RONNIE COLWELL V. COMMONWEALTH OF KENTUCKY AND DALE DASHIELLE V. COMMONWEALTH OF KENTUCKY
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RENDERED: DECEMBER 21,200O
TO BE PUBLISHED
1998-SC-1071
-MR
RONNIE COLWELL
APPEAL FROM LAUREL CIRCUIT COURT
HONORABLE RODERICK MESSER, JUDGE
98-CR-0140-001
V.
APPELLEE
COMMONWEALTH OF KENTUCKY
1999-SC-0095-TG
AND
APPELLANT
DALE DASHIELLE
V.
APPEAL FROM LAUREL CIRCUIT COURT
HONORABLE RODERICK MESSER, JUDGE
98-CR-0140-002
APPELLEE
COMMONWEALTH OF KENTUCKY
OPINION OF THE COURT BY JUSTICE COOPER
AFFIRMING
Following a trial by jury, appellants Colwell and Dashielle were each convicted of
burglary in the second degree and theft by unlawful taking of property valued at more
than $300. Additionally, Colwell was convicted of being a persistent felony offender
(PFO) in the second degree. Colwell received an enhanced sentence of fifteen years
on the burglary conviction and a sentence of five years on the theft conviction. The
sentences were ordered to run consecutively for a total of twenty years. He appeals to
this Court as a matter of right. Ky. Const. § 110(2)(b). Dashielle was sentenced to five
years for burglary and one year for theft to run consecutively for a total of six years.
He
appealed to the Court of Appeals. We granted transfer so that both appeals arising out
of this joint trial could be consolidated for appellate review. CR 74.02(2).
I. FACTS.
On the night of June 30, 1998, Laurel County Deputy Sheriff James Reed
received a 911 call from a concerned neighbor advising that a burglary was in progress
at the residence of Jake Anderson. Reed and another officer arrived at the Anderson
residence ten minutes later. Reed heard someone running through the weeds behind
the house and, upon investigation, found Colwell and Dashielle huddled together under
a tree approximately thirty yards down a hill behind the Anderson home. A pat-down
search of Colwell revealed several items believed to have been stolen from Anderson’s
residence.
A search of the residence revealed it to have been ransacked. A gray Dodge
pickup truck found parked in Anderson’s driveway was filled with items later identified as
having been removed from the residence. The value of the goods removed from the
home was in excess of $6,200.00.
Upon being advised that he would be taken into
custody, Colwell asked Deputy Reed to retrieve his driver’s license and cigarettes from
the pickup truck. The driver’s license was found in the glove compartment; the
cigarettes were on the passenger side of the dashboard.
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At trial, each defendant claimed to have been an innocent bystander to a
burglary committed by the other. Colwell claimed the truck belonged to Dashielle who
had offered to give him a ride home. Dashielle stopped at Anderson’s residence,
claiming that Anderson owed him some money and had promised to leave it under the
doormat. Instead, Dashielle entered the residence. Because he was on parole for
another burglary, Colwell got out of the pickup truck and ran into the woods and over a
hill behind the victim’s house. Shortly thereafter, Dashielle, pursued by the police, came
running over the hill and collided at full speed with Colwell. Colwell denied entering the
Anderson residence.
Dashielle claimed that he had been a passenger in the truck which belonged to
Colwell.’ He testified that they were on their way to Colwell’s residence when Colwell
pulled into Anderson’s driveway and proposed that they burglarize Anderson’s
residence. Dashielle declined and was attempting to leave the scene when he fell down
drunk in the woods. Shortly thereafter, Colwell, chased by the police, came running
toward him and both were arrested. Dashielle, too, denied entering the Anderson
residence.
II. DENIAL OF CONTINUANCE.
Colwell’s only claim of error on appeal is the trial court’s denial of his motion for a
continuance. When the case was called for trial, Colwell’s counsel made the following
motion:
’ The pickup truck, which bore Indiana license plates, was later determined to
have been stolen from Florida. Colwell was a resident of Laurel County, Kentucky.
Dashielle, who had lived only briefly in Laurel County, had formerly resided in both
Indiana and Florida.
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Judge, I have a motion to continue through this jury pool. This is a
new jury pool. However, it turns out that Jake Anderson, the complaining
witness, is Juror No. 1 of that pool.
The judge responded:
That’s correct. He was not brought into the courtroom, so he has
had no contact with the other jurors. Mr. Beckner [the prosecutor] made
me aware of this on Friday and I advised Mr. Beckner to have him just
come to his office, and I told him that I would excuse him from the jury
pool, which I did.
