USHYAROV (OLEG) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: JUNE 18, 2010; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2009-CA-000762-MR
OLEG USHYAROV
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE JAMES M. SHAKE, JUDGE
ACTION NO. 08-CR-001916
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: ACREE, COMBS, AND WINE, JUDGES.
COMBS, JUDGE: Oleg Ushyarov appeals his conviction of second-degree
burglary and wanton endangerment in the second degree in the Jefferson Circuit
Court. Upon review, we affirm.
Ushyarov and the Commonwealth disagree about the events of May 7,
2008. Indisputably, however, DeJuan and Lynnette Pride returned home from
work with their two children and noticed that the window of their apartment was
open. Pride told his wife and children to remain in the car while he investigated.
He entered his apartment through the window and saw the burglars exiting with
some of the family’s belongings. Pride followed them to Ushyarov’s car. As Pride
leaned into Ushyarov’s car, Ushyarov drove away, dragging Pride for a short
distance. Police officers pulled over Ushyarov and found the Prides’ belongings in
the back seat. A juvenile, O.V., was in the front seat.
In the meantime, Pride went to the apartment of his juvenile neighbor,
E.K., whom he knew to be friends with Ushyarov and O.V. Pride persuaded E.K.
to turn over more of his stolen belongings. He then took E.K. outside to wait for
the police. Before the police arrived, Pride struck E.K. on his head. The
responding police officer, Officer Davis, accompanied E.K. to the hospital, where
E.K. received staples for a head laceration. E.K. told Officer Davis that he,
Ushyarov, and O.V. together had burglarized the Prides’ apartment.
Ushyarov and O.V. were taken to the police station. O.V. gave a
statement in which he declared that he, Ushyarov, and E.K. had all entered the
Prides’ apartment and taken property. Ushyarov, however, denied being in the
apartment; he stated that he learned of the burglary while en route to pick up E.K.
E.K. and O.V. both testified at Ushyarov’s trial and contradicted their
previous statements. They both said that they had committed the burglary and that
Ushyarov had simply driven the car. Pride testified that he had seen Ushyarov and
O.V. in his apartment and that he followed them to Ushyarov’s car. Ushyarov
testified on his own behalf. He also contradicted his earlier statement and said that
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he had been completely ignorant of the burglary. After listening to all of the
testimony, the jury found Ushyarov guilty of second-degree burglary and wanton
endangerment in the second degree. Afterward, Ushyarov pled guilty to being a
persistent felony offender and was sentenced to ten-years’ incarceration. This
appeal follows.
Ushyarov’s first argument is that the trial court should have provided
the jury with an instruction concerning the voluntariness of E.K.’s and O.V.’s
statements to the police on the night of the incident. He tendered an instruction
advising the jury that they could not consider O.V.’s and E.K.’s statements unless
they believed that the statements were voluntary. The trial court declined to offer
this instruction to the jury, and Ushyarov now argues that its refusal was erroneous.
We disagree.
Our standard in reviewing jury instructions by a trial court is an abuse
of discretion. Ratliff v. Commonwealth, 194 S.W.3d 258, 274 (Ky. 2006) (citations
omitted). Our Supreme Court has defined abuse of discretion as a court’s acting
arbitrarily, unreasonably, unfairly, or in a manner “unsupported by sound legal
principles.” Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).
Ushyarov bases his argument on Bradley v. Commonwealth, 439
S.W.2d 61 (Ky. 1969), which held in part that a trial court should admonish a jury
as to the voluntariness of confessions. However, Kentucky Rule[s] of Civil
Procedure (RCr) 9.78 – adopted in 1978, nine years after Bradley – has abolished
that procedure. See Hamilton v. Commonwealth, 580 S.W.2d 208, 210 (Ky. 1979).
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The pertinent provision of RCr 9.78 allows a defendant to move the court to
suppress a confession that he has made to police. “The effect of RCr 9.78 is to
obviate the procedural requirement of submitting the issue of voluntariness of a
confession to a jury following the determination of that issue by the trial judge.”
Id.
Ushyarov never made a motion for suppression, and with valid
reason: RCr 9.78 only applies to statements made by the defendant. Here,
Ushyarov is disputing statements made by witnesses. Testimony was given during
trial concerning the circumstances surrounding the statements. The jury had the
opportunity to hear from both of the witnesses and to judge their credibility. It also
listened to testimony from the officers who Ushyarov claims coerced O.V.’s and
E.K.’s statements. It was entirely within the jury’s province as finder of fact to
determine who was telling the truth. Commonwealth v. Swift, 237 S.W.3d 193, 196
(Ky. 2007). Therefore, the trial court did not abuse its discretion when it declined
to utilize Ushyarov’s proposed instruction.
Ushyarov’s second claim is that the trial court committed error by not
providing the jury with an instruction regarding self-protection. He contends that
he believed Pride was going to hurt him when Pride leaned into his car.
In this case, the trial court declined to give the jury a self-protection
instruction because the charge was wanton endangerment, an unintentional crime.
In the past, Kentucky law directed that self-protection was a defense available only
for intentional crimes. However, that restriction has been explicitly lifted by our
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Supreme Court in its decision of Elliott v. Commonwealth, 976 S.W.2d 416, 422
(Ky. 1998). Therefore, we must determine whether the court erred in denying
Ushyarov a self-protection jury instruction.
The trial court has the duty to instruct the jury on the whole law of a
criminal case, including “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). However, in order for a trial court to be required
to instruct on an alternate defense theory, the defense must have supported that
theory with substantial evidence during the trial. Meadows v. Commonwealth, 178
S.W.3d 527, 534 (Ky. App. 2005). Additionally, a special instruction is not
required if the submitted instruction “completely covers the defense of the
accused.” Blevins v. Commonwealth, 258 S.W.2d 501, 502-03 (Ky. 1953).
Here, Ushyarov relies on a provision of Kentucky Revised Statute[s]
(KRS) 503.055,1 Kentucky’s “Castle Law,” which provides that an occupant of a
vehicle may reasonably assume that he is in great peril if another unlawfully enters
the vehicle. Refining and distinguishing that law, however, is KRS 503.055(2)(c),
which does not allow that presumption if the occupant of the car is engaged in
unlawful activity. Even if Ushyarov had not been inside the Prides’ apartment, as
he contends, he was nevertheless engaged in unlawful activity at the point of the
confrontation in the parking lot. Stolen goods were in the back seat of his car, and
he was presumably prepared to drive away with the stolen property. Therefore, the
1
We note that KRS 503.055 also allows homeowners to defend their homes.
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presumption of peril did not apply to Ushyarov and cannot be invoked as a
defense.
Furthermore, the jury instructions included a definition of wanton.
According to the submitted definition, the jury had to determine if Ushyarov had
acted “wantonly with respect to a result or to a circumstance when he [was] aware
of and consciously disregard[ed] a substantial and unjustifiable risk that the result
[would] occur or that the circumstance exist[ed].” If the jury found that he indeed
had acted wantonly, they were to find Ushyarov guilty. If, however, they thought
that Ushyarov acted according to a justifiable risk, they were to have found him not
guilty. Therefore, Ushyarov’s theory of self-protection was adequately covered by
the jury instructions. The trial court did not err when it declined to submit the selfprotection instruction to the jury.
We conclude that the trial court did not abuse its discretion as to the
jury instructions regarding witnesses’ testimony and a self-protection theory.
Therefore, we affirm the Jefferson Circuit Court.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Michael L. Goodwin
Derwin Webb
Louisville, Kentucky
Jack Conway
Attorney General of Kentucky
Bryan D. Morrow
Assistant Attorney General
Frankfort, Kentucky
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