KEVIN TODD McCOMBS v. COMMONWEALTH OF KENTUCKY
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RENDERED: JUNE 23, 2006; 10:00 A.M.
NOT TO BE PUBLISHED
SUPREME COURT GRANTED DISCRETIONARY REVIEW: AUGUST 15, 2007
(FILE NO. 2007-SC-0127-DG)
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-001850-MR
KEVIN TODD McCOMBS
APPELLANT
APPEAL FROM BULLITT CIRCUIT COURT
HONORABLE THOMAS L. WALLER, JUDGE
ACTION NO. 02-CR-00201
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING IN PART, REVERSING
IN PART, AND REMANDING
** ** ** ** **
BEFORE:
JOHNSON AND TAYLOR, JUDGES; BUCKINGHAM, SENIOR JUDGE.1
TAYLOR, JUDGE:
Kevin Todd McCombs appeals from an August 12,
2004, judgment of the Bullitt Circuit Court upon a jury verdict
finding him guilty of first-degree burglary, fourth-degree
assault, and violation of a protective order.
We affirm in
part, reverse in part, and remand.
1
Senior Judge David C. Buckingham sitting as Special Judge by assignment of
the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution
and Kentucky Revised Statutes (KRS) 21.580.
Appellant and his former wife, Lisa McCombs, were
divorced in September 2002.
In October 2002, a domestic
violence order was issued against appellant after he assaulted
Curtis Carney, Lisa’s son from a prior marriage.
Although
appellant and Lisa had made attempts at reconciliation, Lisa
apparently told appellant, on the morning of December 4, 2002,
that she was no longer interested in reconciliation.
On the evening of December 4, 2002, police were called
to a disturbance at Lisa’s home.
Appellant was intoxicated and
entered Lisa’s home in violation of the domestic violence order.2
Appellant entered the residence by breaking into the garage.
He
admitted cutting the telephone line to prevent the home security
system from functioning.
The events that transpired after appellant’s arrival
at Lisa’s home are largely disputed.
Appellant contends he was
in the garage retrieving personal items when Lisa’s daughter
invited him into the house.
Appellant claims he believed Curtis
was not home and proceeded inside with Lisa’s daughter.
However, Curtis was home, and a quarrel ensued.
Appellant
acknowledges that he and Curtis engaged in a physical
altercation.
2
An Amended Domestic Violence Order, dated November 8, 2002, prohibited
appellant from having “contact with Petitioner’s [Lisa’s] residence” or with
Lisa’s son, Curtis Carney.
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According to other testimony presented at trial,
appellant forcibly entered the house.
Appellant proceeded to
Curtis’s room armed with a crowbar from the garage and
repeatedly struck Curtis with the crowbar.
possessing a crowbar.
Appellant denied
Lisa intervened in the altercation by
hitting appellant over the head with a fire extinguisher and
stabbing him four times with a knife.
Appellant was indicted by the Bullitt County Grand
Jury upon the charges of attempted murder, first-degree
burglary, and violation of a protective order.
A jury
ultimately found appellant not guilty of attempted murder, but
guilty of fourth-degree assault (Kentucky Revised Statutes (KRS)
508.030), first-degree burglary (KRS 511.020) and violating a
protective order (KRS 403.763).
fifteen years’ imprisonment.
Appellant was sentenced to
This appeal follows.
Appellant contends the trial court erred by concluding
as a matter of law that the crowbar was a “deadly weapon.”
The
definition of deadly weapon is codified in KRS 500.080(4) and
reads:
“Deadly weapon” means any of the
following:
(a) A weapon of mass destruction;
(b) Any weapon from which a shot, readily
capable of producing death or other
serious physical injury, may be
discharged;
-3-
(c) Any knife other than an ordinary
pocket knife or hunting knife;
(d) Billy, nightstick, or club;
(e) Blackjack or slapjack;
(f) Nunchaku karate sticks;
(g) Shuriken or death star; or
(h) Artificial knuckles made from metal,
plastic, or other similar hard
material[.]