In other words, although Anderson was scheduled to serve on the jury pool
assigned to this case, the trial judge had previously excused him from jury duty so that
he was not in the courtroom mingling with the other jurors prior to trial. Furthermore,
since this was the first case for that jury pool, Anderson had not had any prior contact
with the other jurors. Colwell’s reliance on Hellard v. Commonwealth, Ky. App., 829
S.W.2d 427 (1992), overruled on other arounds, Commonwealth v. Burge, Ky., 947
S.W.2d 805 (1997) is misplaced. In that case, the witness actually had served as a
juror on other cases with other members of the same jury pool.
This case clearly involves a “close relationship” of the situational type. As
a member of the jury pool, the video store owner had numerous
opportunities to meet the other members of the pool. Indeed, the record
reveals that the owner had previously sat with at least four of the potential
jurors in Hellard’s case and had agreed with them on a verdict in that
case. We feel that the possibility of a jury according the testimony of a
witness greater weight than it otherwise would have received is just too
great when the witness is a member of the same jury pool.
Id. at 429-30.
Here, the judge had made prior arrangements to insure that there would be no
interaction between Anderson and other members of the jury pool. Under the facts of
this case, there was no possibility that Anderson’s assignment to the jury pool could
have tainted the other jurors or otherwise prejudiced Colwell’s entitlement to a fair trial.
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III. DENIAL OF SEPARATE TRIALS.
Dashielle’s first claim of error is that the trial court should have granted his
pretrial motion for a severance. At trial, he premised his motion on grounds that he and
Colwell had antagonistic defenses in that each intended to cast the blame on the other.
Of course, that fact is more supportive of joinder than severance.
[Nleither antagonistic defenses nor the fact that the evidence for or
against one defendant incriminates the other amounts, by itself, to unfair
prejudice. . . . That different defendants alleged to have been involved in
the same transaction have conflicting versions of what took place, or the
extent to which they participated in it, vel non, is a reason for rather than
against a joint trial. If one is lying, it is easier for the truth to be determined
if all are required to be tried together.
Burdell v. Commonwealth, Ky., 990 S.W.2d 628, 633 (1999) (quoting Ware v.
Commonwealth, Ky., 537 S.W.2d 174, 177 (1976)).
On appeal, Dashielle claims it was presumptively prejudicial to try him jointly with
Colwell, who was also charged as a persistent felony offender. He relies on Hardin v.
Commonwealth, Ky., 437 S.W.2d 931, 933 (1968) and Jones v. Commonwealth, Ky.,
457 S.W.2d 627, 629 (1970) cert. denied, 401 U.S. 946 (1971) both of which were
tried under the old habitual criminal statute. KRS 431 .I90 (repealed 1974 Ky. Acts, ch.
406, § 336). During that regime, there was no separate sentencing phase of a criminal
trial and trial courts would read the habitual criminal indictment to the jury along with the
indictments for the underlying offenses; and proof of the prior convictions was offered
along with the evidence proving the underlying offenses.
Under the present persistent felony offender statute, KRS 532.080(l), proof of
the prior offense is reserved until a separate penalty phase of the trial that does not take
place until after the defendants guilt of the underlying offense has already been
determined. Here, the trial judge not only bifurcated the guilt phase from the penalty
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phase, but also bifurcated Colwell’s penalty phase from that of Dashielle. Thus, the jury
was not informed of Colwell’s PFO indictment until after the conclusion of Dashielle’s
penalty phase. In other words, all proceedings relating to Dashielle were completed
before the jury was informed of Colwell’s PFO indictment. Under present procedures,
there is no reason to apply the “presumptive prejudice” rule of Hardin and Jones just
because one codefendant is indicted as a PFO and the other is not. Thus, there was no
error in the trial judge’s denial of Dashielle’s motion to sever his trial from that of Colwell.
IV. EVIDENCE OF OTHER BAD ACTS.
Dashielle asserts reversible error in the trial court’s denial of his motion to
suppress evidence that the gray pickup truck found in Anderson’s driveway had been
reported stolen. He claims the evidence was irrelevant other than to infer that he was a
thief. We disagree. KRE 404(b) provides as follows:
Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts
is not admissible to prove the character of a person in order to show
action in conformity therewith. It m, however, be admissible:
(1) If offered for some other purpose, such as proof of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of
mistake or accident . . . . (Emphasis added.)
