DEBERRY (CHARLES RANDELL) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: APRIL 16, 2010; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-000286-MR
CHARLES RANDELL DEBERRY
v.
APPELLANT
APPEAL FROM KNOX CIRCUIT COURT
HONORABLE GREGORY A. LAY, JUDGE
ACTION NO. 08-CR-00097
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: LAMBERT AND STUMBO, JUDGES; WHITE,1 SENIOR JUDGE.
WHITE, SENIOR JUDGE: Charles Deberry appeals from his Knox Circuit Court
conviction for first-degree wanton endangerment. Deberry claims that he was
entitled to a judgment notwithstanding the verdict and a directed verdict. Further,
Deberry claims that his conviction violates public policy. After carefully
1
Senior Judge Edwin M. White 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.
reviewing the arguments of counsel and the appellate record, we disagree with
each claim.
Deberry and Toy Ferguson are neighboring land owners in Knox
County. In 2000, Deberry and his wife sued Ferguson in Knox Circuit Court over
a boundary dispute. After hearing evidence from both parties, the Circuit Court
found in favor of Ferguson. Deberry appealed the ruling. On April 4, 2006, our
Court affirmed the Knox Circuit Court’s judgment.2
On April 12, 2008, Deberry was arrested on the charge of first-degree
wanton endangerment after Ferguson filed a criminal complaint against him. The
complaint stemmed from an incident that occurred earlier that day. Ferguson and
Dewayne Woolum, Ferguson’s employee, were building a fence on the property
that was previously the subject of the boundary dispute. Deberry thought the men
had parked heavy equipment on his property, so he drove his ATV to the property
and began taking photographs of Ferguson and Woolum.
With his shovel still in his hand, Ferguson threatened to break the
camera if Deberry did not stop taking pictures.3 Deberry pulled out a pistol and
pointed it at Ferguson. While still holding the gun, Deberry stated, “It won’t
bother me a bit to kill you. I will kill you right now . . . .” Deberry directed
Ferguson to put down the shovel, which he did. Holding the strap of the camera,
Deberry repeatedly swung it toward Ferguson. Then Deberry left the property.
2
Deberry v. Ferguson, 2006 WL 955462 (Ky. App. 2006) (2004-CA-002224-MR).
3
Although Deberry claims that Ferguson raised his shovel, the other testimonies at trial indicate
that he did not.
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On December 9, 2008, Deberry was convicted of first-degree wanton
endangerment. He was sentenced to one-year imprisonment probated for four
years. Following his conviction, Deberry moved the court to enter a judgment
notwithstanding the verdict or a new trial. Deberry alleged that the trial court
erroneously failed to instruct the jury on the defense of property. The trial court
denied his motion. This appeal follows.
First, we will address Deberry’s claim that the trial court’s failure to
instruct the jury on a defense of property entitled him to a judgment
notwithstanding the verdict. “In a criminal case, it is the duty of the trial judge to
prepare and give instructions on the whole law of the case, and this rule requires
instructions applicable to every state of the case deducible or supported to any
extent by the testimony.” Taylor v. Commonwealth, 995 S.W.2d 355, 360 (Ky.
1999). We must review a trial court’s refusal to give a jury instruction for abuse of
discretion. Williams v. Commonwealth, 178 S.W.3d 491, 498 (Ky. 2005).
After reviewing the record, we conclude that the facts of the case do
not support a defense of property instruction. KRS 503.080 provides:
(1) The use of physical force by a defendant upon
another person is justifiable when the defendant believes
that such force is immediately necessary to prevent:
(a) The commission of criminal trespass, robbery,
burglary, or other felony involving the use of
force, or under those circumstances permitted
pursuant to KRS 503.055, in a dwelling, building
or upon real property in his possession or in the
possession of another person for whose protection
he acts; or
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(b) Theft, criminal mischief, or any trespassory
taking of tangible, movable property in his
possession or in the possession of another person
for whose protection he acts.
(2) The use of deadly physical force by a defendant upon
another person is justifiable under subsection (1) only
when the defendant believes that the person against
whom such force is used is:
(a) Attempting to dispossess him or his dwelling
otherwise than under a claim of right to its
possession; or
(b) Committing or attempting to commit a
burglary, robbery, or other felony involving the
use of force, or under those circumstances
permitted pursuant to KRS 503.055, of such
dwelling; or
(c) Committing or attempting to commit arson of a
dwelling or other building in his possession.
(3) A person does not have a duty to retreat if the person
is in a place where he or she has a right to be.
Further, Deberry did not present sufficient evidence to warrant a
defense of property instruction. In order to justify the use of deadly force to
protect his camera, Deberry must have shown that Ferguson was “[c]ommitting or
attempting to commit a burglary, robbery, or other felony involving the use of
force, or under those circumstances permitted pursuant to KRS 503.055[.]” A
protection of property defense may have been applicable to this case if Deberry
had established that he acted to protect his camera from felonious criminal
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mischief. KRS 512.020(1) provides the following description of criminal
mischief:
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 a right, he intentionally or
wantonly defaces, destroys or damages any property
causing a pecuniary loss of $1,000 or more.
Deberry bore the burden of proving the elements of his affirmative
defense. Our review of the record indicates that Deberry failed to present any
evidence of the camera’s value or perceived value. Because he failed to establish
that his actions were used against someone committing a felony involving the use
of force, a protection of property instruction was not warranted.
Next, we will address Deberry’s claim that he was entitled to a
directed verdict. “[T]he 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.” Commonwealth v. Benham,
816 S.W.2d 186, 187 (Ky. 1991). Further, the evidence must be reviewed in a
light most favorable to the Commonwealth. Commonwealth v. Sawhill, 660
S.W.2d 3, 4 (Ky. 1983). “The basis for the guideline lies in the belief that the
weight and value given to the evidence is for the jury to decide. If it is reasonably
possible the jury should decide the matter.” Id.
KRS 508.060(1) provides:
A person is guilty of wanton endangerment in the first
degree when, under circumstances manifesting extreme
indifference to the value of human life, he wantonly
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engages in conduct which creates a substantial danger of
death or serious physical injury to another person.
At trial, three witnesses, included Deberry, testified that Deberry
pointed a gun at Ferguson and threatened to kill him. In a light most favorable to
the Commonwealth, these testimonies are sufficient to withstand a motion for
directed verdict.
However, Deberry claims the facts clearly establish that he acted in
defense of property. As previously mentioned, Deberry failed to show the
elements necessary for his claim. In addition, Deberry failed to show that his
actions were immediately necessary to protect his camera. Because testimony
existed to support the wanton endangerment charge, the trial court properly denied
Deberry’s motion for a directed verdict.
Finally, we firmly disagree with Deberry’s claim that his conviction
violates public policy. Public policy and Kentucky law have long supported the
rights of self-protection and property protection. However, neither the law nor
public policy encompasses the facts of this case.
Accordingly, we affirm the Knox Circuit Court’s conviction.
ALL CONCUR.
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BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Matthew W. Boyd
Lexington, Kentucky
Jack Conway
Attorney General of Kentucky
D. Randall Jewell
Barbourville, Kentucky
Bryan D. Morrow
Assistant Attorney General
Frankfort, Kentucky
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