In Hicks v. Commonwealth, 550 S.W.2d 480, 481 (Ky.
1977), the Court specifically held:
It should never be necessary in the
instructions to define the words, "deadly
weapon." Whether the particular instrument
is or is not a deadly weapon should be
determined by the court as a matter of law.
Consequently, the issue of whether the crowbar constituted a
deadly weapon is a question of law for the court and not a
question of fact for the jury.
Even though the issue was
properly a question of law for the court, we, nevertheless,
believe the trial court erred by determining the crowbar
constituted a deadly weapon within the meaning of KRS
500.080(4).
In KRS 500.080(4), the Legislature defined deadly
weapon by providing a list of specific items, including
“[b]illy, nightstick, or club.”
In this case, the trial court
concluded that a crowbar was sufficiently similar to a “club”
and, thus, constituted a deadly weapon under KRS 500.080(4)(d).
It is well-established that interpretation and
construction of a statute is a matter of law for the court.
-4-
City of Worthington Hills v. Worthington Fire Protection Dist.,
140 S.W.3d 584 (Ky.App. 2004).
Our review of a lower court’s
interpretation or construction of a statute proceeds de novo.
Id.
When interpreting a term contained in a statute, the court
is generally bound to give the term its ordinary meaning. Id.
The common definition of a “club” is “a heavy
usu[ally] tapering staff esp[ecially] of wood wielded as a
weapon.”
MERRIAM-WEBSTER’S
COLLEGIATE DICTIONARY
217 (10th ed. 2002).
Under this definition, a club is described as a heavy tapering
staff which is used as a weapon.
A tapering staff is generally
a long stick that progressively narrows at one end.
A crowbar
certainly does not fit such description; it is customarily of
equal diameter on both ends.
Additionally, the specific items listed as deadly
weapons in KRS 500.080(4) have one striking similarity – the
fundamental nature and primary use of the denoted items are as
“weapons.”
In comprising the list of deadly weapons in KRS
500.080(4), we think the General Assembly clearly and
unmistakably signaled its intent that deadly weapons are those
items that are quintessentially “weapons.”
A crowbar is not
quintessentially a weapon, as its primary use is that of a tool.
Accordingly, we do not interpret the term “club”, as
found in KRS 500.080(4)(d), so broadly to include a crowbar.
Hence, we hold the trial court erred by concluding as a matter
-5-
of law that the crowbar constituted a deadly weapon under KRS
500.080(4)(d).
Appellant also argues the trial court erred by
determining as a matter of law that the crowbar constituted a
dangerous instrument.3
Rather, appellant insists that the issue
of whether the crowbar constituted a dangerous instrument was a
question of fact for the jury.
For the reasons hereinafter
elucidated, we agree.
In Commonwealth v. Potts, 884 S.W.2d 654, 656 (Ky.
1994), the Court addressed the precise issue of whether an
object constituted a dangerous instrument was a question of fact
for the jury or a question of law for the court:
It is true that ordinarily the question of
whether an instrument or object is a
"dangerous instrument" is a question of fact
for the jury to determine, depending upon
the manner and circumstances in which it is
used. As reflected by the statutory
definition set out above, in order to be so
classified, it must have been used,
attempted to be used, or threatened to be
used in a manner wherein it ". . . is
readily capable of causing death or serious
physical injury." If, however, it is
undisputed from the evidence that the
3
Dangerous instrument is defined in KRS 500.080(3) as follows:
"Dangerous instrument" means any instrument,
including parts of the human body when a serious
physical injury is a direct result of the use of
that part of the human body, article, or substance
which, under the circumstances in which it is used,
attempted to be used, or threatened to be used, is
readily capable of causing death or serious physical
injury[.]
-6-
instrument employed on the occasion in
question is one so capable and that it was
in fact used or attempted or threatened to
be used in such a manner, then the question
becomes one of law for the court to
determine.
To become a question of law for the court, the evidence must be
undisputed that the instrument was used, attempted to be used,
or threatened to be used and under the circumstances is readily
capable of causing death or serious physical injury.