While the rule describes some examples of “other purposes,” “it states the ‘other
purpose’ provision in a way that leaves no doubt that the specifically listed purposes are
illustrative rather than exhaustive.” Tamme v. Commonwealth, Ky., 973 S.W.2d 13, 29
(1998), cert. denied, 525 U.S. 1153 (1999) (quoting R. Lawson, The Kentucky Evidence
Law Handbook § 2.25 at 87 (3d ed. Michie 1993). Here, the “other purpose” for proving
that the vehicle had been stolen in Florida was to connect the vehicle to Dashielle, who
had formerly resided in Florida. The evidence was relevant to prove which defendant
was responsible for the truck containing the stolen property, as well as to rebut
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Dashielle’s assertion that the truck was not his. Brown v. Commonwealth, Ky., 983
S.W.2d 513, 516 (1999).
V. FAILURE TO INSTRUCT ON LESSER INCLUDED OFFENSE.
Dashielle asserts error in the trial judge’s refusal to instruct the jury on the
offense of criminal trespass in the third degree as a lesser included offense of burglary
in the first degree. His theory is that a jury could believe that he did not enter
Anderson’s residence, but trespassed on Anderson’s property while attempting to flee
the scene of the burglary.
KRS Chapter 511 describes three degrees of burglary and three degrees of
criminal trespass, all of which proscribe intrusions by the defendant on the property of
the victim. All contain one multi-faceted common element, a: that the defendant
“knowingly enter[ed] or remain[ed] unlawfully” in or upon the victim’s property. The
three degrees of burglary contain an additional common element that the defendant did
so “with the intent to commit a crime,” the element which distinguishes the felony of
burglary from the misdemeanor of criminal trespass.
An additional (third) element which distinguishes third-degree burglary, a Class D
felony, from second-degree burglary, a Class C felony, is the nature of the property in or
upon which the offense occurred. If the property is a “building,” the offense is thirddegree burglary, KRS 511.040(l); if it is a “dwelling,” the offense is second-degree
burglary, KRS 511.030(l). The definitions of “building” and “dwelling” are similar, but
not identical. A “building” is defined, inter alia, as “any structure . . . [wlhere any person
lives,” KRS 511.010(1)(a); whereas, a “dwelling” is defined as “a building which is
usually occupied by a person lodging therein.” KRS 511.010(2). Thus, every dwelling
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is a building, but every building is not a dwelling. Since the burglary of a building is a
Class D felony, KRS 511.040(2), and the burglary of a dwelling is a Class C felony, KRS
511.030(2), the legislature obviously considered the distinction to be significant and the
burglary of a dwelling to be more grievous than the burglary of a mere building.
First-degree burglary is committed when the burglary of a building is
accompanied by an additional (fourth) aggravating element, viz: that in effecting entry
or while in the building or in the immediate flight therefrom, the defendant or another
participant in the crime (a) was armed with explosives or a deadly weapon, or (b)
caused physical injury to any person who was not a participant in the crime, or (c) used
or threatened the use of a dangerous instrument against any person who was not a
participant in the crime. KRS 511.020(l). Thus, first-degree burglary is an aggravated
burglary of any building, including, but not limited to, a dwelling. Absent proof of the
aggravating element, the offense is reduced from first-degree burglary to either seconddegree burglary, if the building is a dwelling, a third-degree burglary, if the building is
not a dwelling.
Criminal trespass occurs when a defendant “enters or remains unlawfully” on the
victim’s property, but without the intent to commit a crime. Like the two lesser degrees
of burglary, the degree of criminal trespass depends on the nature of the property in or
upon which the trespass occurred. If the property was a dwelling, the offense is frrstdegree criminal trespass. KRS 511.060(l). If the property was EITHER a building OR
“premises as to which notice against trespass is given by fencing or other enclosure,”
the offense is second-degree criminal trespass. KRS 511.070(l) (emphasis added). If
the property was only a premises, the offense is third-degree criminal trespass. KRS
511.080. While a “premises” can be either a “building” or “any real property,” KRS
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511 .Ol O(3), that term is obviously used in the context of second- and third-degree
criminal trespass to refer only to land, not a building. Otherwise, KRS 511.070 would be
redundant, i.e., “either a building or a building,” and KRS 511.080 would criminalize the
same conduct, i.e., trespass of a building, which is already criminalized in KRS 511.070.
