COMMONWEALTH OF KENTUCKY v. STEVE PLOWMAN
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RENDERED:
MAY 18, 2001; 2:00 p.m.
TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1999-CA-002765-MR
COMMONWEALTH OF KENTUCKY
APPELLANT
APPEAL FROM ESTILL CIRCUIT COURT
HONORABLE WILLIAM W. TRUDE, JUDGE
ACTION NO. 98-CR-00035
v.
STEVE PLOWMAN
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
BUCKINGHAM, JOHNSON, AND TACKETT, JUDGES.
BUCKINGHAM, JUDGE.
The Commonwealth of Kentucky appeals from an
order of the Estill Circuit Court dismissing a criminal
indictment charging Steve Plowman with arson in the second
degree.
The circuit court held that the bulldozer involved in
the charge was not a “vehicle” covered by the arson statute, KRS1
513.030.
We agree with the circuit court’s interpretation of the
statute and thus affirm.
1
Kentucky Revised Statutes.
The Commonwealth alleged that Plowman borrowed six
bottom automatic reset plows from Rodney Horn to use on his farm.
Despite repeated requests by Horn, Plowman failed to return the
plows.
Horn subsequently discovered that Plowman had sold the
plows to another person.
Horn went to the county attorney about
the situation, and Plowman was charged with theft.
A short time
later, Plowman set fire to Horn’s 1450 Case bulldozer, which
resulted in its being declared a total loss.
Plowman made
statements to the police implicating himself in the incident.
In November 1998, the Estill County grand jury indicted
Plowman on one felony count of arson in the second degree (KRS
513.030) “by starting a fire with the intent to destroy or damage
a bulldozer owned by Rodney Horn . . . .”
In July 1999, Plowman
filed a motion to dismiss the indictment.
He asserted that
because a bulldozer was not included within the meaning of the
arson statute, the Commonwealth could not establish an element of
the offense.
Rather than file a response, the parties argued the
motion orally before the circuit court at a pretrial conference.
On September 19, 1999, the circuit court entered an order
dismissing the indictment stating that because a bulldozer was
not a “vehicle” within the ordinary meaning of the word, it was
not covered by the arson statute.
The Commonwealth filed this
appeal.
The Commonwealth contends that the circuit court
misconstrued the arson statute when it found that a bulldozer did
not fall within the definition of “vehicle”.
While it does not
take issue with the court’s general approach, the Commonwealth
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argues that a bulldozer falls within the plain meaning of the
statute.
First, we note that because the interpretation of a
statute is a question of law subject to de novo review, an
appellate court is not required to give deference to the trial
court’s decision on that issue.
Commonwealth v. Montaque, Ky.,
23 S.W.3d 629, 631 (2000)(quoting Floyd County Bd. of Educ. v.
Ratliff, Ky., 955 S.W.2d 921, 925 (1997)); Commonwealth v.
Garnett, Ky. App., 8 S.W.3d 573, 575 (2000).
The seminal duty of
a court in construing a statute is to effectuate the intent of
the legislature.
Commonwealth v. Harrelson, Ky., 14 S.W.3d 541,
546 (2000); Magic Coal Co. v. Fox, Ky., 19 S.W.3d 88, 94 (2000);
Commonwealth v. Kash, Ky. App., 967 S.W.2d 37, 43 (1997).
Generally, a statute should be interpreted according to the plain
meaning of the language, and a court is not free to add or
subtract words.
Harrelson, 14 S.W.3d at 546; Commonwealth v.
Frodge, Ky., 962 S.W.2d 864, 866 (1998); Commonwealth v. Allen,
Ky., 980 S.W.2d 278, 280 (1998).
Where there is a specific
definition provided in the statute, the courts are required to
apply the definition; otherwise, the words of a statute are
construed according to their common and ordinary usage.
See KRS
446.015; Griffin v. City of Robards, Ky., 990 S.W.2d 634, 638
(1999)(courts not permitted to redefine meaning of word already
defined in the statute); Baker v. Commonwealth, Ky., 677 S.W.2d
876, 879 (1984)(courts must use definition prescribed by
statute), overruled in part on other grounds, Shannon v.
Commonwealth, Ky., 767 S.W.2d 548 (1988); Lynch v. Commonwealth,
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Ky., 902 S.W.2d 813, 814 (1995)(words in statute should be given
their ordinary meaning); Marcinek v. Commonwealth ex rel. Marcum,
Ky. App., 999 S.W.2d 721, 723 (1999).
At the same time, a statute must be read in light of
the mischief to be corrected, the evil intended to be remedied,
and the policy and purpose of the statute.
Springer v.
Commonwealth, Ky., 998 S.W.2d 439, 448 (1999); Sisters of Charity
Health Sys., Inc., v. Raikes, Ky., 984 S.W.2d 464, 469 (1998);
Kash, 967 S.W.2d at 43.
In addition, under the doctrine of
ejusdem generis, in construing an ambiguous statute, where
general words follow or precede a designation of particular
subjects or class of items, the meaning of the general words
ordinarily will be presumed to be restricted to the same kind,
class, or nature of the specific subjects absent a clear
manifestation of a contrary purpose.
