DAVID BASHAM V. COMMONWEALTH OF KENTUCKYAnnotate this Case
J MPOR 'ANT NOTICE
NOT TO BE PUBLISHED
THIS OPINION IS DESIGNA TED "NOT TO BE
PUBLISHED. " PURSUANT TO THE RULES OF
CIVIL PROCED URE PROHUL GA TED BY THE
SUPREME COURT, CR 76.28 (4) (c), THIS OPINION
IS NOT TO BE PUBLISHED AND SHALL ArOT BE
CITED OR USED AS A UTHORITYINANY OTHER
CASE INANY COURT OF THIS STA TE.
RENDERED : JUNE 15, 2006
NOT TO BE PUBLISHED
,$uyrrmv~ Courf of `pft
APPEAL FROM GREENUP CIRCUIT COURT
HONORABLE LEWIS D. NICHOLLS, JUDGE
COMMONWEALTH OF KENTUCKY
MEMORANDUM OPINION OF THE COURT
A Greenup Circuit Court jury convicted Appellant, David Basham, of kidnapping,
a Class B felony, KRS 509 .040(2), for which he was sentenced to twenty years in
prison . He appeals to this Court as a matter of right, Ky. Const. § 110(2)(b), asserting
three claims of error: (1) the instructions to the jury failed to define the word "restrain ;"
(2) the prosecutor improperly questioned Appellant about a prior arrest while crossexamining him during the penalty phase of the trial; and (3) the record on appeal does
not reflect that the court advised him or his counsel of the contents of the presentence
investigation ("PSI") report or afforded them an opportunity to controvert its contents .
Finding no error, we affirm.
On the morning of May 3, 2001, Appellant drove his truck to a lumberyard to
meet his seventeen-year-old former stepson, P.A. They left the yard together in
Appellant's vehicle and drove to a remote area . After stopping the vehicle, Appellant
asked P .A. to help him murder Appellant's former girlfriend who had recently terminated
their relationship . When P.A. refused, Appellant produced a handgun, told P.A. to get
out of the truck, and threatened to shoot him if he ran away. Appellant then bound
P.A.'s hands and feet with wire ties and tied him to a tree. According to P.A., Appellant
then orally sodomized him and ordered him to reciprocate . When P.A. refused,
Appellant untied him from the tree, threw him to the ground, and anally sodomized him.
At this point, P.A.'s hands and feet were still tied with wire ties . P.A. ultimately managed
to release his feet from the ties and ran away with his arms still bound behind his back.
He stated that Appellant shot at him once or twice as he ran and said, "if you don't
come back, I'll kill you ."
Appellant left the scene and later telephoned emergency services ("911 "). He
was connected to authorities in Ohio. He was crying uncontrollably on the telephone
and stated that he had done something terrible in Greenup County and that he wanted
to kill his girlfriend . Ohio state police troopers B. J . Hobson and R. J. Greenwood were
on duty at that time, and Greenwood began speaking with Appellant . He asked
Appellant not to kill his girlfriend and told Appellant that he would come out and talk to
him if he would go to another location. After they were disconnected, the dispatcher
was able to trace the call and determine Appellant's cellular telephone number .
Greenwood telephoned Appellant to get his location, and Hobson and Greenwood soon
apprehended Appellant in a field in Ohio.
Appellant was indicted on May 24, 2001, by a Greenup County grand jury for
kidnapping, sodomy in the first degree, and criminal attempt to commit murder. He was
convicted of the kidnapping of P .A. but acquitted of the sodomy and attempted murder
! . JURY INSTRUCTIONS.
Appellant first asserts his conviction must be reversed because the jury
instruction on kidnapping did not include the legal definition of the word "restrain ." He
concedes the issue was not preserved for appeal under the requirements of RCr 9 .54(2)
and requests review for palpable error. A palpable error must affect a defendant's
substantial rights and result in manifest injustice . RCr 10.26 . "A finding of palpable
error must involve prejudice more egregious than that occurring in reversible error, and
the error must have resulted in 'manifest injustice ."' Ernst v. Commonwealth , 160
S.W.3d 744, 758 (Ky. 2005) (citation omitted) .