The dual definition of “premises” in KRS 511 .Ol O(3) applies only when that term is used
in the context of KRS 511.090, which describes privileges and licenses to enter or
remain upon the premises of another.
This conclusion is supported by the official commentary to the trespass statutes,
which provides that since trespass of a building is included within the coverage of the
higher degrees of criminal trespass, the “exclusive coverage [of third-degree criminal
trespass] is only for unlawful intrusions onto land.” KRS 511.060 (1974 Commentary).
Dashielle was not charged with unlawfully entering upon Anderson’s unimproved
land; and had he been, such would not have been a lesser included offense of the
burglary of Anderson’s dwelling. As applied to these facts, a lesser included offense is
one which “is established by proof of the same or less than all the facts required to
establish the commission of the offense charged.” KRS 505.020(2)(a). Stated
otherwise, if the lesser offense requires proof of a fact not required to prove the greater
offense, then the lesser offense is not included in the greater offense, but is simply a
separate, uncharged offense. Commonwealth v. Day, Ky., 983 S.W.2d 505, 509
(1999). To prove guilt of criminal trespass in the third degree, the Commonwealth is
required to prove that the defendant entered upon the victim’s unimproved land. Proof
of that fact is not necessary to convict of any degree of burglary; thus criminal trespass
in the third degree is not a lesser included offense of burglary.
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Finally, all three degrees of criminal trespass are premised upon a jury’s finding
that the defendant did not enter or remain in or upon the victim’s property “with the
intent to commit a crime.” Here, the jury also found Dashielle guilty of felony theft under
an instruction which required the jury to believe beyond a reasonable doubt that he took
a computer, television, stereos and jewelry belonging to Anderson with the intent to
deprive Anderson of that property. Thus, the jury could not possibly have believed that
Dashielle entered or remained on the victim’s property without “the intent to commit a
c r i m e . ” Under these facts, even if criminal trespass in the third degree were a lesser
included offense of burglary, the failure to instruct on that offense would have been
harmless beyond a reasonable doubt.
Accordingly, the judgments of conviction and sentences imposed by the Laurel
Circuit Court are affirmed.
Lambert, C.J.; Graves and Wintersheimer, JJ., concur.
Keller, J., concurs in part and dissents in part by separate opinion in which
Johnstone and Stumbo, JJ., join.
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COUNSEL FOR APPELLANT RONNIE COLWELL (1998-SC-1071-MR):
Bruce W. Lominac
Suite B-l
104 Falls Street
London, KY 40741
COUNSEL FOR APPELLEE COMMONWEALTH OF KENTUCKY (1998-SC-1071-MR):
A. B. Chandler, III
Attorney General
State Capitol
Frankfort, KY 40601
J. Hamilton Thompson
Assistant Attorney General
1024 Capital Center Drive
Frankfort, KY 40601-8204
COUNSEL FOR APPELLANT DALE DASHIELLE (1999-SC-0095-TG):
Suzanne Hopf
Department of Public Advocacy
Suite 302
100 Fair Oaks Lane
Frankfort, KY 40601
COUNSEL FOR APPELLEE COMMONWEALTH OF KENTUCKY (1999-SC-0095TG):
A. B. Chandler, III
Attorney General
State Capitol
Frankfort, KY 40601
J. Hamilton Thompson
Assistant Attorney General
1024 Capital Center Drive
Frankfort, KY 40601-8204
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I
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RENDERED: DECEMBER 21,200O
TO BE PUBLISHED
1998-SC-1071
-MR
RONNIE R. COLWELL
APPELLANT
APPEAL FROM LAUREL CIRCUIT COURT
HONORABLE RODERICK MESSER, JUDGE
98-CR-0140-001
V.
COMMONWEALTH OF KENTUCKY
APPELLEE
AND
1999-SC-0095TG
DALE DASHIELLE
V.
