BRIAN CURTIS COLLINS V. COMMONWEALTH OF KENTUCKY

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IMPORTANT NOTICE NOT TO BE PUBLIS HED OPINION THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED ." PURSUANT TO THE RULES OF CIVIL PROCEDURE PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE CITED OR USED AS BINDING PRECEDENT IN ANY OTHER CASE IN ANY COURT OF THIS STATE; HOWEVER, UNPUBLISHED KENTUCKY APPELLATE DECISIONS, RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED DECISION IN THE FILED DOCUMENT AND A COPY OF THE ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE DOCUMENT TO THE COURT AND ALL PARTIES TO THE ACTION. RENDERED : AUGUST 23, 2007 NOT TO BE PUBLISHED $Uyrtmr (~Vurf -of ' i 2006-SC-000418-MR BRIAN CURTIS COLLINS V 2 u 7 APPELLANT ON APPEAL FROM CLAY CIRCUIT COURT HONORABLE R. CLETUS MARICLE, JUDGE NO. 05-CR-00063-003 COMMONWEALTH OF KENTUCKY APPELLEE MEMORANDUM OPINION OF THE COURT AFFIRMING IN PART AND REVERSING IN PART Appellant, Brian C. Collins, was convicted of criminal attempt to commit murder, intimidating a witness, and kidnapping. He was sentenced to a total of 40 years, and appeals to this Court as a matter of right. On appeal, Appellant raises three issues : (1) that the trial court abused its discretion by not granting a directed verdict for the attempted murder and intimidating a witness charge; (2) that the trial court abused its discretion by not granting a directed verdict for the kidnapping charge; and (3) that the kidnapping exemption, KRS. 509.050, applies to Appellant . For the reasons set forth herein, this Court affirms both the criminal attempt to commit murder and intimidating a witness convictions, and reverses the kidnapping conviction . 1. FACTS On the morning of April 7, 2005, Natisha Saylor was found behind the Horse Creek Baptist Church storage building . She had been severely beaten and was near death. Though her wounds were not fatal, they were serious, consisting of four deep lacerations to her throat, six broken ribs, a collapsed lung, a long and deep slash across her forehead, and several facial fractures . On the evening of the attack, Saylor accepted a ride from Corky Price while walking home from a local convenience store. Saylor testified that Corky first took her home, and then they went riding around . Delmas Dale and Vernan Jarvis were in the car during the course of the evening, though there was conflicting testimony at trial as to whether they were already in the car when Saylor was picked up and as to when they were dropped off. While Saylor and the others drove around, they stopped to obtain cocaine. According to Saylor, she took Xanax, possibly some cocaine, and an unknown quantity of painkillers . Corky testified that while driving he noticed he was being followed by a black Monte Carlo. He pulled over, got out of his car, and spoke with the people in the black Monte Carlo, whom he identified as the Appellant, Grant Hatifield, and Eddie Joe Cobb. Hatfield and Cobb were the Appellant's co-defendants at trial. Corky gave conflicting testimony regarding the conversation with the persons in the black Monte Carlo . At one point during the trial he denied having been given $1000 to drop Saylor off at the church. After a short break, he testified that he was given $1000, stating that he did not remember his pre-break testimony . Saylor eventually found herself in the parking lot of the Horse Creek Baptist Church. Corky testified that he and Jarvis dropped Saylor off at her subdivision and never entered the church parking lot. This directly contradicted Corky's statement at his guilty plea that he dropped Saylor off at the church parking lot. Saylor testified that 2 Corky drove her to the church parking lot and, at first, she and Corky were the only ones there . After about five minutes, a dark car pulled in with the Appellant, Cobb, and a woman named Chris Bottner in it. Appellant and Cobb got out of the car, and another vehicle, a small white van pulled into the lot. Hatfield got out of the van. Roy Jarvis, who lived near the church, testified that he saw a dark car, a small pickup truck, and a small white van pull into the church parking lot that evening . Saylor testified that she was first attacked in the church parking lot by the Appellant, Hatfield, and Cobb soon after they arrived . She testified that they beat her with their fists and then dragged her between the buildings. She first saw the Appellant with a knife, which he -used to cut her. She testified that all three of her attackers cut her with the knife, and that she lost consciousness after her throat was slashed . Although Saylor identified the Appellant and co-defendants at trial, she gave several conflicting statements regarding the identity of her attackers prior to trial. While being transported to UK Hospital after the attack, Saylor named Travis Jarvis as her attacker. Jarvis, however, had been detained at the Clay County Detention Center during the time of the attack . Saylor next named Corky Price, along with Cobb, Hatfield, and Appellant, as her attackers . Saylor later told Detective John Yates that only "Bubba and Eddie