The kidnapping instruction provided :
You will find the Defendant guilty of Count I of the Indictment of the
offense of Kidnapping 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 May 3, 2001, and before the
finding of the Indictment herein, he restrained P.A. by binding his hands
B . That the restraint was without P.A.'s consent;
C. Than in so restraining P.A., it was the Defendant's intention to
accomplish or advance the commission of the felony crime of Sodomy or
Murder or to inflict bodily injury or to terrorize P.A. or another person .
The instructions did not include the legal definition of "restrain," which is defined,
inter alia, as follows :
"Restrain" means to restrict another person's movements in such a
manner as to cause a substantial interference with his liberty by moving
him from one place to another or by confining him either in the place
where the restriction commences or in a place to which he has been
moved without consent. A person is moved or confined "without consent"
when the movement or confinement is accomplished by physical force,
intimidation, or deception . . . .
In a criminal case, it is the duty of the trial court "to prepare and give instructions
on the whole law of the case." RCr 9.54(1); Holland v. Commonwealth, 114 S .W.3d
792, 802 (Ky. 2003); Lawson v. Commonwealth , 309 Ky. 458, 218 S .W.2d 41, 42
(1949). The trial court must include, "when necessary or proper, definitions of technical
terms used." Lawson , 218 S.W.2d at 42; see also Caretenders, Inc. v. Commonwealth ,
821 S.W.2d 83, 87 (Ky. 1991); Herring v. Lunderman , 302 Ky. 271, 194 S.W.2d 506,
508 (1946) . However, the failure to define terms commonly understood by the average
juror is not reversible error. Caretenders , 821 S.W .2d at 87; Lawson , 218 S.W.2d at 42 ;
Commonwealth v. Hager, 35 S .W.3d 377, 379 (Ky. App. 2000); Raines v.
Commonwealth , 731 S.W.2d 3, 5 (Ky. App. 1987) .
Since the General Assembly has provided a legal definition of the term "restrain"
in the penal code chapter pertaining to kidnapping and related offenses, the definition
should have been included in the instructions as a part of the whole law of the case.
Commonwealth v. Hager, 41 S.W .3d 828, 833-35 (Ky. 2001). However, the meaning of
the term "restrain" is not beyond the comprehension of the average juror, and the jury
expressed no confusion about the term . See Caretenders , 821 S .W.2d at 87; Hager, 35
S .W .3d at 379. Furthermore, there was ample evidence at trial that the victim was
actually restrained with wire ties and tied to a tree . During closing argument Appellant's
counsel conceded that Appellant restrained P .A. when he asked the jury to convict
Appellant of second-degree unlawful imprisonment instead of kidnapping, viz:
But, when you turn to Instruction Number 4, you know, there's really not a
reasonable doubt about that. There's no question that in this county, on or
about May 3, 2001, and before the finding of this indictment herein, my
client restrained [P .A.] by binding his hands and feet and the he did so
knowingly without [P .AJ's consent. Certainly, you would be warranted
finding that that happened.
Thus, the failure to define the word "restrain" in the jury instructions did not affect
a substantial right of Appellant or result in manifest injustice . RCr 10.26. In fact, even if
the error had been preserved, we would have deemed it harmless. RCr 9.24.
II. ALLEGED PROSECUTORIAL MISCONDUCT.
Appellant claims that the prosecutor improperly cross-examined him during the
penalty phase of the trial about a prior arrest that did not result in a conviction, in
violation of KRS 532 .055. Again, he concedes the error is unpreserved and requests
review for palpable error.
Kentucky's "truth-in-sentencing" statute, KRS 532 .055, was enacted for the
purpose of providing the jury with information about prior felony and misdemeanor
convictions in order to aid it in arriving at the appropriate sentence. Williams v.
