LEWIS (HARLIE) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: JUNE 17, 2011; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2008-CA-000104-MR
HARLIE LEWIS
APPELLANT
ON REMAND FROM SUPREME COURT OF KENTUCKY
NO. 2010-SC-0106-D
v.
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE JAMES M. SHAKE, JUDGE
ACTION NO. 06-CR-00424
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
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BEFORE: TAYLOR, CHIEF JUDGE; COMBS AND NICKELL, JUDGES.
NICKELL, JUDGE: This matter is before us on remand from the Supreme Court
of Kentucky by order entered on September 15, 2010. In its order, the Supreme
Court directed us to reconsider our unpublished opinion rendered August 21, 2009,
and modified on January 22, 2010, in light of the recent holding in Wilburn v.
Commonwealth, 312 S.W.3d 321 (Ky. 2010). In Wilburn, the Supreme Court re-
examined precedents related to burglaries committed in public places where the
burglar had a license to enter, and what events would trigger the revocation of that
license. The Supreme Court also expressly overruled Merritt v. Commonwealth,
386 S.W.2d 727 (Ky. 1965), holding that the definition of a “deadly weapon” in
the context of a robbery adopted in Merritt was irreconcilable with the language of
the statutes now in effect. One issue in the present case was determined using
Merritt; thus, we must re-examine that issue in light of Wilburn. After
reconsidering the record and briefs in light of Wilburn, we conclude the holding
therein does not change the analysis or the outcome of our earlier opinion.
Therefore, as we did previously, we now affirm the trial court.
The facts underlying this case were stated in our original opinion as
follows:
On January 3, 2006, Lewis entered a 24-hour Walgreen
Pharmacy in Louisville, Kentucky, and demanded
OxyContin1 and another drug.2 Lewis was wearing a
hooded sweatshirt pulled up around his face. This same
store had been robbed a few weeks prior by a man armed
with a gun and wearing a hooded sweatshirt.3 According
to the pharmacist on duty, Beth Quisno, Lewis claimed
that even though he did not have a prescription, he did
have a gun. After hearing Lewis’s claim to be armed,
and mindful of the previous robbery at this store, Quisno
went to retrieve the drugs Lewis demanded. By the time
she returned with the drugs, the police had arrived and
1
OxyContin is the brand name of a formula of the potent painkiller oxycodone which is
produced by the pharmaceutical company Purdue Pharma, L.P.
2
The record indicates Lewis was mumbling and the name of the second drug was unintelligible.
3
It is not alleged on appeal that Lewis was the perpetrator of the earlier robbery.
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subsequently arrested Lewis. Prior to his arrest, the
police stated that Lewis had his hand in his sweater
pocket, which was later found to contain a knife with an
open blade.
After his arrest, Lewis was indicted on seven criminal
charges including robbery in the first degree, burglary in
the first degree, assault in the third degree, carrying a
concealed deadly weapon, resisting arrest, disorderly
conduct, and alcohol intoxication in a public place. Prior
to trial, the Commonwealth dismissed all of the charges
except the robbery and burglary counts. Following a trial
by jury, Lewis was acquitted of robbery but was found
guilty of burglary in the first degree for which he was
sentenced to thirteen years’ imprisonment. This appeal
followed.
Lewis v. Commonwealth, slip op. at 2-3 (footnotes omitted).
We concluded the trial court had not erred in denying Lewis’s motion
for a directed verdict on the burglary charge. Citing Bowling v. Commonwealth,
942 S.W.2d 293 (Ky. 1997), we held that although Lewis had lawfully entered the
premises, his license or privilege to enter or remain there was terminated when he
acted inconsistently with the business purposes of the pharmacy as evidenced by
his criminal actions. Thus, we found it would not have been unreasonable for
jurors to return a guilty verdict on the burglary charge. In addition, we concluded
the trial court’s definition of a “deadly weapon” comported with that set out in
Merritt and was legally sufficient. The remaining issue we decided relating to the
jury instructions is not in issue on remand and warrants no further discussion. We
now reexamine the two pertinent holdings in light of Wilburn.
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First, Lewis argues the Supreme Court in Wilburn held that a person
cannot be found to have “entered or remained unlawfully” when the building in
question is open to the public “unless and until that person is personally ordered to
leave or to remain out of the building.” He alleges he was licensed to enter the
public portions of the Walgreen’s store and was never ordered to leave the
premises. Thus, he contends he was entitled to a directed verdict of acquittal on
the burglary charge. We disagree.
