OLBERT (ALAN) VS. COMMONWEALTH OF KENTUCKY

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RENDERED: OCTOBER 23, 2009; 10:00 A.M. NOT TO BE PUBLISHED Commonwealth of Kentucky Court of Appeals NO. 2008-CA-000872-MR ALAN OLBERT v. APPELLANT APPEAL FROM KENTON CIRCUIT COURT HONORABLE GREGORY M. BARTLETT, JUDGE ACTION NO. 07-CR-00468 COMMONWEALTH OF KENTUCKY APPELLEE OPINION AFFIRMING ** ** ** ** ** BEFORE: COMBS, CHIEF JUDGE; ACREE, JUDGE; BUCKINGHAM,1 SENIOR JUDGE. 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 Statute (KRS) 21.580. ACREE, JUDGE: Alan Olbert appeals from a judgment of the Kenton Circuit Court convicting him of second-degree burglary and of being a persistent felony offender in the second degree. He argues that the trial court improperly refused to instruct the jury on the lesser-included offense of trespassing, a misdemeanor. After careful consideration, the trial court’s decision is affirmed. Olbert was arrested after his next door neighbor’s house was burglarized while she was out of town. He was tried and convicted of the burglary and also of being a persistent felony offender. The trial court sentenced him to a total of twelve-years’ incarceration. This appeal followed. On appeal, Olbert’s sole argument is that the trial court erred in refusing to instruct the jury on the lesser included offense of trespassing simply because Olbert presented an alibi defense to the charge of burglary. “It is axiomatic that a trial court must instruct the jury on all lesser included offenses which are justified by the evidence.” Cannon v. Commonwealth, 777 S.W.2d 591, 596 (Ky. 1989). A lesser included offense is one which “is established by proof of the same or less than all the facts required to establish the commission of the offense charged[.]” KRS 505.020(2)(a). An instruction on a lesser-included offense is required where a reasonable juror could entertain doubt that the accused is guilty of the charged offense, and yet believe him to be guilty of a lesser offense. Webb v. Commonwealth, 904 S.W.2d 226, 229 (Ky. 1995). The evidence for the Commonwealth included testimony from police officers who responded to the burglary scene, the burglary victim and her daughter, -2- and Olbert’s alleged roommate at the time of the burglary. Testimony established that officers with the Elsmere Police Department were dispatched to investigate a reported burglary on February 4, 2006. Marva Coning testified that she lived next door to Olbert and his mother. According to Coning, Olbert had done odd jobs around her house while her husband was alive. Over time, their relationship deteriorated as Coning began to suspect Olbert of stealing from her. She also suspected that Olbert was to blame for a break-in through her basement garage door in January 2006, three weeks prior to the incident which resulted in Olbert’s conviction. Coning testified that she had gone to Indianapolis with her son and daughter on February 3rd and returned the following day. Coning asked Olbert to keep her dog overnight while she was gone, but she did not give him a key to her house. When Coning and her family returned from Indianapolis, she found a window pane missing from her garage door with broken glass inside and out. There was also blood on the garage door and finger prints on the car formerly driven by her deceased husband. While they were waiting for the police, Coning went inside the house and found her bedroom ransacked; money, jewelry, and prescription medications were missing. She told the jury she saw Olbert after the police arrived and he had a fresh cut on his thumb. Officer Michael Petry testified that he responded to the burglary call and accompanied Coning to her bedroom to make a list of the property taken. Afterward, he went to the basement where the garage door was located. Petry -3- encountered Olbert standing with his hands in his pockets. He later saw a cut on Olbert’s right hand. Olbert told Petry that he was injured in a bicycle accident while walking a dog. Petry heard another officer ask Olbert if he would come downtown to have his fingerprints checked. Olbert stated he would, but he wanted to tell his mother where he was going first. After Olbert went inside his house, he refused to come out or even answer the door. Consequently, Olbert was not arrested until later when the officers obtained a warrant. Employees from the Kentucky State Police laboratory testified that the DNA extracted from the blood found at the scene matched Olbert’s DNA and, further, that the only legible fingerprint on the car also belonged to him. Michael Meredith testified that he was Olbert’s roommate at the time of the burglary. He told the jury that he thought Olbert had a cut on his arm and that he saw a bottle of prescription medication in his possession but did not adequately see the bottle’s label to be able to know the name of the