CORRECTED: JULY 9, 2019 RENDERED: JUNE 13,2019 TO BE PUBLISHED
2017-SC-000599-DG
DONALD G. ADAMS APPELLANT
ON REVIEW FROM COURT OF APPEALS V. CASE NO. 2016-CA-001739-MR DAVIESS CIRCUIT COURT NO. 95-CR-00182-001
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION OF THE COURT
After a complete review of the parties' briefs, statutory law, and
oral argument, the Opinion of the Court of Appeals is affirmed. The Court of
Appeals thoroughly considered the circumstances of this case and the
applicable law. For these reasons, we adopt the Opinion of the Court of
Appeals:
BEFORE: CLAYTON, COMBS, AND D. LAMBERT, JUDGES.
COMBS, JUDGE: The Commonwealth of Kentucky appeals an order of the
Daviess Circuit Court granting Donald Adams’s application to vacate and expunge his four felony convictions for theft by unlawful taking, value of $3001
or more. It argues that the circuit court acted erroneously when it determined
that the four felony convictions arose from a “single incident” as contemplated
by the expungement statute, KRS 431.073(1). We reverse and remand because
we agree with the Commonwealth that the application to expunge was
improperly granted.
In June 1995, a Daviess County Grand Jury returned a single
indictment against Adams charging him with four counts of theft by unlawful
taking, value of $300 or more, a Class D felony. The charges stemmed from
Adams’s—either alone or in complicity with others—stealing a total of thirty-
four Holstein heifers from Sunny View Farms in Daviess County on four
different occasions over the course of approximately six months. Four heifers
were taken in August 1994, five in September 1994, seventeen in November
1994, and eight in February 1995. In October 1996, Adams pled guilty to all
four charges. He was sentenced to two-years’ imprisonment, but he was
granted shock probation after serving sixty-three days. He completed his
probation in February 1998.
In 2016, the General Assembly passed House Bill 40 allowing
people convicted of one Class D felony — or a series of Class D felonies arising
out of the same incident — to have their convictions expunged from public
1 KRS (Kentucky Revised Statutes) 514.030. The statute was later revised and changed the value of the theft to $500.00.
-2- records.2 KRS 431.073 was enacted as a result and took effect on July 15,
2016. On August 23, 2016, Adams petitioned the court to vacate and expunge
his theft convictions. The Commonwealth objected, however, arguing that
Adams’s convictions were not eligible for expungement because they did not
“arise out of a single incident” as required by KRS 431.073(1).
A hearing was held at which Adams argued that the circuit court
should grant his petition because all four theft counts were contained in one
indictment, involved the same victim, and were parts of the same course of
conduct. The Commonwealth articulated its objection regarding KRS
431.073(1). At the conclusion of the hearing, the court granted Adams’s
expungement request. In so doing, the court reasoned that there was a single
victim, that the four incidents could be considered a series, and that the theft
could be considered a single incident. The court subsequently entered an
order granting expungement. It is from that order that the Commonwealth now
appeals.
The issue argued by the Commonwealth presents a question
regarding the scope and interpretation of KRS 431.073—the felony
expungement statute. Because statutory interpretation involves questions of
law, “our review is de novo; and the conclusions reached by the lower courts
are entitled to no deference.” Commonwealth v. Love, 334 S.W.3d 92, 93 (Ky.
2011) (citations omitted).
2 Only certain Class D felonies are eligible for expungement.
-3- When faced with statutory interpretation, it is “the seminal duty of
a court... to effectuate the intent of the legislature.” Commonwealth v.
Plowman, 86 S.W.3d 47, 49 (Ky. 2002) (citations omitted). “The most logical
and effective manner by which to determine the intent of the legislature is
simply to analyze the plain meaning of the statutory language[.]” Stephenson v.