If the
evidence is disputed, the question becomes one of fact for the
jury.
In this case, the record reveals that appellant
testified at trial and vigorously denied possessing a crowbar.
Appellant testified he never used or threatened to use a crowbar
to inflict physical injury upon Curtis.
Appellant admitted to
engaging in a physical altercation with Curtis and to biting
Curtis.
As appellant denied using or threatening to use a
crowbar, it is apparent the evidence at trial was disputed, thus
creating a question of fact upon whether the crowbar constituted
a dangerous instrument within the meaning of KRS 500.080(3).
Simply put, appellant’s testimony alone created a question of
fact upon whether the crowbar constituted a dangerous
instrument.
Accordingly, the trial court erred by determining
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the crowbar was a dangerous instrument as a matter of law and by
not submitting the question to the jury.
We shall now address the effect of the trial court’s
error in determining as a matter of law that the crowbar
constituted a deadly weapon and a dangerous instrument.
Appellant was convicted of fourth-degree assault and firstdegree burglary.
Fourth-degree assault is codified in KRS
508.030:
(1) A person is guilty of assault in the
fourth degree when:
(a) He intentionally or wantonly causes
physical injury to another person; or
(b) With recklessness he causes physical
injury to another person by
means of
a deadly weapon or a
dangerous
instrument.
(2) Assault in the fourth degree is a Class
A misdemeanor.
First-degree burglary is codified in KRS 511.020:
(1) A person is guilty of burglary in the
first degree when, with the intent to
commit a crime, he knowingly enters or
remains unlawfully in a building, and
when in effecting entry or while in the
building or in the immediate flight
therefrom, he or another participant in
the crime:
(a) Is armed with explosives or a deadly
weapon; or
(b) Causes physical injury to any person
who is not a participant in the
crime; or
(c) Uses or threatens the use of a
dangerous instrument against any
person who is not a participant in
the crime.
-8-
(2) Burglary in the first degree is a Class
B felony.
At trial, the jury instruction upon fourth-degree
assault read, in relevant part:
[Y]ou will find the Defendant guilty of
Fourth-Degree Assault 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
the 4th day of December 2002 and within
twelve (12) months before the finding of the
Indictment herein, he caused physical injury
to Curtis Carney.
AND
B.
That in so doing:
(1) The Defendant was acting
intentionally;
OR
(2)
The Defendant was acting
wantonly;
OR
(3) The Defendant was acting
recklessly when he struck Curtis Carney (if
he did so) with the “crow bar”.[sic]
The jury instruction upon first-degree burglary read, in
relevant part:
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:
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A.
That in this county on or about
the 4 day of December 2002 and before the
finding of the Indictment herein, he entered
or remained unlawfully in a building owned
by Lisa Presley without the permission of
Lisa Presley or any other person authorized
to give such permission;
th
AND
B.
That in doing so, he knew he did
not have such permission;
AND
C.
That he did so with the intention
of committing a crime therein;
AND
D.
That when in effecting entry or
while in the building or in immediate flight
there from[sic], he:
(1) Used or threatened the use of
a “crow bar”[sic] against Curtis Carney;
OR
(2)
Was armed with a “crow
bar”[sic];
OR
(3) Caused physical injury to
Curtis Carney.
If you find the Defendant guilty under
this Instruction, you will not fix his
punishment but will indicate in your verdict
only that you have found him guilty of this
offense and return your verdict to the Court
without deliberating on the question of
punishment.
-10-
Under the above submitted jury instructions upon
fourth-degree assault and first-degree burglary, the trial court
inserted the term “crowbar” for the terms “dangerous instrument”
and/or “deadly weapon.”
As we have previously held that a
crowbar is not as a matter of law a deadly weapon, the trial
court committed reversible error by so instructing the jury.
And, as we have previously held that whether the crowbar
constituted a dangerous instrument is properly a question for
the jury, the trial court committed reversible error by not
submitting this question to the jury.
By deciding the crowbar
was a dangerous instrument as a matter of law and by not
submitting the proper instruction to the jury, the trial court
erroneously invaded the province of the jury.
