Roy Edward Tucker v. Commonwealth of Kentucky

Opinion

RENDERED: SEPTEMBER 28, 2017 . TO BE PUBLISHED

~uprttttt drnurf nf ~ttfi~ n0 n . . . 2015-SC-000655-MR Li U1J "\1J ~ ~ LONNIE CONYERS fR'\ fM 9 re APPELLANT · · . ·1.b!J fk LI. 6f 0/1,/11 l(.M tlt~mo'" t>c. . ON APPEAL FROM CAMPBELL CIRCUIT COURT . v. HONORASLE JULIE REINHARDT WARD, JUDGE NO. 15-CR-00296 .

COMMONWEALTH OF KENTUCKY - APPELLEE

AND

2015-SC-000687 -MR

ROY EDWARD TUCKER ·APPELLANT

QN APPEAL FROM CAMPBELL CIRCUIT COURT v. HONORABLE JULIE REINHARDT WARD, JUDGE NO. 15-CR-00295 ..

COMMONWEALTH OF KENTUCKY APPELLEE

AND

2016-SC-000340-MR .

JOSEPH HARDY APPELLANT

ON APPEAL .FROM CAMPBELL CIRCUIT COURT v. HONORABLE JULIE REINHARDT WARD, J.UDGE NO.· 15-CR-00294

COMMONWEALTH OF KENTUCKY APPELLEE

OPINION OF THE COURT BY JUSTICE·HUGHES

AFFIRMING

Following ajointjury trial, Lonnie Conyers, Roy Tucker, and Joseph

Har~y were all found guilty of two counts of first-degree burglary, Each defendant was sente~ced as a first-degree persistent felony offender (PFO) to

concurrent, twenty-year terms of imprisonment, and each has now appealed to

this Co.urt as a matter of right. Because of the large degree of overlap in. the

factual backgrou:nd and· in the legal issues raised, we have consolidated the

appeals for disposition in this single opinion. All thr~e defendants contend

that, in light of juror and witness misconduct during the recess following the

trial's first day, the trial court should have declared a mistrial.. Each defendant

. also_ insists that the trial court erred by refusing to dismiss the first-degree

burglary charges and by failing to give a jury instruction on receiving stolen .

property as a lesser, alternative offense to burglary. In addition, Hardy claims

that he was entitled to a jury instruction on the defense of voluntary

intoxication, while Conyers seeks resentencing- on the ground· that he was

improperly found to be a PFO in the first degree. Convinced that none of the

alleged errors gives the defendants, either jointly or singly, a right to relief, we

affirm all three judgments.

RELEVANT FACTS

. During the morning of February 11, 2015, in Melbourne, Kentucky, two

residences about one-half mile apart were burglarized. The proof at trial,

construed favorably to the Commonwealth, showed the. following.

Brothers Stan and Brian Turpen, the owners/occupants of one of the

homes, testified that they left for work early that morning after having locked

the doors. When Stan returned that afternoon, he found one of his guitar

cases lying in the driveway and signs of what appeared to be a forced entry.

2 His home was in shambles with drawers and cupboards opened, their contents

strewn over countertops and on floors, mattresses removed from the beds and

closets ransacked. Stan confirmed that photographs introduced by the

Commonwealth accurately showed, the state of his home that afternoon. After

his initial k>ok around, Stan called both his .brother and 911.

Officer Robert Diamond of the Campbell County Police Department

respond~d to the 911 call. Earlier that day he had participated in the arrest of

three persons suspected of another burglary in the area,. and after talking with .

Stan .Turpen and walking through the residence, he thought it likely that the

same persons were responsible for the scene he found there. ' The Turpens' missing property list included a wide-screen television, a

Fender guitar, and severai other household items and five handguns, at least

two of which (the two from the brothers' bedside tables) were loaded and ready

to fire. The list also-included two long guns (a Remington shotgun and a

Winchester rifle) and a starter's pistol-a blank gun-that looked like a .22 caliber revolver. Also missing was ammunition for several of the weapons.

Earlier that day, a 91 l caller had reported what he believed to be a I

·burglary in progress. George Crawford testified that at about 10:30 that

morning he was looking out his kitchen window toward the rear of his

property. His residence borders on a pasture, Crawford testified~ across which

.· he could se~ the garage side of the residence of Joe and Brittany Vance. 1

, lAt that time Crawford had not yet spoken to Joe and believed that Brittany's name was Tiffany..

3 Crawford testified that his attention was attracted to the Vances' driveway by a

dark-colored, sedan-type car he had never seen there before. Three men

appeared to have· gotten out of the car, and one of the men had .apparently

gone up the steps to the front door. Although Crawford was· suspicious; he was ' ' . about to dismiss· his suspicions in light of the fact that one of the men col,Jld be

· Joe Vance. Before he could turn away, however, he .saw one of the men walk

toward the "pedestrian" door of the garage ~d kick· the door open. All three

men then disappeared inside the garage. At that point Crawford called 911. . / '

On the 911 recording, after Crawford-relayed what he had observed, the . '

dispatcher asked.Crawford for a more detailed description: of the vehicle. As

Crawford tried to comply with that request, it occurred to him that a Nikon

camera with a 300mm zoom lens that he used for bird-watching ·was sitting on

· his kitchen table. Whil~ using the cainera, Crawford exclaimed to the 911 ' . ' g

dispatcher that one of the mep had just come out of the house and appeared to

have put something· in the backseat of the car. At that point, Crawford started

taking pictures;

·At trial, the Commonwealth was able to introduce about two dozen ·

photographs-authenticated by Crawford-of the burglary as it happened, of ·.

the vehicle -and of the three men as they came and went carrying things from

the house to the vehicle. After a few minutes,· Crawford told the dispatcher

·that all three men had exited the house, one of them putting what looked like a

white pil~owcase filled with some~hing into the backseat. In the closing p~rtion

.of.the call, Crawfor~ narrated for the-dispatcher the burglars' short-lived·get-

4 ·away: their entering the car; the Gar's descent down the sloped driveway to

Kohls Road; the car's rightturn in the direction of Ten-Mile Road; and the

almost immediate appearance of a police cruiser right behind the car.

When Crawford's direct examination resumed after the 911 recording, he

reiterated that he saw all three persons enter the Vances' residence and later

come out carrying items which they placed in the .car. During the various

cross-examinations, Crawford admitted. that he could not see clearly enough,

either with or without his camera, to identify any of the persons he saw or to

say what items they brought from the house. In particular~ he admitted that

he saw no one with a gun. He also admitted .that while there are photos

showing two of the men (in the enlarged photos introduced by the

Commonwealth tWo persons clearly resembling Hardy and Conyers) carrying

items from the house, the photo of the third man (strongly resembling Tucker)

does· not make it clear that he is carrying any property. During redirect

examination, however; Crawford explained that during the episode he was

juggling the phone and his camera and was not able to photograph everything

he saw. Crawford testified emphatically, however, that noUivithstanding the

lack of a clear photograph of the third inan removing property from the home,

he witnessed all three men do so.

The Commonwealth's case included testimony from the officers who

stopped the suspects' car moments after it left the. Va,nces' driveway. They

stopped it as it approached the intersection of Kohls Road and Ten-Mile Road

and arrested its three occupants: Hardy the driver, Tucker in the front

5 passenger seat, and Conyers behind him in the backseat. .On Hardy's person

the arresting ~fficer found eight prescription pills, slightly more ·than $1,200 in

cash, a silver money .clip engraved "Vance," a gold chain necklace·; and a silver

pocket knife. From Tucker the arre_sting officer took a pocket knife, about $570

. in cash, a .gold chain necklace, headphones, part of a wall "cell phone charger,

. ·and an ID .card.· Conyers was carrying a .wallet with his ID card ahd a cell

phone. One of the officers expl~ned that. they _did not go directly to the Vances'

house, but waited for the suspects to leave, becaµse it was safer to approach a

defined set of suspects.all contained in a-car than an. indeterminate set spread

throughout a resi~ence.

