GORDON WADDELL v. COMMONWEALTH OF KENTUCKY
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RENDERED: September 25, 1998; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
No.
1996-CA-002999-MR
GORDON WADDELL
APPELLANT
APPEAL FROM WARREN CIRCUIT COURT
HONORABLE THOMAS R. LEWIS, JUDGE
ACTION NO. 96-CR-000251
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
* * *
BEFORE:
BUCKINGHAM, KNOX, AND SCHRODER, JUDGES.
KNOX, JUDGE:
Gordon Waddell appeals from the judgment of the
Warren Circuit Court convicting him of the offenses of firstdegree criminal trespass, a Class A misdemeanor, first-degree
criminal mischief and second-degree burglary.
Appellant was
sentenced to five (5) years.
In May 1996, a Warren County grand jury indicted
appellant for the offenses of second-degree burglary and firstdegree criminal mischief for acts alleged to have been committed
on January 23, 1996, and first-degree burglary for acts alleged
to have been committed on April 10, 1996.
At trial, appellant
was convicted of the lesser degree offense of first-degree
burglary in conjunction with the incident of January 23, 1996,
and first-degree criminal mischief with respect to that same
incident, and second-degree burglary with respect to the incident
alleged to have been committed on April 10, 1996.
Appellant presents two issues to be considered in this
appeal: (1) whether the trial court erred in denying his motion
for a directed verdict; and, (2) whether the trial court erred by
allowing the jury to be influenced by improper factors.
Appellant and Hope Davis (Davis) resided together for
several years prior to the events which gave rise to this case.
By January 1996, however, appellant had moved out of Davis’s
residence, although he and Davis still maintained a dating
relationship.
On January 22, 1996, appellant, apparently
motivated by feelings of jealousy, telephoned Davis, and in a
conversation recorded on Davis’s answering machine, threatened to
physically abuse her.
On January 23, 1996, when Davis returned
to her house, she discovered that it had been ransacked and
several items of furniture destroyed.
At trial, Davis placed a
value of $1,800.00 on the furniture which had been destroyed.
Appellant subsequently replaced some of the items, and testified
he did so at a cost of less than $1,000.00.
Davis testified at
trial that some of the damaged items were not replaced.
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After those events, Davis obtained a domestic violence
order (DVO) against appellant, which was issued on February 1,
1996, and which, by its terms, was to remain in effect until
February 1, 1997.
The DVO required appellant to remain at least
1,000 feet away from Davis and her household.
On April 10, 1996, appellant came by Davis’s house.
At
trial, Davis testified that appellant entered the house through
the front door without knocking.
However, appellant testified
that Davis permitted his entry into the house.
Davis testified
that appellant had called earlier seeking to come by the house,
but she refused to permit him to do so.
In any event, once
inside the house, appellant sought to use the phone.
agreed that appellant could use the phone.
Davis
The phone
conversation appears to have given rise to some contention
between appellant and Davis.1
According to Davis, appellant
struck her in the face and threw her onto the floor.
She
attempted to flee into the bathroom, but appellant caught and
choked her.
She was able to get away to a neighbor’s home.
She
then went to the hospital for treatment for head, neck, face, and
back injuries.
However, appellant testified that it was Davis
who attacked him during the phone conversation, and he was simply
trying to restrain her.
Appellant first argues the trial court erred in denying
his motion for directed verdict on the first-degree criminal
1
Possibly because appellant was attempting to call a female
friend.
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mischief charge related to the January 23rd incident.
He argues
that, because he replaced the furniture he damaged at a cost of
less than $1,000.00, he cannot be convicted under KRS 512.020,
which requires, for conviction, that the property destroyed or
damaged maintain a value of $1,000.00 or more.2
Here, the jury heard testimony that, while in Davis’s
home, he damaged a kitchen table, end tables, glass table tops, a
dresser mirror, two (2) chests of drawers, and various electronic
items.
Davis testified that she obtained estimates of the value
of the damaged goods in the amount of $1,800.00.
While appellant
testified that he replaced the items that he damaged at a cost of
less than $1,000.00, Davis offered testimony that certain items
which appellant damaged or destroyed were not replaced.
“On appellate review, the test of a directed verdict
is, if under the evidence as a whole, it would be clearly
unreasonable for a jury to find guilt, only then the defendant is
entitled to a directed verdict of acquittal.”
Benham, Ky., 816 S.W.2d 186, 187 (1991).
Commonwealth v.
While it is laudable
for appellant to have replaced some of the furniture items he
damaged, we do not believe this fact exonerates appellant from
conviction.
In any event, the jury heard appellant’s testimony
that he replaced the furniture, but chose not to consider that
2
KRS 512.020 reads: “A person is guilty of criminal mischief
in the first degree when, having no right to do so or any
reasonable ground to believe that he has such right, he
intentionally or wantonly defaces, destroys or damages any
property causing pecuniary loss of $1,000 or more.”
-4-
testimony as a mitigating factor against conviction.
Considering
the Benham standard, and because the jury heard evidence that the
value of all of the furniture that appellant destroyed exceeded
$1,000.00, we conclude the trial court did not err in denying
appellant’s motion for directed verdict on the first-degree
criminal mischief charge.
Appellant next argues that the trial court erred in
denying his motion for directed verdict on the first-degree
burglary charge arising from the April 10th incident.
Appellant
argues that the only evidence of his intent to commit a crime was
his violation of the DVO Davis had obtained, and under Hedges v.