Woodward, 182 S.W.3d 162, 169-70 (Ky. 2005). “(S)tatutes must be given their
literal interpretation unless they are ambiguous and if the words are not
ambiguous, no statutory construction is required. We lend words of a statute
their normal, ordinary, everyday meaning.” Id. at 170 (citations omitted).
The sole issue on appeal is whether the circuit court erred in
finding that Adam’s four theft offenses — committed on four different days over
a six- month period — arose from a “single incident.” Adams argues that the
circuit court correctly found that because Adams’s thefts involved only one
victim, they could be considered a single incident under KRS 431.073.
However, after considering the statute’s plain language, we are compelled to
disagree with the circuit court’s expansive reading of KRS 431.073(1).
KRS 431.073(1) provides in pertinent part:
Any person who has been convicted of a Class D felony violation of [a list of statutes that includes KRS 514.030-theft by unlawful taking], or a series of Class D felony violations of one (1) or more statutes enumerated in this section arising from a single incident. . . may file with the court in which he or she was convicted an application to have the judgment vacated.
-4- (Emphases added.) The words “single incident” are not specifically defined
anywhere within KRS Chapter 439. Consequently, because the language of the
statute is clear on its face, the words must be “interpreted as taking their
ordinary, contemporary, common meaning.” Lee v. Haney, 517 S.W.3d 500,
503 (Ky. App. 2017) (citations omitted).
The general dictionary definition of “incident” includes “an
occurrence of an action or situation that is a separate unit of experience.”
Merriam-Webster Collegiate Dictionary (11th ed. 2005), available at
http://www.merriam-webster.com/dictionary/incident. Black’s Law Dictionary
defines it as “[a] discrete occurrence or happening.” Black’s Law Diet. (8th ed.
2004). The term “single” as used in this context means “consisting of one
alone; individual.” Id. Therefore, “single incident,” in its common, everyday
Free access — add to your briefcase to read the full text and ask questions with AI
CORRECTED: JULY 9, 2019 RENDERED: JUNE 13,2019 TO BE PUBLISHED
2017-SC-000599-DG
DONALD G. ADAMS APPELLANT
ON REVIEW FROM COURT OF APPEALS V. CASE NO. 2016-CA-001739-MR DAVIESS CIRCUIT COURT NO. 95-CR-00182-001
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION OF THE COURT
After a complete review of the parties' briefs, statutory law, and
oral argument, the Opinion of the Court of Appeals is affirmed. The Court of
Appeals thoroughly considered the circumstances of this case and the
applicable law. For these reasons, we adopt the Opinion of the Court of
Appeals:
BEFORE: CLAYTON, COMBS, AND D. LAMBERT, JUDGES.
COMBS, JUDGE: The Commonwealth of Kentucky appeals an order of the
Daviess Circuit Court granting Donald Adams’s application to vacate and expunge his four felony convictions for theft by unlawful taking, value of $3001
or more. It argues that the circuit court acted erroneously when it determined
that the four felony convictions arose from a “single incident” as contemplated
by the expungement statute, KRS 431.073(1). We reverse and remand because
we agree with the Commonwealth that the application to expunge was
improperly granted.
In June 1995, a Daviess County Grand Jury returned a single
indictment against Adams charging him with four counts of theft by unlawful
taking, value of $300 or more, a Class D felony. The charges stemmed from
Adams’s—either alone or in complicity with others—stealing a total of thirty-
four Holstein heifers from Sunny View Farms in Daviess County on four
different occasions over the course of approximately six months. Four heifers
were taken in August 1994, five in September 1994, seventeen in November
1994, and eight in February 1995. In October 1996, Adams pled guilty to all
four charges. He was sentenced to two-years’ imprisonment, but he was
granted shock probation after serving sixty-three days. He completed his
probation in February 1998.
