BRIAN KEITH BURTON v. COMMONWEALTH OF KENTUCKY
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RENDERED: JULY 30, 1999; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO. 1997-CA-003043-MR
BRIAN KEITH BURTON
APPELLANT
APPEAL FROM McCRACKEN CIRCUIT COURT
HONORABLE R. JEFFREY HINES, JUDGE
INDICTMENT NO. 97-CR-000111
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** ** ** **
BEFORE:
BUCKINGHAM, EMBERTON and HUDDLESTON, Judges.
HUDDLESTON, Judge.
Brian Keith Burton appeals from a McCracken
Circuit Court judgment based on a jury verdict convicting him of
driving under the influence (DUI), 4th Offense, a violation of Ky.
Rev. Stat. (KRS) 189A.010, and of driving with a suspended license
for
a
DUI
3rd
imprisonment.
offense,
and
sentencing
him
to
eight
years'
The only issue that Burton raises on appeal is
whether the trial court erred when it failed to direct a verdict of
acquittal because of the Commonwealth's failure to offer evidence
corroborating Burton's admission to the police that he had been
driving while intoxicated.
On March 20, 1997, someone at the Morning Star Mission
contacted the McCracken County Sheriff's Department concerning an
individual who was apparently intoxicated and sitting in a vehicle
parked on its property.
Upon arrival at the Mission, Deputy
Sheriff John Parks found Burton sleeping in the driver's seat of
the vehicle with its headlights on.1
Parks saw several full and
empty bottles of alcohol in the vehicle and noticed the distinct
odor of alcohol.
Burton failed four standard field sobriety tests and was
subsequently arrested for DUI.
After Burton was given a "Miranda
warning," he admitted to Parks that he had been drinking prior to
driving to the Morning Star Mission, but denied drinking after he
arrived.
Burton testified at trial that his brother drove him to
the Mission where they got into an argument.
brother left the vehicle and went to a motel.
As a result, his
Burton claimed that
he intended to call his wife for a ride, but instead fell asleep in
his vehicle.
Burton argues that he was entitled to a directed verdict
because the Commonwealth failed to offer evidence corroborating his
1
Officer Parks had to open the driver's door of the vehicle
after several unsuccessful attempts to wake Burton. Eventually,
Parks had to pull Burton's blanket off to wake him. Burton was so
intoxicated that he could not step out of the vehicle without
assistance.
2
statement that he was driving while under the influence.
Burton
bases his argument on Ky. R. Crim. Proc (RCr) 9.60, which provides
that "[a] confession of a defendant, unless made in open court,
will not warrant a conviction unless accompanied by other proof
that such an offense was committed."
Burton insists that in order
to convict him of DUI, the Commonwealth was required to prove both:
(1) that he was drunk and, (2) that he was in actual physical
control of the vehicle.
See KRS 189.010(1).
Burton admits that he
was under the influence of alcohol, but contends that he was not in
control of his vehicle.
Burton asserts that the Commonwealth
failed to offer independent evidence to corroborate his confession
that he had been operating his vehicle while intoxicated.
Burton relies on Wells v. Commonwealth, Ky. App., 709
S.W.2d 847 (1986), but the recent Supreme Court decision in Blades
v. Commonwealth, Ky., 957 S.W.2d 246 (1997), is controlling on this
issue.2
In Blades, the defendant was found staggering in the
roadway with his truck parked approximately a mile away in the
middle of the road with its engine running.
A breath test showed
that defendant's blood alcohol concentration was .234 percent.
At trial, the arresting officers testified that the
defendant admitted that the truck was his and that he, in fact, had
been driving it. The defendant testified that he told the officers
that he had been driving in order to protect his stepdaughter, the
2
Supreme Court Rule (SCR) 1.030(8)(a) provides that "[t]he
Court of Appeals is bound by and shall follow applicable precedents
established in the opinions of the Supreme Court and its
predecessor court."
3
actual driver of the vehicle. After the defendant was convicted of
DUI, he argued that he was entitled to a directed verdict under the
rationale set forth in Pence v. Commonwealth, Ky. App., 825 S.W.2d
282 (1991).
In Pence, the defendant was found sitting behind the
wheel of his vehicle at a truck stop.
The defendant admitted he
had been driving and a breath test revealed a blood alcohol content
of .26.
After the defendant was convicted of DUI, he appealed to
this Court which reversed and said that "nothing in the evidence
presented permitted a reasonable inference as to how long the
defendant had been at the truck stop or that it was more likely
that the defendant drove to the truck stop while intoxicated than
he became intoxicated after arriving."
Id. at 283.
The Blades court overruled Pence to the extent that it
required a heightened level of evidence in order to submit DUI
cases to the jury.
In doing so, the Court said that:
It is well-settled that a jury may make reasonable
inferences from the evidence.
perceive
a
rational
We fail to logically
differentiation
between
the
inferences that may be drawn in DUI cases of this nature
and
other
crimes.
Clearly,
if
inferences
from
circumstantial evidence are sufficient to convict in
felony crimes, a fortiori circumstantial evidence and
reasonable inferences therefrom are sufficient for a jury
conviction of a misdemeanor offense . . . .
Id. at 250 (citations omitted).
4
In the present case, the issue of Burton's guilt was
properly submitted to the jury and the Commonwealth produced enough
evidence to support a conviction. To recapitulate, Burton admitted
that he was intoxicated and that he had been drinking prior to
driving to the Morning Star Mission.
Burton was found sleeping
inside his vehicle which contained full and empty liquor bottles.
The
vehicle's
possession.
lights
were
on
and
the
keys
were
in
Burton's
Moreover, a security guard testified that he saw the
vehicle drive up to the Mission and heard a car horn blow.
On two
occasions the security guard walked outside as a result of Burton
honking the horn and did not see anyone other than Burton in or
near the vehicle.
provide
more
The circumstances surrounding Burton's arrest
compelling
grounds
for
concluding
that
he
was
operating or in physical control of the vehicle than those in
Blades.3
In Commonwealth v. Benham, Ky., 816 S.W.2d 186, 187
(1991), the Supreme Court said that:
On motion for directed verdict, the trial court must draw
all fair and reasonable inferences from the evidence in
3
In Blades v. Commonwealth, Ky., 957 S.W.2d 246 (1997), the
defendant was observed staggering in the roadway. Upon further
investigation, it was determined that the defendant was intoxicated
as demonstrated by his failure to pass field sobriety tests and
from breath-alcohol test results.
The defendant's vehicle was
found in the center of the roadway with the engine running and the
defendant admitted to state troopers that he had driven the vehicle
to its location. The Supreme Court said that "[c]learly there was
more than sufficient circumstantial evidence presented to satisfy
the corroboration requirement of RCr 9.60 and allow the jury to
draw the reasonable inference that [the defendant] had been
operating his vehicle while under the influence of alcohol." Id.
at 250.
5
favor of the Commonwealth. If the evidence is sufficient
to
induce
a
reasonable
juror
to
believe
beyond
a
reasonable doubt that the defendant is guilty, a directed
verdict should not be given.
For the purpose of ruling
on the motion, the trial court must assume that the
evidence for the Commonwealth is true, but [must reserve]
to the jury questions as to the credibility and weight to
be given to such testimony.
Given
the
evidence
at
trial,
it
was
not
unreasonable for the jury to find Burton guilty of DUI.
clearly
Hence, the
judgment is affirmed.
All CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Elizabeth Shaw
Richmond, Kentucky
A. B. Chandler III
Attorney General of Kentucky
Anitria M. Franklin
Assistant Attorney General
Frankfort, Kentucky
6
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