PAUL ANTHONY PLATACIS v. COMMONWEALTH OF KENTUCKY
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RENDERED:
September 17, 1999; 2:00 p.m.
ORDERED NOT PUBLISHED BY THE KENTUCKY SUPREME COURT:
APRIL 12, 1999 (1999-SC-0977-D)
C o m m o n w e a l t h O f K e n t uc k y
C o urt O f A ppe a l s
NO.
1997-CA-002641-MR
PAUL ANTHONY PLATACIS
v.
APPELLANT
APPEAL FROM BULLITT CIRCUIT COURT
HONORABLE THOMAS L. WALLER, JUDGE
ACTION NO. 96-CR-00089
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING IN PART; REVERSING IN PART AND REMANDING
** ** ** ** **
BEFORE:
BUCKINGHAM, EMBERTON, AND JOHNSON, JUDGES.
JOHNSON, JUDGE: Paul Anthony Platacis (Platacis) has appealed
from the judgment of the Bullitt Circuit Court entered on July
23, 1997, convicting him of the offenses of receiving stolen
property over $300, (Kentucky Revised Statutes (KRS) 514.110),
wanton endangerment in the first degree (KRS 508.060), and being
a persistent felony offender in the second degree (PFO II) (KRS
532.080(2)), and sentencing him to serve a total of fifteen years
1
in the penitentiary.
We affirm in part, reverse in part and
remand for further proceedings.
On August 21, 1997, Platacis was observed by Police
Chief Robert Brian (Chief Brian), of the Lebanon Junction Police
Department, in the parking lot of a convenience store, sitting in
the driver’s seat of a 1995, black, GEO Tracker.
The vehicle
matched the description of one recently reported to have been
stolen from Sonny Bishop Cars, a dealership, located on Preston
Highway in Louisville.
Starla Perkins (Perkins), Platacis’ girl
friend, was sitting in the front passenger seat.
Their two-year-
old child, Tyler Platacis (Tyler), was in the back seat.
Chief
Brian, who suspected that the car was stolen, called dispatch to
ascertain the identity of the owner of the Illinois tag that was
on the car.
He was informed that the license plate did not
belong to Platacis or to the GEO Tracker, but to a 1988 Eagle
Talon.
When Platacis and Perkins got out of their vehicle, Chief
Brian pulled in front of the Tracker, got out of his car, and
asked Platacis to put his hands on the police vehicle.
Platacis
did not cooperate with Chief Brian, but instead ran back into his
vehicle and drove away, leaving Perkins behind.
As Chief Brian chased him, Platacis drove east on Ky.
Highway 61 to Interstate 65 (I-65).
1
Platacis got on the
The jury recommended a sentence of five years to serve on
the charge of receiving stolen property, but did not enhance the
sentence upon finding him guilty of being a PFO II. It also
recommended a sentence of five years to serve on the wanton
endangerment count, which it did enhance to ten years upon a
finding of guilt on the PFO II count. The trial court, per the
jury’s recommendation, ordered that the sentences be served
consecutively.
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expressway, going north, where he drove at speeds in excess of
ninety miles an hour, weaving in and out of traffic, and driving
on the emergency lane in order to pass other motorists.
Chief
Brian described the traffic on I-65 asAextremely heavy.
@
Platacis exited I-65 at the 112-mile marker, the exit for Ky.
Highway 245, and Bernheim Forest.
At that exit, Deputy Layne
Troutman (Deputy Troutman), of the Bullitt County Sheriff’s
Department, joined in the pursuit of Platacis.
The vehicles
reached speeds of eighty-five and ninety miles per hour on the
two-lane road as well.
Deputy Troutman testified that at times
Platacis drove in the middle of the road, causing several oncoming vehicles to take evasive action to get out of his way.
Deputy Troutman was able to pass Platacis and the two officers
attempted to slow the speed at which Platacis was driving by
creating a Arolling road block.
@
Platacis pulled into a driveway
near Bernheim Forest, and attempted to avoid capture by running
into the woods.
He left the child, upset and crying, in the car.
Platacis was eventually located in the woods by Deputy Michael
Minton who had responded to the incident.
Tyler was returned to
his mother unharmed.
On October 1, 1996, Platacis was indicted on charges of
receiving stolen property and on two counts of wanton
endangerment in the first degree.
One count of the latter charge
was returned for the risk incurred by the police officers
involved in the chase, and the other count was for the same risk
to Platacis’ son, Tyler.
