IMPORTANT NOTICE NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED “NOT TO BE PUBLISHED.” PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, RAP 40(D), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED: OCTOBER 24, 2024 NOT TO BE PUBLISHED
Supreme Court of Kentucky 2023-SC-0417-MR
JOSEPH FRANKLIN APPELLANT
ON APPEAL FROM HOPKINS CIRCUIT COURT V. HONORABLE CHRISTOPHER BRYAN OGLESBY, JUDGE NO. 21-CR-00413
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Joseph Franklin was found guilty by a Hopkins County jury of various
crimes including first- and second-degree wanton endangerment, tampering
with physical evidence, first-degree fleeing and evading (two counts), and of
being a persistent felony offender in the first degree (PFO I). As recommended
by the jury, Franklin was sentenced to twenty years in prison. On appeal, he
claims that (1) KRE 1 404(b) evidence was improperly admitted at trial, (2) the
trial court erred by denying a directed verdict on the tampering with physical
evidence charge, as well as the fleeing and evading on foot charge, and (3)
double jeopardy bars the conviction for one of the fleeing and evading counts.
Upon review, we affirm.
1 Kentucky Rule of Evidence. FACTUAL AND PROCEDURAL BACKGROUND
In August 2021, Franklin was staying at Jeremy Hammack’s home.
Hammack was a confidential informant and he called crime stoppers and told
them that Franklin had an active warrant for his arrest. A surveillance team
started watching Hammack’s home. On the day of his arrest, Franklin left the
residence in a maroon truck. The surveillance team followed Franklin to
Joshua Scott’s residence. Scott was a known methamphetamine trafficker.
When Franklin left Scott’s residence, officers in marked vehicles were
waiting to initiate a traffic stop of Franklin. Sergeant Bailey activated his
emergency equipment and tried to stop Franklin. Franklin fled and a pursuit
ensued. The pursuit lasted about fifteen minutes and ended when Franklin
crashed the truck.
During the pursuit, Franklin drove 70 m.p.h. in a 35 m.p.h. zone, passed
a school bus, and disregarded multiple stop signs. The officers observed
Franklin throwing something out of the passenger window. Franklin wrecked
the truck near the White City Wildlife Management Area and fled on foot.
Multiple officers searched the area for over two hours trying to find Franklin.
John Slaton’s family owned property that connected to the wildlife area.
Slaton, saw Franklin, sweaty and muddy, walking on the family property.
Slaton knew that law enforcement was looking for Franklin and offered him a
ride in the bed of his pickup truck. On the way, Slaton called law enforcement
and they arrived to take Franklin into custody. Franklin was arrested at 6:30
p.m., about four hours after the pursuit began.
2 During the pursuit, Sergeant Bailey radioed that Franklin had thrown a
bag out the passenger window. Major Young, who was following the pursuit,
stopped to look on the side of the road for the bag. Major Young found a bag
which contained nine grams of methamphetamine.
Detective Ross obtained a search warrant for the truck Franklin wrecked
and left behind. Eighteen grams of methamphetamine, scales, and money were
found on the passenger floorboard.
A Hopkins County grand jury indicted Franklin on sixteen counts related
to his arrest. At trial, in addition to finding Franklin guilty of being a PFO, the
jury found him guilty of the following offenses: first-degree trafficking in a
controlled substance (methamphetamine, more than 2 grams); first-degree
wanton endangerment; tampering with physical evidence; first-degree fleeing
and evading police (motor vehicle); first-degree fleeing and evading police (on
foot); first-degree criminal mischief; first-degree possession of a controlled
substance (methamphetamine); second-degree wanton endangerment;
possession with intent to use drug paraphernalia; speeding; reckless driving;
and disregard of at traffic control device (two counts). 2 As recommended by the
2 The jury recommended for each offense the following sentence or fine:
1) First-degree trafficking of methamphetamine: 10 years enhanced to 20 years. 2) First-degree wanton endangerment: 5 years enhanced to 20 years. 3) Tampering with physical evidence: 5 years enhanced to 15 years. 4) First-degree fleeing/evading police (motor vehicle): 5 years enhanced to 15 years. 5) First-degree fleeing/evading police (on foot): 5 years enhanced to 15 years. 6) First-degree criminal mischief: 5 years enhanced to 10 years. 7) First-degree possession of methamphetamine: 3 years in prison. 8) Second-degree wanton endangerment: 12 months in prison. 9) Possession with intent to use drug paraphernalia: 12 months in prison. 10) Speeding, recommended fine: $100.00. 11) Reckless driving, recommended fine: $100.00. 3 jury, the trial court sentenced Franklin to serve concurrent sentences, a total
of twenty years in prison. This appeal followed.
