility; if the trial court erroneously imposes concurrent sentences, they may not be added together to determine eligibility for parole review, as is required for consecutive sentences under 501 KAR 1:011, Section 3. OAG 83-162 .

Subsection (2) of this section prohibits probation, shock probation or conditional discharge when the current criminal act for which the defendant was convicted occurred while the defendant was on parole or probation. OAG 83-168 .

At first glance at KRS 533.010(1), it appears any defendant who is not under penalty of death may be eligible for probation or conditional discharge. However, probation or conditional discharge is specifically limited by other provisions in the chapter; the entire chapter must be examined to determine if a defendant qualifies for probation or conditional discharge. OAG 83-168 .

Research References and Practice Aids

Kentucky Bench & Bar.

Combs, The Calculation and Application of Prison Sentences., Vol. 70, No. 5, September 2006, Ky. Bench & Bar 7.

Kentucky Law Journal.

West, Criminal Law, 74 Ky. L.J. 403 (1985-86).

McClure, The Battered Woman Syndrome and the Kentucky Criminal Justice System: Abuse Excuse or Legitimate Mitigation?, 85 Ky. L.J. 169 (1997).

Northern Kentucky Law Review.

Lotz, A Survey of Criminal Law Statutes Enacted in 1992, 20 N. Ky. L. Rev. 745 (1993).

Heft & Niehaus, Britt v. Commonwealth: The Kentucky Supreme Court Deciphers Legislative Intent in Juvenile Firearms Cases, 26 N. Ky. L. Rev. 17 (1999).

Bartlett, Alternative Sanctions and the Governor’s Crime Bill of 1998 (HB 455): Another Attempt at Providing a Framework for Efficient and Effective Sentencing, 27 N. Ky. L. Rev. 283 (2000).

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Penalty Phase Instructions, Part 3 Felony Offenses, § 12.19A.

Kentucky Instructions To Juries (Criminal), 5th Ed., Penalty Phase Instructions, Part 5 Persistent Felony Offenders, §§ 12.28, 12.30.

Kentucky Instructions To Juries (Criminal), 5th Ed., Robbery, Theft and Related Offenses, Part 2 Robbery, § 6.14.

Petrilli, Kentucky Family Law, Juvenile Court, § 32.24.

533.065. Effect of person wearing body armor and carrying deadly weapon at time of offense.

Any person who was found guilty of a felony offense under KRS Chapters 218A, 507, 508, 509, 511, or 513, or KRS 237.040 , 514.100 , 525.020 , 525.030 , 527.040 , 527.070 , 527.100 , or theft of a motor vehicle under KRS 514.030 , and who was wearing body armor and was armed with a deadly weapon at the time of the offense shall not be granted probation, shock probation, parole, conditional discharge, or any other form of early release.

History. Enact. Acts 1998, ch. 606, § 183, effective July 15, 1998.

533.070. Sentencing of defendant to work at community service related projects.

  1. In any case where imprisonment is an authorized penalty and where imprisonment is not required by the statute relating to the crime committed, a court may, as a form of conditional discharge, sentence the defendant to work at community service related projects subject to the following terms and conditions:
    1. As used in this section, “community service related project” means work for the state or an agency thereof, for a county, urban-county government, city, special district, or an agency thereof or for a nonreligious-sponsored nonprofit, charitable, or service organization. Work on a community service related project shall not confer a private benefit on a person except as may be incidental to the public benefit.
    2. Before a defendant may be sentenced to a particular community service related project, the director of the agency or unit of government, or his designee, shall approve or disapprove, in writing, the defendant’s work for that agency or unit of government. If the designated person refuses to accept the defendant, he shall not be sentenced to work for that agency. If possible, another agency shall be found which will accept the defendant. If no agency accepts the defendant, he shall be resentenced to an appropriate sentence authorized by law.
    3. No defendant shall be sentenced to unduly hazardous work that would endanger the life or health of the defendant or others.
    4. Any defendant may, for valid medical reason, decline to work on community service related projects. In this case, he shall be sentenced to another penalty authorized by law.
    5. The order of the sentencing court shall specify the agency for which the defendant shall work, the manner in which the defendant shall be worked, and the terms and conditions thereof. The agency shall provide the court with reports as to the defendant’s labor and compliance with the terms of the sentence.
    6. If insurance is available, a defendant may pay the cost of health and accident insurance for the time he is engaged in a community service related project. This subsection shall not apply when the defendant has such insurance, if the defendant does not desire to obtain insurance or if insurance is either unavailable or beyond the means of the defendant to pay. The Commonwealth, a unit of government, a special district, or agency for which a defendant engages in community service related work shall not be liable for accidents, or medical, health, or other costs incurred by the defendant.
    7. Participation in community services related projects shall not be deemed employment for any purpose, and the defendant shall not be deemed an employee or agent of the entity for which he performs the community service work.
    8. If a defendant fails, without good cause, to show for work and labor according to the conditions of his sentence, the agency for which he is working shall immediately report his failure to show for work or to work in accordance with the conditions of this sentence to the court.
  2. If the defendant fails to show for work, fails to labor in accordance with the conditions of his sentence, or is terminated from his community service related work for any reason, the court shall hold a hearing to determine the cause of the noncompliance and may, if the noncompliance is the fault of the defendant, resentence the defendant to a penalty or combination of penalties authorized for the commission of the offense. If the noncompliance is not caused by the defendant or the defendant has a legitimate reason therefor, the court may find another agency or unit of government for which the defendant may labor or, regardless of the reason for noncompliance, continue the defendant in the community service related work program.
  3. The length of time a defendant may be sentenced to a community service related work program shall not exceed:
    1. The length of the maximum imprisonment which is authorized for the commission of the offense, and in no case shall exceed five (5) years regardless of how many days the defendant works during that time.
    2. Ninety (90) days in the case of an offense for which a fine only or some penalty other than imprisonment is authorized. A day shall mean a calendar day or combination thereof during which the defendant engages in eight (8) hours of labor at a community service related work program.
  4. While a prisoner may be sentenced to labor less time during a day, no prisoner shall be sentenced to work more than eight (8) hours in any one (1) day. While a prisoner may be sentenced to labor less time during a week, no prisoner shall be sentenced to work more than five (5) days during any one (1) week.
  5. The Administrative Office of the Courts shall, with the approval of the Supreme Court, print and distribute all forms necessary for the community service related work program authorized by this section.
  6. A court sentencing a defendant to a community service related work program shall, where possible, preserve the ordinary employment or educational programs in which the defendant is engaged by sentencing him to work at times other than those in which he is engaged in his regular employment or education.

History. Enact. Acts 1990, ch. 459, § 1, effective July 13, 1990.

NOTES TO DECISIONS

Cited:

Williams v. Commonwealth, 829 S.W.2d 942, 1992 Ky. App. LEXIS 32 (Ky. Ct. App. 1992).

Research References and Practice Aids

Cross-References.

Working of prisoners at community service related projects, eligibility, KRS 441.125 .

Educational Program

533.200. Form of sentencing for convicted persons who have not received a graduation certificate or High School Equivalency Diploma — Exceptions for an individual with a severe intellectual disability.

  1. A person convicted of a misdemeanor or violation who has not received a graduation certificate from high school or has not obtained a High School Equivalency Diploma may, in addition to or in lieu of any other penalty provided by law, be sentenced to attend and successfully complete a program designed to improve his reading, living, and employment skills. Attendance at such program shall be deemed a form of probation and all provisions of the law with respect to probation, including restitution to victims, shall apply.
  2. A person convicted of a felony who has not received a graduation certificate from high school or has not obtained a High School Equivalency Diploma may, in addition to any other penalty provided by law, be sentenced to attend and successfully complete a program designed to improve his reading, living, and employment skills. Attendance at such program shall be deemed a form of probation and all provisions of the law with respect to probation, including restitution to victims, shall apply.
  3. The provisions of this section shall not apply to an individual with an intellectual or other disability that is so severe that he would not reasonably be expected to benefit from or complete the program.

