RENDERED: OCTOBER 25, 2024; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2023-CA-0359-MR
DAVID HOUCHIN APPELLANT
APPEAL FROM GRAYSON CIRCUIT COURT v. HONORABLE BRUCE T. BUTLER, JUDGE ACTION NO. 21-CR-00230
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: THOMPSON, CHIEF JUDGE; ACREE AND CALDWELL, JUDGES.
ACREE, JUDGE: Appellant, David Houchin, appeals the Grayson Circuit Court’s
ruling that the jury would not be instructed on the defense of voluntary intoxication
and third-degree criminal trespass. Finding no error, we affirm.
BACKGROUND
A jury convicted Appellant of attempted first-degree burglary, two
counts of first-degree wanton endangerment, second-degree criminal mischief,
third-degree terroristic threatening, and being a first-degree persistent felony offender. The underlying charges arose from Appellant’s actions on June 22,
2021.
Appellant claims he drove to Lori Greathouse’s home that day to buy
marijuana. He suffers from prostate cancer and COPD and uses marijuana to
combat his pain related to those illnesses. Lori told him not to arrive until at least
1:00 PM. He complied, arriving at Lori’s home sometime after 2:00 PM. He
claims he knocked on the door, but no one answered. So, he decided to wait in his
car and smoke a cigarette.
According to Appellant’s version of the events, while he was still in
his car, Lori’s brother, Joe Higdon, approached him and punched him in the face.
Joe then pulled Appellant out of the car and threw him on the ground. Lori then
came outside with a kitchen knife in hand, but at some point, dropped the knife and
returned inside. Appellant picked up the kitchen knife and then began to stab
Lori’s front door. He claims he did not enter the residence. Additionally,
Appellant was adamant he had not been drinking and was not under the influence
of any substance when this happened.
The Commonwealth presented a different version of events to the
jury. Lori said this incident began when Appellant’s girlfriend called Lori to tell
her he was drunk, and he was driving to see her. Lori then called law enforcement,
-2- hoping they would intercept Appellant operating his vehicle while intoxicated
before he arrived at Lori’s house. This did not happen.
Lori said Appellant arrived and began banging and kicking her front
door. Lori called Joe. When Joe found Appellant, he struck Appellant, picked him
up by the seat of his pants, and dragged him off the property. Lori told Appellant
to get in his car and leave. Believing Appellant would do so, Joe left the scene.
Appellant returned, however. By then, Lori’s neighbors, Philip and
Linda Heflin were at Lori’s place. They saw Lori grab Appellant by the neck and
drag him to his van. She then went inside while Philip remained outside.
Appellant then found a kitchen knife that Lori had been using to cut weeds in her
flower bed. Philip, seeing Appellant wielding the knife, rushed inside. Appellant
began stabbing the door with the knife. Lori testified she was cut by the knife as
she stood leaning against the other side of the door to hold it closed. Philip helped
her hold the door shut as Appellant attacked it.
At this point, law enforcement arrived and arrested Appellant. The
officer stated that, in his opinion, Appellant appeared under the influence of
alcohol. He also counted 130 holes in the door from Appellant stabbing it.
The jury did not believe Appellant’s version of events and convicted
him of all the above-mentioned charges. The court sentenced him to ten-years’
incarceration. This appeal follows.
-3- ANALYSIS
Appellant contends the circuit court erred in two ways when it
instructed the jury: first, by failing to instruct the jury on the defense of voluntary
intoxication; and second, by failing to include instructions on the lesser included
offense of third-degree criminal trespass. We address each argument in turn.
When appellate courts review a circuit court’s denial of a jury
instruction, we review for abuse of discretion. Brafman v. Commonwealth, 612
S.W.3d 850, 857 (Ky. 2020) (citations omitted). During this review, we consider
the evidence in a light most favorable to the party requesting the jury instruction.
Thomas v. Commonwealth, 170 S.W.3d 343, 347 (Ky. 2005) (citing Ruehl v.
Houchin, 387 S.W.2d 597, 599 (Ky. 1965)). Accordingly, the trial court’s decision
will be disturbed only if it was “arbitrary, unreasonable, unfair, or unsupported by
sound legal principles.” Commonwealth v. English, 993 S.W.2d 941, 945 (Ky.
1999).