Additional facts pertinent to Franklin’s claims on appeal are set forth
below.
ANALYSIS
I. The trial court did not abuse its discretion by denying a mistrial.
Franklin claims that KRE 404(b) was violated when Detective Dozer, who
was part of the surveillance team, testified that he recognized Franklin from a
recent jail photo. Because KRE 404(b) was not mentioned by Franklin as a
basis for granting his motion for a mistrial, the Commonwealth views the claim
as unpreserved. However, we view the KRE 404(b) complaint to be apparent
from the context and defense counsel’s reference to the pretrial motion in limine
to exclude testimony relating to Franklin’s prior convictions as sufficiently
preserving the issue.
During trial, Detective Dozer testified that he did not know Franklin but
had seen social media pictures. As the detective was saying he had also seen “I
think recent jail, or previous, jail photos,” defense counsel objected. Defense
counsel argued that the jury heard the prejudicial “previous jail pictures”
testimony and moved for a mistrial. Although the trial court acknowledged
that it did not hear the testimony, the trial court offered to admonish the jury.
Defense counsel declined the admonition, stating she did not believe it would
cure the error and did not want to draw further attention to the testimony.
12) Disregard of a traffic control device, recommended fine for each count: $100.00.
4 Defense counsel reviewed the video testimony and again renewed her motion
for a mistrial, arguing that the jury heard Detective Dozer say “jail” twice and
“photos” once. The trial court again denied the motion.
“[A] mistrial is an extreme remedy and should be resorted to only when
there is a fundamental defect in the proceedings and there is a ‘manifest
necessity for such an action.’” Woodard v. Commonwealth, 147 S.W.3d 63, 68
(Ky. 2004) (citation omitted). Mistrial should only be “used in those situations
where an error of such import has been committed that a litigant’s right to a
fair and impartial jury would be violated if a new trial were not held.” Welch v.
Commonwealth, 235 S.W.3d 555, 559 (Ky. 2007) (citation omitted). “The
occurrence complained of must be of such character and magnitude that a
litigant will be denied a fair and impartial trial and the prejudicial effect can be
removed in no other way.” Gould v. Charlton Co., Inc., 929 S.W.2d 734, 738
(Ky. 1996) (citations omitted). The trial court’s denial of a mistrial is reviewed
for an abuse of discretion. Bray v. Commonwealth, 68 S.W.3d 375, 383 (Ky.
2002); Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999). 3
Franklin argues that the fundamental defect is that Detective Dozer’s
testimony about the jail photo cast Franklin as a known criminal in the
Hopkins County area. He contends that the testimony was improper KRE
404(b) evidence and did not fall within the KRE 404(b)(1) exception which
3 An abuse of discretion occurs if the trial court’s decision was arbitrary,
unreasonable, unfair, or unsupported by sound legal principles.
5 allows evidence of prior bad acts to prove identity. 4 The Commonwealth, on
the other hand, argues that Detective Dozer’s inadvertent and isolated
reference to the jail photo was not inflammatory or highly prejudicial and an
admonition would have cured any error.
We assume, for analysis purposes, that Detective Dozer’s testimony
amounted to improper evidence of Franklin’s prior bad acts. Nevertheless, not
all references to prior bad acts are prejudicial enough to warrant a mistrial.
See Welch v. Commonwealth, 235 S.W.3d 555, 559-60 (Ky. 2007). This is
especially true when the prejudicial effect can be obviated through the use of
an admonition. Maxie v. Commonwealth, 82 S.W.3d 860, 863 (Ky. 2002).
The rules regarding admonitions apply “the same where the movant
waives the protections of an admonition due to oversight or as a matter of trial
strategy. If an admonition is offered in response to a timely objection but
rejected by the aggrieved party as insufficient, the only question on appeal is
whether the admonition would have cured the alleged error.” Sherroan v.
