Callison v. Commonwealth

706 S.W.2d 434, 1986 Ky. App. LEXIS 1073
CourtCourt of Appeals of Kentucky
DecidedMarch 21, 1986
StatusPublished
Cited by8 cases

This text of 706 S.W.2d 434 (Callison v. Commonwealth) is published on Counsel Stack Legal Research, covering Court of Appeals of Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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

Opinion

DUNN, Judge.

Barry N. Callison appeals from a judgment of the Fulton Circuit Court, which found him guilty of burglary in the third degree and of being a persistent felony offender (PFO) in the second degree, and sentenced him to eight years in prison. We reverse.

On appeal Callison argues that the trial court erred (1) in refusing to instruct the jury regarding Callison’s defense of voluntary intoxication, and on the lesser-included offense of criminal trespass; (2) in admitting, in the persistent felony offender stage of trial, evidence which was hearsay; (3) in overruling Callison’s motion for a directed verdict on the PFO charge for insufficient evidence; (4) in admitting incompetent and irrelevant evidence of other felony convictions during the PFO hearing; and, (5) in overruling Callison’s objections to improper remarks made by the prosecutor in closing argument in the PFO phase of the trial.

We first consider Callison’s contention that it was reversible error to refuse to instruct the jury on the issue of voluntary intoxication as a defense, and on the lesser-included offense of criminal trespass. This was error and we reverse.

“In a criminal case, it is the duty of the court to prepare and give instructions on the whole law. This general rule requires instructions applicable to every state of [the] case covered by the indictment and deducible from or supported to any extent by the testimony.” Lee v. Commonwealth, Ky., 329 S.W.2d 57, 60 (1959) (Emphasis added). See also J. Pal-more and R. Lawson, Kentucky Instructions to Juries: A revision of Stanley §§ 1.06,1.07 (1975 and 1979 Supp.). Where there is sufficient evidence to support a reasonable inference concerning the ultimate fact in a case, the issue should be submitted to the jury with appropriate instructions. Commonwealth v. Sanders, Ky., 685 S.W.2d 557 (1985); Martin v. Commonwealth, Ky., 571 S.W.2d 613, 615 (1978). In order to require a jury instruction on voluntary intoxication as a defense to burglary a defendant must show (1) evidence of drunkenness or other intoxication; and (2) evidence that the defendant did not know what he was doing. Jewell v. Commonwealth, Ky., 549 S.W.2d 807, 812 (1977); Zeutzius v. Commonwealth, 280 Ky. 455, 133 S.W.2d 746, 747 (1939).

In the ease before us, there was substantial evidence that Callison was intoxicated on the night he was arrested. First, Callison testified that he consumed a quart of whiskey along with a significant amount of other intoxicating drugs. Second, Callison’s girlfriend confirmed that Callison was too intoxicated to dance earlier in the evening and that he had at one point lost consciousness. Finally, the police testified that Callison was taken to the hospital following his arrest to be treated for drug and alcohol overdose. Furthermore, Callison’s testimony that he had no memory of his actions on the night in question was sufficient to support an inference that he did not know what he was doing. Jewell, supra, at 812. There was, therefore, sufficient evidence to require a jury instruction on the defense of voluntary intoxication.

Since we hold that the trial court should have instructed the jury on the issue of intoxication, we also hold that an instruction on the lesser-included offense of criminal trespass should have been given. Voluntary intoxication may negate intent. KRS 501.080(1). Where there is testimony such that the jury could infer that there was unlawful presence in a building with no intent to commit a crime, the criminal-trespass instruction should be given. Sanders, supra, at 559; Martin, supra, at 615. Upon remand, therefore, appropriate instructions concerning intoxication and criminal trespass must be presented to the jury by the trial court.

Callison next contends that the trial court erred in the PFO phase of the trial in admitting the testimony of Callison’s probation and parole officer. Specifically, Cal-[437]*437lison argues that insufficient foundation was laid to admit evidence taken from Cal-lison’s parole records under the business entries exception to the hearsay rule. This exception has previously been extended to probation and parole records. Garner v. Commonwealth, Ky., 645 S.W.2d 705, 707 (1983). In our view, once it has been established that the evidence is being taken from a proper copy of an official record, no formal foundation need be laid, so long as there is no challenge to the accuracy of the information contained in the record. See Garner, supra, at 706. The testimony of the probation and parole officer was therefore properly admitted.

The appellant next contends that there was insufficient evidence to sustain a conviction under KRS 532.080 as a persistent felony offender, since there was no direct evidence of Callison’s parole status at the time he committed the principal offense. Callison’s probation and parole officer testified that Callison was released on parole from sentence on a prior felony conviction on August 24, 1983. Previous testimony established that the principal offense was committed August 25, 1984.

Each element of the offense of being a persistent felony offender must be proven, beyond a reasonable doubt, by direct evidence. Hon v. Commonwealth, Ky., 670 S.W.2d 851, 853 (1984). “Direct evidence is that method of proof which tends to show the existence or non-existence of a disputed fact without the intervention of proof of another fact.” Starks Administratrix v. Herndon’s Administrator, 292 Ky. 469, 166 S.W.2d 828, 830 (1942). In the Hon case, the Commonwealth had introduced evidence of the defendant’s date of birth, as well as the date of the defendant’s prior felony conviction. The Court ruled that there was no direct evidence that the defendant was eighteen years old on the date the offense was committed, and that there was insufficient proof to convict under the statute. The Court reasoned that as there was no proof of the actual time between the date the offense was committed and the date the defendant was convicted, a reasonable doubt existed as to the defendant’s age on the date the offense was committed.

Such is not the case here. KRS 532.080 states in pertinent part:

As used in this provision, a previous felony conviction is a conviction of a felony in this state ... provided:
... (c) That the offender:
1. Completed service of the sentence imposed on any of the previous felony convictions within five (5) years prior to the date of the commission of the felony for which he now stands convicted; or

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Bluebook (online)
706 S.W.2d 434, 1986 Ky. App. LEXIS 1073, Counsel Stack Legal Research, https://law.counselstack.com/opinion/callison-v-commonwealth-kyctapp-1986.