Commonwealth , 810 S .W .2d 511, 513 (Ky. 1991) . The statute provides in pertinent
Upon return of a verdict of guilty . . . the court shall conduct a
sentencing hearing before the jury, if such case was tried before a
jury. . . .
Evidence may be offered by the Commonwealth relevant to
sentencing including :
Minimum parole eligibility, prior convictions of the
defendant, both felony and misdemeanor;
The nature of prior offenses for which he was
convicted . . . .
(Emphasis added .) Evidence of an alleged incident that resulted in dismissed charges
is not admissible under the statute. Cook v. Commonwealth , 129 S .W .3d 351, 365 (Ky.
2004); Robinson v. Commonwealth , 926 S .W.2d 853, 854 (Ky. 1996) .
During the sentencing phase of the trial, Appellant testified that, other than
possibly a traffic ticket, he had "[n]ever been convicted of any crime that would
constitute a misdemeanor or a felony other than what the jury found [him] guilty of here
today." On cross-examination the prosecutor questioned Appellant extensively about a
possible prior conviction .
Well, how about the time that you were charged with,
was it Wanton Endangerment, involving [P .A.'s]
That was dismissed .
Did you serve forty-five days in jail for that?
The charges was dismissed, but there was like a tail
of like seven days, you know, extension onto it. But I
mean, the charges was dismissed . I don't know how
they done that.
Did you have a trial?
What were you charged with, running her off the
That's what the allegations was.
Out on the interstate, wasn't it?
It was Paris Pike.
I want to ask you, have you ever been convicted of
any other offense? You're under oath .
Did you plea[d] guilty to any other offense?
Ok. That's the same as being convicted . If a jury
convicts you or you plea[d] guilty, then the Judge
enters a Judgment.
So, there's no other criminal offense that you have
been convicted of?
This questioning would have been improper if, as Appellant claimed, the wanton
endangerment charge had been dismissed. However, the clerk's record contains
Appellant's "rap sheet" which reflects an indictment on October 23, 1996 in Bourbon
County, No. 96-F-00135, for two counts of wanton endangerment in the first degree
resulting in two convictions of amended charges of wanton endangerment in the second
degree . The record also reflects "40 dys, jail, 40 dys susp, 80 days total on 2 charges
73 probated for 2 yrs. Serve 7 days to have no other offenses . Jail time can be served
in Ohio." (Emphasis added .) We assume the quoted entry reflects a plea agreement,
indicating that the convictions were pursuant to a guilty plea . A guilty plea is a
"conviction" for purposes of KRS 532 .055(2)(x). Cook, 129 S .W .3d at 364-65. Despite
Appellant's mistaken belief that the incident occurred in Lexington, not Bourbon County
(Paris Pike runs from Lexington to Paris, the county seat of Bourbon County), these
convictions obviously pertain to the same incident discussed by Appellant and the
prosecutor during the prosecutor's cross-examination. Apparently, the prosecutor was
not in possession of an admissible copy of the judgment of convictions and was
attempting (unsuccessfully) to elicit an admission from Appellant that he had, in fact,
been previously convicted of a criminal offense . We find no prosecutorial misconduct in
this fact-based inquiry, much less palpable error.
Ill. PSI REPORT.
Appellant requests that his sentence be reversed and his case remanded to the
Greenup Circuit Court for resentencing because the record does not reflect that the trial
court complied with KRS 532 .050, which provides inter alia :
No court shall impose sentence for conviction of a felony, other
than a capital offense, without first ordering a presentence
investigation after conviction and giving due consideration to a
written report of the investigation . The presentence investigation
report shall not be waived . . . .
Before imposing sentence, the court shall advise the defendant or
his counsel of the factual contents and conclusions of any
presentence investigation or psychiatric examinations and afford a
fair opportunity and a reasonable period of time, if the defendant so
requests, to controvert them. The court shall provide the
defendant's counsel a copy of the presentence investigation report.