Commonwealth, 142 S.W.3d 7, 17 (Ky. 2004) (citation omitted).
There are only two circumstances in which the presumptive efficacy of an admonition falters: (1) when there is an overwhelming probability that the jury will be unable to follow the court’s admonition and there is a strong likelihood that the effect of the inadmissible evidence would be devastating to the defendant; or (2) when the question was asked without a factual basis and was “inflammatory” or “highly prejudicial.”
4 Franklin’s argument that the Commonwealth did not give proper KRE 404(c)
notice is unpreserved. We decline to address it. See Shepherd v. Commonwealth, 251 S.W.3d 309, 316 (Ky. 2008). 6 Johnson v. Commonwealth, 105 S.W.3d 430, 441 (Ky. 2003) (internal citations
omitted).
Upon review, we believe a mistrial was not warranted as the admonition
offered by the trial court, for the jury to disregard Detective Dozer’s testimony
about the photos, would have served to remove any prejudice caused by the
improper statements. Detective Dozer’s reference to the jail photos was not a
circumstance when there was an overwhelming probability that the jury would
have been unable to follow the court’s admonition. And furthermore, the
Commonwealth had a factual basis to ask Detective Dozer how he knew it was
Franklin driving the vehicle leaving Scott’s residence. See Bartley v.
Commonwealth, 400 S.W.3d 714, 736 (Ky. 2013). We conclude that the trial
court did not abuse its discretion by denying the motions for a mistrial.
II. The trial court did not err by denying the motions for a directed verdict.
Franklin’s second claim is that the trial court erred by not granting his
motion for a directed verdict on the tampering with physical evidence charge
and his motion for a directed verdict on the fleeing and evading on foot charge.
Because Franklin presents a different reason than the one advanced at trial as
to the reason he was entitled to a directed verdict on the tampering charge, he
requests palpable error review under RCr 10.26.
“When presented with a motion for a directed verdict, a court must
consider the evidence as a whole, presume the Commonwealth’s proof is true,
draw all reasonable inferences in favor of the Commonwealth, and leave
7 questions of weight and credibility to the jury.” Acosta v. Commonwealth, 391
S.W.3d 809, 816 (Ky. 2013) (citing Commonwealth v. Benham, 816 S.W.2d 186,
187–88 (Ky. 1991)). A trial court should deny a directed verdict when the
“Commonwealth has produced . . . more than a scintilla [of evidence] and it
would be reasonable for the jury to return a verdict of guilty based on it.” Id.
The standard is slightly more deferential when the denial of the directed verdict
is reviewed on appeal; then, the trial court should be reversed only if ‘it would
be clearly unreasonable for a jury to find guilt.’” Id.
A. Tampering with Physical Evidence
Kentucky Revised Statute (KRS) 524.100(1) provides that “[a] person is
guilty of tampering with physical evidence when, believing that an official
proceeding is pending or may be instituted, he: (a)Destroys, mutilates,
conceals, removes or alters physical evidence which he believes is about to be
produced or used in the official proceeding with intent to impair its verity or
availability in the official proceeding.” Franklin asserts that the
Commonwealth failed to prove beyond a reasonable doubt that he completed
the proscribed act of concealing the methamphetamine which was thrown from
the truck so that it would not be available as evidence against him. Citing
Commonwealth v. James, 586 S.W.3d 717, 724 (Ky. 2019), Franklin argues
that the act of dropping evidence while in plain view of an officer is not removal
or concealment.
In James, this Court addressed whether the criminal-act element was
met when a person, in plain view of an officer, drops or tosses away evidence of
8 a possessory crime in a manner that makes the evidence easily retrievable by
law enforcement. In that case, the defendant, on foot and in the presence of
law enforcement, turned his back to the officers and dropped multiple items,
including a pipe containing methamphetamine. 586 S.W.3d at 730. The
officer walked over to the area where he saw the items fall and collected the
glass pipe. Id. This Court concluded that even though the defendant may have
met the requisite mental state to be convicted of tampering with physical
evidence, his act of “dropping or throwing the evidence to the ground in the
presence and view of Officer Jenkin in a manner that left the evidence easily
retrievable was not an act of concealment or removal sufficient to sustain an
additional charge for tampering with physical evidence.” Id.