See Wells v.
Commonwealth, 561 S.W.2d 85 (Ky. 1978).
Hence, we hold that appellant’s convictions upon
forth-degree assault and first-degree burglary are reversed.
Upon remand, the trial court shall submit the question of
whether the crowbar constitutes a dangerous instrument to the
jury.
The issue of whether the crowbar constitutes a deadly
weapon is one of law.
We have decided that it does not.
Appellant further argues that his conviction for
first-degree burglary and fourth-degree assault violated the
double jeopardy clauses of the Fifth Amendment of the United
States Constitution and Section 13 of the Kentucky Constitution.
-11-
To determine if convictions upon multiple offenses offend double
jeopardy, the appropriate test is whether each offense requires
proof of an element that the other does not.
Blockburger v.
United States, 284 U.S. 299 (1932); Taylor v. Commonwealth, 995
S.W.2d 355 (Ky. 1999).
In the case sub judice, the same physical injury
(injury to Curtis) was arguably used to satisfy the necessary
elements of physical injury under both first-degree burglary and
fourth-degree assault.
The physical injury element of first-
degree burglary is found in KRS 511.020(1)(b) and reads,
“[c]auses physical injury to any person who is not a participant
in the crime[.]”
The physical injury element of fourth-degree
assault is found in KRS 508.030(1)(a) and reads, “[h]e
intentionally or wantonly causes physical injury to another
person[.]”
When the same physical injury is utilized to satisfy
the physical injury elements of KRS 511.020(1)(b) and KRS
508.030(1)(a), it is clear that first-degree burglary contains
more than one element that fourth-degree assault does not, thus
satisfying Blockburger.
However, the Supreme Court of Kentucky
has held that fourth-degree assault does not contain an element
different from first-degree burglary when the same physical
injury is utilized, thus offending Blockburger.
In Butts v. Commonwealth, 953 S.W.2d 943, 945 (Ky.
1997), the Supreme Court held that a conviction upon first-
-12-
degree burglary and fourth-degree assault violated the
prohibition against double jeopardy when the same physical
injury was used to satisfy the physical injury elements of both
KRS 511.020(1)(b) and KRS 508.030(1)(a):
In Count I the indictment charged appellant
with burglary in the first degree and in
satisfaction of a necessary element alleged
that appellant or another participant in the
crime "caused physical injury to Tina
Hannibal." KRS 511.020(1)(b). In Count III
the indictment charged appellant with
assault in the fourth degree and in
satisfaction of a necessary element alleged
that appellant "intentionally or wantonly
caused physical injury to Tina Hannibal."
KRS 508.030. . . . In the course of
committing burglary, appellant committed an
assault which resulted in physical injury to
Tina Hannibal. However, the assault against
Tina Hannibal was used as a necessary
element to achieve a first degree burglary
conviction. Under the authority of Walden
v. Commonwealth, 805 S.W.2d 102 (Ky. 1991)
(overruled on other grounds in Commonwealth
v. Burge, 947 S.W.2d 805 (Ky. 1997)), on
this issue, appellant's conviction for
fourth degree assault must be vacated.
Because the same physical injury was used to satisfy
the physical injury elements in KRS 511.020(1)(b) and KRS
508.030(1)(a), the Butts Court concluded that fourth-degree
assault did not contain an element different from first-degree
burglary.
Thus, the Court held that double jeopardy was
violated under these circumstances.
The Commonwealth suggests that Butts was erroneously
decided.
Even if the same physical injury is used to satisfy
-13-
the physical injury elements of KRS 511.020(1)(b) and KRS
508.030(1)(a), the Commonwealth argues that double jeopardy is
not offended.
The Commonwealth points out the physical injury
element of fourth-degree assault requires defendant acted
“intentionally” or “wantonly” to cause physical injury; whereas,
the physical injury element of first-degree burglary merely
requires physical injury to any person and does not require a
culpable mental state.
Thus, the Commonwealth maintains that
the physical injury elements of KRS 511.020(1)(b) and KRS
508.030(1)(a) require different culpable mental states.
