COMMONWEALTH OF KENTUCKY V. BOBBY A. JONES
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COMMONWEALTH OF KENTUCKY
V.
APPELLANT
ON REVIEW FROM COURT OF APPEALS
CASE NO. 2004-CA-000952-MR
MONTGOMERY CIRCUIT COURT NO . 03-CR-00100
APPELLEE
BOBBY A. JONES
OPINION OF THE COURT BY JUSTICE ABRAMSON
REVERSING
By Judgment entered April 26, 2004, the Montgomery Circuit Court
convicted Bobby Jones of Possession of a Firearm by a convicted Felon and
sentenced him in accord with the jury's recommendation to three years and six
months in prison . Holding that the Commonwealth had failed to prove an
element of the offense-the operability of the firearm-the Court of Appeals
reversed. We granted the Commonwealth's motion for discretionary review to
consider whether the Court of Appeals correctly applied the palpable error
standard of review .
RELEVANT FACTS
A person is guilty of possession of a firearm by a convicted felon
when he possesses . . . a firearm when he has been
convicted of a felony, as defined by the laws of the
jurisdiction in which he was convicted, in any state or
federal court and has not :
(a) Been granted a full pardon by the Governor or by
the President of the United States ;
(b) Been granted relief by the United States Secretary
of the Treasury pursuant to the Federal Gun Control
Act of 1968, as amended .
KRS 527.040(1) . "Firearm," for the purposes of this statute, "means any
weapon which will expel a projectile by the action of an explosive ." KRS
527.010(4) . At trial, the Commonwealth established that in 1995 Jones was
convicted of first-degree criminal mischief, a class-D felony (KRS 512 .020), and
that in April 2003 he pawned a Ruger .22 caliber rifle at a Mt . Sterling pawn
shop. Jones testified in his defense and admitted pawning the rifle for $80 .00,
but claimed that he was under the impression that his 1995 conviction had
been for a misdemeanor and thus did not bar his possession of the gun. There
was no testimony concerning whether the rifle could be fired, and the jury
instructions, which closely followed the pattern instruction in Cooper and
Cetrulo, Kentucky Instructions to Juries, ยง 8 .60 5th ed . (2006), neither defined
the term "firearm" nor required a finding that the rifle was operational . The
Court of Appeals ruled that even if Jones had not properly preserved the
sufficiency-of-the-evidence issue at trial, the lack of proof that the rifle was a
working "firearm" for statutory purposes rendered his conviction manifestly
unjust and subject to review under RCr 10 .26 for palpable error. The
Commonwealth challenges that result on several grounds .
ANALYSIS
We may begin our analysis by reiterating the well established rule that,
where a sufficiency-of-the-evidence challenge has been preserved in the trial
court, the question on appeal is whether, after viewing the evidence in the light
most favorable to the Commonwealth, any rational trier of fact could have
found the essential elements of the crime beyond a reasonable doubt .
Commonwealth v . Benham, 816 S.W .2d 186 (Ky. 1991) . Cf. Jackson v .
Virginia, 443 U .S . 307, 316 (1979) (Fourteenth Amendment guarantees that
"no person shall be made to suffer the onus of a criminal conviction except
upon sufficient proof-defined as evidence necessary to convince a trier of fact
beyond a reasonable doubt of the existence of every element of the offense.") .
One may forfeit even one's most basic rights, however, by failing to assert them
in a timely manner, United States v . Olano , 507 U.S . 725 (1993) (citing Yakus
v. United States, 321 U .S. 414 (1944)), and accordingly we have several times
observed that where a sufficiency-of-the-evidence challenge was not properly
preserved at trial, the issue is subject to review on appeal not under the
Benham standard, but under the palpable error standard of RCr 10 .26 . Potts
v. Commonwealth, 172 S .W .3d 345 (Ky. 2005) (collecting cases) . Under that
rule, an unpreserved error may be noticed on appeal only if the error is
"palpable" and "affects the substantial rights of a party," and even then relief is
appropriate only "upon a determination that manifest injustice has resulted
from the error." An error is "palpable," we have explained, only if it is clear or
plain under current law, Brewer v. Commonwealth, 206 S .W .3d 343 (Ky. 2006),
and in general a palpable error "affects the substantial rights of a party" only if
"it is more likely than ordinary error to have affected the judgment ." Ernst v .
Commonwealth , 160 S .W .3d 744, 762 (Ky. 2005) .
But see
United States v .
Olano, 507 U .S . at 735 (discussing the federal "plain error" standard and
noting, without deciding, that there may be forfeited errors so fundamental
that they "can be corrected regardless of their effect on the outcome.") . An
unpreserved error that is both palpable and prejudicial still does not justify
relief unless the reviewing court further determines that it has resulted in a
manifest injustice, unless, in other words, the error so seriously affected the
fairness, integrity, or public reputation of the proceeding as to be "shocking or
jurisprudentially intolerable ." Martin v. Commonwealth, 207 S.W .3d 1, 4 (Ky.