HISTORY: Enact. Acts 1988, ch. 279, § 1, effective July 15, 1988; 1996, ch. 145, § 7, effective July 15, 1996; 2012, ch. 146, § 136, effective July 12, 2012; 2017 ch. 63, § 36, effective June 29, 2017.

Research References and Practice Aids

Northern Kentucky Law Review.

Bartlett, Alternative Sanctions and the Governor’s Crime Bill of 1998 (HB 455): Another Attempt at Providing a Framework for Efficient and Effective Sentencing, 27 N. Ky. L. Rev. 283 (2000).

533.210. Conduct of program — Costs — License.

  1. The program described in KRS 533.200 shall be administered by the Office of Adult Education within the Department of Workforce Investment in the Education and Workforce Development Cabinet, which shall promulgate administrative regulations, pursuant to KRS Chapter 13A, relative to the conduct of the program, including but not limited to the costs of participation in the program by persons sentenced to the program.
  2. The Office of Adult Education shall license qualified persons or organizations to conduct the program described in KRS 533.200 on behalf of the agency. Qualifications, the manner of licensing, and all other matters shall be set by administrative regulation.

History. Enact. Acts 1988, ch. 279, § 2, effective July 15, 1988; 1992, ch. 417, § 11, effective July 14, 1992; 1994, ch. 469, § 38, effective July 15, 1994; 2006, ch. 211, § 166, effective July 12, 2006; 2019 ch. 146, § 75, effective June 27, 2019.

533.220. Failure to complete reading skills improvement program.

Any person sentenced to the reading skills improvement program specified in KRS 533.200 who fails to successfully complete the program within the time specified, who fails to attend as required, or fails to make progress toward successful completion, shall be reported to the sentencing court, and the court shall ascertain whether or not the failures are willful or the person is actually incapable of successfully completing the program due to an intellectual or other disability, or other reasons beyond his control. In the event the failure is willful, the court may proceed as in cases of probation violation and may apply such remedy as is authorized.

History. Enact. Acts 1988, ch. 279, § 3, effective July 15, 1988; 2012, ch. 146, § 137, effective July 12, 2012.

Pretrial Diversion Program

533.250. Pretrial diversion program in each judicial circuit — Elements — Fee.

  1. A pretrial diversion program shall be operated in each judicial circuit. The chief judge of each judicial circuit, in cooperation with the Commonwealth’s attorney, shall submit a plan for the pretrial diversion program to the Supreme Court for approval on or before December 1, 1999. The pretrial diversion program shall contain the following elements:
    1. The program may be utilized for a person charged with a Class D felony offense who has not, within ten (10) years immediately preceding the commission of this offense, been convicted of a felony under the laws of this state, another state, or of the United States, or has not been on probation or parole or who has not been released from the service of any felony sentence within ten (10) years immediately preceding the commission of the offense;
    2. The program shall not be utilized for persons charged with offenses for which probation, parole, or conditional discharge is prohibited under KRS 532.045 ;
    3. No person shall be eligible for pretrial diversion more than once in a five (5) year period;
    4. No person shall be eligible for pretrial diversion who has committed a sex crime as defined in KRS 17.500 . A person who is on pretrial diversion on July 12, 2006, may remain on pretrial diversion if the person continues to meet the requirements of the pretrial diversion and the registration requirements of KRS 17.510 ;
    5. Any person charged with an offense not specified as precluding a person from pretrial diversion under paragraph (b) of this subsection may apply in writing to the trial court and the Commonwealth’s attorney for entry into a pretrial diversion program;
    6. Any person shall be required to enter an Alford plea or a plea of guilty as a condition of pretrial diversion;
    7. The provisions of KRS 533.251 shall be observed; and
    8. The program may include as a component referral to the intensive secured substance abuse treatment program developed under KRS 196.285 for persons charged with a felony offense under KRS Chapter 218A and persons charged with a felony offense whose record indicates a history of recent and relevant substance abuse who have not previously been referred to the program under KRS 533.251 .
  2. Upon the request of the Commonwealth’s attorney, a court ordering pretrial diversion may order the person to:
    1. Participate in a global positioning monitoring system program through the use of a county-operated program pursuant to KRS 67.372 and 67.374 for all or part of the time during which a pretrial diversion agreement is in effect; or
    2. Use and pay all costs, including administrative and operating costs, associated with the alcohol monitoring device as defined in KRS 431.068 . If the court determines that the defendant is indigent, and a person, county, or other organization has not agreed to pay the costs for the defendant in an attempt to reduce incarceration expenses and increase public safety, the court shall consider other conditions of pretrial diversion.
  3. A court ordering global positioning monitoring system for a person pursuant to this section shall:
    1. Require the person to pay all or a part of the monitoring costs based upon the sliding scale determined by the Supreme Court of Kentucky pursuant to KRS 403.761 or 456.100 and administrative costs for participating in the system;
    2. Provide the monitoring system with a written or electronic copy of the conditions of release; and
    3. Provide the monitoring system with a contact at the office of the Commonwealth’s attorney for reporting violations of the monitoring order.
  4. A person, county, or other organization may voluntarily agree to pay all or a portion of a person’s monitoring costs specified in subsection (3) of this section.
  5. The court shall not order a person to participate in a global positioning monitoring system program unless the person agrees to the monitoring in open court or the court determines that public safety and the nature of the person’s crime require the use of a global positioning monitoring system program.
  6. The Commonwealth’s attorney shall make a recommendation upon each application for pretrial diversion to the Circuit Judge in the court in which the case would be tried. The court may approve or disapprove the diversion.
  7. The court shall assess a diversion supervision fee of a sufficient amount to defray all or part of the cost of participating in the diversion program. Unless the fee is waived by the court in the case of indigency, the fee shall be assessed against each person placed in the diversion program. The fee may be based upon ability to pay.

HISTORY: Enact. Acts 1998, ch. 606, § 86, effective July 15, 1998; 2006, ch. 182, § 49, effective July 12, 2006; 2009, ch. 96, § 5, effective March 24, 2009; 2010, ch. 170, § 14, effective July 15, 2010; 2014, ch. 141, § 4, effective July 15, 2014; 2015 ch. 102, § 49, effective January 1, 2016.

NOTES TO DECISIONS

1.Applicability.

KRS 533.250 , which established pretrial diversion in 1998, did not apply to defendant since he pled guilty well before the statute was enacted and because the general assembly did not make the statutes establishing pretrial diversion retroactive. Clements v. Commonwealth, 203 S.W.3d 710, 2006 Ky. App. LEXIS 254 (Ky. Ct. App. 2006).

Appellant was not entitled to pretrial diversion, as KRS 533.250 , which established pretrial diversion in 1998, did not apply to appellant’s guilty plea, which occurred long before 1998; KRS 446.080(3) prohibited a statute from being construed to be retroactive unless expressly so declared. Clements v. Commonwealth, 203 S.W.3d 710, 2006 Ky. App. LEXIS 254 (Ky. Ct. App. 2006).

2.Recommendation Required.

Trial court erred in denying defendant’s request for pretrial diversion as the Commonwealth did not investigate defendant’s request and make a recommendation to the trial court concerning that request as it was statutorily required to do. Dixon v. Commonwealth, 2002 Ky. App. LEXIS 2322 (Ky. Ct. App. Nov. 15, 2002).

KRS 533.250(2) gives a Circuit Court the discretion to approve or disapprove an application for pretrial diversion only when the Commonwealth has recommended that the court approve the application; thus, where the Commonwealth objects to pretrial diversion, Circuit Courts cannot unilaterally approve a defendant’s diversion application. Flynt v. Commonwealth, 105 S.W.3d 415, 2003 Ky. LEXIS 116 ( Ky. 2003 ).

3.Violation of Agreement.