Consequently, the Commonwealth believes that fourth-degree
assault contains an element that first-degree burglary does not,
thus satisfying Blockburger.
It is a cardinal rule of statutory interpretation that
a statute need not expressly state that which is necessarily
implied.
Nat’l Sur. Co. v. Com., ex rel. Coleman, 253 Ky. 607,
69 S.W.2d 1007 (1934).
In KRS 501.040, the General Assembly
expounded upon this common law rule of statutory interpretation:
Although no culpable mental state is
expressly designated in a statute defining
an offense, a culpable mental state may
nevertheless be required for the commission
of such offense, or with respect to some or
all of the material elements thereof, if the
proscribed conduct necessarily involves such
culpable mental state.
-14-
If conduct proscribed by a penal statute necessarily requires a
culpable mental state, KRS 501.040 mandates implication of the
requisite mental state.
Although the first-degree burglary statute (KRS
511.020(1)(b)) does not expressly provide the culpable mental
state(s) relevant to the physical injury element, we believe
that such culpable mental states are necessarily implied.
KRS
511.020(1)(b) simply reads, “[c]auses physical injury to any
person who is not a participant in the crime.”
In KRS
511.020(1)(b), the General Assembly clearly intended to broadly
criminalize any conduct that causes physical injury and thus,
did not specify the required mens rea.
Consequently, the
General Assembly obviously contemplated that all relevant
culpable mental states be applicable to the physical injury
element of first-degree burglary found in KRS 511.020(1)(b).
The culpable mental states applicable to the Kentucky
Penal Code have been specifically designated in KRS 501.010(1):
“Culpable mental state" means
“intentionally" or “knowingly" or “wantonly"
or “recklessly," as these terms are defined
in KRS 501.020.
KRS 501.010(1) provides that the culpable mental states under
the penal code are intentionally, knowingly, wantonly, or
recklessly.
To fulfill legislative intent, we now hold the
physical injury element of first-degree burglary, found in KRS
-15-
511.020(1)(b), impliedly requires that defendant acted
intentionally, knowingly, wantonly, or recklessly to cause the
physical injury.
As we have implied the relevant culpable mental states
to the physical injury element of KRS 511.020(1)(b), a jury may
convict a defendant upon first-degree burglary only if the
physical injury was perpetrated intentionally, knowingly,
wantonly, or recklessly.
Under fourth-degree assault, a jury
may convict only if the physical injury was perpetrated either
intentionally or wantonly.
KRS 508.030(1)(a).
However, to
convict upon both first-degree burglary and fourth-degree
assault, the jury must find that the physical injury was
perpetrated either intentionally or wantonly.
When the same
physical injury is utilized to fulfill both physical injury
elements under KRS 511.020(1)(b) and KRS 508.030(1)(a), it is
axiomatic that the physical injury could only have been
perpetrated with but one mens rea.
Stated differently, if the
jury believed defendant acted intentionally to cause the
physical injury as to fourth-degree assault, the jury must,
likewise, have believed that defendant acted intentionally to
cause the physical injury as to first-degree burglary.
Where the same physical injury is used to satisfy the
physical injury elements of KRS 511.020(1)(b) and KRS
508.030(1)(a), these elements necessarily have identical
-16-
culpable mental states.
As such, the Commonwealth’s argument
that the physical injury elements of KRS 511.020(1)(b) and KRS
508.030(1)(a) have differing culpable mental states is in error.
Where the same physical injury is used to satisfy the physical
injury elements of KRS 511.020(1)(b) and KRS 508.030(1)(a), it
is clear that fourth-degree assault does not contain an element
different from first-degree burglary, thus offending
Blockburger, 284 U.S. 299.4
In the case at hand, the jury instructions upon
fourth-degree assault and first-degree burglary did not require
the jury to specify under which alternative theory it found
guilt.
Therefore, it is impossible to know whether the jury
found appellant guilty under both KRS 511.020(1)(b) and KRS
508.030(1)(a) based upon the singular physical injury to Curtis.