The detective who searched the defendants' car the next morning

·pursuant to a warrant testified that he and an assisting officer photographed . .

the various items s~ized.during the search. They included a starter's pistol, ·

later identified by the Turpens as theirs, which was found under the driver's

seat near the back, a:nd a 9mm Ruger_ handgun, load~d with a live round of . ammunition in the chamber and a _full_ clip, which was found under the front

passenger seat. The Vances ideptifie_d that gun as belonging to Brittany.

Brittany testified-that she. kept it-in her jewelry case, which was found, among

other . items later identified . by the Vances, in a white pillowcase in. the car's / .

backseat.

.The Vances also testified . regarding photographs taken by one of tp.e .

investigating officers depicting their home in shambles shortly after the ·. " burglary. T~e Turpens and the Vances all testified that items found in the. defendants' possession had been taken from their respective homes. The items

identified included jewelry, the silver "~ance" money clip, a TV, a guitar,

handguns, long guns, ammunition, ajewelry box, a purse, a hammer, savings

bonds, an electric drill, and a set of exercise weights.

The Commonwealth's proof included some additional evidence, but the

first-degree burglary charges rested prim~rily 6n the evide.nce summarized

above. Notwithstanding the obviously sufficient evidence of burglary, the

defendants all maintain the .trial court erred by including first-degree burglary

charges in the jury instructions. We begin our analysis.with this contention.

ANALYSIS

I. The Trial Court Did Not Err by Refusing to Dismiss the Charge of Burglary in The First Degree. ·

Burglary; the basic offense, is a crime against real property-an unlawful

intrusion .thereon. Because such intrusions pose risks to persons on the . . I . . . r .

premises, the basic offense is punished rnore-or-less severely depending on the

presence. or absence of circumstances which increase or decrease those risks. (

Litton v. Commonwealth, 597 s:W.2d 616 (Ky. 1980) .(discussing the 1978

amendments.to the burglary statutes); Colwell v. Commonwealth, 37 S.W.3d

721 (Ky. 2000) (discussing the interrelationship of the burglary and trespass

offenses). Kentucky Revised Statut~ (KRS) 511.040 outlaws the basic offense- _

burglary in the third d~gre~as follows: "A person is· guilty of burglary in the

third degree when, with intent to commit a crime, he knowingly enters or

remains unlawfu,lly in a building." KRS 511.040(1). A "building," for the

purposes of the burglary statutes, is a_ building in its ordinary sense plus "any 7 structure, vehicle, watercraft or aircraft: (a) Where any person lives, or (b).

Where people assemble for [various] purposes ... :" KRS 511.010(1). Third-

degree burglary is a Class D felony. KRS 511.040(2) ..

The risks posed by the intru~ion increase if the building involved is a

dwelling-"a building which is usually occupied by a person lodging therein."

KRS 511.010(2). Accordingly, a person is guilty of burglary In the second

degree, a Class C felony, "when, with the intent to commit a crime, he

knowingly enters or remains unlawfully in a.dwelling." KRS 511.030(1).

Burglary in _the first degree, a Class B felony,· occurs if, in the course of . . the intrusion, the intruder actually injures someone (a non-participant in the

crime), or if, as reievant here, he "[i]s· armed with explosives or a deadly

weapon;" KRS 511.020(1). "Deadly weapon" means, in pertinent part, "[a]ny .

weapon from which a shot, readily capable of prod_ucing death or other serious

physical injury, may be discharged[.]" KRS 500.080(4)(b).

Finally, as relevant to this case, KRS 502.020, the complicity statute;

provides in pertinent part that:

A person is guilty of an offense committed by another person when, with the intention of promoting or facilitating the commission of th~ offense, he: -

(b) Aids, counsels, or attempts to aid such person in planning or committing the offense[ .J

KRS 502.020(1)(b). The Commonwealth's theory of the case was that the three

deferidants all participated as prin?ipals in the burglaries of bo_th residences,·

8 ·and were also complicit in the burglaries, with each defendant being guilty, by

complicity, of the offense committed by any of them.

Because the buildi!lgs involved in this case were clearly dwellings, the

jury instructions for each defendant included two second-degree burglary

instructions (Vance and Turpen residences), and the defendants raise no

objections to those instructions. Because both sets of victims reported the loss

of at least one firearm and the police found weapons corresponding to those

reports in the car occupied by the defendants at the time of their arrests, the

instructions for each defendant also included provisions such as the following ·

for each residence: .

You. will find the defendant ... guilty of First Degree Burglary · under this instruction if, and· only If, you believe from the evidence beyond a reasonable doubt all of the. following: A. That in this County, on·_ or about February 11, 2015, and before the finding of the indictment herein, the Defendant ... either entered or was in complieity. with [either of the others] to their entry of the building owned by the Varices [the Turpens] and without the permission of the [owners] or any other person authorized to give such permission; AND B. That in so doing, he knew that they did not have such permission; AND . C. That it was the Defendant's intention that either the Defendant or [either: of the others] would .commit a crime therein; AND D. That when effecting entry or while in the building or in .immediate flight there from, the Defendant or [either of the others] was armed .with a deadly weapon.

The defendants all objected at trial and continue to object to the giving of

this instruction on a number of grounds. Each insists that there was no

evidence that he was armed, that he was armed with a deadly weapon, or that

he knew or intended that either of the other two men was armed .. Implicitly, at .

least, the defendants concede that their com.plaint on all of these points is not 9 really with the trial ·court, which only applied e~sting law, but rather with prior .

dec~sions of this C~:mrt. TWo of those decisions they ask 'us expressly to

reconsider.

~- There -Was Evidence That the Defendants Were Armed During Both Burglaries. ·

·We begin, however, with the defendants' invocation of Wilson v. ·

Com~oriwealth, 438 S.W.3d 345 (Ky. 2014), in support of their contentions

that the Commonwealth failed to prove that they_ were "armed," for first-d~gree

burglary purposes, because it" failed to show "access" to any of the stolen

· firearms. In Wilson, this Court qualified the gerieral rule that "[a] person may

beGome 'armed with a deadly weapon' for the purposes of first-degree burglary . . ·when he enters a building or dwelling unarmed and subsequently steals a " firearm therein."· 438 S.W.3d at 354 (quoting Hayes . . v. Commonwealth, 698 S.W.2d 827, 830 (Ky. 1985)). See also Riley v. Comm~nwealth, 91 RW.3d 560, . . .. 563 (Ky. 2002) ("[o]ne who steals· a deadly weapon during the course.of a .

burglary is armed within the meaning of KRS 511.020."). That rule applies, we

held in _Wilson, where the thief has.access to the deadly weapon, but not to the

theft of a locked fire safe" containing a handgu_n, since the thief, in the four or

five minutes it. took to complete the burglary and leave the ~cene, had no

remotely realistic chance of gaining access to the gun and using it as a weapon.

The defendants . would have . us apply·Wilson's narrow exception to this

case, where the Turpens' guns were ultimately foundin the trunk and Brittany ..