APPELLANT
APPEAL FROM LAUREL CIRCUIT COURT
HONORABLE RODERICK MESSER, JUDGE
98-CR-0140-002
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION BY JUSTICE KELLER
CONCURRING IN PART AND DISSENTING IN PART
I write separately because I believe the trial court committed reversible error
when it refused Dashielle’s request to instruct the jury as to criminal trespass in the
third degree as a lesser included offense to the indicted charge of burglary in the first
degree. I would reverse Dashielle’s conviction for burglary in the second degree and
remand that portion of Laurel Circuit Court Indictment 98-CR-0140-002 to the trial court
for a new trial. Section IV of the majority opinion, which addresses this issue, rests
upon the untenable premise that the use of the word “premises” in KRS 511.080, which
defines the crime of criminal trespass in the third degree, does not refer to the definition
of “premises” contained in this Chapter at KRS 511 .Ol O(3),’ but rather refers “only to
land, not a building.‘12
The majority opinion properly identifies that, in order to address this allegation of
error, we must apply KRS 505.020(2) to determine whether “the lesser offense involves
fewer of the same constituent elements than the charged greater offense so that the
proof necessary to establish the greater offense will of necessity establish every
element of the lesser offense.‘13 Such an inquiry requires focus on the statutory
language because “the critical question is whether ‘each statute requires proof of an
additional fact which the other does not’ and not whether the evidence actually
introduced at trial could be relied on to prove the elements of both offenses.‘14
The Kentucky Penal Code defines the elements of burglary in the first degree at
KRS 511.020:
A person is guilty of burglary in the first degree when, with
the intent to commit a crime, he knowingly enters or remains
‘KRS 511 .Ol O(3) (“‘Premises’ includes the term ‘building’ as defined herein and
any real property.” Id.).
2See Majority Opinion at 9.
3Cheser v. Commonwealth, Ky.App., 904 S.W.2d 939 (1995) (citing Hart
Commonwealth, Ky.App., 768 S.W.2d 552, 553 (1989).
41d.
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unlawfullv in a building, and when in effecting entry or while
in the building or the immediate flight therefrom, he or
another participant in the crime:
(a) Is armed with explosives or a deadly weapon; or
(b) Causes physical injury to any person who is not a
participant in the crime; or
(c) Uses or threatens the use of a dangerous instrument
against any person who is not a participant in the crime.5
KRS 511.080 defines the elements of criminal trespass in the third degree:
A person is guilty of criminal trespass in the third degree
when he knowingly enters or remains unlawfullv in or upon
premises.’
The majority opinion correctly identifies that this inquiry must focus on the words
“premises” and “building” to determine whether proof of the “enters or remains
unlawfully in a building” element of burglary in the first degree necessarily establishes
that an individual “enters or remains unlawfully in or upon premises.” Where I depart
from the majority opinion is in the significance I attach to the KRS Chapter 511
definitions of “building” and “premises”:
(1) “Building”, in addition to its ordinary meaning, means any
structure, vehicle, watercraft or aircraft:
(a) Where any person lives; or
(b) Where people assemble for purposes of
business, government, education, religion,
entertainment or public transportation.
Each unit of a building consisting of two (2) or
more units separately secured or occupied is a
separate building.
(;) “Premises” includes the term “building” as defined herein
and any real property.’
‘KRS 511.020.
6KRS 511.080.
‘KRS 511 .OlO.
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As any “building” falls within the definition of “premises,” we find guidance’ in how
overlapping definitions effect the lesser included offense analysis from the Official
Commentary to KRS 505020(2)(a):
The first situation is contained in subsection (a). It serves
to “include” within one offense any other offense (felony,
misdemeanor, or violation) which may be established by the
same, or less than all, facts required for proof of the first. (It
should be obvious that in this context “fact” means ultimate
fact.) In other words, “if the proof necessary to establish the
greater offense will of necessity establish every element of
the lesser offense,” the latter is an included offense. The
law of criminal trespass. as contained in KRS Ch 511
provides a aood illustration of this subdivision: an unlawful
entrv into a dwellina house constitutes criminal trespass in
the first dearee (KRS 511.060): an unlawful enttv into a
buildina constitutes criminal tresoass in the second dearee
(KRS 511.070). Since the same proof that establishes the
first offense will also establish the second, the latter is an
included offense. This means fthatl. as a conseauence of
subsection (2)(a). an individual charaed with first dearee
tresoass can be convicted of second dearee trespass. . . .’
The commentary to KRS 505.020 thus conclusively establishes that “definitional
overlap” between elements of crimes may qualify a crime as a lesser included offense.
‘See KRS 500.100 (“The commentary accompanying this code may be used as
an aid in construing the provisions of this code.” I&.); Cooper v. Commonwealth, KY.,
550 S. W.2d 478 (1977).
91974 Kentucky Crime Commission/LRC Commentary to KRS 505.020
(emphasis added). Thus, as a matter of law, criminal trespass in the second degree,
KRS 511.070, is a lesser included offense of criminal trespass in the first degree, KRS
511.060, because the definition of “building” encompasses the definition of “dwelling.”
