MILLER (MAURICE) VS. COMMONWEALTH OF KENTUCKYAnnotate this Case
RENDERED: AUGUST 8, 2008; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
APPEAL FROM CHRISTIAN CIRCUIT COURT
HONORABLE JOHN L. ATKINS, JUDGE
ACTION NO. 06-CR-00022
COMMONWEALTH OF KENTUCKY
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BEFORE: KELLER AND THOMPSON, JUDGES; GRAVES, SENIOR
THOMPSON, JUDGE: Maurice Miller appeals the judgment of conviction in the
Christian Circuit Court for first-degree burglary and second-degree unlawful
transaction with a minor. Concluding that the trial court’s error was harmless, we
On December 1, 2005, Miller, Crill Facen, and a juvenile drove to a
rural area in Christian County, Kentucky, and approached the residence of Thomas
and Marilyn Stewart. Two members of the group exited the vehicle and kicked in
the door. While the burglary was in progress, H. D. Malone was returning home
and observed a red car with its flashers activated. He approached the vehicle and
asked its driver if he needed help. The driver responded that the car could get him
where he needed to go.
After reaching his residence, Malone again observed the red car and
developed suspicion of illegal activity. Malone then went to check the residence of
his neighbors, the Stewarts, where he observed the red car parked in front of their
residence. Within five minutes of parking his vehicle, he observed three
individuals exit the residence with one of the men carrying a long brown or black
As the red car drove down the road, Malone blew his horn and
blocked the road. The red car swerved off the roadway into a ditch. After getting
out of the ditch, the car fled the area at which time Malone called police. After
being dispatched to the area, police located the red car and arrested the three
suspects traveling in the vehicle. Several items were found inside the car including
a New Haven Connecticut .20-gauge shotgun, a Winchester .22-caliber rifle, and a
box of .22-caliber shells. These items were later identified as items taken from the
On January 20, 2006, Miller was indicted for first-degree burglary and
second-degree unlawful transaction with a minor. Following a jury trial wherein
the three suspects gave incriminating testimony against each other, Miller was
found guilty of the charges and sentenced to fifteen-years’ imprisonment. This
Miller’s sole assignment of error is that the trial court erroneously
failed to provide the jury with the definition of a deadly weapon in its instructions.
Specifically, Miller contends that the jury was only required to find that Crill
and/or the juvenile were armed with a deadly weapon while inside or leaving the
Stewarts’ residence. However, Miller contends that the jury was not instructed
regarding the definition of a deadly weapon provided in KRS 500.080(4).
Thus, Miller contends that the jury may have found him guilty of
second or third-degree burglary instead of first-degree burglary had the jury found
that a deadly weapon was not used during the commission of the crime. The major
distinction between first-degree burglary and second or third-degree burglary,
under the facts of this case, is the use of a deadly weapon during the commission of
the crime. Therefore, Miller contends that his conviction for first-degree burglary
should be reversed. We disagree.
The trial court in a criminal case is required to give the jury
instructions on the whole of a case including an instruction applicable to every
element of the case put in issue by the evidence. Thomas v. Commonwealth, 170
S.W.3d 343, 348-349 (Ky. 2005). “A defendant has the right to have every issue
of fact raised by the evidence and material to the defense submitted to the jury on
proper instructions.” Id. at 349. Specifically, in Thacker v. Commonwealth, 194
S.W.3d 287 (Ky. 2006), our Supreme Court held that a jury must be instructed on
the legal definition of a deadly weapon when it is an element of a charged offense.
Id. at 289-291.
KRS 511.020(1)(a) provides that “[a] person is guilty of burglary in
the first degree when, with the intent to commit a crime, he knowingly enters or
remains unlawfully in a building, and when in effecting entry or while in the
building or in the immediate flight therefrom, he or another participant in the crime
[i]s armed with . . . a deadly weapon.” Therefore, because the presence of a deadly
weapon during the commission of the crime was a matter to be determined by the
jury, the trial court was required to provide the legal definition for a deadly weapon
provided in KRS 500.080(4).
Notwithstanding the insufficient instructions, an inadequate jury
instruction that omits an essential element of a criminal offense is subject to
harmless-error analysis. Wright v. Commonwealth, 239 S.W.3d 63, 68 (Ky. 2007).
An appellate court will not set aside a conviction “[a]s long as it is ‘clear beyond a
reasonable doubt that a rational jury would have found the defendant guilty’ an
actual jury finding on that element is not mandated and an appellate court can find
the error harmless.” Id., citing Neder v. United States, 527 U.S. 1, 18, 119 S.Ct.
1827, 1838, 144 L.Ed.2d 35 (1999).
KRS 500.080(4)(b) provides that a “[d]eadly weapon” means “[a]ny
weapon from which a shot, readily capable of producing death or other serious
physical injury, may be discharged.” After reviewing the entire record, it is clear
beyond a reasonable doubt that a rational jury would have found Miller guilty of
first-degree burglary. During the commission of the burglary, a shotgun and a rifle
were stolen along with a box of ammunition for the rifle. Under these facts, the
jury would have certainly found that a deadly weapon was used during the
commission of the burglary. Accordingly, the trial court’s failure to issue an
instruction defining a deadly weapon was harmless.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Julia K. Pearson
Assistant Public Advocate
Department of Public Advocacy
Attorney General of Kentucky
Jeffrey A. Cross
Assistant Attorney General