Upon remand, the jury instructions upon fourth-degree assault
and first-degree burglary shall require the jury to specify
which alternative theory was the basis for its findings of
guilt.
If the jury convicts appellant of both offenses based
upon the singular physical injury to Curtis under KRS
511.020(1)(b) and KRS 508.030(1)(a), double jeopardy is offended
and his convictions upon both offenses cannot stand.5
4
We caution that our analysis is only valid where the same physical injury is
used to satisfy the physical injury elements of KRS 511.020(1)(b) and KRS
508.030(1)(a).
5
If appellant is convicted under both KRS 511.020(1)(b) and KRS 508.030(1)(a)
based upon the singular physical injury to Curtis, we believe the proper
procedure would be to vacate the lesser conviction (fourth-degree assault)
-17-
Appellant further contends the trial court committed
reversible error by excluding his testimony concerning Lisa’s
“motivation to lie.”
By avowal, appellant testified that Lisa
previously worked for an escort agency, appeared in a strip club
contest, and fraudulently obtained money from his parents.
Appellant claims the evidence was admissible as facts supporting
a “sinister scheme” to obtain his property.
The trial court determined the evidence was irrelevant
and, thus, inadmissible.
Relevant evidence is defined in Ky. R.
Evid. (KRE) 401:
"Relevant evidence" means evidence having
any tendency to make the existence of any
fact that is of consequence to the
determination of the action more probable or
less probable than it would be without the
evidence.
Considering the case as a whole, we are inclined to agree with
the trial court that the excluded evidence was irrelevant.
However, even if the excluded evidence were relevant to attack
Lisa’s credibility, we believe it would, nevertheless, be
excluded under KRE 403.
KRE 403 states:
Although relevant, evidence may be excluded
if its probative value is substantially
outweighed by the danger of undue prejudice,
confusion of the issues, or misleading the
jury, or by considerations of undue delay,
or needless presentation of cumulative
evidence.
and sentence appellant upon the greater conviction (first-degree burglary).
-18-
Here, the excluded evidence was highly prejudicial and
any probative value was substantially outweighed by the danger
of undue prejudice to Lisa.
Hence, we hold the trial court
properly excluded the evidence.
Appellant finally argues the trial court erred by
admitting into evidence a computer printout that revealed two
previously dismissed charges.
During the penalty phase of
trial, the Commonwealth introduced into evidence a computer
printout.
The printout revealed that appellant had been charged
with the offenses of stalking and menacing.
As these charges
had been dismissed, appellant claims the computer printout
disclosing the dismissed charges was inadmissible.
We view Robinson v. Commonwealth, 926 S.W.2d 853 (Ky.
1996) as dispositive.
Therein, the Court held it was error to
introduce into evidence a computer printout of prior charges
that were subsequently dismissed.
In the case sub judice, we observe this issue was not
properly preserved for our review.
As this appeal has been
reversed on other grounds, we simply caution the trial court
against admission of the computer printout containing the
dismissed charges upon remand.
In sum, we affirm appellant’s conviction for violating
a protective order (KRS 403.736); we reverse his convictions
-19-
upon first-degree burglary (KRS 511.020) and fourth-degree
assault (KRS 508.030).
For the foregoing reasons, the judgment of the Bullitt
Circuit Court is affirmed in part, reversed in part, and this
cause remanded for proceedings not inconsistent with this
opinion.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Eric G. Farris
Lorie B. Rakes
David W. Carby
Lee R. Remington
BUCKMAN, FARRIS & RAKES, PSC
Shephersdville, Kentucky
Gregory D. Stumbo
Attorney General of Kentucky
ORAL ARGUMENT FOR APPELLANT:
ORAL ARGUMENT FOR APPELLEE:
Lee R. Remington
BUCKMAN, FARRIS & RAKES, PSC
Shepherdsville, Kentucky
Jeffrey A. Cross
Assistant Attorney General of
Kentucky
Frankfort, Kentucky
Jeffrey A. Cross
Assistant Attorney General of
Kentucky
Frankfort, Kentucky
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