See Steinfeld v. Jefferson
County Fiscal Court, 312 Ky. 614, 229 S.W.2d 319, 320 (1950);
Hill v. Baker, 309 Ky. 514, 218 S.W.2d 24 (1949); ACSR, Inc., v.
Cabinet for Health Services, Ky. App., 32 S.W.3d 96 (2000).
Consistent with the doctrine of ejusdem generis, “‘broad and
comprehensive expressions in an act such as, “and all others,” or
“any others,” are usually to be restricted to persons or things
of the same kind or class with those specifically named in the
preceding words.’”
City of Lexington v. Edgerton, 289 Ky. 815,
159 S.W.2d 1015, 1017 (1941)(quoting Vansant v. Commonwealth, 189
Ky. 1, 224 S.W. 367, 371 (1920)(emphasis in original).
KRS 513.030, the second-degree arson statute, states:
(1)
A person is guilty of arson in the
second degree when he starts a fire or
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causes an explosion with intent to
destroy or damage a building:
(a)
(b)
(2)
Of another; or
Of his own or of another, to
collect or facilitate the
collection of insurance proceeds
for such loss.
In any prosecution under this section,
it is a defense that:
(a)
(b)
No person other than the defendant
had a possessory or proprietary
interest in the building, or, if
other persons had such an interest,
all of them consented to the
defendant’s conduct; and
The defendant’s sole intent was to
destroy or damage the building for
a lawful purpose.
For purposes of Chapter 513, KRS 513.010 defines “building” as
follows:
“Building”, in addition to its ordinary
meaning, specifically includes any dwelling,
hotel, commercial structure, automobile,
truck, watercraft, aircraft, trailer,
sleeping car, railroad car, or other
structure or vehicle, or any structure with a
valid certificate of occupancy. (Emphasis
added.)
The Commonwealth argues that a bulldozer falls within
the statutory definition of a building because the statute refers
to “any . . . vehicle.”
The Commonwealth’s assertion that no
interpretation is needed because the statutory definition is
clear and unambiguous is flawed.
Because “vehicle” is not
further defined in the statute, we will construe the statute
according to its plain and ordinary meaning, the policy and
purpose of the arson statute as a whole, and the doctrine of
ejusdem generis.
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First, as the circuit court noted, “vehicle” is defined
by Webster’s Dictionary as, inter alia, “[a] device, as a motor
vehicle or a piece of mechanized equipment, for transporting
passengers, goods, or apparatus[.]”
University Dictionary (1984).
Webster’s II New Riverside
“Bulldozer” is defined as “[a]
tractor with a horizontal blade in front used esp. for clearing
or grading land.”
Id.
defines “vehicle” as
In addition, Black’s Law Dictionary
“[s]omething used as an instrument of
conveyance; any conveyance used in transporting passengers or
merchandise by land, water, or air.”
Seventh Edition (1999).
Black’s Law Dictionary,
While a bulldozer is a piece of
mechanized equipment, it is used for grading rather than
conveyance of persons or objects.
Furthermore, the definition of “building”, in addition
to fixed structures, includes a list of movable items whose
primary function is the transportation of people.
This is
consistent with one purpose of the arson statute to protect or
reduce the risk of harm to persons, in addition to preserving
property.
As stated in the introductory Commentary to Chapter
513:
At common law, the offense of arson was
defined as a “willful and malicious burning
of another’s dwelling or adjacent structures
. . . .” Like burglary, this offense was
designed to protect the habitation (i.e., a
structure in which people ordinarily sleep).
By judicial interpretation and legislative
enactment, it has been extended to cover
other types of buildings. In redefining the
category of crime known as arson, this
chapter maintains as a frame of reference the
one characteristic of this offense that
distinguishes it from other offenses
involving damage to property, namely, the
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objective of proscribing conduct that
endangers human life.
See KRS 500.100 (commentary may be used as aid in construing
Penal Code); Stark v. Commonwealth, Ky., 828 S.W.2d 603
(1991)(same), overruled in part on other grounds, Thomas v.
Commonwealth, Ky., 931 S.W.2d 446 (1996).
A bulldozer does not
fit within the policy and purposes of the arson statute to cover
objects associated with the protection of persons.
Third, the scope of the word “vehicle” should be
construed in light of the preceding items listed in the
definition of a building under KRS 513.010.
As noted above, the
list involves containers or motorized items whose principle use
is conveying or transporting persons and objects; whereas, the
principle function of a bulldozer is for grading and the
redistribution of earth.
Under the doctrine of ejusdem generis,
“vehicle” should be construed consistent with the kind, class,
and nature of the items preceding it in the list.
While a
bulldozer has some similar characteristics with the other items,
it simply is not of the same type or class as the other items,
which are used for transportation or conveyance.
In conclusion, we hold that as a matter of law, a
bulldozer is not a “vehicle” within the definition of a
“building” under KRS 513.010 for purposes of the arson statutes.
Consequently, because the circuit court did not err in dismissing
the indictment for second-degree arson for failure to charge an
offense, we affirm.2
2
Plowman may remain subject to indictment for criminal
(continued...)
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ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
A.B. Chandler III
Attorney General
Elizabeth Shaw
Richmond, Kentucky
Vickie L. Wise
Assistant Attorney General
Frankfort, Kentucky
2
(...continued)
mischief. See KRS 512.020-040.
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