Joe" were her attackers . Though Saylor did not mention who "Bubba" was, the Commonwealth's brief indicates that "Bubba" is Appellant's nickname. Saylor later told Detective Yates that Appellant, Cobb, and Hatfield were her attackers . Ultimately, Appellant, Cobb and Hatfield were charged with attacking Saylor. They were indicted for first-degree assault, criminal attempt to commit murder, intimidating a witness in a legal process, and kidnapping . The intimidating a witness charge came from the fact that Saylor was, at the time of the attack, a witness to a murder that was allegedly committed by the Appellant and co-defendants' uncle in 2004. At trial, Appellant and his co-defendants were found guilty of all charges, except first-degree assault, which the jury was instructed to treat as a lesser-included offense of attempted murder. They were then sentenced to serve 40 years in prison . 11. ANALYSIS Appellant raises multiple issues on appeal. The two issues involving the kidnapping conviction are addressed together. A. Intimidating a Witness and Attempted Murder Convictions Appellant argues that the trial court abused its discretion by not granting a directed verdict on both the intimidating a witness and criminal attempt to commit murder charges . The pertinent evidence connecting Appellant to the crime was the testimony of Saylor and Corky Price . Appellant claims that Saylor's testimony was inconsistent, and Price's testimony was not credible, and as a result of this, a directed verdict should have been granted . In ruling on a motion for a directed verdict, "the trial court must draw all fair and reasonable inferences from the evidence in favor of the Commonwealth ." Commonwealth v. Benham, 816 S .W .2d 186, 187 (Ky.1991) ; see also Brewer v. Commonwealth, 206 S.W.3d 313, 318 (Ky. 2006). "On appellate review, the test of a directed verdict is, if under the evidence as a whole, it would be clearly unreasonable for a jury to find guilt, only then is the defendant entitled to a directed verdict ." Benham, 816 4 S.W .2d at 187. In addition, if the evidence is sufficient to allow a reasonable juror to find guilt beyond a reasonable doubt, a directed verdict cannot be granted. Benham, 816 S.W.2d at 187; see also Rice v. Commonwealth , 199 S.W.3d 732, 735 (Ky. 2006). The evidence presented at trial was the testimony of the victim, Natisha Saylor. Saylor stated that all of the defendants, including Appellant, violently attacked her and left her for dead. The credibility and weight of Saylor's testimony is for the jury to determine. Benham , 816 S .W.2d 186 at 187. The jury found Saylor's testimony credible and this is evidenced by the guilty verdict rendered at trial. That testimony is sufficient to allow a jury determination on the attempted murder charge because it .i s not "clearly unreasonable for the jury to find guilt." Id . (emphasis added). The trial court did not abuse its discretion by denying the directed verdict. Appellant also argues that Saylor's testimony regarding the intimidating a witness charge was not sufficient to warrant a reasonable inference of guilt, and thus a directed verdict was appropriate . Saylor stated that she had witnessed a murder prior to her attack, and that one of the alleged murderers was the uncle of all of the defendants at trial, including Appellant. To determine the sufficiency of the evidence, Sawhill explains that the trial court must, "from the totality of the evidence . ..conclude that reasonable minds might fairly find guilt beyond a reasonable doubt . . . ." Commonwealth v. Sawhill, 660 S.W.2d 3 at 4 (quoting Hodges v. Commonwealth , 473 S.W.2d 811, 814 (Ky. 1971)) . If this is found, then "the evidence is sufficient to allow the case to go to the jury even though it is circumstantial ." Sawhill, 660 S .W .2d at 4; see also Brewer v. Commonwealth , 206 S.W.3d 313, 318 (Ky. 2006) . This analysis applies to both direct and circumstantial evidence . Brewer , 206 S.W.3d 313 at 318. Based on Saylor's testimony, it was not unreasonable for a jury to infer that Appellant believed Saylor to be a witness, and that the attack was an attempt to induce Saylor not to testify in violation of KRS 524.040 . Saylor's testimony was sufficient to allow a finding of guilt. Thus, the trial court did not abuse its discretion by denying a directed verdict as to the intimidating a witness charge . B. Kidnapping Conviction Appellant argues that he was entitled to a directed verdict as to the kidnapping charge because of the kidnapping exemption statute, KRS 509.050. The question here is whether the restraint on Saylor, which included dragging her body to another area of the church grounds, was a separate crime from the assault/attempted murder. "A person is guilty of kidnapping when he unlawfully restrains another person and when his intent is. . .to accomplish or to advance the commission of a felony ; or to inflict bodily injury or to terrorize the victim or another . . . ." KRS 509.040(1)(b)(c) . The kidnapping exemption, KRS 509.050, establishes that: A person may not be convicted of unlawful imprisonment in the first degree, unlawful imprisonment in the second