“It is well established that the trial court is required to instruct the jury
on the ‘whole law of the case, and this rule requires instructions applicable to every
state of the case deducible or supported to any extent by the testimony.’” Gribbins
v. Commonwealth, 483 S.W.3d 370, 373 (Ky. 2016) (citations omitted) (quoting
Taylor v. Commonwealth, 995 S.W.2d 355, 360 (Ky. 1999)). “[J]ury instructions
must be complete and the defendant has a right to have every issue of fact raised
-4- by the evidence and material to his defense submitted to the jury on proper
instructions.” Hayes v. Commonwealth, 870 S.W.2d 786, 788 (Ky. 1993)
(citations omitted). Complete jury instructions include “every theory of the case
reasonably deducible from the evidence.” Manning v. Commonwealth, 23 S.W.3d
610 (Ky. 2000) (citations omitted). This includes affirmative defenses, like
voluntary intoxication and “lesser-included offenses.” King v. Commonwealth,
513 S.W.3d 919, 923 (Ky. 2017).
Pursuant to KRS1 501.080: “Intoxication is a defense to a criminal
charge only if such condition . . . [n]egatives the existence of an element of the
offense[.]” KRS 501.080(1). As the Kentucky Supreme Court explained, “[i]f the
posture of the evidence is such that an issue of fact is raised showing intoxication
to such a degree that the defendant was unable to form the requisite intent where
the charge is for a specific intent crime, then the defendant is entitled to an
instruction on this defense . . . .” Mishler v. Commonwealth, 556 S.W.2d 676, 680
(Ky. 1977). However, more than mere drunkenness is required, and an instruction
on voluntary intoxication is only appropriate “where there is evidence reasonably
sufficient to prove that the defendant was so drunk that he did not know what he
was doing.” Luna v. Commonwealth, 460 S.W.3d 851, 882 (Ky. 2015) (quoting
Harris v. Commonwealth, 313 S.W.3d 40, 50 (Ky. 2010)).
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RENDERED: OCTOBER 25, 2024; 10:00 A.M. NOT TO BE PUBLISHED
Commonwealth of Kentucky Court of Appeals NO. 2023-CA-0359-MR
DAVID HOUCHIN APPELLANT
APPEAL FROM GRAYSON CIRCUIT COURT v. HONORABLE BRUCE T. BUTLER, JUDGE ACTION NO. 21-CR-00230
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION AFFIRMING
** ** ** ** **
BEFORE: THOMPSON, CHIEF JUDGE; ACREE AND CALDWELL, JUDGES.
ACREE, JUDGE: Appellant, David Houchin, appeals the Grayson Circuit Court’s
ruling that the jury would not be instructed on the defense of voluntary intoxication
and third-degree criminal trespass. Finding no error, we affirm.
BACKGROUND
A jury convicted Appellant of attempted first-degree burglary, two
counts of first-degree wanton endangerment, second-degree criminal mischief,
third-degree terroristic threatening, and being a first-degree persistent felony offender. The underlying charges arose from Appellant’s actions on June 22,
2021.
Appellant claims he drove to Lori Greathouse’s home that day to buy
marijuana. He suffers from prostate cancer and COPD and uses marijuana to
combat his pain related to those illnesses. Lori told him not to arrive until at least
1:00 PM. He complied, arriving at Lori’s home sometime after 2:00 PM. He
claims he knocked on the door, but no one answered. So, he decided to wait in his
car and smoke a cigarette.
According to Appellant’s version of the events, while he was still in
his car, Lori’s brother, Joe Higdon, approached him and punched him in the face.
Joe then pulled Appellant out of the car and threw him on the ground. Lori then
came outside with a kitchen knife in hand, but at some point, dropped the knife and
returned inside. Appellant picked up the kitchen knife and then began to stab
Lori’s front door. He claims he did not enter the residence. Additionally,
Appellant was adamant he had not been drinking and was not under the influence
of any substance when this happened.
The Commonwealth presented a different version of events to the
jury. Lori said this incident began when Appellant’s girlfriend called Lori to tell
her he was drunk, and he was driving to see her. Lori then called law enforcement,
-2- hoping they would intercept Appellant operating his vehicle while intoxicated
before he arrived at Lori’s house. This did not happen.
Lori said Appellant arrived and began banging and kicking her front
door. Lori called Joe. When Joe found Appellant, he struck Appellant, picked him
up by the seat of his pants, and dragged him off the property. Lori told Appellant
to get in his car and leave. Believing Appellant would do so, Joe left the scene.
Appellant returned, however. By then, Lori’s neighbors, Philip and
Linda Heflin were at Lori’s place. They saw Lori grab Appellant by the neck and
drag him to his van. She then went inside while Philip remained outside.
