Birdsong v. Commonwealth

347 S.W.3d 47, 2011 Ky. LEXIS 56, 2011 WL 1620586
CourtKentucky Supreme Court
DecidedApril 21, 2011
Docket2009-SC-000084-DG
StatusPublished
Cited by7 cases

This text of 347 S.W.3d 47 (Birdsong v. Commonwealth) is published on Counsel Stack Legal Research, covering Kentucky Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Birdsong v. Commonwealth, 347 S.W.3d 47, 2011 Ky. LEXIS 56, 2011 WL 1620586 (Ky. 2011).

Opinions

OPINION OF THE COURT

Ronald Birdsong received a twelve-year sentence following a jury conviction for Robbery, Second-Degree and Persistent [48]*48Felony Offender, First-Degree. This Court granted discretionary review to address whether a defendant’s intimidating conduct, to wit: aggression against inanimate objects — without an explicit threat of bodily harm to a person — is sufficient force to constitute Robbery, Second-Degree. We find it is.

Facts

On June 21, 2005, with a bandana over his nose and mouth, Ronald Birdsong ran into the Fifth Third Bank on Bryan Station Road in Lexington, Kentucky. He burst through the gate separating the teller area from the customer line. He moved the gate forcefully enough to create a loud bang when the gate hit the wall. And, the gate locked behind him.

Clustered at one employee’s computer, four bank tellers were present. The tellers hid under the counter. Birdsong ordered them to “get up” and “give him the money.” In doing so, he pulled a printer off the shelf under the counter near the tellers.

One teller arose and opened the drawers. Birdsong emptied the drawers. When the teller told him he had all of the money, Birdsong ran toward the exit. Unable to unlatch the gate leading to the customer area, he leapt over the gate and on to a nearby table, overturning a computer monitor in due course. Birdsong fled from the bank.

Following the theft, the police investigated. They released to the media a still photograph of the perpetrator from the bank’s surveillance camera. Subsequently, they received a tip implicating Birdsong.

Birdsong was in police custody on unrelated charges. When detectives interviewed him, he confessed to taking the money from the bank.

Birdsong stood trial for Robbery, Second-Degree and Persistent Felony Offender, First-Degree.

At trial, two bank tellers testified. One teller testified Birdsong screamed at them to “get up,” “give me the money,” and “open the drawers.” She said Birdsong was really loud. And, she complied with his orders because she was afraid of him based on his tone of voice. He screamed at her. However, she admitted Birdsong did not hit her or threaten to hit her. The second teller confirmed Birdsong did not make any explicit verbal threats against them or brandish a weapon.

Birdsong did not assert an innocence defense. Rather, he argued he did not use force or threaten the use of force during the crime; therefore, the jury could not find him guilty of Robbery, Second-Degree.

In response, the Commonwealth argued Birdsong’s behavior constituted an implied threat to use force against a person and this was sufficient for a Robbery, Second-Degree conviction.

The trial court denied Birdsong’s Motions for Directed Verdict.

The jury convicted Birdsong of Robbery, Second-Degree and Persistent Felony Offender, First-Degree. The jury recommended and the trial court imposed a twelve-year sentence.

Birdsong appealed his convictions to the Court of Appeals. There, he argued the jury could not convict him of Robbery, Second-Degree because the statute required he “use or threaten the use of physical force on another person.” 1 The evidence demonstrated he injured no one and his physical aggression toward inanimate objects, to wit: bursting through the [49]*49gate, pulling off the printer, and knocking over a computer monitor, were not a “threat to use physical force against another person.” He argued the Commonwealth had failed to prove an essential element of the offense thus the trial court erred by denying him a directed verdict.

In response, the Commonwealth argued Birdsong’s conduct provided a sufficient basis for the jury to infer Birdsong threatened the use of force on another person. The Court of Appeals agreed and affirmed Birdsong’s convictions.

Making the same arguments he made in the lower courts, Birdsong sought review in this Court.

Analysis

Birdsong alleges the trial court erred by failing to direct a verdict on Robbery, Second-Degree. Under our law, the trial court must grant a directed verdict when, taking the evidence in the light most favorable to the Commonwealth, it would be clearly unreasonable for the jury to find guilt.2 Moreover, the standard of review for this Court on appeal is “if under the evidence as a whole, it would be clearly unreasonable for a jury to find guilt, only then is a defendant entitled to a directed verdict.”3

KRS 515.030 defines Robbery, Second-Degree as:

A person is guilty of robbery in the second degree when, in the course of committing theft, he uses or threatens the use of physical force on another person with intent to accomplish the theft. (Emphasis added.)

As Birdsong correctly notes, the Commonwealth must prove the defendant’s guilt beyond a reasonable doubt on every element of the offense.4 Thus, the question for this Court is whether aggression toward inanimate objects in the presence of others during a theft sufficiently “threatens the use of physical force on another person.” The answer to this question is a matter of statutory construction.

Birdsong argues the statute requires an explicit threat against a person. Since Birdsong made no explicit threats against the bank tellers, the tellers simply inferred based on Birdsong’s conduct that he would hurt them if they did not comply with his demand for money. Birdsong’s conduct and the tellers’ inferences therefrom are not sufficient to constitute Robbery, Second-Degree.

The Commonwealth argues the threat of the immediate use of physical force was implicit from Birdsong’s actions which is sufficient to satisfy the statute.

When interpreting statutory language, certain fundamental principles of statutory construction guide us. First, this Court must give the statute’s words their usual, ordinary, and everyday meaning.5 Second, we “may not interpret a statute at variance with its stated language.” 6 Thus, we turn now to the dictionary definition of “threaten.”

The American Heritage Dictionary defines “threaten” as “1. To express a threat against. 2. To be a source of danger to; menace. 3. To portend. 4. To indicate danger or harm.” American Heritage Dictio[50]*50nary 840 (3d ed.1992). Moreover, a “threat” is “1. An expression of an intention to inflict pain, injury, or evil. 2. One regarded as a possible danger.” Id.

Based on these definitions and our review of the record, we cannot say it was clearly unreasonable for the jury to find Birdsong threatened the use of physical force on another person. Birdsong entered the bank wearing a bandana. He caused a loud noise when he entered the teller area by slamming the gate into the wall. He gave orders to the tellers in a loud voice. He pulled a printer onto the floor from a shelf near where the tellers hid under the counter. It was not unreasonable for the jury to conclude Birdsong expressed an intention to inflict pain or injury or that his behavior indicated danger or harm.

Moreover, it is clear from the tellers’ testimony that they were afraid of Birdsong, that they “regarded [him] as a possible danger.”

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Birdsong v. Commonwealth
347 S.W.3d 47 (Kentucky Supreme Court, 2011)

Cite This Page — Counsel Stack

Bluebook (online)
347 S.W.3d 47, 2011 Ky. LEXIS 56, 2011 WL 1620586, Counsel Stack Legal Research, https://law.counselstack.com/opinion/birdsong-v-commonwealth-ky-2011.