degree, or kidnapping when his criminal purpose is the commission of an offense defined outside this chapter and his interference with the victim's liberty occurs immediately with and incidental to the commission of that offense, unless the interference exceeds that which is ordinarily incident to commission of the offense which is the objective of his criminal purpose. The exemption provided by this section is not applicable to a charge of kidnapping that arises from an interference with another's liberty that occurs incidental to the commission of a criminal escape. KRS 509.050. Three prongs must be met for the exemption statute to apply: "First, the underlying criminal purpose must be the commission of a crime defined outside of KRS 509. Second, the interference with the victim's liberty must have occurred immediately with or incidental to commission of the underlying intended crime . Third, the interference with the victim's liberty must not exceed that which is ordinarily incident to the commission of the underlying crime ." Wood v. Commonwealth, 178 S.W.3d 500, 515 (Ky. 2005). (internal citations omitted) . First, in order for the exemption to apply, Appellant must have purposefully committed an offense outside the statute . Here, Appellant was charged with and convicted of criminal attempt to commit murder, a violation of KRS 506 .010 and KRS 507 .020, which is outside of Chapter 509. Next, the interference with the victim's liberty must have occurred "immediately with and incidental to the commission of the offense," which in this case is attempted murder. KRS 509.050; see also Wood, 178 S.W.3d at 515 . The victim was first attacked near the parking lot of the church. During the attack, Saylor was dragged to another area of the church, where Appellant and his co-defendants cut her several times and left her for dead . There is no evidence that the attack was delayed at any point, other than to drag the victim. This satisfies the "immediately with" element of this statute . Additionally, the act of restraining the victim in this case was "incidental to" the attempted murder. One can infer that during the process of an attempted murder, the attackers must restrain the victim in order to commit the crime . Saylor was restricted of her liberty; however, limiting her freedom must accompany the attack in order to complete the crime . If Saylor was free to leave, it is fair to infer that she would have . 7 Because the attempted murder was immediate and incidental to the restraint of Saylor's liberty, the second prong is satisfied . The final prong is whether the restriction of Saylor's liberty exceeded that which is normally incident to the underlying crime of attempted murder. The requirement in the statute that the commission of the crime be "immediate with and incidental to" another offense, while simultaneously exceeding "that which is ordinarily incident" to the commission of that same offense is ambiguous . Timmons v. Commonwealth , 555 S .W.2d 234, 241 (Ky. 1977). Timmons states that "the consensus view of the court is to resolve the ambiguity in favor of the `immediately with and incidental to' phraseology, which means that the statute will be construed strictly and restrictively unless and until it be amended to the contrary ." Id . In addition, for the exemption to apply, "the restraint will have to be close in distance and brief in time." Id . Under this analysis, the victim would have to be transported a "substantial distance" in order for the kidnapping exemption not to apply. Saylor was transported only from the church parking lot to the r nearby church storage building which sat on the same premises . Saylor was not dragged a substantial distance nor did the restraint last for long. Because all of these prongs were met, the kidnapping exemption applied to the Appellant . This analysis is reinforced by the fact that the trial court treated the assault and attempted murder as arising out of the same sequence of events. This is evidenced by the jury instructions treating the assault as a lesser-included offense of the attempted murder. The events constituting a kidnapping are a result of the same actions by the Appellant . The kidnapping charge should have been analyzed in the same way as the assault and attempted murder. Therefore, the kidnapping exemption 8 should apply to the kidnapping charge the same way the lesser-included offense rule applied to assault and attempted murder charges . For the foregoing reasons, Appellant's kidnapping conviction is reversed and this case is remanded to the trial court for resentencing in conformity with this Opinion . All sitting . Lambert, C .J. ; Cunningham, Minton, Noble, Schroder and Scott, JJ ., concur. COUNSEL FOR APPELLANT : Susan Jackson Balliet Assistant Public Advocate Department of Public Advocacy 100 Fair Oaks Lane, Suite 302 Frankfort, Kentucky 40601 COUNSEL FOR APPELLEE: Gregory D. Stumbo Attorney General Todd D. Ferguson Assistant Attorney General Office of Attorney General Criminal Appellate Division 1024 Capital Center Drive Frankfort, Kentucky 40601-8204

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