This does not mean, of course, that a trial court should always instruct a jury regarding
criminal trespass in the second degree as a lesser included offense to criminal
trespass in the first degree. To the contrary, a trial court should only do so when the
evidence submitted at trial would raise a question about the nature of the structure
allegedly unlawfully entered by the defendant. See, Ed., Parker v. Commonwealth, Ky.,
Commonwealth, Ky., 904 S. W.2d 226 (1995);
952 S. W.2d 209,211 (1997); Webb v.
Bills v. Commonwealth, Ky., 851 S.W.2d466, 469 (1993); Billinas v. Commonwealth,
KY., 843 S.W.2d 890 (1992).
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The majority opinion’s erroneous conclusion stems directly from its difficulties in
processing the possibility that the same conduct, e.g., unlawful entry into a building,
could constitute either criminal trespass in the second degree or criminal trespass in
the third degree:
While a “premises” can be either a “building” or “any real
property,” KRS 511.0103), that term is obviously used in the
context of second- and third-degree criminal trespass to
refer only to land, not a building. Otherwise, KRS 511.070
would be redundant, i.e., “either a building or a building,”
and KRS 511.080 would criminalize the same conduct, i.e.,
trespass of a building, which is already criminalized in KRS
511.070. The dual definition of “premises” in KRS
511 .Ol O(3) applies only when that term is used in the
context of KRS 511.090, which describes privileges and
licenses to enter or remain upon the premises of another.”
I am baffled by the fact that the majority views this overlap between “premises”
and “buildings” as an unpassable hurdle. The entire concept of lesser included
offenses is premised on the idea that a given action or conduct can constitute multiple
crimes.”
In fact, elsewhere in the opinion, the majority passively accepts the fact that
“every dwelling is a building”” although such definitional overlap necessarily leads to
the conclusion that a person who enters a dwelling unlawfully with the intent to commit
a crime inside has committed both burglary in the second degree and burglary in the
third degree. Even the Official Commentary to KRS 505.020 states that, were it not for
“Majority Opinion at 9.
“See. e.a., KRS 505.020(l) (“When a single course of conduct may establish
the commission of more than one (1) offense, he may be prosecuted for each such
offense.” Id.).
12@e, Majority Opinion at 8. See also Baker v. Commonwealth, Ky.App., 677
S.W.2d 316 (1984) (“[A] building can include a dwelling under KRS 511.010(1)(a).” Id.).
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a double jeopardy bar codified at 505020(1)(a), every person who committed burglary
in the second degree could also be convicted of criminal trespass in the first degree:
The first of the exceptions prohibits multiple convictions for
offenses arising out of one course of conduct if one of them
constitutes an “included offense.” . . . To illustrate by use of
a hypothetical situation: suppose that D . . . unlawfully
enters a dwelling house with intent to steal. He is
apprehended while in the house. With this conduct, D has
committed the offense of burglary in the [second] degree.
See KRS 511.020. He has also committed the offense of
criminal trespass in the first dearee. which is committed with
all of the elements of buralarv exceot for the reauirement of
“intent to commit a felonv therein.” See 511.060.
Subsection (l)(a) would prohibit a conviction of D for both of
these offenses.13
Certainly, as a factual matter, a given building either is or is not a “dwelling,” and a
defendant who unlawfully enters a dwelling either does or does not intend to commit a
crime therein. In such cases, therefore, trial courts should only actually instruct on the
lesser included offense when the evidence submitted at trial presents an issue with
respect to either the nature of the structure or the purpose for which the defendant
unlawfully entered the structure. Nonetheless, as a matter of law, the definitions of
“building” and “dwelling” overlap just as surely as do the definitions of “building” and
“premises,” and, in both cases, the inclusive definitions create the possibility of lesserincluded offenses.
Any concerns regarding this overlap should be assuaged by the Official
Commentary to KRS 511.060, which indicates that the overlap was an intentional
decision on the part of the drafters of the Kentucky Penal Code. The majority quotes
131 974 Kentucky Crime Commission/LRC Commentary to KRS 505.020
(emphasis added).