Franklin views his case to be like James. Franklin contends that he was
being followed closely by Sergeant Bailey on the access road during the vehicle
chase. Because the officer was able to see a bag being thrown from the
passenger window of the truck, his act was in plain view of the officer and the
methamphetamine was easily retrievable by the following officers. Franklin
asserts that the officers easily found the bag, which was not concealed.
The Commonwealth disagrees with Franklin and distinguishes the facts
in this case from James. The Commonwealth points out that here, Franklin
threw the methamphetamine out of the passenger window during a high-speed
pursuit, not in the immediate presence of the officers. The Commonwealth
asserts that it was quite fortuitous that Major Young found the bag of
methamphetamine soon after Franklin threw it out the truck window. In that
9 regard, Major Young testified that he was following the pursuit at some
distance and had “to really look” for the bag on the side of the road because the
vegetation was so grown up. Therefore, the baggie of methamphetamine was
not thrown in plain view and was not easily retrievable.
Under RCr 10.26, if an unpreserved error is found to be palpable and if it
affects the substantial rights of the defendant, the appellate court may grant
appropriate relief if manifest injustice has resulted from the error. An error is
palpable when it is “easily perceptible, plain, obvious and readily noticeable.”
Brewer v. Commonwealth, 206 S.W.3d 343, 349 (Ky. 2006). “When an
appellate court engages in a palpable error review, its focus is on what
happened and whether the defect is so manifest, fundamental and
unambiguous that it threatens the integrity of the judicial process.” Martin v.
Commonwealth, 207 S.W.3d 1, 5 (Ky. 2006).
Under this standard, we conclude that the Court did not commit
palpable error. In James, we adopted the rule that when a defendant merely
drops, throws down, or abandons drugs in the vicinity of the defendant and in
the presence and view of the police, and the officer can quickly and readily
retrieve the evidence, the criminal act of concealment or removal has not taken
place. Id. at 731. We agree with the Commonwealth that the facts here are
unlike those in James. This is not a case in which Franklin, fleeing in a vehicle
and being pursued, plainly and obviously “merely abandoned” the drugs in the
vicinity of himself and in the presence of law enforcement officers. This is a
case in which because of the vehicular pursuit, the evidence landed in a place
10 out of the officer’s sight and made the recovery of the evidence substantially
more difficult than in James. Consequently, there was no error.
B. Fleeing and Evading the Police on Foot
Franklin moved for a directed verdict on the fleeing and evading charge
regarding the foot chase. Franklin argued that the Commonwealth did not
prove that he was operating the vehicle, that he fled from the vehicle, nor that
there was a substantial risk of death or serious physical injury to the officers.
On appeal, Franklin argues that the Commonwealth did not prove that he
disobeyed an order to stop or created a substantial risk of serious physical
injury or death to the officers when the crashed truck was abandoned.
Because Franklin did not preserve the issue that there was no order to stop
and he does not request palpable error review, we review only the preserved
issue. See Shepherd v. Commonwealth, 251 S.W.3d 309, 316 (Ky. 2008).
Pertinently, under KRS 520.095(1)(b), a person is guilty of fleeing or
evading police in the first degree on foot “[w]hen, as pedestrian, and with intent
to elude or flee, the person knowingly or wantonly disobeys an order to stop,
given by a person recognized to be a peace officer” and “[b]y fleeing or eluding,
the person is the cause of, or creates a substantial risk of, serious physical
injury or death to any person or property.” Franklin argues that there was no
testimony that there was a substantial risk to the officers who searched the
wildlife management area. The Commonwealth cites Slaton’s testimony,
describing the terrain and its inhabitants. Slaton testified that the area was
11 made up of slough, 5 with water standing on top of mud, unlevel and unsteady
ground, dead trees, briars, pits of water, and snakes, specifically venomous
cottonmouths and copperheads.
While Slaton did not explicitly testify that there was a substantial risk to
the officers, the jurors could infer from Slaton’s testimony that the officers were
at substantial risk of death or serious physical injury, “physical injury . . .
which causes serious and prolonged disfigurement, prolonged impairment of
health, prolonged loss or impairment of the function of any bodily organ, or eye
damage or visual impairment.” KRS 500.080. We cannot say that the jury was
clearly unreasonable in convicting Franklin of fleeing and evading the police on
foot given the evidence introduced at trial and his conviction stands.
