ANTHONY D. MULLINS V. COMMONWEALTH OF KENTUCKY
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RENDERED: January 8, 1999; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 1997-CA-002837-MR
ANTHONY D. MULLINS
APPELLANT
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE MARY NOBLE, JUDGE
INDICTMENT NO. 97-CR-579
V.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING AND REMANDING
** ** ** ** ** ** **
BEFORE:
HUDDLESTON, KNOPF and KNOX, Judges.
HUDDLESTON, Judge.
Anthony D. Mullins appeals from a judgment
based on a jury verdict finding him guilty of second-degree wanton
endangerment, resisting arrest and possession of drug paraphernalia
for which he received sentences of twelve months in jail and a
$500.00 fine, a $150.00 fine and a $500.00 fine, respectively.1
1
The parties agree, and the jury's verdict reflects, that
these are the charges of which Mullins was found guilty.
The
judgment incorrectly recites that he was found guilty under count
1 of the indictment of wanton endangerment 2nd degree, under count
2 of terroristic threatening, and under count three of menacing.
This case will be remanded so that a corrected judgment can be
entered nunc pro tunc. See Ky. R. Civ. Proc. (CR) 60.01.
The events leading to Mullins' indictment and conviction
occurred in the early morning hours of April 6, 1997.
Mullins had
a dispute with his sister, with whom he was living, over seventyfive cents which he claimed she owed him as a result of a card
game.
Each had been drinking.
The Lexington Police were notified
and officers were dispatched to the scene. Upon their arrival, the
officers
found
Mullins
screaming
belongings onto the porch.
to move out of her house.
obscenities
and
tossing
his
Mullins told his sister that he wanted
Initially Mullins ignored the officers.
The officers offered to call Mullins a taxicab to enable
him to move his belongings.
house.
Mullins then went back inside the
The officers went to a side of the house from where they
saw Mullins holding a knife while attempting to use a cordless
phone.
The officers heard Mullins say that he was not going to
jail and that he was going to kill his sister and the officers.
At
that point, the officers decided to arrest Mullins for disorderly
conduct and terroristic threatening.
Mullins
went
to
the
front
of
house
Officer James Lynn to help him use the phone.
where
he
asked
Officer Lynn
attempted to subdue Mullins, but Mullins broke free and ran into a
bedroom.
Mullins reappeared armed with a knife and attacked the
officers.
The officers sprayed Mullins in the face and eyes with
Mace and arrested him.
Mullins was then searched and the officers
found a crack pipe in his vest.
A jury trial was held on September 30, 1997.
After the
evidence was presented, Mullins requested a jury instruction on
harassment.
The jury was given instructions under count 1 of the
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indictment for first-degree wanton endangerment, second-degree
wanton endangerment, terroristic threatening and menacing.
The
jury, as noted above, found Mullins guilty of second-degree wanton
endangerment, resisting arrest and possession of drug paraphernalia. The jury recommended, and the trial court imposed, a sentence
of twelve months in jail and fines totaling $1,150.00. This appeal
followed.
Mullins first argument is that the charges were improperly joined.
Mullins contends that the possession of drug parapher-
nalia was a separate and distinct offense from the charges of
first-degree wanton endangerment and resisting arrest. He contends
that he was "unduly prejudiced by the jury hearing evidence on the
drug paraphernalia when deciding the main issue of the felony
charge of wanton endangerment first degree."
Ky.
R.
Crim.
Proc.
(RCr)
9.12
permits
two
or
more
offenses to be tried together if they could have been joined in a
single indictment, information, complaint or uniform citation.
In
allowing joinder of charges the trial court has broad discretion,
and its decision will not be overturned absent a showing of
prejudice and clear abuse of discretion.
Rearick v. Commonwealth,
Ky., 858 S.W.2d 185 (1993); Cannon v. Commonwealth, Ky., 777 S.W.2d
591 (1989).
Pursuant to RCr 6.18:
Two (2) or more offenses may be charged in the same
complaint or two (2) or more offenses whether felonies or
misdemeanors,
or
both,
may
be
charged
in
the
same
indictment or information in a separate count for each
offense, if the offenses are of the same or similar
-3-
character or are based on the same acts or transactions
connected together or constituting parts of a common
scheme or plan.