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this Commentary selectively and without regard to its context in an attempt to portray
criminal trespass in the third degree as a crime which can only be committed by
intrusions onto unimproved land.14 The full text of the Commentary to KRS 511.060,
however, flatly contradicts the majority’s reading and demonstrates that, “premises” as
used in KRS 511.080 includes the definitions of “dwelling” and “building” as used in the
higher degree criminal trespass offenses, and therefore criminalizes the same conduct
criminalized by the higher degree criminal trespass offenses. Criminal trespass in the
third degree is broader than the higher degree criminal trespass offenses, however,
because it & criminalizes intrusions onto land:
The offense that is created by KRS 511.080, criminal
trespass in the third degree, has the very same elements as
the two higher degrees of trespass except for the area into
which unlawful intrusion is proscribed. The orotected area
is described as “oremises.” which is defined in KRS 511 .OlO
to include “dwellinas.” “other buildinas.” and “any real
prooertv.” Defined in this way. it should be apparent that the
lowest dearee of tresoass is included in each of the two
hiaher degrees. Its exclusive coveraae is only for unlawful
intrusions onto land.”
In other words, since all “dwellings”‘6 are also “buildings” and all “buildings” are
included within “premises,” all “dwellings” are also “premises,” and a defendant who
unlawfully enters any of the above may be found guilty of criminal trespass in the third
14See Majority Opinion at 9 (“This conclusion is supported by the official
commentary to the trespass statutes, which provides that since trespass of a building is
included within the coverage of the higher degrees of criminal trespass, the “exclusive
coverage [of third degree criminal trespass] is only for unlawful intrusions onto land.”
Id.).
151 974 Kentucky Crime CommissionlLRC Commentary to KRS 511.060
(emphasis added).
16% KRS 511.010(2) (“‘Dwelling’ means a building which is usually occupied by
a person lodging therein.” IcJ.).
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degree. A defendant who unlawfully intrudes upon unimproved land belonging to
another which is neither fenced nor otherwise enclosed without entering a dwelling or
other building, however, can only be guilty of criminal trespass in the third degree.
Without a single citation and notwithstanding the fact that KRS 511 .OlO begins,
“The following definitions apply in this chapter unless the context otherwise requires,“”
the majority holds that the definition of “premises” contained at KRS 511.010(3) does
not apply to the use of the word “premises” in KRS 511.050,18 KRS 511.070, or KRS
511.080, and instead onJ applies to the use of “premises” in KRS 511.090. It is a
tenuous argument indeed which rests on the assumption that the drafters of the
Kentucky Penal Code included, presumably for the sake of simplicity, a separate
definition of “premises” which applies only one-fourth of the times the word is later used
in the chapter.
AS KRS 505.020(2)(a) defines a lesser included offense as a crime “established
by proof of the same or less than all the facts required to establish the commission of
the offense charged”” our inquiry of whether criminal trespass in the third degree can,
as a matter of law, ever be a lesser included offense of burglary in the first degree turns
on whether “enters or remains unlawfully in a building” as used in the statute
criminalizing burglary in the first degree establishes all of the ultimate facts necessary
to make a prima facie case for criminal trespass in the third degree. In light of KRS
“KRS 511 .OlO.
‘*“A person is guilty of possession of burglar’s tools when he possesses any tool,
instrument or other thing adapted, designed or commonly used for committing or
facilitating the commission of an offense involving forcible entry into premises or theft
by a physical taking . . . .‘I KRS 511.050( 1) (emphasis added).
19KRS 505.020(2)(a).
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511 .Ol O(3)‘s “building-inclusive” definition of “premises,” and the Official Commentary
which specifically references the overlap, the only conclusion I find possible is that, as
a matter of law and logic, criminal trespass in the third degree may be a lesser included
offense to burglary in the first degree.
The alternative conclusion reached by the majority opinion, that criminal
trespass in the third degree is merely a “separate, uncharged” offense, requires us to
embrace two inferences which I simply cannot accept: (1) The definition of “premises”
found in KRS 511 .Ol O(3) is essentially meaningless; and (2) The drafters of the
Kentucky Penal Code intended that virtually any defendant who commits a residential
burglary is guilty of the additional offense of criminal trespass in the third degree for the
period of time he or she walked through the yard before entering the home. The
majority’s conclusion simply allows for no double jeopardy bar which would prevent
both a burglary conviction and a criminal trespass in the third degree conviction for the
same conduct. Such a conclusion defies simple logic.