10 Vance's 9mm Ruger was found under the frorit passenger seat.-2 Clearly the

exception we noted in Wilson does not apply here, where one or more of the

defendants had the gU.ns in hand at some point inside the residences or in the

car while leaving the residences, and where the defendan_ts had ready access to the car's trunk and to the area beneath the seat.

B. There Was Evidence That the Defendants Were Armed With a · Deadly Weapon.

The defendants also contend that because tbere was insuffici_ent evidence / . . .

that any of the guns was operable, none of the guns could reasonably be

deemed a "deadly weapon." They sµggest that, in addition to proof that the

gun was loaded, the Commonwealth should be required ~o prove ·either that the

~n was actually fired during the burglary or that ballistics evidence

establishes that it could have been fired ..

The defendants acknowledge that we rejected this contention ·in Wilburn

v. Commonwealth, 312 S.W.3d 321·(Ky. 2010), where a plurality of the Court

deemed the statutory .definition satisfied if the particular weapon was on,e of a

· class of weapons from which a shot readily capable of causing death or serious

physical injury could be discharged. Under Wilburn, Brittany Vance's Ruger

and all of the Turpens' guns (excluding the _starter's pistol) could reasonably be

deemed "deadly weapons." The defendants acknowledge this and acknowledge

2 We agree with the defendants' assertion that the Turpens' starte:r's pistol, which was found under the driver's seat, was not a .deadly weapon under KRS 500.080, since a starter's pistol is not a type of weapon from which a shot may be discharged.

11 ( .

further that we applied Wilburn in Johnson v. Commonwealth~ 327 s.w;3d. 501

(Ky. 2010), but they ask us to revisit this· precedent and reconsider Justice

·Noble's Wilburn dissent, which construes KRS 500.080(4) in a manner similar.

to what they advocate.

In Wilburn, the Court considered the pre-Penal Code understanding of

"deadly weapon"· in the burglary context and compared that meaning to the

current statutory definition of the term. Two members of the Court read the , ,

statute as not affecting the prior law, which provided, in effect, that a deadly,

weapon· was anything a ~urglar_ 'passed off as a c;ieadly 'Yeapon, whether an

· a.ctual weapon or not. The three-member pluraiity agreed with Justice Noble to

the exte.nt that it understood the ~tatuto:ry definition as prech1ding objects, ·~

such as sticks oi- fingers in pockets, merely passed off as weapons. However,

the plurality rejected the proposition that first-degree burgla~ ·prosecutions

should hinge on,thesavviness of burglars, who could easily defeat prosecution

under the dissent's approach merely by discarding the weapon after the crime

(so its operability could never be determined) or by disabling it. The Court's

reasoned consideration in Wilburn is not yet even. eight years old, and we will .

not revisit the question here ..

C. There Was Sufficient Eviden~e of the Defendants' Complicity. ·we.also decline the defendants' invitation to reconsider our construction '

of the complicitjr statute, KRS 502.020. Section (1) of that statute, the section

12 applicable in this ca~e, provides, with respect to crimes outlawing certain acts,3

that one person may be found gt.iilty "of an offense committed by another

person when, with the intention of promoting or facilitating the commission of

the offense, he" in any of various ways lends support or.assistance to the

principal offender. KRS 502.020(1) (emphasis supplied). The defendants insist

that an alleged complicitor cannot be found guilty of the aggravated offense of

another (e.g., burglary in the first.degree) unless he intended to promote or

facilitate the aggravated offense,. i.e., unless he knew that the principal offender

he was aiding was armed with a deadly weapon.

Arguably, the evidence in this case-a trunk full of guns and a loaded

Ruger handgun in the passenger compartment-could reasonably be th01.."!.ght

to satisfy even the defendants' take on the statute, but we need not make that

assessment because, as the defendants acknowledge and as we noted in Smith

v. Commonwealth, 370 S.W.3d 871 (Ky. 2012), the law in Kentucky has always

been otherwise. The mens rea for complicity, we have held, is that the

complicitor intend the principal's commission of the basic offense.· If he does

so and in addition aids or encourages the principal's act (as couid certainly be

found in this case with respect to all of the defendants) then he exposes himself

to liability for whatever degree of the offense the principal actually commits.

See Smith, 370 S.W.3d at 877-78 (citing post-Penal Code cases to this effect).

3 As opposed to crimes that outlaw certain results-those crimes are addressed in section (2) of the complicity statute. See Smith v. Commonwealth, 370 S.W.3d-871 (Ky. 2012) (discussing the distinction).

13 The Commentary to the Perial Code supports that construction by noting

that these provisions of the.Code were not intended to change existing law and

by emphasizing that under section (1) of the complicity statute, the

complicitor's mental ~tate must be the "intent to promote or facilitate the

commiss~on of an offense," not necessarily the particular degree of the offense

actually committed. Kentucky Penal Code, Final Draft, p. 30 (Nov. 1971).

As we observed in Smith, the defendants' contention that imputing to.·

them as complicitors an aggravated offense without proof that·they knew the

principal was engaged in aggravated conduct somehow runs afoul of Jackson v.

Virginia, 443 U.S. 307 (1979) (holding that the government must prove all the

elements of a crime beyond a reasonable doubt), is simply wrong. As just

discussed, the elements of complicity do not simply track the elements of the \

principal offense.· We reject~ in short, the defendants' proposed reconstruction

of the complicity statute.

D. There Was Sufficient Circumstantial Evidence That the Defendants . .. Participated in the Turpen Burglary.

Finally, we reject the defendants' contentions that the lack of witnesses

and the lack of forensic evidence connecting any of the defendants to the

Turpens' residence precludes. a findirig that any of them participated in that .

burglary. On· the contrary,

The possession of stolen property is prima fade evidence of guilt of theft of the property. Where there is a breaking and entering and property taken from a dwelling and the property is found in possession of the accused, such showing makes a submissible case for the jury on a charge of burglary.

14 Riley v. Commonwealth, 91 S.W.3d 560, 563 (Ky. 2002) (quoting Jackson v.

Commonwealth, 670 S.W.2d 828, 830 (Ky. 1984))°. See KRS 500.080(14)

(defining "possession," for Penal Code purposes as either actual or constructive

posse~sion); and see Houston v. Commonwealth, 975 S.W.2d 925 (Ky. 1998)

(recognizing the applicability of "constructive possession" to guns as well as

illegal drugs).

The inference that the defendants who possessed the Turpens' property ·

burglarized their residence is strengt?ened in this case by the defendants'

commission of very similar crimes at the Vance residence a short time after the

Turpen burglary, as witnessed by Mr. Crawford. The trial court did. not err for

this or for any of the other reasons discussed above when it instructed the jury

as to first-degree burglary for the Vance and Turpen residences.

II. The Trial Court Did Not Err by Refusing to Instruct on Receiving Stolen Property.

No more availing are the defendants' claims that the trial court erred by

denying their requests for jury instructions on the "lesser" offense of receiving

stolen property as a defense to the charge of first-degree burglary. They insist .

the trial court violated its duty to provide instructions on the whole law of the

case, including requested in.structions on any lawful defense.

None of the defendants testified but, through counsel, they suggested the

. possible involvement of someone other than the defendants, apparently hoping

to induce the jury to doubt that all of the defendants were equally involved in

the offenses and therefore perliaps acquit or convict one or more of them of a

les·s serious offense. To allow for those "fourth man" arguments, the trial 15 court, in addition to the first-degree burglary by complicity instructions noted

above, also gave instructi_ons for all.the defendants with respect to the Turpert

burglary on facilitation . to first-degree burglary, on second-degree burglary by. .

complicity, and on facilitation to second-degree burglary.