Contrary to Lewis’s argument, in Wilburn, the Supreme Court
distinguished Bowling and Fugate v. Commonwealth, 993 S.W.2d 931 (Ky. 1999),
on factual bases but did not overrule them nor question their logic. The Supreme
Court stated:
[n]or is the significant principle stated in the two cases
relevant to the present case. Bowling states the principle
as follows: “[i]mplicit in [KRS 511.090(2)] is the
concept that license or privilege expires once the person
commits an act inconsistent with the purposes of the
business. Bowling terminated his license to be on the
premises when he committed the criminal acts.” Id. at
307. Similarly, the Fugate opinion states, “the privilege
granted to one doing business ceases when the licensee
commits acts, such as crimes, inconsistent with the
business.” Id. at 940.
The principle stated in the cases is sound; however, the
Commonwealth’s application of it to the facts of this case
is not. For the principle to apply, the defendant must first
perpetrate a crime (or other act) thereby bringing about,
by obvious implication, the revocation of his license to
remain in the dwelling or building. He must thereafter
remain on the premises with the intention to commit a
crime, which may be the completion of the robbery or
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any other crime. Only then are the elements of burglary
satisfied under the principle.
The Wilburn Court also did not, contrary to Lewis’s assertion,
“suppl[y] the further clarification that this Court solicited” in our original opinion
in this matter. The dichotomy of opinion we discussed regarding when revocation
of a defendant’s license or privilege to enter or remain on the premises occurs was
not mentioned in or pertinent to the Wilburn case. In fact, the Wilburn Court found
the manager’s firing of a gun at Wilburn was “the functional equivalent” of a
lawful order not to remain on the premises. It further held that a defendant’s
perpetration of a crime or other act would constitute “by obvious implication, the
revocation of his license to remain in the dwelling or building.” Thus, the
Supreme Court did not clarify the apparent conflict of precedents we discussed in
our original Opinion in this case, nor did it provide the final word on the matter as
Lewis contends. Therefore, we are unable to conclude we erred in affirming the
trial court’s disposition of Lewis’s directed verdict motion.
Next, Lewis contends the overruling of Merritt by the Wilburn Court
entitles him to a reversal. He argues the jury instruction given by the trial court in
this case was based on the definition of a “deadly weapon” set forth in Merritt and
we relied on that decision in finding the trial court’s instruction was legally
sufficient and did not amount to reversible error. Although we believe Lewis is
correct in his assessment of the Wilburn decision and our earlier opinion, we
cannot agree that he is entitled to a reversal.
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The trial court’s instruction defining a “deadly weapon” mirrored the
language of Merritt. We affirmed the trial court’s use of this language as it
comported with the law in effect at the time the case was presented to the jury and
the time of the appeal. Several months after we rendered our opinion, Wilburn
overruled Merritt and its progeny insofar as they set forth the rule underlying the
trial court’s instruction herein that “any object intended by its user to convince the
victim that it is a pistol or other deadly weapon, and does so convince him, is one.”
However, a careful review of the Supreme Court’s opinion reveals nothing to
indicate the holding was to be applied retroactively.
Generally, absent a clearly expressed intent to the contrary, our courts
invoke the rule against retroactive application of a statute or decision, because
retroactivity is not favored in the law. See KRS 446.080(3) (“no statute shall be
construed to be retroactive, unless expressly so declared”); see also
Commonwealth ex rel. Conway v. Thompson, 300 S.W.3d 152, 166-67 (Ky. 2009)
(retroactive application of statutes improper unless legislative intent to do so is
clearly manifested); BellSouth Telecommunications, Inc. v. Southeast Telephone,
Inc., 462 F.2d 650 (6th Circ. (Ky.) 2006) (same). It is abundantly clear that “in
cases involving new judicial precedent, a court is to apply the law in effect at the
time it renders its decision.” Carpenter-Moore v. Carpenter, 323 S.W.3d 11, 16
(Ky. 2010) (internal quotation marks and citation omitted); see also Landgraf v.
USI Film Prods., 511 U.S. 244, 264, 114 S.Ct. 1483, 128 L.Ed.2d 229 (1994).
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In the case sub judice, as was proper for it to do, the trial court used
Merritt, the law in effect at the time, as a guide to crafting its instructions. That
law remained in effect until only recently. Merritt represented the law in this
Commonwealth at the time of Lewis’s trial and at the time of our review of those
proceedings. We held the trial court properly instructed the jury based on the law
in existence at the time. Based on our reading of Wilburn, we discern no reason to
now retroactively apply the Supreme Court’s reasoning to this case to find the trial
court erred in doing as it was charged to do. There was no error in the trial court’s
instructions.
For the foregoing reasons, the judgment of the Jefferson Circuit Court
is affirmed.
ALL CONCUR.
BRIEFS FOR APPELLANT:
BRIEF FOR APPELLEE:
Bruce P. Hackett
Chief Appellate Defender
Louisville, Kentucky
Jack Conway
Attorney General of Kentucky
Jeffrey A. Cross
Assistant Attorney General
Frankfort, Kentucky
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