In 2016, the General Assembly passed House Bill 40 allowing
people convicted of one Class D felony — or a series of Class D felonies arising
out of the same incident — to have their convictions expunged from public
1 KRS (Kentucky Revised Statutes) 514.030. The statute was later revised and changed the value of the theft to $500.00.
-2- records.2 KRS 431.073 was enacted as a result and took effect on July 15,
2016. On August 23, 2016, Adams petitioned the court to vacate and expunge
his theft convictions. The Commonwealth objected, however, arguing that
Adams’s convictions were not eligible for expungement because they did not
“arise out of a single incident” as required by KRS 431.073(1).
A hearing was held at which Adams argued that the circuit court
should grant his petition because all four theft counts were contained in one
indictment, involved the same victim, and were parts of the same course of
conduct. The Commonwealth articulated its objection regarding KRS
431.073(1). At the conclusion of the hearing, the court granted Adams’s
expungement request. In so doing, the court reasoned that there was a single
victim, that the four incidents could be considered a series, and that the theft
could be considered a single incident. The court subsequently entered an
order granting expungement. It is from that order that the Commonwealth now
appeals.
The issue argued by the Commonwealth presents a question
regarding the scope and interpretation of KRS 431.073—the felony
expungement statute. Because statutory interpretation involves questions of
law, “our review is de novo; and the conclusions reached by the lower courts
are entitled to no deference.” Commonwealth v. Love, 334 S.W.3d 92, 93 (Ky.
2011) (citations omitted).
2 Only certain Class D felonies are eligible for expungement.
-3- When faced with statutory interpretation, it is “the seminal duty of
a court... to effectuate the intent of the legislature.” Commonwealth v.
Plowman, 86 S.W.3d 47, 49 (Ky. 2002) (citations omitted). “The most logical
and effective manner by which to determine the intent of the legislature is
simply to analyze the plain meaning of the statutory language[.]” Stephenson v.
Woodward, 182 S.W.3d 162, 169-70 (Ky. 2005). “(S)tatutes must be given their
literal interpretation unless they are ambiguous and if the words are not
ambiguous, no statutory construction is required. We lend words of a statute
their normal, ordinary, everyday meaning.” Id. at 170 (citations omitted).
The sole issue on appeal is whether the circuit court erred in
finding that Adam’s four theft offenses — committed on four different days over
a six- month period — arose from a “single incident.” Adams argues that the
circuit court correctly found that because Adams’s thefts involved only one
victim, they could be considered a single incident under KRS 431.073.
However, after considering the statute’s plain language, we are compelled to
disagree with the circuit court’s expansive reading of KRS 431.073(1).
KRS 431.073(1) provides in pertinent part:
Any person who has been convicted of a Class D felony violation of [a list of statutes that includes KRS 514.030-theft by unlawful taking], or a series of Class D felony violations of one (1) or more statutes enumerated in this section arising from a single incident. . . may file with the court in which he or she was convicted an application to have the judgment vacated.
-4- (Emphases added.) The words “single incident” are not specifically defined
anywhere within KRS Chapter 439. Consequently, because the language of the
statute is clear on its face, the words must be “interpreted as taking their
ordinary, contemporary, common meaning.” Lee v. Haney, 517 S.W.3d 500,
503 (Ky. App. 2017) (citations omitted).
The general dictionary definition of “incident” includes “an
occurrence of an action or situation that is a separate unit of experience.”
Merriam-Webster Collegiate Dictionary (11th ed. 2005), available at
http://www.merriam-webster.com/dictionary/incident. Black’s Law Dictionary
defines it as “[a] discrete occurrence or happening.” Black’s Law Diet. (8th ed.
2004). The term “single” as used in this context means “consisting of one
alone; individual.” Id. Therefore, “single incident,” in its common, everyday
parlance, refers to one discrete occurrence that is a separate unit of experience.
We have examined and applied the concept of numerous “crimes
arising from a ‘single incident'" in the past — albeit in different criminal
contexts. After a review of those cases, it appears that when determining
whether a series of crimes arose out of the same incident, one of our chief
considerations has been the temporal proximity of the separate crimes.
