*1 Appellant, McCARTHY, A. Michael Kentucky,
COMMONWEALTH
Appellee.
No. 92-SC-0264-MR. Kentucky.
Supreme Court 28,
Oct. 1993.
Rehearing Jan. Denied Niehaus, Goyette, David and J.
Daniel T. Defender, Deputy Appellate Jefferson Louisville, Defender, ap- for District Public pellant. Gorman, Gen., Atty. Gregory C.
Chris Gen., Div., Fuchs, Atty. App. Asst. Crim. Frankfort, appellee. for REYNOLDS, Justice. appeal judgment of convic-
This degree, assault burglary in the first tion for degree, second and PFO the the fourth of im- received sentences degree. Appellant years, ten prisonment respectively for *2 months, burgla- and the enhancement of the ing with the assaulting intention of his wife. ry years years. conviction from ten Additionally, to 20 He he states trial court’s appeals to this Court right. nothing confusion; as matter of answer did to eliminate We affirm. that it impres- contributed to the mistaken sion that a of violation an EPO is a sufficient (a) appeal This raises two issues: Whether satisfy criminal act to permit it was error to of introduction testi- Appellant’s request for an admonition that an mony concerning previous emergency protec- proof EPO was not that he was of a (b) orders; tive whether trial court crime was denied. by erred allowing voir dire as to the complete penalty range. require Such issues 404(b) Kentucky of Rules Evidence Rule consideration of the facts. provides: of appellant’s victim the assault was crimes, wrongs, Evidence of other or acts estranged and, crimes, wife at the time of the is not admissible to the character of subject protective he was to emergency an to order show action in con- (EPO) prohibited order which him from com- formity however, may, therewith. It ing premises. about his wife or onto her admissible: Irrespective, appellant went to the home of (1) purpose, If offered for some other such wife, sought estranged his and was denied motive, proof intent, as opportunity, entry, and thereafter kicked down the door. preparation, plan, knowledge, identity, or visitor, He then dwelling. entered the A accident; absence of mistake officer, off-duty police left the house to sum- (2) inextricably If so intertwined oth- with mon fight erupted assistance. A between sepa- er evidence to essential the case that and, result, his wife as a she (2) ration two be accom- injuries. sustained plished without serious on adverse effect deputy At trial a clerk testified as to the offering party. general nature of EPOs read from the against most recent order appellant. EPOs, quite It is evident clerk, objection, permitted over testify victim, was to ordering issued at the behest history against as to a appellant, stay away EPOs from her prior there were EPOs effect. time framework of this are relevant as mind, evidence motive state of and also prejudice At issue is the sustained vir- part of the immediate circumstances bear relating tue of the evidence to the EPOs. ing on the charged. crimes Matthews Appellant contends only evidence Commonwealth, (1986). Ky., 709 S.W.2d which should have been admitted was the prosecution While the privileged is not current/pending directing stay EPO him to show unconnected and isolated unlawful con away premises, from the and that was a fact duct that had bearing upon no whatsoever which he to stipulate. offered In his claim of scrutiny, yet the crime under all the circum prejudice question he refers to written may stances be shown which have a relation emanating jury during from the its delibera- particular imputed, violation of the law tion which follows: if, doing, even so other offenses (the Under Instruction # section a bur- Commonwealth, brought light. Francis v. instruction) glary “with intent (1971). Ky., 468 S.W.2d you to commit a crime” us if can tell this of coming refers to the crime reject position We continue property or the crime of assault? any right that there is absolute responded by trial furnishing court spouse against to be with the other answer —“To commit crime.” wishes, giving right other’s to break into Appellant question states that the indicat- home of the other with the ed burgla- belief that he Burglary was commit a crime. invasion ry intentionally when possessory right violated the EPO another and Matthews, rather than spouse. supra. when he entered into the dwell- extends to a instructed on first-de disagree claim that the We first-degree gree burglary as well question trial court directed facts, it for the trespass. these Under considered the viola- disclosed that appellant formed jury to whether determine tion of an EPO evidence of crime so *3 of requisite guilty be intent to guilty burglary. the to render the defendant trespass. There was rather than criminal Burglary in position speculative. is Such a sufficient, jury them for 511.020, evidence before the degree, provides: the first KRS burglary in guilty the appellant find to (1) in the person A degree. first when, degree com- first to knowingly he enters or re- mit is that Appellant’s second contention building, in mains and when allowing by not voir dire trial court erred effecting entry building in while dire, complete penalty range. On voir therefrom, flight he or in immediate jury that ten to told the the Commonwealth participant crime: another penalty range for this years is the (a) deadly explosives with or a Is armed degree, and if