Appellant then found a kitchen knife that Lori had been using to cut weeds in her
flower bed. Philip, seeing Appellant wielding the knife, rushed inside. Appellant
began stabbing the door with the knife. Lori testified she was cut by the knife as
she stood leaning against the other side of the door to hold it closed. Philip helped
her hold the door shut as Appellant attacked it.
At this point, law enforcement arrived and arrested Appellant. The
officer stated that, in his opinion, Appellant appeared under the influence of
alcohol. He also counted 130 holes in the door from Appellant stabbing it.
The jury did not believe Appellant’s version of events and convicted
him of all the above-mentioned charges. The court sentenced him to ten-years’
incarceration. This appeal follows.
-3- ANALYSIS
Appellant contends the circuit court erred in two ways when it
instructed the jury: first, by failing to instruct the jury on the defense of voluntary
intoxication; and second, by failing to include instructions on the lesser included
offense of third-degree criminal trespass. We address each argument in turn.
When appellate courts review a circuit court’s denial of a jury
instruction, we review for abuse of discretion. Brafman v. Commonwealth, 612
S.W.3d 850, 857 (Ky. 2020) (citations omitted). During this review, we consider
the evidence in a light most favorable to the party requesting the jury instruction.
Thomas v. Commonwealth, 170 S.W.3d 343, 347 (Ky. 2005) (citing Ruehl v.
Houchin, 387 S.W.2d 597, 599 (Ky. 1965)). Accordingly, the trial court’s decision
will be disturbed only if it was “arbitrary, unreasonable, unfair, or unsupported by
sound legal principles.” Commonwealth v. English, 993 S.W.2d 941, 945 (Ky.
1999).
“It is well established that the trial court is required to instruct the jury
on the ‘whole law of the case, and this rule requires instructions applicable to every
state of the case deducible or supported to any extent by the testimony.’” Gribbins
v. Commonwealth, 483 S.W.3d 370, 373 (Ky. 2016) (citations omitted) (quoting
Taylor v. Commonwealth, 995 S.W.2d 355, 360 (Ky. 1999)). “[J]ury instructions
must be complete and the defendant has a right to have every issue of fact raised
-4- by the evidence and material to his defense submitted to the jury on proper
instructions.” Hayes v. Commonwealth, 870 S.W.2d 786, 788 (Ky. 1993)
(citations omitted). Complete jury instructions include “every theory of the case
reasonably deducible from the evidence.” Manning v. Commonwealth, 23 S.W.3d
610 (Ky. 2000) (citations omitted). This includes affirmative defenses, like
voluntary intoxication and “lesser-included offenses.” King v. Commonwealth,
513 S.W.3d 919, 923 (Ky. 2017).
Pursuant to KRS1 501.080: “Intoxication is a defense to a criminal
charge only if such condition . . . [n]egatives the existence of an element of the
offense[.]” KRS 501.080(1). As the Kentucky Supreme Court explained, “[i]f the
posture of the evidence is such that an issue of fact is raised showing intoxication
to such a degree that the defendant was unable to form the requisite intent where
the charge is for a specific intent crime, then the defendant is entitled to an
instruction on this defense . . . .” Mishler v. Commonwealth, 556 S.W.2d 676, 680
(Ky. 1977). However, more than mere drunkenness is required, and an instruction
on voluntary intoxication is only appropriate “where there is evidence reasonably
sufficient to prove that the defendant was so drunk that he did not know what he
was doing.” Luna v. Commonwealth, 460 S.W.3d 851, 882 (Ky. 2015) (quoting
Harris v. Commonwealth, 313 S.W.3d 40, 50 (Ky. 2010)).
1 Kentucky Revised Statutes.
-5- Here, the evidence presented did not reasonably present Appellant
with a viable voluntary intoxication defense. While it is true that nearly all the
Commonwealth’s witnesses testified to their belief Appellant was intoxicated, he
refuted that claim, arguing he was not intoxicated. Further, Appellant made no
claim that alcohol, or any of his prescribed medications, caused him to black out or
not realize what he was doing. Based on his own testimony, Appellant maintained
complete control of his faculties during the entire attack.