III. A Double Jeopardy Violation Did Not Occur
Franklin’s last claim of error is that a double jeopardy violation occurred
when he was found guilty of two counts of first-degree fleeing and evading.
Franklin requests palpable error review of this unpreserved claim. See Cardine
v. Commonwealth, 283 S.W.3d 641, 652 (Ky. 2009) (stating that “double
jeopardy violations can be addressed as palpable error because the nature of
such errors is to create manifest injustice”).
Franklin argues that the two convictions for first-degree fleeing and
evading originated from the same police chase and that there was no definitive
Merriam-Webster.com Dictionary, 5 “Slough” is another term for “swamp.”
Merriam-Webster, https://www.merriam-webster.com/dictionary/slough (accessed Sept. 23, 2024). 12 proof offered to show that Franklin was ordered to stop two different times.
Franklin specifically argues that because the car chase and the foot pursuit
were a continuous course of conduct, his conviction of the two offenses violates
the bar against double jeopardy reflected in KRS 505.020(1)(c). The
Commonwealth disagrees that the facts here represent a single course of
conduct.
The Fifth Amendment to the United States Constitution and Section 13
of the Kentucky Constitution prohibit a person from being twice punished or
twice convicted for the same offense. In relation to this prohibition, KRS
505.020(1)(c) explains that while a single course of conduct may result in
multiple charges, an exception exists which limits the conviction to one offense.
KRS 505.020(1)(c) states that
when a single course of conduct of a defendant may establish the commission of more than one (1) offense, he may be prosecuted for each such offense. He may not, however, be convicted of more than one (1) offense when . . . the offense is designed to prohibit a continuing course of conduct and the defendant’s course of conduct was uninterrupted by legal process, unless the law expressly provides that specific periods of such conduct constitute separate offenses.
At the time of Franklin’s arrest, KRS 595.095(1) pertinently stated: (1) A person is guilty of fleeing or evading police in the first degree:
(a) When, while operating a motor vehicle with intent to elude or flee, the person knowingly or wantonly disobeys a direction to stop his or her motor vehicle, given by a person recognized to be a police officer, and at least one (1) of the following conditions exists:
13 ....
4. By fleeing or eluding, the person is the cause, or creates substantial risk, of serious physical injury or death to any person or property; or
(b) When, as a pedestrian, and with intent to elude or flee, the person knowingly or wantonly disobeys an order to stop, given by a person recognized to be a peace officer, and at least one (1) of the following conditions exists:
....
(2) By fleeing or eluding, the person is the cause of, or creates a substantial risk of, serious physical injury or death to any person or property.
See 2024 Kentucky Acts ch. 174 § 47. 6
Franklin takes the position that his convictions stemmed from a single
transaction — his attempt to avoid being stopped and apprehended by the
police. The Commonwealth, on the other hand, asserts that each of Franklin’s
fleeing convictions were based on a separate act: one act of failing to stop his
truck after the officer initiated a traffic stop and one act of fleeing on foot after
6 Effective July 15, 2024, Kentucky Acts ch. 174 section 47 amended KRS
520.095(1)(b)2 and KRS 520.095(2). KRS 520.095(1)(b)(2), pertaining to fleeing and eluding by a pedestrian, was amended to remove the “or creates a substantial risk of” language. KRS 520.095(2) was amended to make the offense of fleeing or evading police in the first degree a Class C felony and to set conditions for release from prison. KRS 520.095(1)(b)2 currently states: “By fleeing or eluding, the person is the cause of serious physical injury or death to any person or property. KRS 520.095(2) currently states: “Fleeing or evading police in the first degree is a Class C felony and the defendant shall not be released on probation, shock probation, conditional discharge, or parole until he or she has served at least fifty percent (50%) of the sentence imposed.” 14 exiting the truck. The question here is whether multiple sentences were
imposed upon Franklin for the same offense of fleeing or eluding police.