2006) .
The Commonwealth contends that the Court of Appeals misapplied this
palpable error standard to what was not an error to begin with, or, if an error,
not one that resulted in manifest injustice. The Commonwealth also asserts
that Jones's trial counsel waived (as opposed to forfeited) the sufficiency-of-theevidence issue, thus precluding its consideration on appeal, and that Jones's
appellate counsel waived palpable error review in the Court of Appeals by not
requesting it until his reply brief. These contentions have little merit and need
not long detain us. Jones, for his part, contends that trial counsel adequately
preserved the sufficiency-of-the-evidence issue. He thus suggests that review
under the Benham standard would have been appropriate . This contention,
too, is meritless. We shall briefly address these preservation issues before
considering the real thrust of the Commonwealth's appeal, which is the Court
of Appeals' application of the palpable error standard .
I. The Court of Appeals Did Not Err By Addressing The Question Of
Palpable Error.
A. Jones Did Not Waive Palpable Error Review .
It appears that Jones's case was the assistant Commonwealth attorney's
first trial. At the conclusion of the Commonwealth's proof, Jones's counsel
moved summarily for a directed verdict and as grounds jocularly asserted that
the Commonwealth's new attorney had "totally and abysmally failed to prove
his case ." The trial court denied this motion, which counsel renewed, again
summarily, after Jones had testified . The Commonwealth then offered rebuttal
testimony, after which Jones failed even summarily to renew his motion for
directed verdict . The Commonwealth asserts that the jocular manner in which
Jones's counsel lodged his initial motion indicates that the motion was not
sincere, but was rather an implicit waiver of any challenge to the sufficiency of
the Commonwealth's proof. We disagree . Counsel does not waive his client's
rights merely because he asserts them cordially. Even were it thought that
counsel's manner created some doubt about his intentions with respect to the
initial motion, moreover, his renewal of the motion at the conclusion of the
defense case clearly indicates that he intended to preserve the sufficiency issue
for appeal.
B. The Court Of Appeals Correctly Assumed That The Sufficiency-OfThe-Evidence Issue Was Not Properly Preserved.
Whether his efforts sufficed for that purpose is another matter. The
Court of Appeals assumed without deciding that they did not suffice and
passed directly to its consideration of palpable error. Jones suggests that the
Court of Appeals' deferral of the preservation issue leaves the door open for us
to affirm that Court's ruling under the Benham standard . We disagree, for the
Court of Appeals' assumption was clearly correct.
As we have many times held, to preserve an error based upon the
insufficiency of the evidence the defendant must move for a directed verdict , at
the close of the Commonwealth's proof and must renew his motion at the close
of all evidence: at the end of the defense case (if there is one), or, if there is
rebuttal evidence, as there was in this case, at the conclusion of rebuttal .
Schoenbachler v . Commonwealth, 95 S.W.3d 830 (Ky . 2003) . We have also
held that the motion must state specific grounds for relief and should identify
which elements of the alleged offense the Commonwealth has failed to prove.
Merely moving summarily for a directed verdict or making a general assertion
of insufficient evidence is not enough . Gibbs v . Commonwealth , 208 S .W .3d
848 (Ky. 2006) ; Potts v. Commonwealth, supra. Here, counsel's summary
motions did not satisfy this specificity requirement, and he failed to renew his
motion after rebuttal, at the close of all evidence . The Court of Appeals,
therefore, correctly assumed that Jones failed to preserve the sufficiency-ofA directed verdict motion is appropriate only "when the defendant is entitled to a
complete acquittal[,] i.e., when, looking at the evidence as a whole, it would be
clearly unreasonable for a jury to find the defendant guilty, under any possible
theory, of any of the crimes charged in the indictment or of any lesser included
offenses ." Campbell v. Commonwealth , 564 S.W.2d 528 (Ky. 1978) . Accord,
Nichols v . Commonwealth, 142 S .W .3d 683 (Ky. 2004) . In cases where there may
be insufficient evidence to satisfy the burden of proof on a primary offense or on one
offense among others, but there is sufficient evidence to satisfy the burden of proof
on a lesser included offense or on some of the charges, the way to preserve the
issue regarding the insufficiency of the evidence is to make a timely objection to the
jury instruction on the unproved offense. Campbell v. Commonwealth , supra;
Kimbrough v . Commonwealth , 550 S.W.2d 525 (Ky . 1977).
the-evidence issue and properly directed its attention to the question of
palpable error.
C. Jones's Request For Palpable Error Review Was Timely.
In his appellant's brief to the Court of Appeals, Jones asserted that he
had preserved the sufficiency-of-the-evidence issue and therefore sought review
of that issue under the Benham standard . The Commonwealth responded by
challenging preservation, and in his reply brief Jones requested palpable error
review if the error was deemed unpreserved . The Commonwealth contends
that Jones's "belated" request for palpable error review amounts to an unfair
change of tactics and to an improper use of his reply brief to supplement his
appellant's brief. We disagree .
