WILLIAM SIM MCFADDEN v. COMMONWEALTH OF KENTUCKY
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RENDERED: January 29, 1999; 10:00 a.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1997-CA-003332-MR
WILLIAM SIM MCFADDEN
APPELLANT
APPEAL FROM LAUREL CIRCUIT COURT
HONORABLE LEWIS B. HOPPER, JUDGE
ACTION NO. 97-CR-000047
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE:
DYCHE, EMBERTON AND GARDNER, JUDGES.
GARDNER, JUDGE:
William Sim McFadden (McFadden) appeals from a
judgment of conviction of the Laurel Circuit Court.
We reverse
and remand the proceeding for a new trial.
On March 21, 1997, the Laurel County Grand Jury
returned an indictment charging McFadden with two counts of
burglary in the third degree and one count of being a persistent
felony offender (PFO).
The indictment arose from events which
took place on February 1, 1997, when McFadden allegedly
participated in the burglary of a commercial property in Laurel
County, Kentucky.
The matter proceeded to trial on November 5, 1997.
As
the trial commenced, the Commonwealth moved to amend the
indictment so that the two burglary counts were replaced with a
single count of receiving stolen property valued more than $300.
McFadden objected, arguing that receiving stolen property was not
a lesser included offense of burglary in the third degree, and
that he was not prepared to defend the amended charge.
Commonwealth’s motion was granted.
The
McFadden renewed his
objection before proof was taken and again at the conclusion of
the evidence.
The court again overruled McFadden’s objection,
stating that McFadden had not been prejudiced because the
Commonwealth was offering the same proof whether the charge was
burglary or receiving stolen property.
The jury returned a verdict of guilty on both charges,
and McFadden was sentenced to ten years in prison.
This appeal
followed.
McFadden now argues that the circuit court committed
reversible error in granting the Commonwealth’s motion to amend
the indictment to replace the burglary charges with the charge of
receiving stolen property.
He directs our attention to Kentucky
Rule of Criminal Procedure (RCr) 6.16, which allows the court to
permit an indictment to be amended if no additional or different
offense is charged and if the defendant is not prejudiced by the
amendment.
He notes that the charge of receiving stolen property
is a different offense from the charge of burglary in the third
degree, and accordingly argues the court abused its discretion by
allowing the Commonwealth to amend the indictment.
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The
Commonwealth concedes that receiving stolen property is a
different offense than burglary in the third degree.
However, it
argues that RCr 6.16 requires McFadden to show not only that the
new offense is different but also that he was prejudiced by the
amendment.
It maintains that McFadden has made no such showing,
and thus that the circuit court’s action cannot be found to run
afoul of RCr 6.16.
We have closely studied the record, the law,
and the arguments of counsel, and must conclude that the circuit
court erred in granting the Commonwealth’s motion.
RCr 6.16 states that,
The court may permit an indictment . . . to
be amended any time before verdict or finding
if no additional or different offense is
charged and if substantial rights of the
defendant are not prejudiced. If justice
requires, however, the court shall grant the
defendant a continuance when such an
amendment is permitted. (emphasis added)
As both the parties note, RCr 6.16 is written in the conjunctive
(and) rather than the disjunctive (or).
Thus, in order for the
court to allow the indictment to be amended it must first be
shown that 1) no additional or different offense is charged, AND
2) substantial rights of the defendant are not prejudiced.
As
such, it was impossible for the circuit court to have concluded
that elements 1 AND 2 were met.
Neither the cases annotated to
the civil rules nor our own research has revealed any basis for
drawing a contrary conclusion.
The published opinion which most
closely parallels the matter at bar is Frizzell v. Commonwealth,
Ky., 511 S.W.2d 200 (1974).
In Frizzell, no continuance was
granted when the indictment was amended to drop the charge of
forgery and add the charge of uttering a forged instrument.
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As
in the matter at bar, the latter charge was not a lesser included
offense of the former charge, and the elements of the offenses
were not shared.
On appeal, the Attorney General conceded error,
and the Court so ruled.
The Commonwealth offers the somewhat specious argument
that we should construe RCr 6.16 to place the burden on McFadden
to show error by proving that both elements were met.
The
Commonwealth states that “[r]ead literally, RCr 6.16 forbids the
amendment of an indictment if the change creates as [sic]
‘additional or different offense’ AND if the substantial rights
of the defendant are prejudiced.)
(emphasis added).
By
rephrasing RCr 6.16 in the negative (i.e., “RCr 6.16 forbids the
amendment of an indictment if...”) rather than in the affirmative
as actually drafted (i.e., “the court may permit. . .”), the
Commonwealth fails to recognize that the language of RCr 6.16
should also change from the conjunctive to the disjunctive.
The
Commonwealth’s restatement of RCr 6.16 should read as follows:
Read literally, RCr 6.16 forbids the amendment of an indictment
if the change creates an additional or different offense OR if
the substantial rights of the defendant are prejudiced.
The
clear and unambiguous language of RCr 6.16 sets forth elements 1
and 2 as prerequisites to court action which amends the
indictment, not as prerequisites for proving error on appeal.
In
sum, if the amended indictment charges the defendant with an
additional or different offense, he is entitled to a continuance.
The purpose of the indictment is to “fairly inform . .
. the defendant of the nature of the crime with which he is
-4-
charged.”
Howard v. Commonwealth, Ky., 554 S.W.2d 375, 377
(1977), citing Finch v. Commonwealth, Ky., 419 S.W.2d 146, 147
(1967).
Receiving stolen property clearly is a separate and
distinct offense from that of burglary in the third degree, as
the Commonwealth has conceded.
See generally Campbell v.
Commonwealth, Ky, 732 S.W.2d 878 (1987).
The elements of the
offenses are not shared, the facts offered as proof of the
offenses are not the same, and the defensive tactics necessary to
rebut the Commonwealth’s case are different.
While we recognize
the principle that the trial court’s ruling are presumptively
correct, City of Louisville v. Allen, Ky., 385 S.W.2d 179 (1964),
we must conclude in the matter at bar that the circuit court
committed reversible error in allowing the Commonwealth to amend
the indictment without concurrently granting a continuance to
McFadden.
RCr 6.16.
For the foregoing reasons, we reverse the judgment of
the Laurel Circuit Court and remand the matter for a new trial.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Timothy J. Walker
London, Kentucky
A. B. Chandler III
Attorney General
Vickie L. Wise
Assistant Attorney General
Frankfort, Kentucky
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