asked burglary in first weapon; or No anyone impose not such sentence. could (b) injury physical responded. Appellant to contends that he Causes one crime; per- participant who is not a tell the that correct wanted to years range to life as this missible was (c) danger- of a Uses or threatens use subject stat- appellant would be to PFO against any person instrument who is ous ute. participant in the not crime. appellant While contends he went argument, as the record appellant’s with wife not with the house to confer his reveals, appellate re- preserved not for assault, may he be con- commit for dire on the view. did move voir He burglary providing the victed of the crime of degree range burglary in the first penalty knowingly he jury finds that entered degree, second but no and assault building commit a crime or with intent analogy further. There no as what was budding he remained that and to this Court. presented to trial court Therefore, with intent to commit a crime. Commonwealth, Ky., Kennedy 544 S.W.2d not appellant if believes that did even one (1976). 219, 222 requisite he entered have surely he believe subse- provided by v. Com It is Shields necessary quently formed monwealth, Ky., that 812 S.W.2d of the qualified juror as a in order to be sit case, a the venire must member of The trial court’s answer to the any permissible punish able to consider question is statement deemed to be correct cannot, properly ment. If he then he that
of the law. The video record discloses meaningful challenged A voir dire for cause. judge’s acquiesced counsel decision qua non both sides is sine examination did. answer the manner jury. seating impartial of a fair and Three versions of the facts exist 532.080(5) provides: “A who KRS which the could choose to believe. felony police persistent offender visiting off-duty is found to be officer observed down, to an degree sentenced being the second shall be door knocked but advised pursu- imprisonment during the term physical confrontation occurred indeterminate no 532.- sentencing provisions of KRS premises. ant to the minute that it took him to leave the 060(2) highest degree next than the testimony for the gist appellant’s Here fight, could offense for which convicted.” he did not intend to but he degree, a first victim’s ver- convicted control his emotions. The not 532.060(2) felony. provides: stormy B Class was that after the sion impris- maximum terms of fight- “The authorized entry, thing she recalled was next (a) A are: For a Class onment for felonies appellant. ing with (20) felony, years twenty less than nor of such an instruction. This did ” imprisonment; request more than life .... such instruction and was entitled requested to his admonition. Appellant was of a convicted Class B significant There is another far more rea- however, felony, Felony under the Persistent why son the burglary statute, conviction should be Offender he is to be sentenced in reversed. The trial court’s answer to the highest degree accordance the next than question during submitted its delib- the offense for which he was convicted. eration was not “a correct Hence, appellant statement was to be sentenced under law,” Majority Opinion as the On A states. felony the Class provision provides which contrary, seriously misleading. it was for less years than 20 nor more than life *4 first-degree had instructed on been bur- imprisonment. year In this 20 case a sen glary first-degree well criminal tres- imposed. appellant tence was As received pass. sentence, question: The then asked this the minimum the trial court’s al leged penalty failure to voir allow dire on “Under Instruction # [the section a bur- range was not error. glary instruction] the “with intent crime,” you to commit a can us if tell this judgment The of the Jefferson Circuit refers to the of coming crime onto the Court is affirmed. property or the crime of assault?” STEPHENS, C.J., COMBS, and question:. The trial court responded to their LAMBERT, and SPAIN any “To commit response crime.” This WINTERSHEIMER, JJ., concur. fairly be by understood mean same prove evidence introduced to criminal LEIBSON, J., by part separate dissents in facts, trespass, any without additional would opinion. prove burglary element LEIBSON, Justice, dissenting. charge. ease, is Such not the these and circumstances render unreliable the Respectfully, portion I dissent from the burglary charge. verdict Opinion affirming burglary convic- tion. statute, 511.020, burglary KRS reads pertinent part: person “A Majority Opinion Emergency finds burglary when, degree in the first (EPO) Protective Orders “are relevant as knowingly intent to commit a en- mind, evidence motive or state of and also unlawfully ters or building....” in a of the immediate circumstances bear- response jury’s ques- trial court’s ing charged,” on the I agree. crimes and tion implies that it knowing either was a admitted, But this after evidence had been property, crime to come onto the because to was then to his entitled re- EPO, intending do so or violated the to com- quested admonition to the effect that satisfy mit the crime of assault would outstanding of an existence EPO does not requirement. prove the appellant previously that had com- mitted a crime. For burglary the “intent” element Commonwealth,