(Emphasis supplied.)
On the issue of joinder the Supreme Court of Kentucky has said
that:
"Offenses closely related in character, circumstance, and
time need not be severed."
Cardine v. Commonwealth, Ky., 623
S.W.2d 895, 897 (1981); Sherley v. Commonwealth, Ky., 899 S.W.2d
794, 800 (1994).
Thus, when evidence of each crime is simple and
the offenses are closely related in time, joinder of those offenses
is proper. Brown v. Commonwealth, Ky., 458 S.W.2d 444, 447 (1970).
In the present case, the evidence was simple and all
charged offenses joined at trial occurred on the same night and
were part of a continuing act.
Mullins had possession of the crack
pipe during his confrontation with the officers.
The trial court
properly permitted the charge of possession of drug paraphernalia
to be joined with the other related offenses.
Mullins also contends that the trial court erred when it
refused his request to instruct the jury on the lesser offense of
harassment.
A
trial
court
is
required
to
give
instructions
applicable to every state of the case covered by the indictment and
deducible from or supported to any extent by the testimony.
v. Commonwealth, Ky., 738 S.W.2d 818, 822 (1987).
Reed
See also
Commonwealth v. Collins, Ky., 821 S.W.2d 488 (1991); Commonwealth
v. Sanders, Ky., 685 S.W.2d 557 (1985); Callison v. Commonwealth,
Ky. App., 706 S.W.2d 434 (1986).
The determination of what issues
to submit to the jury should be based upon the totality of
evidence.
Reed, 738 S.W.2d at 822.
-4-
Where there is sufficient
evidence to support a reasonable inference concerning the ultimate
fact in a case, the issue should be submitted to the jury with
appropriate instructions.
Callison, 706 S.W.2d at 436.
Smith v. Commonwealth, Ky., 737 S.W.2d 683 (1987).
See also
A defendant is
entitled to an instruction on a lesser-included offense if the
evidence would permit a jury to find him guilty of a lesserincluded offense and acquit of a greater offense.
S.W.2d at 688.
613 (1978).
Smith, 737
See also Martin v. Commonwealth, Ky., 571 S.W.2d
Whether there was sufficient evidence presented at
trial to support an instruction is a question of law to be decided
by the trial court.
Collins, 821 S.W.2d at 491 (1991).
Harassment is defined in KRS 525.070:
(1)
A person is guilty of harassment when with intent
to harass, annoy or alarm another person he:
(a)
Strikes, shoves, kicks, or otherwise subjects
him to physical contact; or
(b)
Attempts or threatens to strike, shove, kick
or otherwise subject the person to physical
contact; or
(c)
In a public place, makes an offensively coarse
utterance, gesture, or display, or addresses
abusive language to any person present; or
(d)
Follows a person in or about a public place or
places; or
(e)
Engages in a course of conduct or repeatedly
commits acts which alarm or seriously annoy
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such other person and which serve no legitimate purpose.
In the present case, the trial court instructed the jury
on the offenses of first-degree wanton endangerment, second-degree
wanton endangerment, terroristic threatening and menacing. Because
the evidence presented at trial did not support a harassment
instruction, the trial court did not err in refusing to instruct on
that offense.
KRS 525.070 seeks to cover minor assaultive conduct
which formerly constituted simple assault where the intent is to
annoy or alarm a specific individual rather than the public.
The
evidence showed that Mullins both verbally threatened to kill and
"gut an officer," and, in fact, he actually charged at the officers
with a knife.
Mullins' actions were not intended to harass, annoy
or alarm, but to produce a physical injury.
The judgment is affirmed. However, this case is remanded
to Fayette Circuit Court with instructions to enter a corrected
judgment reflecting the charges of which Mullins was convicted.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Herbert T. West
FAYETTE COUNTY LEGAL AID
Lexington, Kentucky
A. B. Chandler III
Attorney General of Kentucky
Anitria M. Franklin
Assistant Attorney General
Frankfort, Kentucky
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