. With respect to the Vance burglary.; Tucker, who did not appear in a.rly of

CraWford's photographs with property in his hands;was given the same four

. instructions. Conyers and .Hardy were given first- and second-degree burglary

by compHcity instructions, but the court denied their requests for facilitation

instructions since_, in the court's view, Crawford's photos of them actually . . . . carrying property out of the Vances' home precluded a finding that either of ·

them merely facilitated that·crime.

Aside from their already-discussed o_bjections to the first-degree burglary

instructions, the defendants do not complain about the instructions the court

gave. They comp~ain, rather, that the court -erred by refusing·to give additional

instructions at least with respect to the Turpen burglary on the "lesser" offense

of receiving stolen property~ Where, as here, such a claim has been properly

preserved, . Martin .' v. Commonwealth, 409 . S:W.3d. 340 (Ky. 2013), and where the.

trial court's decision is based

claim for an abuse of discretion. Sargent v. Shaffer, 467 S."W.3d 198, 2~3 (Ky.

2015). In this context as in oth~rs, however, where the issue is purely a matter

of faw, our standard of review is de novo. Sargent, 467 S.W.3d at 204.

The receiving stolen property stattite, KRS 514.110, provides in its first

section that a, person is guilty of that offense

16 when he receives, retains, or disposes' of movable property of · another knowing that it has been stolen, or having reason to . believe that it has been stolen, unless the property is received, retained, or disposed of with intent to restore it to the owner.

The basic offense is a Class A misdemeanor, but if the property received ·

includes a firearm or is worth more than $500 but less than $10,000, then the

offense is enhanced to a Class D felony. KRS 514.110(2)(3). . .

The trial court decided against a "receiving stolen property" instruction

with respect to both.burglaries not because the evidence did not support it, but

rather because, in th~ court's view, receiving stolen property is not an included

offense of burglary and so, at least in this case, was ·not an available lesser

offense. The defendants contend that the trial court thus ~rred. We disagree.

Although not technically a "defense" under the Penal Code, a lesser-

· ipcluded offen~e is "in fact and principle, a defense against the higher -charge."

Hudson v. Commonwealth, 202 S.W.3d 17, 20 (Ky. 2006). (quoting Slaven v.

Commonwealth, 962 S.W.2d 845, 856 (Ky. 1997)). In Kentucky, "KRS

505.020(2) establishes whether a charge is a lesser-included offense." Id.

(citing Perry v. Co.mmon_wealth, 839 S.W.2d 268 (Ky. 1992)). Under tha~

statute, as pertinent here,

[a] defendant may be convjcted of an offense that is included in any offense with which he is formally charged. An offense is so included wh,en: . (a) It is establishec::l by proof of the same or less than.all the facts · required to establish the commission of the offense charged[.]

A,s the trial court correctly observed, thus defined, receiving stolen

property is not an "included" offense of burglary. Receiving stolen property

17 requires proof of the retention or dis'position of property with the lmowledg~

that the property has been stolen. ·Burglary requires an unlawful intrusion

. ·upon real ·property with an intent to commit a ·crime. In terms of their

elements, therefore, the two crimes are utterly distinct.. To establish burglary .,

in this case, moreover; it was not n~cessa:ry for the Commonwealth to show

that the defendants also received stolen property. While their retention of

stolen property was certainly part of the evidence aUowing an inference of . \

· criminal intent, to show that the defendants. entered the two residences with . .

the intent to commit crimes the evidence of theft, ·the evidence that the

residences were ransacked, or the evidence tjlat convicted fefons stole guns.

could also have sufficed. As the Court noted in Hudson, "the fact that the

· evidence would support a guilty verd~ct on a lesser uncharged offense does not

entitle a defendant to an instruction on that offense." 202 S.W.3d at 21. The

trial court correctly so ruled.

Arguing against that ruling Uie defendants refer_ us to Hall v.

Commonwealth; 337 S_~W.3d 595 (Ky. 2011), and to Perry v. Commonwealth, . .

supra. Those cases involved prosecutions for attempted mµrder where the . . . . . .

defendant had shot and injured a· victim, but had not killed him. In both, an

issue developed at trial concerning the defendant's 'intent at the· time of tJ:ie

shooting-·to injure or to kill-and in both, at the close of proof the

commonwealth was granted an instruction on assault as a: "lesser-included .·offense" of attempted murder.·

18 Notwithstanding the seemingly obvious tension with KRS 505.020, in \ both cases this Court upheld the "lesser-included" instruction. Doing so in·

Hall, we declined to overrule Perry and instead reiterated its view that KRS

505.020(2) does not require a "strict statutory elements" approach to lesser-

included offenses, but rather allows for "instructions on uncharged offenses .

where the facts alleged in the indictment or the evidence presented at trial

support[] such instructions." 337 S.W.3d at 606.

The defendants contend that the trial court ignored this teaching from

Hall and subjected their requests for a receiving stolen property instruction to .

a "strict_ statutory elements" test. We disagree. As noted above, the

Commonwealth's proof of burglary in this case did not necessarily entail proof

of receiving stolen property. Without attempting to explicate the possible

relationship between Hall and Hudson, moreover, we n?te the trial court's

observation that nothing, i.e.,. none of the double jeopardy provisions of KRS

505.020, precluded conviCting the defendants of receiving stolen property as

. well as l;>urglary. That possibHio/ makes this case more like Hudson, where

conviction of both the charged offense .and ·the .proposed lesser offense was

possible, 202 S.W.3d at 21, than Hall, where conviction of both assault and

attempted murder would run afoul of KRS 505.020(1)(b), which prohibits

conviction of more than one offense when the separate offenses require

inconsistent findings of faet. · See Kiper v. Commonwealth, 399 S.W.3d 736 (Ky.

2012). Assault in the latter situation can, perhaps, like an elements-based

lesser-included offense, be thought a "defense" to a charge of attempted

·19 murder, whereas receiving stolen property . in this case does not .have the same

significance. In sum, Hudson is the more apt analog to this case, and the trial

court did not violate Hall.

Finally, it is also worth reiterating that the trial court gave the jury

appropriate lesser-offense options-especially with respect to the Turpen ·

burglary-but nevertheless the jury convicted the defendants of first-degree

burglaries'. The defendants' suggestion that t_he trial court's refusal to instruct ·

on receiving stolen property. somehow coerced the jucy to find them guilty of a .

more serious crime than it would have done had it been give~ their requested ·

instruction is thus belied by the record .

. III. Juror and Witness Misconduct Did Not Necessitat~ a Mistrial.

A. The Juror "Misconduct" Was Not Prejudicial.

The defendants also contend that the trial court erred by denying their

joint motion for a mistrial. That motion was premised on a flurry of juror and

. witness misconduct that occurred during the evening recess following the first

day of triaL All of that misconduct involved witness Geo"rge .Crawford, the

·neighbor who saw and photographed the break-in at the Vances' residence. . '

Crawford was .the Commonwealth's second witness and the last witness

at the end of the trial's first day, most of which was devoted to jury selection

and opening statements. Very soon after Crawford's testimony concluded, the

trial court adm·onished the jury members not to discuss the case among

themselves or with anyone else and dismissed them for the night. As it

happened, about half of the jury rode down on the courthouse elevator at the ·same time Crawford did. Another person on the elevator-·a venire member

who had not been selected to hear the case but who had remained in the

courtroom as a spectator-complimented Crawford on his te&timony and asked _/

him for additional details about the location of the Vances' house and the

· intersection near where the defendants had been stopped. Crawford answered

the question, admitted having been nervous .during his examination, arid

wondered whether anyone else had found the air ~n the courtroom very dry. A

juror who had suffered a nosebleed during the day's proceedings replied that

his nose had, a remark that drew laughs from some of the other jurors. At that

point, the elevator ride ended, and the jurors and Crawford went their separate

ways.