By the terms of the Kentucky Pretrial Diversion Program, a defendant must enter either an Alford plea or plead guilty as a condition of pretrial diversion under KRS 533.250(1)(f), and, upon the successful completion of the pretrial diversion agreement, the charges against the defendant shall be be listed as dismissed-diverted and shall not constitute a criminal conviction under KRS 533.258(1). Accordingly, a conviction and sentence would not attach to a guilty plea unless the defendant has violated the terms of the diversion agreement. Prather v. Commonwealth, 2007 Ky. App. LEXIS 421 (Ky. Ct. App. Nov. 2, 2007).

Defendant, who had not completed a pre-trial diversion as he refused to admit to conduct which he denied occurred in a Kentucky Sex Offender Treatment Program, could withdraw his guilty plea pursuant to RCr 8.10 since the case had not been finally adjudicated. Commonwealth v. Lopez, 267 S.W.3d 685, 2008 Ky. App. LEXIS 114 (Ky. Ct. App. 2008).

4.Persistent felony offender sentence.

Felony for which defendant was on pretrial diversion could not be used to indict the defendant as a second-degree persistent felony offender, under KRS 532.080 , because, (1) when defendant pled guilty as a condition of being granted pretrial diversion, under KRS 533.250(1)(f), no sentence was imposed, and (2) KRS 532.080 (2) required the imposition of a sentence on a prior felony conviction to find that defendant had the status of a persistent felony offender. Commonwealth v. Derringer, 386 S.W.3d 123, 2012 Ky. LEXIS 201 ( Ky. 2012 ).

When defendant was charged with committing a felony, after defendant had been granted felony pretrial diversion, the Commonwealth could not seek revocation of the pretrial diversion order and then charge defendant with being a second-degree persistent felony offender (PFO) after defendant was sentenced on the previously diverted felony conviction because the prior felony conviction had to occur before defendant committed the later crime the Commonwealth sought to enhance, as the conviction, not the act, had to precede the commission of a present offense in order to trigger a PFO charge. Commonwealth v. Derringer, 386 S.W.3d 123, 2012 Ky. LEXIS 201 ( Ky. 2012 ).

Prior felony conviction could not form the basis of a charge of being a second-degree persistent felony offender (PFO 2) unless a sentence for that conviction had been imposed at the time the defendant committed the present crime because, when a defendant was granted pretrial diversion on a felony conviction, a sentence for that conviction was not imposed, if ever, unless and until the pretrial diversion agreement was voided, so a conviction for which a defendant was currently on diversion could not be used to indict that defendant as a PFO 2 when the defendant committed a subsequent felony offense. Commonwealth v. Derringer, 386 S.W.3d 123, 2012 Ky. LEXIS 201 ( Ky. 2012 ).

Cited:

Gibson v. State, 291 S.W.3d 686, 2009 Ky. LEXIS 155 ( Ky. 2009 ); Tucker v. Commonwealth, 295 S.W.3d 455, 2009 Ky. App. LEXIS 177 (Ky. Ct. App. 2009).

533.251. Pretrial diversion program for felony drug offender and felony offender with a history of substance abuse.

  1. Every pretrial diversion program shall set as a condition precedent for entry into the program that any defendant charged with a Class D felony offense under KRS Chapter 218A and any defendant charged with a Class D felony offense whose criminal, medical, or mental health record indicates a present need for or benefit from substance abuse treatment participate in and demonstrate suitable compliance with the terms of a secular or faith-based substance abuse treatment or recovery program if space is available in a treatment or recovery program suitable for that defendant. The substance abuse treatment or recovery program shall be appropriate to the defendant’s needs, and may include commitment to an intensive outpatient program, a residential substance abuse treatment or recovery facility, or the intensive secured drug abuse treatment program developed under KRS 196.285 . Consideration may be given, in whole or in part, to a defendant’s participation in drug monitoring or a substance abuse treatment or recovery plan ordered under KRS 431.518 as evidence of suitable compliance under this section.
  2. The court may waive compliance with subsection (1) of this section if the defendant can show that exigent circumstances exist sufficient to justify diversion program participation without a prior demonstration of treatment compliance.
  3. The court may continue in effect any nonfinancial conditions of pretrial release imposed under KRS 431.520 or 431.525 and may hold the case in abeyance during the period of time the defendant is attempting treatment or recovery prior to diversion under subsection (1) of this section.
  4. The court may allow a person charged with a Class C felony to participate in a secular or faith-based substance abuse treatment or recovery program under subsection (1) of this section or obtain a waiver under subsection (2) of this section. If the person is successful in the program or is waived, the person shall be eligible for entry into the pretrial diversion program under the same terms, conditions, and limitations as a Class D felon.

History. Enact. Acts 2009, ch. 96, § 4, effective March 24, 2009.

533.252. Requirements of Commonwealth’s attorney when considering application for pretrial diversion.

When considering an application for pretrial diversion, the attorney for the Commonwealth shall:

  1. Have a criminal record check made to ascertain if the person is eligible for pretrial diversion.
  2. Interview the victim of the crime, if there is an identified victim, and, when the victim of the crime is deceased or the attorney for the Commonwealth deems it necessary, interview a member of the family of the victim of the crime. The attorney for the Commonwealth shall explain to the victim the diversion program, the proposed diversion conditions, and any other matters that the attorney for the Commonwealth deems to be appropriate. The results of the interview and recommendations of the victim may be presented to the court when it is considering the application for pretrial diversion. If the application for diversion is approved by the court, the approval shall be in open court and may be attended by the victim and the victim’s family. The attorney for the Commonwealth shall attempt to notify them of this fact and the time, date, and place of the hearing.
  3. Conduct any other investigation that the attorney for the Commonwealth determines may be necessary with regard to the defendant and the circumstances of the crime so as to enable him or her to set proper conditions of pretrial diversion, or to make a decision whether to recommend pretrial diversion.

History. Enact. Acts 1998, ch. 606, § 87, effective July 15, 1998.

NOTES TO DECISIONS

1.Requirements.

Trial court erred in denying defendant’s request for pretrial diversion as KRS 533.252 imposed additional requirements, above and beyond requirements imposed by other statutory provisions to make a recommendation on the request, on the Commonwealth’s Attorney when considering an application for pretrial diversion and the evidence did not show that the Commonwealth fulfilled those additional requirements. Dixon v. Commonwealth, 2002 Ky. App. LEXIS 2322 (Ky. Ct. App. Nov. 15, 2002).

533.254. Application of probation and restitution.

  1. The provisions of KRS 533.020 relating to the period of probation shall, in so far as possible, be applicable to the period of pretrial diversion except that supervision of the participants in the programs shall be done by the Division of Probation and Parole.
  2. The provisions of KRS 533.030 relating to conditions of probation and restitution shall, in so far as possible, be applicable to pretrial diversion. Restitution shall be ordered in all cases where a victim has suffered monetary damage as a result of the alleged crime. Restitution to the state or the victim, or both, may be ordered in any pretrial diversion program.

History. Enact. Acts 1998, ch. 606, § 88, effective July 15, 1998.

533.256. Failure to complete provisions of pretrial diversion agreement.

  1. If the defendant fails to complete the provisions of the pretrial diversion agreement within the time specified, or is not making satisfactory progress toward the completion of the provisions of the agreement, the Division of Probation and Parole, the victim, or a peace officer may inform the attorney for the Commonwealth of the alleged violation or noncompliance, and the attorney for the Commonwealth may apply to the court for a hearing to determine whether or not the pretrial diversion agreement should be voided and the court should proceed on the defendant’s plea of guilty in accordance with the law.
  2. In making a determination as to whether or not a pretrial diversion agreement should be voided, the court shall use the same criteria as for the revocation of probation, and the defendant shall have the same rights as he or she would if probation revocation was sought.
  3. Making application for a pretrial diversion agreement tolls any statute of limitations relative to the criminal offenses for which the application is made for the period until the application is granted or denied. Approval of the application for pretrial diversion by the court tolls any statute of limitations relative to criminal offenses diverted for the period of the diversion agreement.
  4. If the court voids the pretrial diversion agreement, the court shall notify the applicable prosecutor in writing that the pretrial diversion agreement has been voided and the reasons for the action. The prosecutor shall decide whether or not to proceed on the plea of guilty in accordance with the law.