Dashielle argues that his testimony which denied that he entered the Andersons’
home created reasonable doubt with respect to the charge of burglary in the first
degree, but that the jury could have found him guilty of criminal trespass in the third
degree because of his unauthorized entry onto the Andersons’ premises. Although we
have addressed issues in the past concerning whether trial testimony created a basis
for the trial court to instruct on criminal trespass in the first degree as a lesser included
offense to a burglary charge,*’ each of those cases focused on the evidence
2oSee. e.g, Martin v. Commonwealth, Ky., 571 S.W.2d 613, 614-5 (1978)
(Convictions reversed for trial court’s failure to instruct on First Degree Criminal
(continued.. .)
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concerning the purpose for the intrusion, i.e., whether the defendant intended to
commit a crime, but did not present issues concerning the nature of the area into or
upon which the defendant unlawfully entered. Nonetheless, these holdings guide our
examination of the evidence before the trial court, and, despite a great deal of
inculpatory evidence presented by the Commonwealth, I believe that Dashielle’s
testimony created a factual issue appropriate for jury resolution regarding whether
Dashielle entered the Anderson home or merely trespassed on the surrounding
property. As was the case in McClellan v. Commonwealth,*’ however, “[ulnfortunately,
there was no instruction to the jury which would permit it to find that”** Dashielle’s
unlawful entry onto the Anderson’s property was limited to a trespass upon their land.
*“(. . continued)
Trespass where the defendants “admitted that they had entered [the victim’s] home
without her permission. However, they both denied they had committed a crime in the
dwelling or had intended to do so. There was also an attempt to prove that both were
too drunk at the time of the entry to form any culpable intent.” u at 614); Polk v.
Commonwealth, Ky., 574 S.W.2d 335, 338-9 (1978) (Trial court did not err in denying
First Degree Criminal Trespass instruction because “the appellant never admitted
being in the house. The house was thoroughly ransacked, and the appellant was
identified as the one running from the house as soon as the officer arrived.” Id. at
339.); Commonwealth v. Sanders, KY., 685 S.W.2d 557, 558-9 (1985) (Conviction
affirmed despite failure to instruct on lesser included offense of First Degree Criminal
Trespass: “[T]he trial court must instruct the jury according to the evidence. Here,
Sander’s defense was alibi. We do not have testimony or circumstances that the jury
could infer that there was presence in the house with no intent to commit a crime.” Id.
at 559.); McClellan v. Commonwealth, Ky., 715 S.W.2d 464, 466 (1986) cert. denied
107 S.Ct. 935, 479 U.S. 1057, 93 L.Ed.2d 986 (1987) (Reversing for trial court’s failure
to instruct on First Degree Criminal Trespass where the defendant testified “that his
sole purpose in entering the room was to talk to his wife and to attempt to persuade her
to return home with him. He repeatedly testified that he had no thought of harming his
wife or the victim or of committing any crime whatsoever when he entered the room.”
Id.).
“Suora note 20 at 467.
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Accordingly, I believe the trial court’s failure to instruct on the lesser included offense of
criminal trespass in the third degree was error.
Although the majority opinion asserts that the jury’s verdict with respect to the
theft by unlawful taking charge in the indictment renders harmless any error with
respect to the burglary charge, I cannot agree. While the Commonwealth frequently
engages in a harmless error analysis, in this case, the Commonwealth’s brief does not
mention the words “harmless error” with respect to this allegation of error. In my
opinion, the Commonwealth’s failure to do so was not an oversight. Appellate courts
can, at best, speculate about how a jury reached its verdict, and such speculation
borders on pure guesswork when, as was the case here, the jury never had the
opportunity to examine the defense raised by the defendant’s theory of the case
through the lens of proper jury instructions. This jury could have found liability on
Dashielle’s behalf for the charge of theft by unlawful taking without concluding that he
entered the Anderson residence.23
I concede the fact that there is a very real
possibility that a jury upon remand would return the same verdict, but I’m unwilling to
assume that result and deny Dashielle the opportunity to present his defense to the
jury. Taken to its logical conclusion, the “harmless error” conclusion reached by the
majority would eliminate the possibility of reversible error in any case where the trial
court improperly failed to instruct on a lesser included offense.
Accordingly, I would reverse Dashielle’s conviction for burglary in the second
degree and remand that count of his indictment to the trial court for a new trial.
23The jury could have concluded that, without himself entering the residence,
Dashielle “t[ook] or exercise[d] control over [the Andersons’] moveable property . . .
with intent to deprive [them] thereof.” See KRS 514.030.
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Johnstone and Stumbo, JJ., join this opinion, concurring in part and dissenting in
part.
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