That evening the. Commonwealth learned of Crawford's encounter with

some of the jurors, and the next morn.ing, before the trial resumed, it informed

the court. One-by-one the court examined the jury members to determine

which of them had been on the elevator with Crawford and what; exactly, had

been said. The scenario sketched above emerged from their answers.

Crawford was also recalled and questioned; and even the spectator who asked

Crawford to elaborate on the location of the arrest was identified and called in

to be questioned by the court and examined by the parties.

The court concluded that, while unfortunate, Crawford'~ elevator

encounter with jury members had been inadvertent, had not borne on any of

the contested issues in the case, and did not in any other way threaten to taint

the jury's deliberations or decisions. Beyond .an admonishment to the jurors

21 who had ridden on the elevator with Crawford to say nothing about the

encounter to others; the court concluded that the elevator incident did not

entitle the defendants to any relief, and in particular did not necessitate a

mistrial.

The defendants maint.ain that the trial court's· ruling _ignores the

important rights at stake: the right to a fair trial, generally, under the Due

Process Clauses of both our state and the federal constitutions, and more

particularly, the constitutional rights to an unbiased jury,_ Remmer v. United

States, 347 U.S. 227 (1954), and to a jury whose verdict is based solely on the

evidence received in open court. Sheppard v. Maxwell, 384 U.S. 333 (1966). A

juror's exposure to either outside influences_-bdbes and threats are the· classic

examples-or extrinsic information threatens those rights and, upon a proper

showing, obligates the. trial court to inquire aµd to "ascertain whether the juror.

was otwas not tainted~" United States v. Davis, 15 F.3d 1393, 1412.(7th Cir.

1994) (discussing the showing that will trigger the trial court's duty to inquire); ·

Commonwealth v. Abnee, 375 S.W.3d 49, 55 (Ky. 2012) (same, and holding that

"an unauthenticated and unsworn letter from a lone juror, wlthout more, is

insufficien.t to trigger the process for further.inquiry"); Smith v. Phillips, 455

U.S. 209, 215 (1982) (n~ting that, "This Court has long held that thecremedy

· for allegations of juror partiality is a hearing in which the defendant has the

opportunity to prove actual bias.") .

. Upon inquiry, "[i]f there is a 'reasonable possibility' that a jury's verdict

has been [or will be] affected by material not properly admitted as evidence, the

22 criminal defendant is entitled to a new trial." Davis, 15 F.3d at 1412 (citation

·omitted). In other words, juror misconduct entitles.a defendant to a new trial

(or a mistrial) only if there is sufficient ·evidence to establish both the

misconduct and resulting prejudice. "Prejudice is shown whenever there is a

reasonable probability or likelihood that the juror misconduct affected the

verdict." Meyer v. Sta,te, 80 P.3d 447, 455 (Nev. 2003) (discussing the different

ap·p~oaches to the "prejudice" question adopted by the federal Courts of

Appeal).

Not every incidence of juror misconduct requires a mistrial. Rather,

"[e]ach case turns on its own facts, and qn the degree and pervasiveness of. the

p~ejudicial influence possibly resulting." Meyer, 80 P.3d at 453 (quoting. United

States v. Paneras, 222 F.3d 406, 411 (7th Cir. 2000)). As the Supreme Court

stated in Smith, ·

[D]ue process does not require a new trial every time a juror has been placed in a potentially compromising situation. Were that the rule, few trials would be constitutionally acceptable. The safeguards of juror impartiality, such as voir dire and protective instructions from the triai judge, are not infallible; it is virtually ii:npo~sible to shield jurors from every contact or influence that might theoretically affect their vote. Due process means a jury capable ·and willing to decide the case solely on the evidence. before it, and a trial judge ever watchful to prevent prejudicial occurrences and to determine the effect of such occurrences wh_en they happen. Such determinations may properly be made at a hearing like that ordered in Remrrier and held in this case.

455 U.S. at 217 (footnote omitted).

In Kentucky these fundamental rights receive protection under both KRS

29A.310 and Rule of Criminal Procedure (RCr) 9.70. Among other things, the

23 . statute forbids witnesses (without leave o.f court) from "convers[ing] with the

jury or any member thereof upon any subjecfafter they [thejury members].

have been sworn." KRS 29A.310(2). The statute also provides that .if the jury

is permitted to separate prior to deliberation, the court shall admonish the Jury

[members] that "it is their duty not to converse with, nor allow themselves to be.

·~addressed by, any other perso~ o.n any subject of the trial[.]" .KRS 29A:310(1)°.

RCr 9.70 provides for the same. admonition; requires the court to give it, or at

least to refer to it, "at each adjournment"; and further requires that the jury

members be admonished to report immediately to the court any attemptS to

·communicate with theni.

Under these provisions, we have held,· imprqper conversations between

third parties (induding witnesses) and jurors must be assessed for their

potential to prejudice the defendant: "The true test is whether the [third~

. party/jurorl misconduct has prejudiced the defendant to the extent that he has

.not received a fair trial." Graham v. Commonwealth, 319 S.W.3d 331, 3·39 (Ky.

· 2010) (quoting Talbott v. Commonwealth, 968 S.W.2d 76~ 86 (Ky. 1998)).

At one extreme, in Dalby v. Cook, 434 S.W.~d 35 (Ky. 1968), our.

· predecessor Court presumed prejudice where, during the trial, a juror

conversed with an interested third-party (the secretary of one side's attorney)

and expressed agreement with that person's views as to what the outcome of . . - the case should be ..At the other extreme, in Owings v. Webb's Ex'r, 304 Ky.

748, 202 S.W.2d 410 .(1947), our predecessor found presumptively non-

prejudicial brief conversations during a recess between the court clerk and two

24 jurors, one of ~horn wo:r:idered "where in the community a corn shredder .. . was

then operating," and the other "where they [thejuryJ would eat lunch that day." . .

"We have several times held," the Court explained, "that no reversible error was

committed when some person innocently conversed with a juror on a matter ·

foreign to the trial." 202. S.W.2d at 412 (citation omitted}. See also Talbott,

supra (deeming harmless similarly "innocent~" "non-substantive" conversations

between a sheriff/Witness and three jurors).

In between the extremes it becomes the duty of the trial court to inquire

as to the breach of the statute or the-rule and to determine, if it appears that

misconduct occurred, whether there is a reas~nable likelihood that it did (or

would) affect the fairness of the trial. Cf Smith v. Phillips, supra (prescribing,

in the due-process context, a hearing for colorable allegations of juror

misconduct and an opportunity for the complaining party to show prejudice);

. see also Oro-Jimenez v. Commonwealth, 412 S.W.3d 174, .180-81 (Ky. 2013)

(approving, under KRS 29A.310, this manner of proceeding ~nd upholding the

trial court's deeision after the hearing to the effect that brief, consolatory

remarks by a juror to one of the ·victim/witnesses during the recess between

the trial's guilt and penalty phases did not nec:;essitate a mistrial).

Here, of course, having been presented with the Commonwealth's .own

concerns about potentially serious juror/witness misconduct, the trial court . . promptly and thor~ughly inquired into what happened and determined,

correctly in our view, that the innocuous elevator encounter posed virtually no

risk of prejudicing the defendants' trials.· ·The. trial court proceeded exactly as it should have done, and its decision not to declare a mistrial amounted to an

appropriate exercise of its discretion.