History. Enact. Acts 1998, ch. 606, § 89, effective July 15, 1998.

NOTES TO DECISIONS

1.Construction.

Because KRS 533.256(1) and (4) made it clear that separate proceedings were contemplated after defendant was removed from a pretrial diversion program, the trial court erred in failing to hold a separate sentencing hearing. Peeler v. Commonwealth, 275 S.W.3d 223, 2008 Ky. App. LEXIS 372 (Ky. Ct. App. 2008).

Under KRS 533.256(1), defendant had the right to a sentencing hearing as if he had pled guilty without the diversion agreement, then final sentencing on the felony had to be, for concurrent sentencing purposes, as if he had been sentenced at the same time as his misdemeanors, and KRS 532.110(1)(a) would be applicable. Prather v. Commonwealth, 301 S.W.3d 20, 2009 Ky. LEXIS 286 ( Ky. 2009 ).

Trial court lacked authority to effectively revoke defendant’s Class D Felony Pretrial Diversion for flagrant non-support five days after defendant’s three-year pretrial diversion period expired because the Commonwealth of Kentucky never filed a motion to revoke under KRS 533.256(1) within the pretrial diversion period. Tucker v. Commonwealth, 295 S.W.3d 455, 2009 Ky. App. LEXIS 177 (Ky. Ct. App. 2009).

By operation of the unambiguous language of Ky. Rev. Stat. Ann. § 533.256(2), the new criteria for the revocation of probation set out in § 439.3106 also applies to the voidance of diversion; § 533.256(2) makes no distinction between its application to individuals on supervised diversion and its application to those on unsupervised diversion. Richardson v. Commonwealth, 494 S.W.3d 495, 2015 Ky. App. LEXIS 118 (Ky. Ct. App. 2015) sub. nom.Commonwealth v. Cunningham, 2016 Ky. LEXIS 355 (Ky. Aug. 17, 2016).

2.Jurisdiction.

Court of appeals did not err in concluding that a trial court retained jurisdiction to consider the Commonwealth’s motion to remove defendant from diversion as the order of diversion did not fully dispose of any criminal charges but merely memorialized an agreement that existed between the Commonwealth and the defendant and halted prosecution between admission of guilt and imposition of sentence. Since neither of the circumstances extinguishing the trial court’s jurisdiction occurred, jurisdiction was not extinguished, and the trial court retained jurisdiction over defendant’s underlying criminal charges, including authority to consider the Commonwealth’s motion to revoke the diversion agreement. Ballard v. Commonwealth, 320 S.W.3d 69, 2010 Ky. LEXIS 206 ( Ky. 2010 ).

Trial court erred in voiding defendant’s pretrial diversion agreement and sentencing her under the prior law because, while the trial court had authority to void defendant’s plea agreement in its entirety, no judgment had been entered against her when she violated the terms of her pretrial diversion and faced sentencing, and the sentence recommended by the Commonwealth became inappropriate due to the 2010 change to the drug paraphernalia statute. Smith v. Commonwealth, 400 S.W.3d 742, 2013 Ky. LEXIS 296 ( Ky. 2013 ).

Defendant’s five-year diversion period expired the day the trial court held a hearing on the Commonwealth’s motion to extend the diversion period, and there was no pending motion to void diversion; under case law, the Commonwealth’s motion to extend diversion was insufficient to preserve the trial court’s authority to subsequently void defendant’s diversion. Milam v. Commonwealth, 593 S.W.3d 68, 2020 Ky. App. LEXIS 1 (Ky. Ct. App. 2020).

3.Revocation.

Trial court's order revoking defendant's diversion agreement and imposing sentence was affirmed where the evidence showed that he was in possession of three rifles and was involved with drug trafficking, the trial court appropriately considered defendant's completion of a drug court program and subsequent relapse, and the trial court's fact finding and analysis were sufficient to fulfill the requirements of Ky. Rev. Stat. Ann. § 439.3106 . McVey v. Commonwealth, 467 S.W.3d 259, 2015 Ky. App. LEXIS 105 (Ky. Ct. App. 2015).

Circuit court erred in voiding defendant's pretrial diversion and sentencing him to two years in prison because it incorrectly concluded that the criteria for the revocation of probation was inapplicable to the voidance of diversion. Richardson v. Commonwealth, 494 S.W.3d 495, 2015 Ky. App. LEXIS 118 (Ky. Ct. App. 2015) sub. nom.Commonwealth v. Cunningham, 2016 Ky. LEXIS 355 (Ky. Aug. 17, 2016).

Trial court erred in setting aside defendant’s felony diversion because it failed to consider either Ky. Rev. Stat. Ann. § 533.256 or Ky. Rev. Stat. Ann. § 439.3106 in determining whether to void defendant’s pretrial diversion; as the trial court apparently did not contemplate either statute prior to its decision, the matter was remanded for consideration of those statutes should the Commonwealth continue to seek voidance of defendant’s pretrial diversion. Moreial Lamaur Zanders v. Commonwealth, 572 S.W.3d 76, 2019 Ky. App. LEXIS 27 (Ky. Ct. App. 2019).

4.Due Process.

Circuit court erred in voiding defendant's pretrial diversion because, regardless of whether defendant was entitled to waive his right to counsel at the pretrial diversion revocation hearing or whether he properly did so if he was so entitled, the same due process rights required for probation revocation applied in the context of a pretrial diversion revocation hearing, and the circuit court did not give defendant the opportunity to present witnesses and documentary evidence on his own behalf or to cross-examine adverse witnesses. Jones v. Commonwealth, 2017 Ky. App. LEXIS 502 (Ky. Ct. App. Sept. 8, 2017).

Cited:

Flynt v. Commonwealth, 105 S.W.3d 415, 2003 Ky. LEXIS 116 ( Ky. 2003 ); Helms v. Commonwealth, 2015 Ky. App. LEXIS 83 (May 29, 2015).

533.258. Effects of successful completion of pretrial diversion agreement.

  1. If the defendant successfully completes the provisions of the pretrial diversion agreement, the charges against the defendant shall be listed as “dismissed-diverted” and shall not constitute a criminal conviction.
  2. The defendant shall not be required to list this disposition on any application for employment, licensure, or otherwise unless required to do so by federal law.
  3. Pretrial diversion records shall not be introduced as evidence in any court in a civil, criminal, or other matter without the consent of the defendant.

History. Enact. Acts 1998, ch. 606, § 90, effective July 15, 1998.

NOTES TO DECISIONS

1.In General.

An attorney’s acceptance into a diversion program, after entering Alford pleas to three felonies, did not prevent the automatic suspension of her license to practice law, since the Supreme Court Rule requiring such suspension made no exception for those accepted into diversion. Ky. Bar Ass'n v. Haggard, 57 S.W.3d 300, 2001 Ky. LEXIS 173 ( Ky. 2001 ).

When a defendant entered a diversion program, his convicted felon status could have changed but, in committing a firearm crime, he was not program qualified and was a convicted felon for sentencing purposes. Thomas v. Commonwealth, 95 S.W.3d 828, 2003 Ky. LEXIS 7 ( Ky. 2003 ).

By the terms of the Kentucky Pretrial Diversion Program, a defendant must enter either an Alford plea or plead guilty as a condition of pretrial diversion under KRS 533.250(1)(f), and, upon the successful completion of the pretrial diversion agreement, the charges against the defendant shall be be listed as dismissed-diverted and shall not constitute a criminal conviction under KRS 533.258(1). Accordingly, a conviction and sentence would not attach to a guilty plea unless the defendant has violated the terms of the diversion agreement. Prather v. Commonwealth, 2007 Ky. App. LEXIS 421 (Ky. Ct. App. Nov. 2, 2007).

2.Denial.

