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).

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).

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).

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.

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.

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.

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, sub. op., 2006 Ky. App. Unpub. LEXIS 1224 (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, sub. op., 2006 Ky. App. Unpub. LEXIS 1224 (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, sub. op., 2006 Ky. App. Unpub. LEXIS 330 (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, sub. op., 2006 Ky. App. LEXIS 3 97 (Ky. Ct. App. June 23, 2006), sub. op., 2006 Ky. App. Unpub. LEXIS 330 (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, sub. op., 2006 Ky. App. Unpub. LEXIS 330 (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 ).

Evidence was sufficient for the jury to find that defendant’s conduct in a high speed car chase caused or created a substantial risk of serious physical injury or death to the police officers who pursued defendant in separate police cars because the pursuit happened in the dark on a highway and curvy side roads, the officers’ speed reached 10-25 m.p.h. over the speed limit, and both officers testified that the officers felt in danger in pursuing defendant until breaking off the pursuit. Culver v. Commonwealth, 590 S.W.3d 810, 2019 Ky. LEXIS 535 ( Ky. 2019 ).

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.

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 .

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.

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).

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.

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.

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).

Evidence was sufficient for the jury to find that defendant’s conduct in a high speed car chase caused or created a substantial risk of serious physical injury or death to the police officers who pursued defendant in separate police cars because the pursuit happened in the dark on a highway and curvy side roads, the officers’ speed reached 10-25 m.p.h. over the speed limit, and both officers testified that the officers felt in danger in pursuing defendant until breaking off the pursuit. Culver v. Commonwealth, 590 S.W.3d 810, 2019 Ky. LEXIS 535 ( Ky. 2019 ).

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).

Trial court properly determined that a third-degree criminal abuse instruction could properly be given because the evidence could fairly support an inference that defendant, intending to discipline the child, caused the child to suffer unintended injuries; and that defendant was surprised at the extent of the injuries he had inflicted upon the child based upon his texted reactions to the picture the child’s mother sent him of the child’s bruises. Green v. Commonwealth, 2021 Ky. App. Unpub. LEXIS 154 (Ky. Ct. App. Mar. 26, 2021).

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).

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.

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.

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.

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.

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.

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.

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.

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.

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 ).

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); Fisher v. Commonwealth, 620 S.W.3d 1, 2021 Ky. LEXIS 127 ( Ky. 2021 ).

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.

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.

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.

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.

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.

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.

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.

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.

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, sub. op., 2012 Ky. App. Unpub. LEXIS 1015 (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 ), vacated, rev'd, 694 F.3d 650, 2012 FED App. 0326P, 2012 U.S. App. LEXIS 19109 (6th Cir. Ky. 2012 ).

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 ).

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.

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.

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 ), modified, 1997 Ky. LEXIS 142 (Ky. Nov. 20, 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 ), modified, 1997 Ky. LEXIS 142 (Ky. Nov. 20, 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 ), vacated, rev'd, 694 F.3d 650, 2012 FED App. 0326P, 2012 U.S. App. LEXIS 19109 (6th Cir. Ky. 2012 ).

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 ), modified, 1997 Ky. LEXIS 142 (Ky. Nov. 20, 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.

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 ), vacated, rev'd, 694 F.3d 650, 2012 FED App. 0326P, 2012 U.S. App. LEXIS 19109 (6th Cir. Ky. 2012 ).

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.

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.

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 ), vacated, rev'd, 694 F.3d 650, 2012 FED App. 0326P, 2012 U.S. App. LEXIS 19109 (6th Cir. Ky. 2012 ).

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), vacated, 2021 Ky. LEXIS 425 (Ky. Dec. 16, 2021).

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), vacated, 2021 Ky. LEXIS 425 (Ky. Dec. 16, 2021).

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, sub. op., 2012 Ky. App. Unpub. LEXIS 1015 (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, sub. op., 2012 Ky. App. Unpub. LEXIS 1015 (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, sub. op., 2012 Ky. App. Unpub. LEXIS 1015 (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, sub. op., 2012 Ky. App. Unpub. LEXIS 1015 (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), rev'd, 423 S.W.3d 690, 2014 Ky. LEXIS 17 ( Ky. 2014 ).

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), rev'd, 423 S.W.3d 690, 2014 Ky. LEXIS 17 ( Ky. 2014 ).

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 ).

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 ), amended, 2008 U.S. Dist. LEXIS 98252 (E.D. Ky. Dec. 4, 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 ), aff'd in part and rev'd in part, 248 F.3d 1152, 2001 U.S. App. LEXIS 12701 (6th Cir. Ky. 2001 ).

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.

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 ).

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.

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 ).

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.

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.

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.

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.

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).

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).

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).

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.), sub. op., 56 S.W.3d 406, 2001 Ky. LEXIS 223 ( 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), sub. op., 413 S.W.3d 568, 2010 Ky. LEXIS 312 ( Ky. 2010 ), modified, 2011 Ky. LEXIS 99 (Ky. Mar. 24, 2011).

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, sub. op., 2012 Ky. App. Unpub. LEXIS 1068 (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).

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).

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).

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.

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.

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).

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.

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), rev'd, 286 S.W.3d 206, 2009 Ky. LEXIS 160 ( Ky. 2009 ).

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.

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 ), modified, 2020 Ky. LEXIS 473 (Ky. Dec. 17, 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 ).

Circuit court erred in dismissing three counts against defendant on grounds that prosecution was prohibited by the double jeopardy clauses of the United States Constitution and the Kentucky Constitution because the police in two counties separately recovered firearms from two different locations—defendant’s vehicle and residence—at different times, and his arrest in one county constituted sufficient legal process to interrupt his course of conduct such that the second county’s charges were not statutorily prohibited. Commonwealth v. Joiner, 2021 Ky. App. Unpub. LEXIS 155 (Ky. Ct. App. Mar. 26, 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), vacated, 2004 Ky. LEXIS 48 (Ky. Feb. 11, 2004).

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 ).

Because defendant was entitled to a requested lesser-included offense instruction on giving a peace officer false identifying information as a lesser-included offense of theft of identity, the reversal of defendant’s conviction for theft of identity of another and remand for a new trial was appropriate. Boone v. Commonwealth, 2021 Ky. App. LEXIS 90 (Ky. Ct. App. Aug. 13, 2021).

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).

Although defendant argued that a total of eleven counterfeit bills were passed in two transactions and, thus, defendant should only have been charged with two criminal transactions, manifest injustice did not result from defendant being convicted on eleven counts of criminal possession of a forged instrument in the first degree. Johnson v. Commonwealth, 2021 Ky. App. LEXIS 85 (Ky. Ct. App. July 16, 2021).

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 ), modified, 1995 Ky. LEXIS 90 (Ky. Aug. 24, 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), rev'd, 279 S.W.3d 522, 2009 Ky. LEXIS 65 ( Ky. 2009 ).

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).

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.

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 ), cert. denied, 559 U.S. 1025, 130 S. Ct. 1879, 176 L. Ed. 2d 399, 2010 U.S. LEXIS 2451 (U.S. 2010).

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, sub. op., 2009 Ky. App. Unpub. LEXIS 1085 (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.

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.

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.

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 ).