Platacis was indicted for being a
-3-
persistent felony offender in the second degree on February 5,
1997, and was tried by a jury on May 21, 1997.
At trial, Platacis did not dispute the testimony of the
officers concerning the details of the chase.
Platacis, who was
thirty-one years old, testified that he had borrowed the GEO
Tracker from his cousin, Neal Platacis, who lived in Louisville.
He further testified that in June 1996, when the automobile was
reported as stolen, he was living in Indianapolis, Indiana. He
stated that his cousin had allowed him to use the vehicle on
several occasions that summer in order to visit with his child.
He claimed he was using the vehicle immediately prior to his
arrest to move his belongings to Lebanon Junction where Perkins
and Tyler were residing with Perkins’ mother.
The Tracker
originally had a Kentucky license plate, but Platacis said that
his cousin put the Illinois plate on the car a few days before he
was arrested.
Platacis stated that he realized that the vehicle
was stolen only a day or two before his arrest and that he
intended to talk to Perkins and her mother to get their help in
returning the automobile to the dealership.
Platacis told the jury that he panicked when Chief
Brian approached him at the convenience store parking lot.
He
said that Chief Brian had pulled out his gun, a fact disputed by
Chief Brian, and that he did not know what was happening.
He
further explained that his fear of those involved in law
enforcement was the result of the death of his sister in Illinois
fifteen years earlier, an event he alleged was caused by police,
and his harassment since then by police who, he opined, were
-4-
motivated by revenge over his parents’ lawsuit for his sister’s
wrongful death.
Platacis also told the jury that he had driven
several miles on I-65 before realizing that Tyler was still in
the car.
He testified that he loved his son and
Anever intended
to put [Tyler’s] life in danger.
@
He stated that he was afraid
to slow down or pull over as he feared that the officers would
shoot into the car.
Platacis requested that the trial court give only one
instruction on wanton endangerment in the first degree,
accompanied by an instruction on the lesser included offense of
wanton endangerment in the second degree.
He also asked for an
instruction on the unauthorized use of a vehicle as a lesser
alternative to the offense of receiving stolen property over
$300.
The trial court declined to give either lesser included
offense instruction and gave the jury two opportunities to find
Platacis guilty of wanton endangerment in the first degree.
The
jury returned a verdict finding Platacis guilty of receiving
stolen property and guilty on one count of wanton endangerment.
The jury acquitted Platacis on the charge of wanton endangerment
with respect to the risk in which he placed the police officers
involved in the chase.
In his appeal, Platacis raises the sole issue that the
trial court committed reversible error in refusing to give the
lesser included instructions on wanton endangerment in the second
degree and unauthorized use of a motor vehicle. AIt is axiomatic
that a trial court must instruct the jury on all lesser included
offenses which are justified by the evidence. Cannon v.
@
-5-
Commonwealth, Ky., 777 S.W.2d 591, 596 (1989)(citations omitted).
AOur law requires the court to give instructions ‘applicable to
every state of case covered by the indictment and deducible from
or supported to any extent by the testimony.’ Reed v.
@
Commonwealth, Ky., 738 S.W.2d 818, 822 (1987)(citingLee v.
Commonwealth, Ky., 329 S.W.2d 57, 60 (1959)).
However, in
Luttrell v. Commonwealth Ky., 554 S.W.2d 75, 78 (1977), the
,
Court held that an instruction on a lesser included offense
should not be given Aunless the evidence is such that a
reasonable juror could doubt that the defendant is guilty of the
crime charged but conclude that he is guilty of the lesser
included offense
@(citation omitted). See also Houston v.
Commonwealth, Ky., 975 S.W.2d 925, 929 (1998).
With these
settled principles in mind, it is apparent that the trial court
did not err with respect to Platacis’ request for an instruction
on wanton endangerment in the second degree, but that it did err
in failing to instruct the jury on the unauthorized use of an
automobile.
Wanton endangerment in the second degree is, by
definition, a lesser included offense of wanton endangerment in
2
the first degree.
The distinction between the two crimes was
2
KRS 508.060(1), which defines wanton endangerment in the
first degree, provides as follows:
A person is guilty of wanton endangerment in
the first degree when, under circumstances
manifesting extreme indifference to the value
of human life, he wantonly engages in conduct
which creates a substantial danger of death
or serious physical injury to another person.