Welborn v. Commonwealth, 157 S.W.3d 608, 611-12 (Ky. 2005), and
Kiper v. Commonwealth, 399 S.W.3d 736, 745 (Ky. 2012), are cited by both
parties as offering guidance in this case. In Welborn, addressing KRS
505.020(1)(c), we concluded that three separate assault convictions,
surrounding the shooting a police officer, would stand because there was a
sufficient break in the conduct and time of the defendant’s actions. The Court
found that the three separate shots did not constitute a continuing course of
conduct. In Kiper, after concluding that the defendant’s convictions for both
attempted murder and first-degree assault of one shooting victim violated KRS
505.020(1)(b), we also concluded that unlike in Welborn, the facts did not
establish that the defendant’s assault conduct was two or more separate
distinct attacks during one episode of criminal behavior. 399 S.W.3d at 745.
In Welborn, the defendant shot a trooper three separate times and
inflicted three separate wounds. 157 S.W.3d at 612. There, the trooper was
called to a residence where the defendant was staying. Id. at 611. Welborn
first shot the trooper in the right arm. Id. The trooper then sought cover in the
next room and after running out of the house towards his cruiser, Welborn
fired again, striking the trooper in the neck. Id. An attempt by the brother-in-
law to disarm Welborn failed following another brief struggle. Id. The officer
was able to obtain a shotgun from the cruiser, but Welborn fired again and
struck the officer in the shoulder. Id.
15 In Kiper, the defendant pulled up beside a vehicle with three occupants.
Id. at 739. Kiper then pointed a handgun through the open window of his
truck at the front seat passenger and fired several shots in rapid succession.
The front-seat passenger was struck seven times. Id.
Welborn and Kiper reflect the principle that for multiple convictions to be
proper there must have been a cognizable lapse in the defendant’s course of
conduct during which the defendant could have reflected upon his conduct, if
only momentarily, and formed the intent to commit additional acts.” Welborn,
157 S.W.3d at 612; Kiper, 399 S.W.3d at 745. As noted above, the Welborn
court concluded that the defendant’s conduct reflected distinct criminal acts,
whereas in Kiper, it did not.
Here, Franklin argues that, like in Kiper, his alleged actions were an
uninterrupted continuous course of conduct. Specifically, as KRS 520.095
requires that a defendant disobey an order to stop and the creation of a
substantial risk, Franklin describes the chase as all the same event. He
asserts that the event started when Sergeant Bailey pulled out behind him and
initiated a traffic stop and the car chase ensued and the event did not stop
when the truck wrecked. Franklin was not told to stop by the police when the
truck stopped. Franklin fled before the officers who were already in pursuit
arrived at the wreck. Franklin notes that the Commonwealth put on proof that
Sergeant Bailey initiated a traffic stop and Franklin allegedly ran. Then the
Commonwealth put on proof Sergeant Bailey found the truck he was chasing
16 wrecked onto an embankment. There was no one in the wrecked truck and no
one was found in the surrounding area.
The Commonwealth rebuts Franklin’s argument asserting that Franklin’s
claim of a continuous course of conduct is unsupported by the evidence. That
is, after Franklin wrecked the truck, he had enough time to reflect on whether
to continue his flight, even if it were only minutes. Rather than surrendering
to the police, he fled from the wrecked vehicle and was not apprehended for
several hours. Thus, after fleeing in the truck in violation of KRS 520.095(1)(a),
Franklin had enough time to form the requisite intent to commit a second
criminal offense and flee on foot in violation of KRS 520.095(1)(b).
Upon review, we agree with the Commonwealth. After Franklin crashed
the truck, he had sufficient time to form the requisite intent to commit an
additional offense, that is, fleeing on foot, which was a separate means of flight.
“The applicable rule is that, where the same act or transaction constitutes a
violation of two distinct statutory provisions, the test to be applied to determine
whether there are two offenses or only one, is whether each provision requires
proof of a fact which the other does not.” Blockburger v. United States, 284
U.S. 299, 304 (1932).
We conclude that no double jeopardy violation occurred.
CONCLUSION
Finding no error, we affirm the Hopkin’s Circuit Court’s judgment.
All sitting. All concur.
17 COUNSEL FOR APPELLANT:
Adam Meyer Assistant Public Advocate
COUNSEL FOR APPELLEE:
Russell M. Coleman Attorney General of Kentucky
Courtney J. Hightower Assistant Attorney General
Melissa Ann Pile Assistant Attorney General