Defendant was prejudiced by denial of request for pretrial diversion as defendant was statutorily eligible to be considered for pretrial diversion and successful completion of the pretrial diversion program would have meant that defendant’s three (3) drug convictions would be treated as if none of those convictions had occurred. Dixon v. Commonwealth, 2002 Ky. App. LEXIS 2322 (Ky. Ct. App. Nov. 15, 2002).

3.Expungement.

Defendant’s record was properly expunged under KRS 431.076 after he successfully completed a felony diversion program because the trial court properly dismissed the charge against defendant with prejudice under RCr 8.04(5), as opposed to KRS 533.258(1); segregation of defendant’s records under KRS 17.142 , in contrast to expungement, was not appropriate based on the plea agreement and the legislative intent behind KRS 533.258(2)Commonwealth v. Shouse, 183 S.W.3d 204, 2006 Ky. App. LEXIS 11 (Ky. Ct. App. 2006).

Cited:

Flynt v. Commonwealth, 105 S.W.3d 415, 2003 Ky. LEXIS 116 ( Ky. 2003 ); Gibson v. State, 291 S.W.3d 686, 2009 Ky. LEXIS 155 ( Ky. 2009 ); Tucker v. Commonwealth, 295 S.W.3d 455, 2009 Ky. App. LEXIS 177 (Ky. Ct. App. 2009); Ballard v. Commonwealth, 320 S.W.3d 69, 2010 Ky. LEXIS 206 ( Ky. 2010 ); Miller v. Commonwealth, 585 S.W.3d 238, 2018 Ky. App. LEXIS 289 (Ky. Ct. App. 2018).

533.260. Rules for administration.

The Supreme Court of Kentucky shall, by rule, determine all forms and other matters necessary for the proper administration of the pretrial diversion program.

History. Enact. Acts 1998, ch. 606, § 91, effective July 15, 1998.

NOTES TO DECISIONS

Cited:

Commonwealth v. Shouse, 183 S.W.3d 204, 2006 Ky. App. LEXIS 11 (Ky. Ct. App. 2006).

533.262. Other programs before and after July 15, 1998.

  1. The pretrial diversion program authorized by KRS 533.250 to 533.260 shall be the sole program utilized in the Circuit Courts of the Commonwealth except for drug court diversion as approved by the Supreme Court and the Department of Corrections.
  2. As of July 15, 1998, the only other pretrial diversion programs utilized by the Commonwealth shall be those authorized by the Kentucky Supreme Court and providing for the pretrial diversion of misdemeanants. Programs existing as of July 15, 1998, may continue for the purpose of supervising persons granted pretrial diversion prior to July 15, 1998, however no new persons shall be admitted to these programs.
  3. A person who is in a pretrial diversion program as of July 15, 1998, may continue in that program until he or she successfully completes the program or is removed from the program for other reasons, whichever occurs earlier.

History. Enact. Acts 1998, ch. 606, § 92, effective July 15, 1998; 2000, ch. 505, § 1, effective July 14, 2000.

NOTES TO DECISIONS

Cited in:

Flynt v. Commonwealth, 105 S.W.3d 415, 2003 Ky. LEXIS 116 ( Ky. 2003 ).

NOTES TO UNPUBLISHED DECISIONS

1.Felony Pretrial Diversion.

Unpublished decision: Trial court did not commit palpable error by revoking defendant's diversion because her felony pretrial diversion agreement clearly authorized it to revoke or modify any condition in the agreement during the diversion period, it was not statutorily required to make specific findings of fact, and it went through the history of the case, defendant's numerous violations of the conditions, and the various chances she received to comply with the conditions. Stilgenbauer v. Commonwealth, 2014 Ky. App. Unpub. LEXIS 1039 (Ky. Ct. App. Sept. 26, 2014), review denied, ordered not published, 2015 Ky. LEXIS 1663 (Ky. June 3, 2015).

Research References and Practice Aids

Treatises

Caldwell’s Kentucky Form Book, 5th Ed., Practice Content for Drug Court, § 6.00.

CHAPTER 534 Fines

534.010. Definition.

The following definition applies in this chapter unless the context otherwise requires:

“Gain” means the amount of money or the value of property derived from the commission of the crime, less the amount of money or the value of property returned to the victim of the crime or seized by or surrendered to lawful authority prior to the time sentence is imposed.

History. Enact. Acts 1974, ch. 406, § 290, effective January 1, 1975.

534.020. Methods of imposing fines — Installment payment plan — Determination of reason for defendant’s default — Show cause hearing — Certain installment payments not to be reported disqualified debt.

  1. When a defendant is sentenced to pay court costs, fees, or fines, the court may provide for payment to be made within a specified period of time or in specified installments. If no such provision is made a part of the sentence, then the court costs, fees, or fines shall be payable forthwith.
  2. If the court establishes an installment payment plan for a defendant to pay the full amount of court costs, fees, or fines:
    1. The defendant shall be given notice of the total amount due, the payment frequency, and the date by which all payments must be made. The notice shall indicate that if the defendant has not complied with the installment payment plan by the scheduled date, he or she shall appear on that date to show good cause as to why he or she is unable to satisfy the obligations. This notice shall be given to the defendant in writing on a form provided by the Administrative Office of the Courts;
    2. Except as provided in subsection (3) of this section, all court costs, fees, and fines shall be paid within one (1) year of the date of sentencing notwithstanding any remaining restitution or other monetary penalty owed by the defendant and arising out of the conviction; and
    3. Installment payments shall be applied first to court costs, then to restitution, then to fees, and then to fines.
    1. If a defendant is required to appear at a show cause hearing pursuant to subsection (2)(a) of this section, the court shall determine whether the defendant’s default in payment of court costs, fees, or fines is: (3) (a) If a defendant is required to appear at a show cause hearing pursuant to subsection (2)(a) of this section, the court shall determine whether the defendant’s default in payment of court costs, fees, or fines is:
      1. Excusable due to an inability to pay, and if so, the court may enter an order allowing additional time for payment, reducing the amount of each installment, or modifying the manner of payment in any other way; or
      2. Willful and not due to an inability to pay, and if so, the court may order the defendant to jail on the condition that the defendant shall be released upon payment or completion of daily credit pursuant to KRS 534.070 .
    2. If the defendant fails to appear at the show cause hearing, the court may issue a warrant for the defendant’s arrest. Any warrant for arrest issued for nonpayment of court costs, fees, or fines pursuant to this subsection shall include a notice to the jailer that the defendant shall be released upon payment or completion of daily credit pursuant to KRS 534.070 .
  3. When a defendant is sentenced to pay court costs, fees, or fines, an alternative sentence of imprisonment that is to be served in the event the court costs, fees, or fines are not paid shall not be imposed at the same time. The response of a court to nonpayment shall be determined only after:
    1. The court costs, fees, or fines have not been paid; and
      1. The show cause hearing has been held pursuant to subsections (2)(a) and (3)(a) of this section; or (b) 1. The show cause hearing has been held pursuant to subsections (2)(a) and (3)(a) of this section; or
      2. The defendant has failed to appear at the show cause hearing as outlined in subsection (3)(b) of this section.
  4. Court costs, fees, or fines being paid under an installment payment plan that is actively monitored by the court shall not be reported as part of the inventory of liquidated debt pursuant to KRS 45.241 .

HISTORY: Enact. Acts 1974, ch. 406, § 291, effective January 1, 1975; 2002, ch. 183, § 38, effective August 1, 2002; 2017 ch. 158, § 4, effective June 29, 2017.

NOTES TO DECISIONS

Cited:

Beane v. Commonwealth, 736 S.W.2d 317, 1987 Ky. LEXIS 226 ( Ky. 1987 ).

Opinions of Attorney General.

Under this section, a judge may find someone guilty and then legally allow the fine to be paid in monthly installments but if no such provisions for paying the fine are made a part of the sentence, the fine shall be payable forthwith except when the defendant makes a satisfactory replevin bond under KRS 426.450 but when a replevin bond is not executed and defendant defaults in paying the fine, under KRS 534.060 the court may require the defendant to show cause why he should not be imprisoned for nonpayment. OAG 75-4 .