In Simpson v. Commonwealth, 159 S.W.3d 824 (Ky. App. 2005), the
appellant was charged with both possession of marijuana and trafficking in
marijuana after his car was pulled over and a patdown search revealed
marijuana on his person; a search of his car three days later revealed sufficient
evidence for the police to believe that the appellant was trafficking. We held
-5- that the charges did not arise from the same incident because the marijuana
found on the appellant was the basis for the possession charge, and the
marijuana found in the car three days later was the basis for the trafficking
charge. In so holding, we noted: “The difference in time between the patdown
and the search of the car bolsters our belief that Simpson’s charges did not
spring from the same incident.” Id. at 828 (emphasis added).
In Filzek v. Commonwealth, 309 S.W.3d 790 (Ky. App. 2009), the
appellant was charged with four counts of unlawful use of electronic means to
induce a minor to engage in sexual or other prohibited activities arising from
several phone and internet conversations that he had with one whom he
believed to be a fourteen-year-old girl. He argued that the indictment
containing multiple counts violated the proscription against double jeopardy
because each incident was part of an ongoing course of conduct. We held that
the facts of the case did not demonstrate a course of conduct:
[a]lthough Filzek’s conversations all involved internet telephone conversations with Joy, each count of the indictment referred to temporally discrete incidents that involved the use of the internet and telephone to engage in distinct proscribed activities.
Id. at 792 (emphases added).
In Day v. Commonwealth, 367 S.W.3d 616 (Ky. App. 2012), the
appellant was convicted both of first-degree robbery and of first-degree
unlawful access to a computer for pointing a gun at a man, stealing his debit
card and pin number, and then walking a quarter of a mile to use the credit
card to obtain money from an ATM machine. Appellant argued that his
-6- convictions violated the proscription against double jeopardy because they
arose from one continuous act with no separation in time and space. We
determined that “[t]he geographical and temporal separation of the specific acts
giving rise to each offense compels the conclusion that [the offenses] did not
arise out of a single incident.” Id. at 623 (emphasis added).
Based on the common meaning of “single incident” and our past
precedent, we conclude that the phrase “a series of Class D felony violations . .
. arising from a single incident” in KRS 431.073(1) refers to criminal offenses
that were performed in the furtherance of an individual criminal episode and
that were closely compressed in terms of time. Reviewing the facts of this case,
we believe that Adams’s four individual thefts did not “arise from a single
incident” as the phrase is commonly understood. Instead, each of Adam’s
thefts involved a temporally discrete criminal episode. In each instance, Adams
formed a separate criminal intent to steal heifers, and he proceeded to fulfill his
criminal objective. Following each theft, Adams had more than a sufficient
amount of time to disassociate himself from the criminal act. A successive
incident occurred when Adams formed a new criminal intent and completed a
separate and distinct theft. Because Adams was convicted of a series of Class
D felonies that did not arise out of the same incident, the circuit court erred in
granting his petition for expungement.
We reverse the order of the Daviess Circuit Court and remand for
entry of an order consistent with this opinion.
ALL CONCUR.
-7- Minton, C.J.; Buckingham, Hughes, Keller, VanMeter, and Wright,
JJ., sitting. All concur. Lambert, J., not sitting.
COUNSEL FOR APPELLANT: Marty G. Jacobs Jacobs & Pfeifer, PSC Owensboro, Kentucky
COUNSEL FOR APPELLEE: Andy Beshear Attorney General of Kentucky
John Paul Varo James Patrick Judge Assistant Attorney General Frankfort, Kentucky
-8- 2017-SC-000599-DG
ON REVIEW FROM COURT OF APPEALS V. NO. 2016-CA-001739 DAVIESS CIRCUIT COURT NO. 95-CR-00182-001
ORDER CORRECTING
The Opinion of the Court rendered June 13, 2019 is corrected and the attached
opinion is hereby substituted in lieu of the original opinion. Said correction does not
affect the holding of the original opinion rendered by the Court.
ENTERED: July 9, 2019.