Arguing to the contrary, the defendants correctly note that Crawford's

elevator· comments about his nervousness while testifying, about the

courtroom's drynes~, and especially about the location of the.Vances' house

and where the defendants were stopped, were not completeiy "innocent," like

the third-party remarks in Owings and Talbott, in the sense of being completely

unrelated to the trial. The defendants' conclusion, however, that because this

case is not at the "innocent" extreme it must be at the opposite, "presumptively

prejudicial" extreme goes too far. AS observed in our more recent cases, such

as Graham and Oro~imenez, between the presumptive extremes th~re is. a

middle ground where the trial court must inquire and consider. ·That is

precisely where the elevator inciderit in this case lies.

No more persuasive are the defendants' claims of prejudice arising from

that incident .. Briefly, they

spectator complimenting Crawford's testimony and Crawford's "I was scared,"

and "Did any01;1e else find the courtroom dry?" comments enabled Crawford to.

establish rapport and sympathy with the jurors on the elevator, and thus were

apt to affect those jurors' assessments of Crawford's credibility. Had the facts . . been different and Crawford's credibility crucial to the Commonwealth's case,

this claim might merit more comment. As it was, however, the defendants were

essentially caught red-handed, and Crawford's testimony was cumulative,·

supported by, among other things, the 911 recording, by Crawford's

26 photographs, and by the evidence obtained by the police from the defendants'··

car and identified by the victims. In these circumstances, the trial court

correctly determined that the risk of prejudice from Crawford's brief and merely

polite elevator remarks was essentially nil.

A final facet of the defendants' prejudice argument focuses ,on their so- .. . . called "fourth man~ theory. ·Through cros·s-examination of Crawford, the

defendants established that he could not see through the tinted windows of the

c_ar he observed in the Vances' driveway and therefore could not rule out the

possibility that there was a fourth man in the vehicle. Similarly, there was a

brief interval when Crawford lost sight of the vehicle, providing opportunity for

a fourth man.to jump out after the car left the Vance residence an_d before the

police stopped it. There was absolutely no evidence to .support the presence of

a "fourth man" and, significantly, the three men depicted in Crawford's photos . .

look like the three defendants. Nevertheless, they·contend that Crawford's

elevator c.omments,' by establishing rapport with certain jurors, may have

somehow undercut their "fourth man" theory. They ' never articulate how . this

occurred and instead insist that the possibility of prejudice entitles them to a

new trial. As n_oted, the innocuous conversation here is for less serious than

. the . misconduct in our presumptive prejudice . cases . and .~ it .was therefore the

defendants' burd~n of showing prejudice, i.e., providing an evidentiary basis for

finding that it was reasonably possible that the elevator incident would affect

the jury's verdict. With no· such evidence in the record, the trial court properly

denied a mistrial.

27 · B. The Witness Misconduct Was Not.Prejudicial, Either by Itself or in · Conjunction With the·Juror "Misconduct."

Next,. the defendants contend that even jf the elevator inddent was not

enough by itself to call into question the fairness of their_ trial, it was enough

when viewed in conjunction with two other gaffes by Crawford that same

eve:i;iing. We disagree.

During Crawford's testimony, the defendant_s invoked Kentucky Rule of

Evidence (KRE) 615~ the Exclusion of Witnesse~ rule. With a. few ex.ceptions

not applicaole here, that rule requires the trial court, upon a party's request, to

"order witnesses excluded [from the courtroom] so that they cannot hear the

testimony of other witnesses." As we have explained, the letter of this rule

applies only to what happens in the courtro~m, but its spirit. "is violated 'when ·

witnesses coordinate their testimony' outside the courtroom." Hall, 337 S.W.3d

at 616 (quoting Woodard v. C()mrnonwealth, 219 S.W.3d 723 (Ky. 2007),

abrogated on other grounds by Commonwealth v. Prater,. 324 S.W.3d 393 (Ky.

2010)). Accordingly, in conjunction with the exclusion of other witnesses from.

the courtroom, the prosecutor duly advised Crawford not to discuss his . ' . . . . , I

testimony later with other witnesses.

~owever, after testifying, Crawford accepted a ride home from Stan

. Turpen, one ofthe brothers whose.home was burglarized. Turpen was.at the

c~urthouse that afternoon because he too was due to testify for the ·

· Commonwealth. The two men conversed on the drive ho;rne.

Also, in response to a text message asking how the.day had gone, . . .

Crawford telephoned Brittany Vance later that evening, and discussed with her 28 in some detail the questions he had been asked and his impressions of the

defense. He appears to have noted, in particular, the interest of both sides in

whether he observed any of the defendants with a gun. Brittany was scheduled

as a prosecution witness.

The defendants objected to these apparent breaches-of KRE 615's spirit.

The trial court therefore, along with its inquicy into the elevator incident,

inquired of, and allowed the parties to examine; Crawford, Brittany Vance, her . .

husband Joe Vance, and Stan Turpen concerning any attempts among them to

coordinate their testimonies.

Crawford denied having discussed his testimony with Stan Turpen,

whom he had ~et only that day. Turpen recall~d Crawford recounting that he

had seen the defendants in the Vances' driveway, but mostly he recalled

Crawford's description of a block-watch program in which he had participated

while he was ·a resident of Cincinnati. The trial court, noting that Crawford

and Turpen were witnesses of separate events and that there was virtually no

overlap betwee.n what they had observed, ruled that even if Crawford had.

mentioned his testimony during the ride home, Cra~ford's testimony was not

apt to have any bearing on Turpen's and thus the rule violation, if any, arising

from their conversation wa's harmless. \ .

With one exception, the trial court ruled similarly with respect to the

Vances. The Vances were not home while Crawford was observing the break-in

at their house, so their variou~ testimonies overlapped very little: Crawford

· describing the break-in from the outside as it occurred and the Vances . .. . describing the effects of it from the inside after the fact. Given those

differences, the trial GOUrt concluded _that the Vances' testimonies were not apt

·to be_ significantly affected by knowledge of Crawford's testimony. ·

The exception, in the trial court's view, was Crawford's possible "heads . . . . .

up" regarding the signjficance the_ parties appeared to place on Brittany's gun.

Brittany testified during the. voir dir~ tpat only in the last couple of days had

her husband located a doc~ment identifying the gun by its serial number and . ' herself as its owner. She intended, she said, to provide that document to· the

prosecutor. She had also, apparently after talking ~ith Crawford, double

checked with her husband to make sure she knew how many bullets the clips

for her gun held.· The trial court excluded all of this "new" gun evidence as .

possib~y the result of Crawford's tip, but it denied the defendants' request to . . .. . .

·exclude Brittany's identification of t_he gun altogether, since ·she had told the

investigating detective it was hers long before Crawford testified.·

The trial court also denied motions for mistrial or the exclusion of .. . . witnesses on the ground that the trial's fairness had been undermined by the

. two vioiations of KRE 615 together with the violatidns of KRS 29A.3 l 0 and the . . ·fact that Crawford's testimony appeared tainted by his apparent desire to help·

out the Vances. Rejecting those claims, the trial court reiterated that in its

view the rule and statutory violations, such as they were, were minor and did . . . not threaten to prejudice the defendants or to impair the trial's fairness. it also

noted that if they so desired the defen,dants could recall Crawford and via

. cross,-examination attempt to .impeach him as biased.· The defendants

30 maintain that, regardless of any actual prejudice, the trial court abused its

discretion by failing to remedy the appearance nf unfairness arising from· so

.many witness and juror improprieties~ We are convinced, however, that the

trial court's hand,ling of these matters was appropriate.