The court may permit, but is not required, to let the defendant pay a fine within a certain period or in installments. OAG 78-165 .

When a defendant is sentenced to pay a fine, the court may in its order: (1) provide for payment to be made within a specified period of time; or (2) provide for payment in specified installments and if neither of these court options is in the court order, the fine shall be payable forthwith or immediately. OAG 78-165 .

Whether defendant was given a specified period for paying an entire fine or was allowed to pay in installments, upon nonpayment of the fine, the court would respond under KRS 534.060 . OAG 78-165 .

534.030. Fines for felonies.

  1. Except as otherwise provided for an offense defined outside this code, a person who has been convicted of any felony shall, in addition to any other punishment imposed upon him, be sentenced to pay a fine in an amount not less than one thousand dollars ($1,000) and not greater than ten thousand dollars ($10,000) or double his gain from commission of the offense, whichever is the greater.
  2. In determining the amount and method of paying a fine for commission of a felony, the court shall consider, among others, the following factors:
    1. The defendant’s ability to pay the amount of the fine;
    2. The hardship likely to be imposed on the defendant’s dependents by the amount of the fine and the time and method of paying it;
    3. The impact the amount of the fine will have on the defendant’s ability to make reparation or restitution to the victim; and
    4. The amount of the defendant’s gain, if any, derived from the commission of the offense.
  3. When a defendant is convicted of two (2) or more felonies committed through a single act and is sentenced to fines pursuant to subsection (1), the aggregate amount of the fines shall not exceed ten thousand dollars ($10,000) or double the amount of the defendant’s gain from commission of the offenses, whichever is the greater.
  4. Fines required by this section shall not be imposed upon any person determined by the court to be indigent pursuant to KRS Chapter 31.
  5. This section shall not apply to a corporation.

History. Enact. Acts 1974, ch. 406, § 292, effective January 1, 1975; 1978, ch. 101, § 7, effective June 17, 1978; 1990, ch. 497, § 6, effective July 13, 1990; 1994, ch. 403, § 1, effective July 15, 1994.

NOTES TO DECISIONS

1.Determination by Judge.

Judge must independently determine the appropriateness of any fine, and if imposed, the appropriate amount and method of payment thereof and must consider whether the appellant is indigent in so doing. Simpson v. Commonwealth, 889 S.W.2d 781, 1994 Ky. LEXIS 139 ( Ky. 1994 ).

Trial court abused its discretion by imposing a fine that was contrary to KRS 534.030(4), but the imposition of that fine was outside the scope of the plea agreement and therefore the fine could be appealed and reversed without discarding the valid plea agreement. Commonwealth v. Reed, 374 S.W.3d 298, 2012 Ky. LEXIS 113 ( Ky. 2012 ).

2.Instructions.

Where trial judge allowed instructions for kidnapping, theft, and each sexual offense to be submitted to the jury, thereby instructing it to impose both imprisonment and a monetary fine as a result of finding defendant guilty, This section required imposition of fines to be initiated by the court and delegation of this duty to the jury was improper as the judge must independently determine the issues relating to imposition of fines. Simpson v. Commonwealth, 889 S.W.2d 781, 1994 Ky. LEXIS 139 ( Ky. 1994 ).

Cited:

Smith v. Commonwealth, 205 S.W.3d 217, 2006 Ky. App. LEXIS 39 (Ky. Ct. App. 2006).

Research References and Practice Aids

Cross-References.

Fines and forfeitures inure to state, KRS 431.100 .

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Penalty Phase Instructions, Part 1 Misdemeanor Offenses, § 12.03.

Kentucky Instructions To Juries (Criminal), 5th Ed., Penalty Phase Instructions, Part 3 Felony Offenses, § 12.16.

534.040. Fines for misdemeanors and violations.

  1. Fines and imprisonment for misdemeanors shall not be mutually exclusive. In any case where imprisonment is authorized, a fine may be levied in addition to the imprisonment, or a fine may be levied as an alternative to imprisonment. Similarly, a fine may be levied in lieu of imprisonment. Whether the fine is to be levied as the sole penalty or as an additional or alternative penalty shall be in the discretion of the judge or jury as the case may be. If the trial is by jury, the jury shall have the discretion. This rule shall apply in all cases where a fine is not the exclusive penalty authorized by law.
  2. Except as otherwise provided for an offense defined outside this code, a person who has been convicted of any offense other than a felony shall be sentenced, in addition to any other punishment imposed upon him, to pay a fine in an amount not to exceed:
    1. For a Class A misdemeanor, five hundred dollars ($500); or
    2. For a Class B misdemeanor, two hundred fifty dollars ($250); or
    3. For a violation, two hundred fifty dollars ($250).
  3. This section shall not apply to a corporation.
  4. Fines required by this section shall not be imposed upon any person determined by the court to be indigent pursuant to KRS Chapter 31.

HISTORY: Enact. Acts 1974, ch. 406, § 293, effective January 1, 1975; 1978, ch. 101, § 8, effective June 17, 1978; Acts 1990, ch. 497, § 7, effective July 13, 1990; 1992, ch. 463, § 62, effective July 14, 1992.

Legislative Research Commission Note.

Although this section was included in Acts 1978, ch. 101, § 8, as having been amended, there appears to be no change in this section.

NOTES TO DECISIONS

1.Judgment.

Defendant’s claim that because he was indigent, a trial court’s imposition of a fine, to be held in abeyance while defendant was incarcerated, violated KRS 534.040(4) failed. While the trial court’s oral pronouncement of sentence referred to a fine, no fine was included in the trial court’s written judgment, and the written judgment controlled. Terry v. Commonwealth, 253 S.W.3d 466, 2007 Ky. LEXIS 268 ( Ky. 2007 ).

There was no method by which a trial court could indirectly impose fines under KRS 534.040(4) and court costs under KRS 23A.205(2) against a defendant by reducing his pretrial jail time credit; therefore, language in the judgment that could be taken to indicate that such credit would be reduced was ordered stricken. Smith v. Commonwealth, 366 S.W.3d 399, 2012 Ky. LEXIS 27 ( Ky. 2012 ).

2.Maximum Fines.

Although the statutory maximum for fines for offenses outside of the penal code is $500, a larger fine, where specified, is allowed. Commonwealth v. Schindler, 685 S.W.2d 544, 1984 Ky. LEXIS 298 ( Ky. 1984 ).

The maximum fine provided for the offense of failing to render aid and assistance after an accident in violation of KRS 189.580(1) is $2,000, rather than the $500 maximum as set for a class A misdemeanor. Commonwealth v. Schindler, 685 S.W.2d 544, 1984 Ky. LEXIS 298 ( Ky. 1984 ).

3.Indigency.

Court vacated fines and court costs imposed upon defendants as both defendants were clearly indigent. At the time of trial, both defendants were receiving the services of a public defender and were granted the right to appeal in forma pauperis. Travis v. Commonwealth, 327 S.W.3d 456, 2010 Ky. LEXIS 296 ( Ky. 2010 ).

It was error to impose fines for defendant’s convictions for fourth-degree assault and possession of marijuana because (1) the trial court previously found defendant to be indigent, under KRS 31.100(3), and (2) KRS 534.040(4) barred the imposition of fines on a person found to be indigent. Wright v. Commonwealth, 391 S.W.3d 743, 2012 Ky. LEXIS 496 ( Ky. 2012 ).

Appellant was ordered to pay costs and fees immediately upon release from custody, and he was facing an over seven-year sentence during which he could not work; thus, there was not a reasonable basis to find that appellant would soon be able to pay costs, and that part of the order imposing costs and fees was vacated. Butler v. Commonwealth, 367 S.W.3d 609, 2012 Ky. App. LEXIS 73 (Ky. Ct. App. 2012).

No palpable error was shown in a drug case where $1,000 in fines for two misdemeanor convictions was imposed because, at the time of sentencing, appellant was represented by private counsel. He was appointed a public advocate after a motion for a belated appeal was granted. Massie v. Commonwealth, 2012 Ky. App. LEXIS 178 (Ky. Ct. App. Sept. 21, 2012).