Appellant suggests (but does not specifically assert) that the trial court sentenced
him without allowing him or his counsel to review and controvert the contents of his PSI
report. His sole support for this claim is the fact that the trial judge did not check one of
the blanks on the pre-printed part of the final judgment that provides "Defendant [ ]
agreed with the factual contents of the PSI OR [ ] was granted a hearing to controvert
factual contents of the PSI," and the fact that the transcript of the sentencing hearing
contains no reference to the PSI report.
Compliance with KRS 532 .050(6) is a mandatory prerequisite before a final
judgment may be entered. Brown v. Commonwealth , 639 S.W.2d 758, 761 (Ky. 1982) ;
Eversole v. Commonwealth, 575 S .W.2d 457, 461 (Ky. 1978) . Should the trial court fail
to comply with the statute, the proper remedy is to remand the case for a new
sentencing phase in compliance with the statute. Arnold v. Commonwealth , 573
S.W.2d 344, 346 (Ky. 1978) . The Commonwealth contends that since the error is
unpreserved, Appellant must show palpable error. However, a failure of the trial court to
comply with KRS 532.050 per se requires remand for re-sentencing . Id . (holding that
compliance with KRS 532.050 is "absolutely necessary") ; Brown, 639 S .W.2d at 761 ;
Eversole , 575 S.W .2d at 461 .
Nevertheless, the record does not prove that the trial court sentenced Appellant
without allowing him to review and controvert the PSI report if he so desired . The trial
transcript reflects that after receiving the sentencing verdict from the jury, the trial court
I will order that Probation and Parole prepare a pre-sentence investigation
report. We will now set sentencing on March the 20th . I will order that the
Defendant be remanded to custody in the Greenup County Jail pending
final sentencing .
The transcript of the proceedings on March 20, 2003, reflects that Appellant's
retained counsel was unable to appear and that stand-in counsel appeared with
Appellant and requested a continuance to which the Commonwealth agreed . The
transcript then reflects the following:
Okay. Let's have the Bailiff approach . Give that to Mr.
Basham. Send a copy to his attorney .
The transcript does not reflect what "that" was ; but it was obviously a document if a
"copy" could be sent to Appellant's attorney . It could have been a copy of the order
rescheduling the sentencing hearing for March 27, 2003 (though it does not appear that
the trial court handed the defendant a copy of the order originally scheduling the
sentencing hearing for March 20, 2003); or it could have been Appellant's PSI report (or
Final sentencing was actually held on April 3, 2003. Appellant is correct that no
mention is made at that hearing of the PSI report. Of course, there would have been no
need to mention it if Appellant and his counsel had already received and reviewed it and
did not wish to controvert it. The hearing was not entirely perfunctory . The
Commonwealth presented some victim-impact testimony before final sentencing. The
trial court inquired : "Is there any legal reason that sentencing should not be imposed at
this time?" Defense counsel responded : "No, Your Honor, and he is not eligible for
probation . So, we don't have anything that we wish to say at this time ." Counsel never
claimed that he had not received and reviewed a copy of the PSI report.
Appellant asserts that the Commonwealth's claim that the document given to him
and ordered to be sent to his attorney on March 20, 2003, was the PSI report is mere
speculation . However, Appellant knows what the trial court handed to him and has not
seen fit to tell us. Though we would have preferred that some specific reference to this
PSI report had been made at one of the hearings, we will not presume that Appellant
and his counsel were not allowed to review and controvert the PSI report from the trial
court's mere failure to check a box on a four-page printed form, especially where
Appellant has not specifically claimed that neither he nor his attorney ever received the
PSI report and there is good reason to believe that they did .
Accordingly, the judgment of conviction and the sentence imposed by the
Greenup Circuit Court are affirmed .
COUNSEL FOR APPELLANT :
Donna L. Boyce
Appellate Branch Manager
Department of Public Advocacy
100 Fair Oaks Lane
Frankfort, KY 40601
COUNSEL FOR APPELLEE :
Gregory D . Stumbo
Frankfort, KY 40601
Jeffrey A. Cross
Criminal Appellate Division
Office of the Attorney General
1024 Capital Center Drive
Frankfort, KY 40601