KRS 508.070(1), wanton endangerment in the second degree, reads:
(continued...)
-6-
described in Combs v. Commonwealth Ky., 652 S.W.2d 859, 860-861
,
(1983), as follows:
The higher degree requires that the conduct
be wanton under circumstances manifesting an
extreme indifference to the value of human
life while the lower degree requires only
that the conduct be wanton. The higher
degree requires conduct which creates a
substantial danger of death or serious
physical injury while the lower degree is
satisfied by conduct which only creates a
substantial danger of physical injury.
In Combs, the Court concluded that the trial court did not err in
refusing to give an instruction on wanton endangerment in the
second degree where the defendant, attempting to leave a grocery
store without paying for his groceries, fired a gun six times in
the vicinity of store employees and a security guard. A[A]
reasonable juror could not doubt that Combs acted wantonly under
circumstances which manifested an extreme indifference to the
value of human life and, likewise, a reasonable juror could not
doubt that his conduct created a substantial danger of death or
serious physical injury to another person. Id. at 861.
@
See
also Crane v. Commonwealth Ky., 833 S.W.2d 813 (1992) (evidence
,
did not justify instruction on second-degree manslaughter or
reckless homicide (lesser included offenses to wanton murder) as
defendant’s conduct of shooting the clerk during robbery
Amanifest[ed] an extreme indifference to the value of human life
as a matter of law
@).
2
(...continued)
A person is guilty of wanton endangerment in
the second degree when he wantonly engages in
conduct which creates a substantial danger of
physical injury to another person.
-7-
Despite Platacis’ argument to the contrary, we hold
that the reasoning applied in Combs, and Crane, supra, is
applicable in the case sub judice.
Platacis contends that the
jury could believe that Athere was no ‘extreme indifference to
the value of human life’, and that the conduct did not create a
substantial risk of serious physical injury or death, but merely
created a substantial risk of physical injury. We, however,
@
agree with the Commonwealth that the undisputed evidence of the
manner in which Platacis operated the vehicle while fleeing from
the police is not susceptible to a finding that he was engaged in
conduct that was merely Awanton.@
Stated differently, a
reasonable juror could not doubt that Platacis’ conduct, of
driving at a high rate of speed, in heavy traffic, weaving in and
out of traffic and using inappropriate lanes to pass other
vehicles, driving in the middle of the road in such a way as to
cause other drivers to take evasive action, manifested extreme
indifference to the value of human life and created a substantial
danger of death or serious physical injury to Tyler.
Platacis argues that the jury’s acquittal of him of
wanton endangerment vis-a-vis the police officers, evinces a
belief by the jury that the chase Ain and of itself did not
@
place the police in a situation involving aAsubstantial risk of
serious physical injury or death.
@
Thus, he argues, the jury
could have found that Tyler was only at risk of sustaining a mere
physical injury.
However, this overlooks the argument he made at
trial, that is, that the police officers had a choice in whether
to pursue him or not and undertake the risk involved, whereas it
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is obvious that two-year-old Tyler did not have the same ability
to control the situation created by his father.
In any event,
the jury’s verdict with respect to the police officers has no
implication on the issue of the legal efficacy of the trial
court’s failure to give a lesser included instruction to the
charge of wanton endangerment in the first degree with respect to
Platacis’ conduct toward Tyler.
In sum, an instruction on wanton
endangerment in the second degree was not justified by the
evidence and the trial court did not err in declining to give
such an instruction.
However, we do find merit to Platacis’ argument that
the trial court erred in failing to instruct the jury on the
unauthorized use of a motor vehicle.
Before determining whether
Athe evidence would support a guilty verdict on a lesser
uncharged offense, it is necessary to determine whether the
@
offense Ais a lesser included offense of the charged offense.
@
Houston, supra at 929(citations omitted). AA charged offense
necessarily includes an uncharged lesser offense if the lesser
offense involves fewer of the same constituent elements than the
charged greater offence so that the proof necessary to establish
the greater offense will of necessity establish every element of
the lesser offense.
@
Cheser v. Commonwealth Ky.App., 904 S.W.2d
,
239, 244 (1994) (
Aconcealing the birth of an infant is not a
lesser included offense of murder/homicide
@).
It is clear from
an examination of our case law and the statutory definition of a
lesser included offense, KRS 505.020(2), that the unauthorized
use of an automobile is a lesser included offense of receiving
-9-
stolen property whenever the stolen property is a motor vehicle.