As the Commonwealth acknowledges, CR 76.12(l) and 76 .12(4)(e) permit
the appellant to file a reply brief "confined to points raised in the briefs to
which they are addressed ." Generally, an appellant is not obliged to anticipate
that the Commonwealth will challenge preservation, and once it does he is free
under the rule to reply to the Commonwealth's point by arguing that, even if
unpreserved, the error is one that may be noticed as palpable. The
Commonwealth, of course, may argue in its appellee's brief not only that the
alleged error is unpreserved but also that it does not warrant palpable error
relief . It is neither unfair to the Commonwealth nor unduly burdensome to
expect it to use that opportunity to address as fully as it deems necessary an
issue it has raised .
II. The Court Of Appeals Erred By Granting Palpable-Error Relief Where
Jones's Conviction Was Not Tainted By Such An Error.
Turning to the merits of the Commonwealth's appeal, the Commonwealth
first contends that the trial court did not err at all, palpably or otherwise, by
submitting the case to the jury, because Jones's testimony that he received
$80 .00 in exchange for his pawn of the rifle permitted a reasonable inference
that the rifle was in working order. We disagree . There was no evidence about
the value of rifles, a matter not within the knowledge of most jurors, and thus
the mere pawn price did not imply beyond a reasonable doubt anything about
the rifle's condition . A non-functioning rifle, after all, could have a substantial
value for parts, or it could have value for some feature aside from its
operability. We agree with the Court of Appeals, therefore, that the pawn price,
standing alone, did not establish that the rifle was capable of firing .
Nevertheless, for a reason not addressed by the parties but dispositive of
this appeal, we disagree with the Court of Appeals that an error occurred. The
Court of Appeals held that KRS 527 .010(4) required the Commonwealth to
prove the rifle's operability, but in Campbell v. Commonwealth , 260 S.W .3d
792 (Ky. 2008), we recently held that the KRS 527 .010(4) definition of "firearm"
incorporates the pre-penal code presumption that guns work. See Mosely v .
Commonwealth , 374 S .W .2d 492 (Ky. 1964) (holding that inoperability of gun
was an affirmative defense) ; Arnol d v. Commonwealth, 109 S .W .3d 161, 163
(Ky. App . 2003) (in carrying concealed deadly weapons case, inoperability of the
weapon is an affirmative defense for which defense has burden of proof) . In
short, the Commonwealth does not have the burden of proving firearm
operability but rather the defense may raise inoperability as an affirmative
defense . 260 S.W .3d at 803-04 . Proof of operability, therefore, or jury
instructions requiring a finding that a firearm actually works are not necessary
unless there is non-speculative evidence at trial which calls the presumption
into reasonable doubt. Here, the rifle Jones pawned was presumptively
functional, and because there was no evidence calling that presumption into
question (indeed Jones's testimony acknowledging his pawning of the rifle
tended to enforce the presumption), the Commonwealth was not otherwise
obliged to establish that the rifle worked . The trial court did not err, therefore,
palpably or otherwise, by denying Jones's motions for a directed verdict or by
excluding the operability question from the jury instructions .
CONCLUSION
In sum, because Jones's conviction was not tainted by a palpable error,
we reverse the August 4, 2006 Opinion of the Court of Appeals, and hereby
reinstate the April 26, 2004 Judgment of the Montgomery Circuit Court.
Minton, C .J. ; Cunningham and Scott, JJ ., concur. Venters, J., concurs
by separate opinion in which Noble and Schroder, JJ ., join.
COUNSEL FOR APPELLANT:
Jack Conway
Attorney General
Jeffrey Allan Cross
Criminal Appellate Division
Office of the Attorney General
1024 Capital Center Drive
Frankfort, KY 40601
COUNSEL FOR APPELLEE :
Jamesa J . Drake
Assistant Public Advocate
Department of Public Advocacy
100 Fair Oaks Lane
Suite 302
Frankfort, KY 40601
RENDERED : FEBRUARY 19, 2009
TO BE PUBLISHED
X-1, aixrf of ~rnfurhv
2006-SC-000650-DG
~suyrrmr
COMMONWEALTH OF KENTUCKY
V.
APPELLANT
ON REVIEW FROM COURT OF APPEALS
CASE NO . 2004-CA-000952-MR
MONTGOMERY CIRCUIT COURT NO . 03-CR-00100
BOBBY A . JONES
APPELLEE
OPINION BY JUSTICE VENTERS
CONCURRING
I concur with Justice Abramson's opinion, and add that, in my view, the
operability of the firearm is not an element of the offense of possession of a
firearm by a convicted felon . The definition of "firearm" in KRS 527 .010(4)
serves to identify the class of weapons included in that offense as those which
expel a projectile by the action of an explosive, i.e . gunpowder, as opposed to
weapons such as air rifles, cross-bows, slingshots, or spear guns that expel a
projectile by some other means.
Noble and Schroder, JJ., joins.
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