PAUL CARNES v. COMMONWEALTH OF KENTUCKY
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RENDERED: August 2, 1996; 2:00 p.m.
NOT TO BE PUBLISHED
NO. 95-CA-0184-MR
PAUL CARNES
APPELLANT
APPEAL FROM KNOX CIRCUIT COURT
HONORABLE RODERICK MESSER, JUDGE
ACTION NO. 93-CR-155
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
VACATING AND REMANDING
* * * * * * *
BEFORE:
DYCHE, JOHNSON and KNOPF, Judges.
KNOPF, JUDGE:
This is an appeal from a judgment of conviction in
Knox Circuit Court for driving under the influence, fourth
offense, pursuant to KRS 189A.010.
Based on recent decisions by
the Supreme Court of Kentucky, we vacate, and remand for a new
trial.
The appellant, Paul Carnes, was indicted on the charges
of driving under the influence (DUI), fourth offense; and
operating a motor vehicle on a license suspended or revoked for
DUI, third offense.
The appellant filed several pre-trial
motions: a motion to dismiss for lack of evidence that he was
operating the motor vehicle; a motion in limine to exclude
evidence of his prior DUI convictions during the guilt phase of
the trial; and a motion to voir dire the potential jurors
regarding their ability to consider the entire range of
penalties.
The trial court denied all of the motions.
Thereafter, the appellant entered a plea of guilty on the
charges.
The appellant entered the plea conditionally pursuant
to RCr 8.09 reserving the right to appeal the trial court's
denial of his pre-trial motions.
The appellant first argues that the trial court erred
in denying his motion to dismiss for lack of evidence that he was
"operating" a motor vehicle within the meaning of KRS
189A.010(1).
The evidence before the court was that on August 9,
1993, the arresting officer had a report of a car wrecked in a
ditch.
He found the appellant behind the wheel of the car with
the engine running.
No one else was in the vehicle.
When the
officer asked the appellant what happened, the appellant said he
got stuck in the ditch.
The appellant appeared intoxicated, and
he failed several sobriety tests.
His subsequent breath test
reading was .292.
While the appellant concedes that he was intoxicated,
he contends that the evidence was insufficient to prove that he
was operating the motor vehicle.
Admittedly, the evidence on
this point was wholly circumstantial.
However, there are a
number of factors which have been used in determining whether a
person operated or was in actual control of a motor vehicle
including: (1) whether or not the person in the vehicle was
asleep or awake; (2) whether or not the motor was running; (3)
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the location of the vehicle and all of the circumstances bearing
on how the vehicle arrived at that location; and (4) the intent
of the person behind the wheel.
Wells v. Commonwealth, Ky., 709
S.W.2d 847, 849 (1986).
The evidence is sufficient to support the charge if the
circumstances of the defendant's arrest would reasonably support
the inference that the vehicle was subject to the defendant's
control.
Newman v. Stinson, Ky., 489 S.W.2d 826, 828 (1972).
On
the other hand, the evidence is not sufficient to support the
"operating" element of the charge of DUI if the circumstances
only make the existence of the element of the offense slightly
more probable than they would be without the evidence.
Commonwealth, Ky. App., 825 S.W.2d 282, 284 (1992).
Pence v.
In the
instant case, the appellant was found alone behind the wheel of
the vehicle with the engine running.
The fact that it was in a
ditch indicates that it had been driven there by someone.
Although there was testimony to the contrary, we conclude that
the evidence presented was sufficient to support a reasonable
inference that the appellant was operating or was in physical
control of a motor vehicle within the meaning of KRS 189A.010.
Consequently, we agree with the trial court there was an issue of
fact for the jury to decide.
The appellant next asserts that the trial court erred
in denying his motion to exclude evidence of his prior DUI
convictions during the Commonwealth's case-in-chief.
The Supreme
Court of Kentucky recently addressed this issue in three (3)
cases: Commonwealth v. Ramsey, Ky., 920 S.W.2d 526 (1996);
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O'Bryan v. Commonwealth, Ky., 920 S.W.2d 529 (1996); and Dedic v.
Commonwealth, Ky., 920 S.W.2d 878 (1996).
The Supreme Court
noted that the elements for the offense of driving under the
influence are wholly contained in KRS 189A.010(1).
On the other
hand, the penalties are delineated in subsection (4), with the
severity of punishment increasing with the number of prior
violations of subsection (1).
Ramsey, 920 S.W.2d at 528.
The
Supreme Court held that evidence of prior convictions is not
essential to the Commonwealth's case-in-chief in the prosecution
of a DUI charge introduction of the prior convictions is unduly
prejudicial to the defendant.
Consequently, prior DUI
convictions shall not be introduced during the guilt phase of a
DUI trial, but are only admissible during the penalty phase.
Id.
at 529.
As a result of these decisions, the appellant's
conviction for DUI, fourth offense, must be vacated and remanded.
At a subsequent trial of this action, if the jury reaches a
guilty verdict, the circuit court has authority to conduct a
penalty phase pursuant to KRS 532.055, in which the prior
convictions may be introduced and the appropriate sentence
determined, following proper instructions to the jury.
Id. at
528.
The appellant also asserts that the trial court erred
in refusing to allow him to voir dire the potential jurors on
their ability to impose the entire range of penalties.
In
Shields v. Commonwealth, Ky., 812 S.W.2d 152, 153 (1991), the
Supreme Court held that in order to be qualified to sit as a
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juror in a criminal case, a member of the venire must be able to
consider any permissible punishment.
challenge for cause is appropriate.
If the juror cannot, then a
Consequently, the trial
court erred in refusing to allow the appellant to question
potential jurors on this question.
Id.
Therefore, the error
would require the sentence to be set aside.
Anderson v.
Commonwealth, Ky., 864 S.W.2d 909, 911 (1993).
Since the appellant entered a conditional guilty plea
before the case went to a jury, we cannot find that he was
prejudiced by the trial court's ruling.
However, at a subsequent
trial of this action, he should be permitted to ask reasonable
questions to the venire regarding their openness to the entire
range of penalties.
As we are remanding this case, there is no
reason to address the issue of whether the trial court abused its
discretion in denying the appellant's motion for a continuance.
Accordingly, we vacate the judgment of conviction and
remand for disposition consistent with this opinion.
ALL CONCUR.
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BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Susan J. Balliet
Prospect, Ky
A.B. Chandler III
Attorney General
Vickie L. Wise
Assistant Attorney General
Frankfort, Ky
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