person for whom it was prescribed. The defense presented the testimony of Olbert, his mother, and his former girlfriend, all denying that Meredith was with living with Olbert at the time of the burglary. Eve Hardy, Olbert’s girlfriend at the time of the burglary, provided an alibi for him during the time frame when Coning was away from home. Olbert testified on his own behalf, denying the burglary and maintaining that he and Coning were good friends. He accounted for his blood on her window sill by claiming he helped clean up broken glass after the previous burglary. -4- Olbert argues that this evidence entitled him to an instruction on trespass as a lesser included offense of burglary. The Commonwealth counters that the trial court correctly refused to instruct the jury on the lesser included offense, noting that a theory unsupported by the evidence is not entitled to a jury instruction. Houston v. Commonwealth, 975 S.W.2d 925, 929 (Ky. 1998). The crime of second-degree burglary has two elements under the statute: 1) knowingly entering or remaining unlawfully in a dwelling, and 2) intent to commit a crime. KRS 511.030(1). First-degree trespass does not require proof of the second element. KRS 511.060(1). Kentucky appellate courts have long recognized that, in burglary cases, the “proof of the act [of housebreaking] creates the inference of criminal intention.” Patterson v. Commonwealth, 65 S.W.2d 75, 76 (Ky. Ct. App. 1933). This axiom has been recognized more recently by the Kentucky Supreme Court in the cases of Commonwealth v. Sanders, 865 S.W.2d 557 (Ky. 1985), and Fields v. Commonwealth, 274 S.W.3d 375 (Ky. 2008). In Sanders, the defendant was found guilty of second-degree burglary after witnesses saw him break out a back window and run from a residence where items were subsequently reported stolen. At trial, he presented an alibi defense. The Court of Appeals reversed the conviction, ruling that the trial court should have instructed the jury on trespass as a lesser-included offense. The Kentucky Supreme Court accepted discretionary review and found that the evidence did not support an instruction on the lesser included offense of trespass. -5- Here, Sanders’ defense was alibi. We do not have testimony or circumstances that the jury could infer that there was presence in the house with no intent to commit a crime. There was testimony that articles of value were taken. Ordinarily, the Commonwealth need only show that the defendant entered or remained in the dwelling unlawfully. This showing permits the jury to infer intent to commit a crime in the absence of other facts which would justify the lesser degree instruction. Sanders, 865 S.W.2d at 559. In Fields, the Kentucky Supreme Court upheld the denial of lesser included instructions on second-degree burglary and trespass. The Court recognized that there was no evidence that Fields entered the victim’s home for a lawful purpose without criminal intent. “From the time of entry (after midnight) and the method of entry (through removal of a storm window), the jury could infer Appellant entered the home unlawfully.” Fields, 274 S.W.3d at 416. Olbert contends that the jury reasonably could have believed that he broke into Coning’s house, due to the blood and fingerprint evidence found at the scene, and yet also believed that he did not take the items missing from her bedroom because there was no blood found inside the house. The Kentucky Supreme Court has recognized trial court error in the failure to give a jury instruction on trespass where defendants charged with burglary admitted entering a home without the owner’s permission but affirmatively denied committing, or intending to commit, a crime while they were inside. Martin v Commonwealth, 571 S.W.2d 613, 615 (Ky. 1978). However, in the case at hand, Olbert presented an alibi defense denying unequivocally that he entered Coning’s home on the night -6- of the burglary. Thus, the reasoning in Sanders applies here. Olbert, having failed to provide evidence which would allow a reasonable juror to conclude that he entered Coning’s home unlawfully, but without any intent to commit a crime, was not entitled to an instruction on trespass. Finally, we have reviewed the cases cited by Olbert wherein the appellate courts of our Commonwealth found error in the trial court’s failure to instruct the jury on lesser-included offenses. We note that none of these cases involved burglary charges and that all were factually distinct in such ways as to make their reasoning inapplicable to the case before us. For the forgoing reasons, the judgment of the Kenton Circuit Court is affirmed. ALL CONCUR. BRIEF FOR APPELLANT: BRIEF FOR APPELLEE: Gene Lewter Frankfort, Kentucky Jack Conway Attorney General of Kentucky David B. Abner Assistant Attorney General Frankfort, Kentucky -7-

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