BROWN (GEORGE) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: MAY 16, 2008; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2006-CA-001321-MR
GEORGE BROWN
v.
APPELLANT
APPEAL FROM ALLEN CIRCUIT COURT
HONORABLE WILLIAM R. HARRIS, JUDGE
ACTION NO. 05-CR-00020
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
AFFIRMING
** ** ** ** **
BEFORE: STUMBO AND TAYLOR, JUDGES; HENRY,1 SENIOR JUDGE.
HENRY, SENIOR JUDGE: A jury found Brown guilty of Escape in the First Degree and
recommended a sentence of ten years. The trial court denied his motion for a directed
verdict and he now seeks our review of whether it was error to deny that motion. After a
review of the record, we affirm the decision of the Allen Circuit Court.
Brown’s argument is in essence that the Commonwealth failed to prove
that Brown was ever in custody and therefore could not prove the required elements of
the charge of Escape. We disagree.
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Senior Judge Michael L. Henry sitting as Special Judge by assignment of the Chief Justice
pursuant to Section 110(5)(b) of the Kentucky Constitution and KRS 21.580.
A police officer on regular patrol spotted Brown in the back seat of a
passing vehicle. The officer knew Brown and knew there was an active warrant for his
arrest. He activated his emergency equipment and made a traffic stop of the vehicle.
Both rear doors opened and another person bolted from the vehicle and ran. It was
later determined that person also had warrants out for his arrest. The officer
approached Brown’s side of the vehicle and told Brown he was under arrest because
there were outstanding warrants.
Brown exited the vehicle and turned his back to the officer. The officer
grew apprehensive that Brown was also going to run and so the officer tried to grab
Brown and place him in what could best be described as a bear hug. Brown forced
himself in one direction and the officer again tried to grab Brown. Brown moved away in
the other direction. The officer was getting his handcuffs ready when Brown leaned into
the vehicle. The officer dropped his handcuffs when Brown moved back out of the
vehicle. As the officer tried to retrieve the handcuffs Brown jumped up on the roof of the
vehicle attempting to put the car between himself and the officer and thus potentially
evade capture. The officer managed to grab Brown and pull him down to the ground
but Brown landed on top of the officer who was injured in the fall.
The officer grabbed Brown’s foot and Brown continued to struggle, kicking
the officer in the head several times. The officer finally released Brown because as he
later testified, he thought he was going to keep getting kicked in the head as long as he
was hanging onto Brown’s foot. Brown then ran away, but was captured the following
evening.
Kentucky Revised Statute (KRS) 520.020 states that “[a] person is guilty
of escape in the first degree when he escapes from custody or a detention facility by the
use of force or threat of force against another person.” KRS 520.010(2) defines custody
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as “restraint by a public servant pursuant to a lawful arrest.” According to KRS 431.025,
“[a]n arrest is made by placing the person being arrested in restraint, or by his
submission to the custody of the person making the arrest.” Brown argues that he was
never arrested or restrained because during the struggle, the officer never exercised
control over him and therefore he could not have “escaped.”
When presented with a motion for a directed verdict, the trial court must
review the evidence in the light most favorable to the Commonwealth. Commonwealth
v. Benham, 816 S.W.2d 186 (Ky. 1991). The trial court is required to assume that all of
the evidence presented by the prosecution is true. Id. at 187. Additionally, the trial
court must “consider not only the actual evidence, but also must draw all fair and
reasonable inferences from the evidence in favor of the Commonwealth.” Id.
The officer told Brown several times he was under arrest. He placed
Brown in a bear hug hold several times. He grabbed him from the top of the vehicle and
they fell to the ground. He held Brown by the foot. The fact that the officer was never
able to place Brown in handcuffs is of little consequence. This evidence, considered in
the light most favorable to the Commonwealth, is clearly sufficient to conclude that
Brown was in custody and his fleeing could amount to an escape. Denial of the motion
for directed verdict was appropriate.
The judgment of the Letcher Circuit Court is affirmed.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Julia K. Pearson
Assistant Public Advocate
Frankfort, Kentucky
Gregory D. Stumbo
Attorney General of Kentucky
Todd D. Ferguson
Assistant Attorney General
Frankfort, Kentucky
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