Commonwealth, Ky., 937 S.W.2d 703 (1996), the violation of a DVO
is not sufficient to establish an intent to commit a crime, a
necessary element of first-degree burglary.3
In Hedges v. Commonwealth, Hedges, who was under a
DVO,4 sought entry into his estranged wife’s apartment to use the
phone.
While there, he discovered another man in the apartment,
and, becoming enraged, destroyed some furniture items.
In answer
to the argument that the violation of a DVO is sufficient to show
3
The element of intent to commit a crime is also required in
second-degree burglary, of which appellant was convicted. KRS
511.030(1) defines second-degree burglary as follows: “(1) A
person is guilty of burglary in the second degree when, with the
intent to commit a crime, he knowingly enters or remains
unlawfully in a dwelling.”
4
Hedges was prohibited by the DVO from committing acts of
violence against his estranged wife or disposing of or damaging
the couple’s property. The DVO did not contain a “no contact”
provision.
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the requisite intent to commit a crime, an element required by
KRS 511.030(1), our highest Court recognized that the requisite
intent to commit the offense of burglary must exist at the time
of the entry.
Hedges, 937 S.W.2d at 706.
In ruling that
violation of a DVO, standing alone, was not sufficient to provide
the requisite intent, the Court said:
Violation of a DVO, without other evidence
sufficient to show intent to commit a crime,
may not be used to satisfy the elements of
burglary. If it were otherwise, every indoor
crime (or intended crime) would constitute
burglary. Thus, while violation of a DVO can
constitute criminal conduct, the evidence in
this case indicates that appellant did not go
to Dana’s apartment with the intent to
violate the DVO.
Id.
In support of its argument that the trial court in this
case did not err in denying appellant’s motion for directed
verdict, the Commonwealth relies upon a case from our highest
Court, McCarthy v. Commonwealth, Ky., 867 S.W.2d 469 (1993),
which precedes in time the Hedges case.
McCarthy, who was under
an emergency protective order (EPO) which prohibited him from
coming about his wife or onto her premises, went to the home of
his estranged wife, and upon being denied entry, kicked in the
door and entered.
McCarthy’s estranged wife sustained injuries
in an ensuing fight between the two of them.
In affirming
McCarthy’s conviction of the offense of second-degree burglary,
our highest Court said:
It is quite evident that the EPOs, issued at
the behest of the victim, ordering appellant
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to stay away from her house, in the time
framework of this case, are relevant as
evidence of motive or state of mind, and also
as part of the immediate circumstances
bearing on the crimes charged. While the
prosecution is not privileged to show
unconnected and isolated unlawful conduct
that had no bearing whatsoever upon the crime
under scrutiny, yet all the circumstances may
be shown which have a relation to the
particular violation of the law imputed, even
if, in so doing, other offenses may be
brought to light.
Id. at 470 (citations omitted).
Later in its opinion, the McCarthy Court said:
While appellant contends he went to the house
to confer with his wife and not with the
intent to commit an assault, he may be
convicted of the crime of burglary providing
the jury finds that he knowingly entered the
building with intent to commit a crime or
that he remained unlawfully in the building
with intent to commit a crime. Therefore,
even if one believes that appellant did not
have the requisite intent as he entered the
house, one could surely believe he
subsequently formed the intent necessary to
be guilty of the crime of burglary.
Id. at 471.
We believe that between the distinctions discussed in
the Hedges and McCarthy cases, the issue of whether the trial
court erred in denying appellant’s motion for directed verdict in
this case is resolved.
The Court, in Hedges, noted that the EPO
which McCarthy was under prohibited him from coming about his
estranged wife or her premises, while Hedges’s DVO contained no
such provision.
Further, the Court noted that McCarthy forced
entry into his estranged wife’s apartment, while Hedges’s
estranged wife permitted his entry into her apartment.
-7-
Here, the record reflects that appellant knew he was
prohibited by the DVO from going about Davis or her premises.5
Further, while appellant claimed that Davis permitted his entry
into her home, Davis testified that appellant entered without her
knowledge and without knocking.
It is not disputed by either
appellant or Davis that Davis gave appellant permission to use
the telephone.
However, Davis testified that, once appellant
began assaulting her, she demanded that appellant leave the
house.
Hedges unquestionably holds that a DVO, without more,
cannot provide the element of intent to commit a crime, as
required by KRS 511.030.
However, we believe evidence of the
requisite “more” is present in this case.
In view of the DVO, in
conjunction with Davis’s testimony, the jury could have believed
that appellant’s entry into her home was without permission and
therefore unlawful.
In addition, even if the jury believed
appellant’s entry into Davis’s home was with permission, the
jury, based upon Davis’s testimony, could have found appellant
remained unlawfully in Davis’s house with the intent to commit a
crime [assault] after Davis ordered him to leave the house.
Under these circumstances, we believe sufficient other evidence,
in addition to the DVO, existed to support the trial court’s
5
While appellant maintained that he had frequent, even
daily, contact with Davis after the entry of the DVO, Davis
disputed that.
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decision to deny appellant’s motion for a directed verdict on the
charge of first-degree burglary.
Appellant also raises an issue that the trial court
allowed the jury to be influenced by improper factors.
However,
this argument was not preserved nor developed, and, we therefore
do not consider it.
For the foregoing reasons, the judgment of the Warren
Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Elizabeth A. Shaw
Richmond, Kentucky
A. B. Chandler III
Attorney General
Vickie L. Wise
Assistant Attorney General
Frankfort, Kentucky
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