Generally, for voluntary intoxication to negate a criminal intent
element, one must be so drunk as to not know what they are doing, showing an
advanced degree of intoxication that goes well beyond mere drunkenness. Luna,
460 S.W.3d at 882. In Luna, a jury convicted George Luna of first-degree murder
and first-degree arson. Id. at 860. While intoxicated, George set the trailer of
Debra Hendrickson on fire, and the fire he started killed her. Id. at 861. On appeal
to the Kentucky Supreme Court, he argued the jury should have been instructed on
voluntary intoxication because of his drunken state. Id. at 881. The Court rejected
this argument because Luna failed to present evidence that his intoxication went
beyond mere drunkenness. Id. at 882-83. While Luna’s testimony greatly
referenced his drunken state, he never testified to blacking out from his alcohol
consumption, nor that it made him behave in a way that he did not know what he
was doing. Id. at 882.
-6- Here, Appellant never testified that he was unaware of his conduct, or
that he blacked out from alcohol consumption. As in Luna’s case, Appellant
presented no evidence suggesting he did not know what he was doing. Id. He had
no trouble recalling details of that day. He gave a full account of his version of
events. That version did not include him blacking out or being unable to recall
details of the incident. Moreover, Appellant claims he was not under the influence
of any substance, alcohol, or other prescribed medications, and he denied drinking
alcohol on the day of this attack. Given that nearly all other witnesses believed he
was intoxicated, the evidence would only support an inference of mere
drunkenness despite Appellant’s own denial of drinking. And mere drunkenness is
not enough to support a jury instruction on voluntary intoxication.
Accordingly, the Grayson Circuit Court did not err when it declined
instructing the jury on the defense of voluntary intoxication.
Next, Appellant contends he was entitled to a jury instruction on
criminal trespass. On appeal, he argues criminal trespass is a lesser included
offense of first-degree burglary.
“When the prosecution adduces evidence warranting an inference of a
finding of a lesser degree of the charged offense, the court should instruct on the
lesser degree . . . .” Trimble v. Commonwealth, 447 S.W.2d 348, 350 (Ky. 1969).
“An instruction on a lesser included offense is appropriate if, and only if, on the
-7- given evidence a reasonable juror could entertain a reasonable doubt of the
defendant’s guilt on the greater charge, but believe beyond a reasonable doubt that
the defendant is guilty of the lesser offense.” Osborne v. Commonwealth, 43
S.W.3d 234, 244 (Ky. 2001) (citations omitted).
There are three degrees of criminal trespass. Pursuant to KRS
511.060: “A person is guilty of criminal trespass in the first degree when he or she
knowingly enters or remains unlawfully in a dwelling.” KRS 511.060(1).
Pursuant to KRS 511.070: “A person is guilty of criminal trespass in the second
degree when he or she knowingly enters or remains unlawfully in a building or
upon premises as to which notice against trespass is given by fencing or other
enclosure.” KRS 511.070(1). Finally, pursuant to KRS 511.080: “A person is
guilty of criminal trespass in the third degree when he knowingly enters or remains
unlawfully in or upon premises.” KRS 511.080(1). First-degree burglary is
defined in KRS 511.020.
A person is guilty of burglary in the first degree when, with the intent to commit a crime, he or she knowingly enters or remains unlawfully in a building, and when in effecting entry or while in the building or in the immediate flight therefrom, he or she or another participant in the crime: (a) Is armed with explosives or a deadly weapon; (b) Causes physical injury to any person who is not a participant in the crime; or
-8- (c) Uses or threatens the use of a dangerous instrument against any person who is not a participant in the crime.
KRS 511.020(1). Finally, the penal code defines knives as deadly weapons. KRS
500.080(4)(c).
Here, there is no dispute that Appellant was armed with a deadly
weapon when he attacked the front door with the kitchen knife. Based on the
witnesses’ testimony, he used that weapon in his attempt to enter the home, only
failing to gain access to the home because law enforcement arrived. The
undisputed use of a deadly weapon during the commission of this crime precludes
the lesser included crime of criminal trespass as no lesser degree of criminal
trespass contains the deadly weapon element. Thus, the evidence here precluded
an instruction on the lesser included crime of criminal trespass.
Accordingly, the Grayson Circuit Court did not err when it declined
instructing the jury on the defense of criminal trespass.
CONCLUSION
Thus, for the aforementioned reasons, the Grayson Circuit Court did
not abuse its discretion. We affirm.
ALL CONCUR.
-9- BRIEFS FOR APPELLANT: BRIEF FOR APPELLEE:
Jared Travis Bewley Russell Coleman Aaron Reed Baker Attorney General of Kentucky Frankfort, Kentucky Courtney J. Hightower Assistant Attorney General Frankfort, Kentucky
-10-