KRS 514.110 provides that A[a] person is guilty of
receiving stolen property when he receives, retains, or disposes
of movable property of another knowing that it has been stolen,
unless the property is received, retained, or disposed of with
intent to restore it to the owner. Pursuant to KRS 514.100(1),
@
a person is guilty of the unauthorized use of an automobile,
Awhen he knowingly operates, exercises control over, or otherwise
uses such vehicle without consent of the owner or person having
legal possession thereof.
@
Proof necessary to establish the
elements of KRS 514.110, that is, proof that a person receives
property, knowing it to be stolen, and having no intent to return
it, would also satisfy all the elements of KRS 514.100.
Thus, in
a prosecution for receiving a stolen vehicle, where there is
evidence that the defendant intended to return the vehicle to its
rightful owner, an instruction on the unauthorized use of the
vehicle is appropriate.
The Commonwealth relies on Logan v. Commonwealth
,
Ky.App., 785 S.W.2d 497 (1989), in responding to Platacis’
arguments in this regard.
In that case, this Court concluded
that failure to give an instruction on the unauthorized use of an
automobile was not error as there was no evidence to support the
instruction.
Unlike the defense offered by Platacis, Logan
testified that he was unaware that the vehicle he was accused of
illegally receiving was stolen, and that it was his belief that
it belonged to a friend. ALogan’s testimony, if believed, would
appear to exonerate him of any criminal wrongdoing, rather than
-10-
convict him of unauthorized use of a vehicle. Id. at 498.
@
Because Logan testified that he did not know the automobile was
stolen, there was no evidence concerning his intent to
permanently deprive its owner of the car.
The Commonwealth insists that there is no evidence to
support the lesser included offense in the casesub judice.
It
states as follows:
Appellant points to his testimony that he
intended to return the vehicle. However, he
did not testify that he intended to return
the vehicle but rather gave excuses as to why
he hadn’t: he Awasn’t exactly sure what to
do@ and Awas afraid that [he] was going to be
arrested.@ Appellant testified that he kept
the vehicle even after he knew it was stolen.
We disagree with the Commonwealth’s characterization of Platacis’
testimony.
When considered in its totality, we believe Platacis
3
expressed an intent to return the vehicle to the dealership.
3
The relevant testimony from Platacis’ direct examination is
as follows:
Q. Okay. Mr. Platacis, at the point we
recessed you were testifying to the jury that
you had reason to believe or started to
believe that the GEO was in fact stolen. Is
that correct?
A Yes, sir.
Q. Okay. Once you realized this, what were
your intentions?
A. I--I had found out two days before I was
arrested--but the next day is when I came
back in town in Lebanon Junction and C you
I
know, I don’t know a whole lot of people down
here except for my girlfriend and her side of
the family, and my cousin. And I went to my
girlfriend--I always trusted in her--and I
went to talk to her and her mom who have
always helped me out in the past.
(continued...)
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Whether his testimony on the issue of intent was believable or
not, was, of course, a matter solely within the purview of the
jury.
Thus, it was the duty of the trial court to present the
question of Platacis’ intent to the juryAvia an instruction.
@
Luttrell, 554 S.W.2d at 78.
Accordingly, that portion of the judgment of the
Bullitt Circuit Court convicting Platacis of wanton endangerment
in the first degree is affirmed.
The judgment convicting
Platacis of receiving stolen property is reversed and this matter
is remanded for a new trial consistent with this Opinion.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Hon. Kim Brooks
covington, KY
Hon. A. B. Chandler III
Attorney General
3
(...continued)
And I--Starla and me at the time were in,
you know, just getting back together and I
went and she had asked me about the car.
Because she had questioned about it because
she asked me about the license plate and the
car, and I told her what my cousin had told
me about the car. And I told her I didn’t
know where Sonny Bishops was. I don’t know
where, you know, I didn’t know how to get
there. I didn’t know what to do and I asked
for her and her mom if they would help me and
in doing so help get the car back.
I wasn’t exactly sure what to do if I
should call the police. I was just going to
take it to Sonny Bishops I was afraid that
.
I was going to be arrested. Still I mean, I
had that fear in me because I was driving the
car and I didn’t know what was going to
happen. So I thought I was doing the right
thing by asking them what to do or where to
go or, you know, who I should turn to.
(Emphasis added.)
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Frankfort, KY
Hon. Dana Todd
Assistant Attorney General
Frankfort, KY
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