Because the trial court determined that defendant was an indigent person, its imposition of fines violated this section and was therefore clearly erroneous. Roberts v. Commonwealth, 410 S.W.3d 606, 2013 Ky. LEXIS 405 ( Ky. 2013 ).

Trial court erred in imposing a fine where defendants' indigent status was obvious based on their completed indigency affidavits and an order granting in forma pauperis. Mitchell v. Commonwealth, 538 S.W.3d 326, 2017 Ky. App. LEXIS 810 (Ky. Ct. App. 2017).

Trial court erred by imposing a $500 fine for possession of drug paraphernalia because, while the offense was defined outside of the penal code, the sentence was imposed under the penal code, which was subject to the statutory indigency provisions. Fultz v. Commonwealth, 554 S.W.3d 385, 2018 Ky. App. LEXIS 214 (Ky. Ct. App. 2018).

Commonwealth conceded that the fine imposed upon defendant was impermissible because defendant had been found to be indigent. Kelly v. Commonwealth, 554 S.W.3d 854, 2018 Ky. LEXIS 288 ( Ky. 2018 ).

Defendant’s indigency did not bar the imposition of a fine because the applicable statute did not contain an indigency exception. Bowling v. Commonwealth, 553 S.W.3d 231, 2018 Ky. LEXIS 279 ( Ky. 2018 ).

4.Preservation for Review.

Although appellant’s argument concerning costs and a fine was not preserved, costs and fines were imposed as part of a sentence, and thus could not be waived by failure to object. Butler v. Commonwealth, 367 S.W.3d 609, 2012 Ky. App. LEXIS 73 (Ky. Ct. App. 2012).

Indigent defendant was obligated to challenge the imposition of a fine that was contrary to Ky. Rev. Stat. Ann. § 534.040(4), and failure to do so foreclosed appellate review unless the error was apparent on the face of the judgment or his indigency at the time of sentencing was otherwise plainly established in the record. Trigg v. Commonwealth, 460 S.W.3d 322, 2015 Ky. LEXIS 1619 ( Ky. 2015 ).

Cited:

United States v. Sturgill, 563 F.2d 307, 1977 U.S. App. LEXIS 11273 (6th Cir. 1977).

Opinions of Attorney General.

KRS 532.005 , effective June 19, 1976, eliminated the exception set out in subsection (2) of this section for offenses defined outside the code, thereby limiting the fine for a violation of KRS 189.580 (1) to a maximum of $500. OAG 78-457 .

Under KRS 534.050 and this section, a person or a corporation may be fined $5,000 for the misdemeanor offense of tampering with odometers. OAG 83-22 .

The 1990 amendment to subsection (3) of this section simply augments the $10,000 fine imposed by KRS 534.050 with the $500 fine imposed by this section, leaving a maximum total fine of $10,500; the amendment did not repeal KRS 534.050 by implication because the law does not favor repeal of a statute by implication, it is not reasonable to conclude that the legislature intended to reduce corporate fines from $10,000 to $500 and chose to do so by the implied repeal of an adjoining section of the criminal code, and subsection (2) of this section was amended in 1990 to provide that the fine imposed by that section is “in addition to any other punishment.” OAG 91-209 .

Research References and Practice Aids

Cross-References.

Fines and forfeitures inure to the state, KRS 431.100 .

Kentucky Law Journal.

Kentucky Law Survey, Fortune, Criminal Rules, 70 Ky. L.J. 395 (1981-82).

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Controlled Substances, Part 5 Alcoholic Beverages, § 9.40.

Kentucky Instructions To Juries (Criminal), 5th Ed., Offenses Against Public Order, Safety and Morals, Part 2 Riot, Disorderly Conduct and Related Offenses, §§ 8.38B, 8.39B.

Kentucky Instructions To Juries (Criminal), 5th Ed., Penalty Phase Instructions, Part 1 Misdemeanor Offenses, §§ 12.01A, 12.02A, 12.03.

Kentucky Instructions To Juries (Criminal), 5th Ed., Penalty Phase Instructions, Part 3 Felony Offenses, § 12.16.

Petrilli, Kentucky Family Law, Support of the Family, § 16.18.

534.045. Assessment of reimbursement fee against jail prisoners — Collection — Fee determination — Relevant evidence — Modification.

  1. Pursuant to a conviction of a misdemeanor, including traffic offenses, where a person is sentenced to incarceration in the county jail, the District Court may assess a reimbursement fee to help defray the expenses of the prisoner’s room and board. The reimbursement fee shall not exceed twenty-five percent (25%) of the prisoner’s gross daily wages or forty dollars ($40) per day, whichever is less. All moneys shall be paid directly to the jailer.
  2. In determining whether a reimbursement fee as described in subsection (1) of this section is to be assessed, and in establishing the amount of the fee, the court shall consider evidence relevant to the prisoner’s ability to pay the fee but shall not consider as evidence the following:
    1. Joint ownership, if any, that the prisoner may have in real property;
    2. Joint ownership, if any, that the prisoner may have in any assets, earnings, or other sources of income; and
    3. The income, assets, earnings, or other property, both real and personal, that might be owned by the prisoner’s spouse or family.
  3. After considering all relevant evidence to the issue of the prisoner’s ability to pay, the court shall enter as part of its judgment the amount of the reimbursement fee, if any, that shall be paid by the prisoner during his period of incarceration in the county jail. The fee shall bear a reasonable relationship to the person’s income. Upon petition by the prisoner affected by the order, the amount may be modified to reflect any changes in the financial status of the prisoner. In any appeal that might be taken from the conviction, the amount of the reimbursement fee may be challenged.
  4. If the person sentenced to jail is released in accordance with the provisions of KRS 439.179 and is subject to the provisions of KRS 439.179 (4), the payment of the reimbursement fee shall be suspended so long as the person is gainfully employed.
  5. When imposing any payment authorized by this section, the court shall order the defendant to make the payment to the named officer, person, or organization. The court shall not order any payment authorized by this section to be made through the circuit clerk.

History. Enact. Acts 1982, ch. 385, § 48, effective July 1, 1982; 1992, ch. 334, § 1, effective July 14, 1992; 1992, ch. 368, § 2, effective July 14, 1992; 2002, ch. 183, § 39, effective August 1, 2002.

Legislative Research Commission Note.

(7/14/92). This section was amended by 1992 Acts chs. 334 and 368 which are in conflict. Pursuant to KRS 446.250 , Act ch. 368 which was last enacted by the General Assembly prevails.

NOTES TO DECISIONS

1.Application.

In a drug case, the standard for the payment of jail fees set forth in the statute for misdemeanors did not apply because defendant was convicted of a felony. Hunt v. Commonwealth, 2016 Ky. App. LEXIS 65 (Ky. Ct. App. Apr. 29, 2016).

534.050. Fines against corporations.

  1. For an offense defined in this code a corporation convicted of an offense may be sentenced to pay a fine in an amount not to exceed:
    1. For a felony of any class, $20,000; or
    2. For a Class A misdemeanor, $10,000; or
    3. For a Class B misdemeanor, $5,000; or
    4. For a violation, $500; or
    5. Double the amount of the defendant’s gain from commission of the offense, whichever is the greater.
  2. For an offense defined outside this code for which no special corporate fine is specified, a corporation convicted of an offense may be sentenced to pay a fine in an amount not to exceed:
    1. $20,000, if the offense when committed by an individual has an authorized term of imprisonment in the penitentiary; or
    2. $10,000, if the offense when committed by an individual has an authorized term of imprisonment of not less than ninety (90) days nor more than twelve (12) months; or
    3. $5,000, if the offense when committed by an individual has an authorized term of imprisonment of less than ninety (90) days; or
    4. $500, if the offense when committed by an individual has no authorized term of imprisonment; or
    5. Double the amount of the defendant’s gain from commission of the offense, whichever is the greater.
  3. For an offense defined outside this code for which a special corporate fine is specified, a corporation convicted of the offense may be sentenced to pay a fine in the amount specified in the law that defines the offense.