In case, Matthews v. 709 statute to have been satisfied this (1985), S.W.2d we held that a “with “sexual the intent to commit crime” must bearing abuse warrant had a direct on the be understood refer intent to commit a trespass. state of mind at time” crime in addition However, trespass victims were killed. by “knowing- Criminal is committed ly Matthews did offer an entering remaining not instruction to in jury, as was done building,” burglary defense counsel in first element this anytime that the warrant “knowingly “could consid- statute. Since someone only bearing ered on the dwelling” accused’s state of enters or remains proof guilt mind necessarily of the that offense would have the intent charged.” requested, Since coming none commit the perceived property, Majority Opinion Matthews we no error in the lack has effective- closes, into a home as who comes requirement out of the or someone ly written in a closet until after by declaring guest trial court’s then hides burglary statute guests gone. of the are correct statement thinks all the answer “to host this out: Commentary law”. to KRS 511.020bears Further, requirement if the is writ- burglar must requirement It [the burglary in this ten out of the statute fash- unlawfully] knowingly remain ex- enter or ion, trespass any time there is a criminal pands the offense traditional armed, trespasser happens any person who through provision injury physical to someone who causes privilege property under still enters participant in or threat- uses if he re- commit an offense dangerous on a non- ens use a instrument beyond the on that termi- mains would be participant, added). privilege. (Emphasis of his nation first-degree without the Common- (iii) (1974). 511.020, Commentary having wealth “the intent to commit Commonwealth, Ky., In Tribbett required the first ele- a crime” otherwise interpreted correctly we S.W.2d ment for invited into The defendant was *5 Majority opines that it is im- further he the victim where killed victim’s home jury’s question indicat- material whether the property. with his and then made off they an ed considered the violation of EPO lawfully, in the victim’s home defendant was as sufficient to the element of evidence correctly jury instructed find commit a “even if because only if thereafter he guilty burglary him have one believes did not dwelling in without the victim’s remained requisite intent as he entered the in permission, to commit crime. order surely subsequently believe he formed licensor/victim, Upon the death of guilty necessary to be of the crime premises defendant’s license Majority ap- burglary.” believes “Therefore, when failed to [he] ceased. pellant “may be convicted of the crime of leave, unlawfully upon the remained [he] burglary providing the finds that he meaning burglary premises within the building in- knowingly entered the (iii) 511.020, Commentary tent commit a crime that he remained (1974).” Id. at When the defendant unlawfully building with intent to com- property, then off the victim’s he made mit a quoted crime.” While this state- last burglary. committed a abstraction, ment it is true has no application present lawfully If remains concrete circum- someone enters but Tribbett, unlawfully, like defendant did stances. crime,” to commit a element “intent Burglary § As 12A C.J.S. stated determined at time burglary, must be (1980): unlawfully If the initial remains. burglary requisite spe- “To constitute entry unlawful, it was in this at cific intent must exist the time a crime” element must be “intent to commit breaking entry, entry, remaining entry. To as of time of hold determined every crime commit- otherwise would mean Code, § According to the Penal 221.1 Model building burglary well ted is a burglary which our statute committed, every case “intent since offense 511.020) (KRS taken, phrase encom- at exists the instant when to commit crime” upon passing one who remains the crime occurs. burglary property is included statutes whether the “with where en- asked reach those situations so) crime” (i.e., to commit a referred lawfully ters with license to do but or the coming do onto then after it is lawful to so crime of given Examples crime of assault. Since order to commit a crime. at the a crime must determined Penal someone who commit Model Code include building, lawfully until it time he entered the a bank but hides
enters nature, question, by its discloses debating whether the violation of
the EPO was which in and of evidence itself rendering
established crime the defendant In answer to the
question, they should have been instructed:
“with intent to commit a used in instruction, refers to the crime of and
assault offense committed
unlawfully coming property.”
Although of an violation EPO which the “knowing- was aware indicated he
ly” building “unlawfully,” appel- entered the
lant was not unless the that,
jury believed at the time entered
unlawfully, he to commit a intended got
after he inside. reasons,
For these I would reverse the conviction remand this
the case. *6 PRESTON, Mayor, City
John David
Paintsville, Kentucky, Appellant, COUNTY PILOTS AS
FLOYD/JOHNSON SOCIATION; Blackburn; Donna C.K.
Belhasen; Larry Wells; Short; P. John Latta, Mayor, City
Ann R. of Prestons
burg; Paintsville/Prestonsburg Air
port Board, Appellees.
No. 92-CA-000209-MR. Kentucky. Appeals
Court 26, 1993.
Feb. 30,
Rehearing April 1993. Denied
Discretionary Review Denied
Supreme Court Jan.