KISER (DANIEL) VS. COMMONWEALTH OF KENTUCKY REVERSING AND REMANDING VANMETER (PRESIDING JUDGE) MOORE (CONCURS) AND TAYLOR (CONCURS) COURT OF KENTUCKY 11/26/2008 AT 10:00Annotate this Case
RENDERED: NOVEMBER 26, 2008; 10:00 A.M.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE JAMES M. SHAKE, JUDGE
ACTION NOS. 05-CR-000596 & 06-CR-000936
COMMONWEALTH OF KENTUCKY
REVERSING AND REMANDING
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BEFORE: MOORE, TAYLOR, AND VANMETER, JUDGES.
VANMETER, JUDGE: Daniel Kiser appeals from the Jefferson Circuit Court’s
judgment sentencing him to a total of ten years’ imprisonment after he entered a
conditional guilty plea to third-degree burglary and theft by unlawful taking over
$300. Kiser argues that the evidence against him was insufficient to support the
burglary conviction since he did not enter a building. For the following reasons,
we reverse and remand.
The parties stipulated below that had this matter gone to trial, the
following evidence would have been presented:
A witness, Jamie Fey, would testify that he and
Daniel Kiser, on or about October 31, 2004, entered the
property of the Louisville Zoo by crawling under one
fence and cutting through another. Once past the
fencing, the defendants located vending machines on the
grounds, which were the property of the Coca-Cola
Company or the Zoo, but in any case did not belong to
the defendants. The defendants opened the machines and
removed cash in excess of $300.00 and then left the
Officer Brian Nunn would testify that the property
involved was in fact in Jefferson County, Kentucky, the
burglary charge was for illegally entering the Zoo
through the fences, and the theft was for taking over
$7,000.00 in cash from the vending machines.
A representative of the Zoo would testify that
neither man had permission to cross the fence, and a
representative of Coca-Cola would testify that neither
man had permission to open the vending machines or to
take cash from them.
Based upon this evidence, Kiser entered a conditional Alford1 plea to
third-degree burglary and theft by unlawful taking over $300, reserving the right to
challenge the burglary charge. This appeal followed.
North Carolina v. Alford, 394 U.S. 956, 89 S.Ct. 1306, 22 L.Ed.2d 558 (1969). Lawson
explains that such a plea is one “by an accused who refuses to acknowledge guilt but waives trial
and accepts all the consequences of a conviction.” Robert G. Lawson, The Kentucky Evidence
Law Handbook §2.55 (4th ed. 2003).
Pursuant to Kentucky Revised Statutes (KRS) 511.040(1), one is
guilty of third-degree burglary when, “with the intent to commit a crime, he
knowingly enters or remains unlawfully in a building.” KRS 511.010(1) defines
“building” as including:
in addition to its ordinary meaning . . . any structure,
vehicle, watercraft or aircraft:
Where any person lives; or
Where people assemble for purposes of business,
government, education, religion, entertainment or
Each unit of a building consisting of two (2) or more
units separately secured or occupied is a separate
Here, the Commonwealth concedes that the fenced, enclosed property
of the zoo Kiser entered does not qualify as a building either under the term’s
ordinary meaning or as a vehicle, watercraft, or aircraft. Thus, the sole question on
appeal is whether the zoo qualifies as a “structure” under this provision.2
In Spears v. Commonwealth, 78 S.W.3d 755, 760 (Ky.App. 2002),
this court held that a truck trailer and a shed, both used as storage facilities behind
a convenience store, were “structures” as described in the definition of “building”
at KRS 511.010(1). In doing so, we noted that a “structure” may be defined as
including “something made up of a number of parts held or put together in a
specific way.” Id. (citing Webster’s II New Riverside University Dictionary
(1988)). We do not find this definition useful in the situation before us, however,
Kiser concedes that people assemble at a zoo for educational and entertainment purposes.
since it is so broad as to encompass countless objects which could not be
burglarized. Instead, common sense dictates that the zoo, as a fenced-in area of
land, does not constitute a “structure” for purposes of the burglary statute. See
Spears, 78 S.W.3d at 760 (“common sense dictates that a trailer or shed that is
being used by a business as a storage facility in lieu of a storage building meets the
definition of building under the statute.”).
Other portions of KRS Chapter 511, pertaining to burglary and related
offenses, support the conclusion that the zoo does not qualify as a “structure” or a
“building.” For example, pursuant to KRS 511.070(1), one is guilty of seconddegree criminal trespass when he “knowingly enters or remains unlawfully in a
building or upon premises as to which notice against trespass is given by fencing
or other enclosure.” One is guilty of third-degree criminal trespass when he
“knowingly enters or remains unlawfully in or upon premises.” KRS 511.080(1).
“Premises” in turn is defined at KRS 511.010(3) as including “the term ‘building’
as defined herein and any real property.”
Thus, it is clear that all “buildings” are “premises” under KRS
511.010(3), but not all “premises” are “buildings.” The zoo, as a fenced-in area of
land, provides a perfect example of a premises that is not a building. More
specifically, it is a premises “as to which notice against trespass is given by
fencing[.]” KRS 511.070(1). The legislature expressed no intention for these
types of premises to be included as buildings, and a different conclusion is not
compelled by the Commonwealth’s citation of cases from other jurisdictions.
The Jefferson Circuit Court’s judgment is reversed insofar as Kiser
was convicted and sentenced for third-degree burglary, and this matter is remanded
for the dismissal of that charge.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Angela M. Rea
Attorney General of Kentucky
Michael L. Harned
Assistant Attorney General