History. Enact. Acts 1974, ch. 406, § 294, effective January 1, 1975.

NOTES TO DECISIONS

1.Applicability.

A corporation could be indicted for second-degree manslaughter, a class C felony based on wanton conduct, under KRS 507.040 since the legislature under subsection (12) of KRS 500.080 has expanded the definition of “person” to include corporations to parallel the treatment of corporations in civil actions under KRS 446.010 , has extended liability for criminal offenses to conduct or non-conduct of corporate officers, directors and agents under KRS 502.050 , and has created a penalty structure providing for corporate fines for all classes of crimes under this section. Commonwealth v. Fortner LP Gas Co., 610 S.W.2d 941, 1980 Ky. App. LEXIS 416 (Ky. Ct. App. 1980).

Cited:

Behanan v. Cobb, 2007 Ky. App. LEXIS 37 (Ky. Ct. App. 2007).

Opinions of Attorney General.

Under KRS 534.040 and this section, a person or a corporation may be fined $5,000 for the misdemeanor offense of tampering with odometers. OAG 83-22 .

The 1990 amendment to KRS 534.040 (3) simply augments the $10,000 fine imposed by this section with the $500 fine imposed by KRS 534.040 , leaving a maximum total fine of $10,500; the amendment did not repeal this section by implication because the law does not favor repeal of a statute by implication, it is not reasonable to conclude that the legislature intended to reduce corporate fines from $10,000 to $500 and chose to do so by the implied repeal of an adjoining section of the criminal code, and subsection (2) of KRS 534.040 was amended in 1990 to provide that the fine imposed by that section is “in addition to any other punishment.” OAG 91-209 .

Research References and Practice Aids

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Penalty Phase Instructions, Part 1 Misdemeanor Offenses, §§ 12.01B, 12.02B, 12.03.

Kentucky Instructions To Juries (Criminal), 5th Ed., Penalty Phase Instructions, Part 3 Felony Offenses, §§ 12.15, 12.16.

534.060. Consequence of failure to pay fines imposed on corporations.

When a fine is imposed on a corporation, it is the duty of the person or persons authorized to make disbursement of the assets of the corporation and their superiors to pay the fine from assets of the corporation. The failure of such persons to do so shall render them subject to imprisonment under subsections (1) and (2) of this section.

HISTORY: Enact. Acts 1974, ch. 406, § 295, effective January 1, 1975; 2012, ch. 156, § 4, effective July 12, 2012; 2017 ch. 158, § 5, effective June 29, 2017.

NOTES TO DECISIONS

1.Detainer Warrant.

The document styled “Detainer Warrant,” stating that, due to the fact that a fine was imposed, the court needed the defendant to return to the corrections department when he was released from federal prison, was a nullity, where the sentence imposed a fine, not imprisonment, the defendant was not serving time for this offense when he was transferred back to federal prison, and he had not been adjudicated in default of payment of the fine. Commonwealth v. Hayes, 734 S.W.2d 467, 1987 Ky. LEXIS 224 ( Ky. 1987 ).

2.Discretion.

The Circuit Court abused its discretion in denying the petition for mandamus to compel the District Court to rule on defendant’s motion to convert his fines to an imprisonment term; even though more than ten (10) days had elapsed from the imposition of the fines, the District Court had jurisdiction to do so because the defendant had been incarcerated since his last court appearance. Owens v. Williams, 955 S.W.2d 196, 1997 Ky. App. LEXIS 114 (Ky. Ct. App. 1997).

3.Appellate review.

Trial court’s denial of defendant’s motion to convert court costs to jail time pursuant to this section, based solely on there being no authority to do so, was in error. However, the trial court’s error was of no consequence. Elliott v. Commonwealth, 553 S.W.3d 207, 2018 Ky. LEXIS 286 ( Ky. 2018 ).

Cited:

Beane v. Commonwealth, 736 S.W.2d 317, 1987 Ky. LEXIS 226 ( Ky. 1987 ).

Opinions of Attorney General.

Under KRS 534.020 a judge may find someone guilty and then legally allow the fine to be paid in monthly installments but if no such provisions for paying the fine are made a part of the sentence, the fine shall be payable forthwith except when the defendant makes a satisfactory replevin bond under KRS 426.450 , but when a replevin bond is not executed and defendant defaults in paying the fine, under this section the court may require the defendant to show cause why he should not be imprisoned for nonpayment. OAG 75-4 .

Although the Penal Code excludes traffic violations from its application, this section represents a constitutionally acceptable procedure which may be properly adopted by a court to insure payment of traffic fines. OAG 75-104 .

The police judge of a fifth-class city after a guilty verdict has been rendered and the fine set can provide in the judgment for the payment of the fine in installments. OAG 76-400 .

Although the penal code specifically excludes traffic infractions from its application, the procedures established by this section may be properly adopted by a court as a model in attempting to insure the payment of fines for traffic violations. OAG 77-66 .

Once the court has established an alternative method of payment of a fine, a defendant can be committed to jail for intentional nonpayment; however the jail time would not be determined by fixed dollars per day but would be related to the kind of offense the defendant has committed. OAG 77-155 .

Since drunken driving is a violation for the first offense, a convicted defendant would not be imprisoned in excess of 10 days for default in payment of the fine. OAG 77-471 .

A defendant who is convicted of disorderly conduct and fined $50 plus costs for a total of $64.50, but who refuses to pay the fine, can be imprisoned for a term not to exceed 30 days. OAG 77-621 .

Whether defendant was given a specified period for paying an entire fine or was allowed to pay in installments, upon nonpayment of the fine, the court would respond under this section. OAG 78-165 .

This section was tailored to accommodate the indigency principle, as established by the state court and the United States Supreme Court. OAG 78-841 .

Research References and Practice Aids

Treatises

Kentucky Instructions To Juries (Criminal), 5th Ed., Penalty Phase Instructions, Part 3 Felony Offenses, § 12.16.

534.070. Incarceration for failure to pay fine or court costs or failure to appear in court — Daily credit against fine or court costs for time served — Application of partial payment.

  1. A defendant who has been sentenced to jail for failure to pay court costs, fees, or fines or for failure to appear in court on a date set for the sole purpose of addressing nonpayment of court costs, fees, or fines shall receive credit against the court costs, fees, or fines owed for each day the defendant spends in jail at the following rates:
    1. Fifty dollars ($50) per day if the defendant does not work at a community service or community labor program; or
    2. One hundred dollars ($100) per day if the defendant works eight (8) hours per day at a community service or community labor program. If the defendant works less than eight (8) hours in a community service or community labor program, the defendant shall be allowed an amount of one-eighth (1/8) of the one hundred dollars ($100) for each hour worked in a community service or community labor program.
  2. Credit against court costs, fees, or fines earned by a defendant pursuant to this section shall prohibit the collection of any part of court costs, fees, or fines which has been credited pursuant to this section, and that portion of the court costs, fees, or fines shall be considered paid.
    1. The jailer shall be responsible for monitoring a defendant’s community service and tracking the number of days to be served to pay any outstanding court costs, fees, or fines. (3) (a) The jailer shall be responsible for monitoring a defendant’s community service and tracking the number of days to be served to pay any outstanding court costs, fees, or fines.
    2. Unless the defendant is incarcerated pursuant to orders in other cases, upon the service of sufficient days in jail to have sufficient credit to satisfy the court costs, fees, or fines, the defendant shall be released from jail.
  3. If a partial payment is made by the defendant or on behalf of a defendant, that payment shall be applied first to court costs, then to fees, and then to fines pursuant to KRS 534.020 prior to the application of any credit earned pursuant to this section. Credit earned pursuant to this section shall not be applied to restitution.

HISTORY: Enact. Acts 2011, ch. 2, § 86, effective June 8, 2011; 2012, ch. 156, § 5, effective July 12, 2012; 2017 ch. 158, § 6, effective June 29, 2017.