HILDRETH YOUNG v. COMMONWEALTH OF KENTUCKY
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RENDERED: July 8, 2005; 10:00 a.m.
NOT TO BE PUBLISHED
Commonwealth Of Kentucky
Court of Appeals
NO. 2004-CA-000655-MR
HILDRETH YOUNG
v.
APPELLANT
APPEAL FROM MONROE CIRCUIT COURT
HONORABLE EDDIE C. LOVELACE, JUDGE
ACTION NO. 03-CR-00020
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE:
TACKETT AND VANMETER, JUDGES; MILLER, SENIOR JUDGE.1
VANMETER, JUDGE:
Hildreth Young appeals from a judgment entered
by the Monroe Circuit Court after a jury convicted him of
possession of a handgun by a convicted felon.
Young argues that
there was insufficient evidence to support the verdict and that
he was denied his constitutional right to a speedy trial.
We
affirm.
1
Senior Judge John D. Miller sitting as Special Judge by assignment of the
Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and
KRS 21.580.
On or about December 26, 2002, an altercation occurred
between Young’s son and several men in front of the son’s home.
Witnesses testified at trial that after blows were thrown Young’s
son called out for him to retrieve a gun, Young appeared on the
front porch brandishing a firearm.
was in possession of a firearm.
Young denied at trial that he
The investigating police
officers, however, testified that Young admitted at the scene
that he “just kind of waved it, flashed” a gun around.
The
officers further testified that Young’s daughter-in-law retrieved
a gun from just inside the door of the house when they asked upon
their arrival whether there was a gun in the house.
The
daughter-in-law, by contrast, testified that the gun belonged to
her, that Young was unaware of the gun, and that upon the
officer’s inquiry she retrieved the gun from a locked outdoor
storage facility.
Young was indicted on charges of retaliating against a
participant in the legal process,2 possession of a firearm by a
convicted felon,3 and persistent felony offender in the first
degree (PFO 1).4
On August 22, 2003, Young made a pro se motion
for the withdrawal of his court-appointed counsel and requested
the appointment of new counsel.
This motion was granted.
On
October 14, 2003, Young filed a pro se motion requesting a speedy
trial.
This motion, along with Young’s November 5, 2003, motion
to dismiss for lack of prosecution, was heard on November 19 and
2
KRS 524.055.
3
KRS 527.040.
4
KRS 532.080(2).
-2-
trial was set for January 8, 2004.
Young was found guilty only
on the charge of possession of a firearm by a convicted felon
and, in accordance with the jury’s recommendation, he was
sentenced to one year imprisonment.
One week later, on January
15, Young again moved for dismissal of the charges for lack of
prosecution.
This motion was denied and final sentencing
occurred on February 18, 2004.
This appeal followed.
Young initially argues that the trial court erred by
failing to find that the evidence was insufficient to support his
conviction because there was no showing that the firearm was
operational.
While Young did not preserve this issue for review
he requests that this court consider the issue under RCr 10.26 so
as to avoid manifest injustice.
RCr 10.26 provides:
A palpable error which affects the
substantial rights of a party may be
considered by the court on motion for a new
trial or by an appellate court on appeal,
even though insufficiently raised or
preserved for review, and injustice has
resulted from the error.
We are not persuaded that Young is entitled to relief in order
to prevent the occurrence of manifest injustice.
Young consistently argued at trial that he was never in
possession of the gun.
On appeal, he seems to assert that even
if he was in possession of the gun, there was no evidence that
the gun was an operational “firearm” which could “expel a
projectile by the action of an explosion.”5
However, neither KRS
527.010(4) defining “firearm,” nor KRS 527.040 setting out the
5
KRS 527.010(4).
-3-
elements of possession of a firearm by a convicted felon,
specifies that the weapon must be functional.
In any event, even
if the weapon was required to be functional Young has made no
showing, or even an allegation, on appeal that the weapon in
question was not functional.
In the absence of any indication
that the alleged error affected Young’s substantial rights, he is
not entitled to relief on appeal.
Finally, Young argues that the trial court erred by
failing to find that he was denied his constitutional right to a
speedy trial.
We disagree.
As described in Barker v. Wingo,6
and Tamme v. Commonwealth,7 the issue of whether a defendant’s
constitutional right to a speedy trial has been violated must be
considered in light of four factors: “(1) length of the delay;
(2) reason for the delay; (3) the defendant’s assertion of his
right to a speedy trial; and (4) prejudice to the defendant.”8
Here, the record shows that the alleged criminal action occurred
on December 26, 2002.
Young was indicted in February 2003, and
trial was set for August 22.
The trial was postponed when, on
the scheduled trial date, Young made and the court granted
Young’s pro se motion requesting that his appointed counsel be
dismissed and that new counsel be appointed.
In October and
6
407 U.S. 514, 530, 92 S.Ct. 2182, 33 L.Ed.2d 101 (1972).
7
973 S.W.2d 13, 22 (Ky. 1998).
8
Id. at 22.
-4-
November Young asserted his right to a speedy trial,9 and those
motions were heard in November 2003.
conducted on January 8, 2004.
Young’s trial then was
Given the fact that the trial was
delayed due to Young’s own motion, as well as the absence of
probative evidence to show that Young was prejudiced by the
delay, the trial court did not err by failing to find that he
was denied his right to a speedy trial.
For the reasons discussed above, the judgment of the
trial court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
David T. Eucker
Department of Public Advocacy
Frankfort, Kentucky
Gregory D. Stumbo
Attorney General of Kentucky
George G. Seelig
Assistant Attorney General
Frankfort, Kentucky
9
KRS 500.110.
-5-
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