· . Beginning with the asserted violations of KRE 615, we explained in

Woodard that, although "collusion" among witnesses (whatever their intent)

violates the ·spirit of KRE 615, because it occurs outside the presence of the

court, the court's ability to do anything about it is limited: "[T]he most [the trial

court] could do is question the witnes.ses in an effort to ensure a fair trial. The

best course is to allow the testimony subject to proper impeachment on cross

examination." Woo

with that recommendation here.

As it did in.the face of likely juror/witness misconduct, the trial court

responded to the allegations of out-of-court witness "collu~ion" by promptly

conducting a very thorough inquiry of its own into what happened and by . .

giving the parties.full opportunities to. explore both what happened and how

what happened might affect them. As with the juror· "misconduct," it turns out

that the witness "collusion" was much more smoke than fire. Stan Turpen

learned . ·nothing bearing on his. testimony from Crawford. The Vances had

.. nothing they did not already know to learn from each other. Ahd Brittany

Vance did not have much to learn from Crawford, either. While Crawford

should not have told Brittany what he was asked during his testimony and how

31 he responded, the fact that he did, in the circumstances of th.is case; was

simply·not lik~ly to.have much impact on Brittany's testimony.

The possible exception, Crawford's observation that both sides wanted to

know about Brittany's gun, the trial court defused by disallowing Brittany's

testimony in the least bit likely to be responsive to it. Th~t was a remedy well

beyond the cross-examination that Woodard suggests would have sufficed. In ·

short, the. trial court.applied KRE 615 to an out-of-court "collusion" situatfon ·

precisely_ as Woodard envisioned: by inquiring so as to identify possible effects

on. a fair proceeding, and by responding so as to resolve the pro bl ems and keep .

the proceeding fair.

The defendants insist that that was not enough, that at some point,

flame or no flame, smoke itself requires relief. "This trial could not possibly

have appeared fair," the defendants complain, to anyone who sat, as they did,

"for hours the second day of trial observing a parade of jurors and witnesses

admitting to rule violation after rule violation undermining the fairness in their

case." On the .contrarj, what an observer might have seen, and what the

record ·plainly shows, is a trial judge taking pains to determine exactly what

.had happened outside the courtroom and its effect, if any, on the ongoing trial.

The trial court did not err or abuse its discretion in ultimately determining that

none of the alleged incidences of juror or witness misconduct, considered

singly or cumulatively, necessitated a mistrial. The well-developed record

allows us. to say with confidence that the defendants "received a fundamentally

fair trial with any errors being so minor that even their cumulative effect does

. 32 not demand reversal." Hall, 337 S.W.3d at 616-17 (quoting Roach u.

Commonivealth;3l3 S.W.3d 101, 113 (Ky. 2010)).

IV. Defendant Hardy Was Not Entitled to· an Instruction on Voluntary Intoxication. ·

. Hardy individually claims tp.a~ he was entitled to a jury instruction-on

the statutory defense of voluntary intoxication. As he correctly notes, a trial

court is required to instruct the jury on affirmative defenses if the evidence ·

would permit a juror reasonably to condude that the defense exists. Fredline.

L'.· Commonwealth, 241S.W.3d793 (Ky. 2007); Nichols u. Commonwealth, 142

S.W.3d 683 (Ky. 2004). On the other hand, such an instruction is to be

rejected if the evidence does not warrant it. Payne u. Commonwealth, 656

S.W.2d·719 (Ky. 1983). The. trial court made the latter determination in this

case, and we review that decision for an abuse of discretion. Sargent u. Shaffer,

467 S.W.3d at 202-04.

Under KRS 50.1.080(1), voluntary intoxication is a defense to a criminal

charge only if the intoxication "[n]egatives the existence of an element of the

offense." As Hardy notes, ah intrusion into ari.other's real property that is

knowingly wrongful, as well as an intent to commit a crime therein are both ' elements of burglary that could conceivably be "negatived" by intoxication. See

Weaver u. Commonwealth, 298 S.W.3d 851, 855 (Ky. 2009) (noting that

intoxication is a potential defense to burglary). We have interpreted Kl~S ·

501.080(1), however, "to mean that the [voluntary intoxication] defense is

justified only where there is evidence reasonably sufficient to prove that the

.33 \ . defendant was so [intoxicated] that he did not know what he was doing."

Fredline, 241 S.W.3d at 797 (quoting Rogers v. Commonwealth, 86 S.W.3d 29, .

44 (Ky. 2002)). "[M]ere drunke.nness," in other words-i.e~, the mete.

impairment. of judgment and/ or physical control that commonly leads

·intoxicated persons to do things they would not ordinarily do- .. "does not equate

with the Kentucky Penal Code's definition of the 'c;iefense' of voluntary

intoxication." . Nichois, .142 S.W.3d at 688. (quoting Rogers, 86 S.W.3d at 44). :

The defense . requires proof of something , "more" than "mere drunkenness." Id. ·.

Here it is doubtful that the evidence w~uld have permitted a finding that Hardy

was intoxicated, much less that he was so intoxicated that he ceased to be .

aware of what he .was doing.

The evidence Hardy relies on was . . all introduced in conjunction· with the

evfdence of his arrest. Officer Champaign, the arresting ~fficer, testified that

the s~arch of Hardy's person inddent to the arrest yielded, among other items,

eight prescription pills, later identified as five hydrocodone pills and three

Xanax pills. Additionally, the .se~ch incident to Hardy's arrest was captured

by the "dash cam" vi~eo camera of one-of the police cars. Hardy's counsel

played that video for the jury, and maintained that it shows Hardy moving

slowly, as though under fu.e influ"ence of pills at the time of the arrest.

The. officer testified, however, that Hardy was the driver of the

defendants' car and 'that his driving had not appeared impaired. According to

. the officer, Hardy was the first defendant ordered out of the car, and he exited .

without stumbling_or showing any other sign of intoxi_catiop. His eyes were not-

34 glassy. The "dash cam" video, as the officer noted, shows Hardy cooperating

with ·the search and, despit~ havihg his hands cuffed behind his back, obeying

without any loss of balance or other difficulty such commands as turning

around and raising each of his feet as the officer removed Hardy's shoes and ·

searched hjs socks. The officer testified at no point during.Hardy's arrest did

he suspect that Hardy might be intoxicated. The "dash cam"- video iii no way . . . belies that testimony.

Defense counsel asked the officer if he was aware that while waiting to be.

booked into the Campbell County Detention Center Hardy had wet his pants.

Unfortunately, on the trial video the officer's response, yea or nay, is not clear,

but in any event defense counsel thereafter referred to Hardy's purported

accident as further evidence of intoxication.

Could a reasonable juror infer from the foregoing evidence that at the

time of either crime Hardy was so intoxicated that he was not aware of what he

was doing? The trial court properly conduded "no." Even if the evidence

permitted an inference that Hardy had ingested pills prior to the crimes," the

evidence, much like the evidence of pre-crime cocaine and alcohol use in

.Stanford·v. Commonwealth, 793 S.W.2d 112 (Ky. 1990), also showed that

Hardy.could drive, walk, and understand what was said to him. Hardy was

apparently aware of his actions and appeared to be functioning normally.

On the other hand, there was no evidence, as there was in Nichols v.

Commonwealth, supra, that Hardy was wild or out of control, nor was there

evidence, as there was in Lloyd v. Sta~e, 587 S.E ..2d 372 (Ga. App. 2003), the

35 other case upon which· Hardy relies, that he was.acting strangely and was so

intoxicated immediateiy after the crime as to pass. out and urinate on himself.

In sum, none of the evidence suggested that Hardy was so intoxicated that he

was unaware of what he did.· 'Accordingly, the trial court did hot abuse its

discretion when "it decided that Hardy was not entitled to an intoxication .

instruction.

V. The Trial.Court Did Not Err During the PFO Proceedings by Refusing to Exclude Evidence of One of Conyers;s Prior Felonies. ·

.Finally, Conyers contends· that he was improperly sentenced~ The jury

initially sentenced him to serve fifteen years in prison o_n each first-d~gree .

burglary count,.with those sentences to be served concurrently. In light of

proof that Conyers had two prior fek>ny convictions, thejury then.found him

subject to sentencing as a PFO in the first degree and recommended the two

·concurrent sentences be enhanced _to twenty years. The trial court sentenced

. Conyers accordingly.

·On appeal, Conyers contends, as he did in the trial court,. that due to a change in the law one of his prior felonies should ·no fonger count for PFO

purposes. He maintains that he is entitled to be ~esen~enced at a new penalty pJ:iase ·from which evidence of the. "lapsed" felony is excluded.

In 2004 Conyers.pled guilty to trafficking in less than eight ounces of

marijuana. ·At the· time ·or the offense (and still today), first-offense trafficking

in less than eight ounces of marijuana was a Class A misdemeanor. KRS.

214A. 1421 (1992). However, because Conyers did his peddling within 1000

. yards of a school, the offense was enhanced under KRS 214A.1411 (-1992) to a 36 Class D felony. 4 Conyers, o:i:ily nineteen at the time of his 2004 guilty plea, was

sentenced to five years but that sentence was probated.

Some seven years later, in June 2011, the General Assembly amended

KRS 214A. l 41 l so as to shrink the enhancement zone around schools. Under

the amended statute, misdemeanor trafficking offenses do not become feloi::iies

unless they take place within "one thousand (1000) feet," not yards·, of a .

classroorp. KRS 214A.1411(1) (2011) (emphasis added). Conyers claims (a

point the Commonwealth does not contest for the purposes of this case) that

hjs 2004 offense did not t*e place within 1000 feet of a clas,sroom and so

would not have been a felony under the 2011 versi9n of the statute.

From that fact, Conyers argues that his 2004 felony conviction should he

deemed, retroactively, a misdemeanor for PFO purposes in this case. The trial .·

court rejected that argument, and so do we .. KRS 532.080, the PFO sentencing

statute, does not require proof that prior felonies would still be felonies under

current law. As pertinent here, it requires only a prior·conviction (or prior

convictions) "of a felony in this state." .KRS 532.080(2) and (3) (defining second

and first-degree PFO status, respectively). In 2004, Conyers pled guilty to "a.

felbny in this state," and the resulting conviction remains a felony. conviction

4 The statute provided in pertinent part as follows: "Any person who unlawfully traffics iri a controlled substance classified in Schedules I, II, HI, IV or V, or a. controlled substance analogue in any building used primarily for classroom instruction in a school or on any premises located within one thousand (1,000) yards . of any school building used ptjmarily for classroom instruction shall be guilty of a . Class D felony, unless a more severe penalty is set forth in, this chapter, in which case the higher penalty shall apply." Marijuana is classified as a Schedule I controlled · substance .. KRS 2 IBA.050(3).

37 · ·for PFO purposes notwithstanding the subsequent amendment of KRS

214A.1411.

Against this conclusion Conyers refers us to KRS 446.110, which, among

other things, addresses "Offenses committed ... prior to repeal of law .."· In

pertinent part, the statute provides: "No new. law . shall . be construed . to repeal a ~

former law as to any offense committed against a former law." This, of course,

is contrary to Conyers'.contention, which is that the 2011 amendment of KRS

218A.1411 did repeal the earlier version applicable to Conyers in 2004. This

provision of the statute is consistent with the general rule, as stated in KRS

446.080(3), that "[n]o statute shall be construed to be retroactive, unless

·expressly so declared." Unless the General Assembly says so, in other words,

new statutes, such as the 2Q 11 amendment to KRS. 218A. l 411, do not apply to

offenses committed prior to their enactment. However, Conyers point's us t~ an

exception to the presumptic~n against retroactivity: "If any penalty, forfeiture or

. punishment is mitigated by any provision of the new law, suc:q provision may,

by the consent of the party affected, be applied to any ju.dgment pronounced

after the new law takes effe<;t." KRS 446.110 (emphasis added). Even ,

assuming that the 2011 amendment to KRS 446.110 addrescsed the pen~lty,

and not the substance of the law, see Rodgers v. Commonwealth, 285 S. W.3d

740, 750 (Ky. 2009) (~iscussing that distinction), the problem with Conyer~'

reliance on this exception is that the judgment to which he wan~s to apply the

new, "penalty-mitigating" version of the statute-his 2004 trafficking

conviction:-was pronounced some seven years before the new law took effect ..

38 .. The· KRS 446.110 exception, by its own terms, does not apply in this situation.

Rogers v. Commonwealth, 366 S.W.3d 446, 456.(Ky. 2012) (noting that "by the

statute's [KRS 446.110] plain terms the retroactivity is limited to changes that

· take effect prior to· the 'pronouncement' of judgment.").

Conyers' unsupported. constitutional arguments fare no better. He

-contends that he was found to be a first-degr_ee PFO upon proof of only one

prior felony, in violation of the Due Process Clause of the federal constitution.

He also contends that the judicial branch's use of a crime that the legislature .. has determined should not be a felony to enhance his sentence as a prior

felony offender is·a violation of the separatfon of powers doctrine.

As discussed above, the General Assembly has made crystal clear its

·intent that unless it clearly says other"Wise, even the penalty provisions of new

·laws have only a limited retroactive reach. The General Assembly did not

except the 2011 amendment from those limits, and Conyers' 2004 conviction·

lies far outside them.· The real due-:process and separation of powers violations

would occur were we to follow the course urged by Conyers and give the 2011

amendment of KRS. 2 l 8A. l 41 l a retroactive effect far in excess of what the

General Assembly has indicated it should have. In short, the trial court did not

err by allowing use of Conyers' 2004 felony marijuana-trafficking conviction in

the PFO portion of this case.

CONCLUSION

For the foregoing reasons, we reject the three defendants' shared

appellate arguments, as well as the individual arguments raised by Hardy and

39 Conyers. Accordingly, we hereby ~firm the Cam:pbell Circuit Co~rt's

judgments convicting and sent~ncing each defendant.

All sitting: AH concur.

COUNSEL FOR APPELLANT, LONNIE CONYERS:

Emily Holt Rhorer Assistant Public Advocate · D~partment of Public Advocacy·

COUNSEL FOR APPELLEE:

Andy Beshear . Attorney General of Kentucky

Jeffrey Ray Prather Assistant Attorney General

COUNSEL FOR APPELLANT, ROY EDWARD TUCKER:

Susan Jackson Balliet Assistant· Public Advocate Department of Public Advocacy

COUNSEL FOR APPELLEE:

Andy Beshear Attorney General of Kentucky·

Joseph Todd Henning Assistant Attorney General

40 COUNSEL FOR APPELLANT, JOSEPH HARDY:

Erin Hoffman Yang Assistant Public Advocate Department of Public Advocacy

COUNSEL FOR APPELLEE:

Andy Beshear Attorney General of Kentucky

Joseph Todd Henning Assistant Attorney General

41 .