DAVID THOMAS COHRON V. COMMONWEALTH OF KENTUCKY
Annotate this Case
Download PDF
~Vurf
of
RENDERED : MARCH 18, 2010
TO BE PUBLISHED"
'VUyrrMr
2007-SC-000483-MR
C
r~
r
DAVID THOMAS COHRON
V.
APPELLAN
ON APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE STEPHEN K. MERSHON, JUDGE
NOS . 06-CR-002513 AND 07-CR-001017
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT BY CHIEF JUSTICE MINTON
AFFIRMING, IN PART, AND
REVERSING AND REMANDING, IN PART
David Thomas Cohron appeals his convictions for first-degree fleeing and
evading, first-degree wanton endangerment, receiving stolen property over
$300, two counts of second-degree escape, fourth-degree assault, reckless
driving, and being a first-degree persistent felony offender (PFO 1) . He argues
that the trial court abused its discretion when it consolidated all the charges
for trial. Cohron also argues he was entitled to a lesser included offense
instruction for third-degree escape after the Commonwealth failed to establish
that he had been charged with felony offenses at the time of that escape . We
reverse one of Cohron's two second-degree escape convictions and remand for
further proceedings but affirm Cohron's other convictions.
I . FACTUAL AND PROCEDURAL HISTORY .
Cohron was an inmate on a work release program ; and he failed to
return at the designated time on May 28, 2006 . Consequently, a warrant
issued for his arrest for escape .
After completing her shift on June 9, 2006, Officer Holt was driving home
in her police vehicle when she observed a vehicle traveling on the freeway in
the wrong direction and headed directly toward her. Officer Holt was able to
avoid the vehicle and gave chase . The vehicle traveled at speeds up to 90 mph,
and Officer Holt lost sight of it at a small rise in the road but soon came upon
it after it had wrecked .
Cohron was alone in the wrecked vehicle . He was lying on the passenger
side with his feet under the car's pedals. At first, he appeared to be
unconscious and unresponsive . Other officers arrived at the scene. They
scoured the area, but no other person was found at the scene. Officer Elder
approached Cohron in the car and found him to be lucid and able to
communicate. Cohron stated that someone else had been driving.
Marijuana and a metal pipe containing drug residue were found in the
vehicle . The police determined that the vehicle had been reported stolen.
Cohron had a suspected neck injury so he was transported. by
ambulance to the hospital. He became agitated and confused once at the
hospital, and a doctor ordered that he be sedated . While the medication was
being administered, Cohron repeatedly struck an emergency room technician,
Michael Fischer, injuring Fischer's arm and neck .
Three days later, on June 12, Cohron was ready to be released from the
hospital. He was in police custody, having been charged as a result of the
events of June 9 ; and Officer Link was sent to transport him . Cohron was
handcuffed and placed in a wheelchair to be taken to Link's police cruiser. In
the hospital parking lot, Cohron got out of the wheelchair and fled. Officer
Link and hospital security guards chased him into a parking lot across the
street. Cohron was recaptured by a security officer as he attempted to scale a
chain-link fence. The security officer injured his knee during the recapture .
Cohron was charged in two indictments. Count Seven of the first
indictment charged escape in the second degree on May 28 when Cohron was
an inmate at a corrections center. Counts Two, Three, Four, Nine, Ten, and
Eleven covered conduct allegedly occurring on June 9 and consisted of charges
of first-degree wanton endangerment, receiving stolen property over $300, firstdegree fleeing or evading police, possession of marijuana, possession of drug
paraphernalia, and reckless driving. Count One of the first indictment charged
Cohron with the June 9 second-degree assault of Michael Fischer, the
ER technician. Counts Five, Six, and Eight concerned the June 12 events and
charged Cohron with first-degree fleeing or evading police, third-degree assault
(of the security officer), and escape in the second degree. The second
indictment charged Cohron with being a PFO 1 .
Cohron filed a motion to sever the counts of the first indictment . He
contended that trying all the offenses together would unfairly prejudice him ; he
also argued they might involve inconsistent defenses. He noted that the
witnesses did not overlap as to the separate incidents . He further asserted that
the Commonwealth would gain an advantage by the sheer number of charges .
He asked for three separate trials based upon the three separate dates set forth
in the indictment .
Following a hearing, the trial court held that the incidents of June 9 and
June 12 should be tried together but that it would bifurcate the guilt phase of
the trial and allow the escape charge from May 28 to be tried separately to the
same jury. Cohron continued to object to the arrangement. But the case was
tried in that manner.
The trial court directed a verdict of acquittal on the second-degree
assault charge and the third-degree assault charge and instructed the jury on
the lesser included offense of fourth-degree assault on each charge. The jury
acquitted Cohron of assault regarding the security officer, possession of
marijuana, and possession of drug paraphernalia. The jury convicted Cohron
of reckless driving, fourth-degree assault of Fischer, first-degree wanton
endangerment, receiving stolen property valued over $300, first-degree fleeing
or evading police, second-degree fleeing or evading police, two counts of
second-degree escape, and of being a PFO 1 . Cohron received a forty-year
sentence . He then filed this appeal as a matter of right. 1
1
Ky. Const . § 110(2)(b).
II . THE TRIAL COURT'S BIFURCATION
IS HARMLESS ERROR .
Kentucky Rules of Criminal Procedure (RCr) 6.18 permits joinder of
offenses in a single indictment if the offenses are (1) of the same or similar
character or (2) based on the same acts or transactions connected together or
constituting parts of a common scheme or plan . But RCr 9 .16 permits a court
to order separate trials of the counts of an indictment upon motion and a
showing of prejudice. RCr 9.16 applies when the requirements of RCr 6 .18 are
satisfied in that joinder could be proper but would be prejudicial.2
The trial court has broad discretion with respect to joinder and will not
be overturned in the absence of a showing of prejudice and a clear abuse of
discretion.3 A criminal defendant is not entitled to severance unless he
positively shows prior to trial that joinder would be unduly prejudicial .4
"Offenses closely related in character, circumstances[,] and time need not be
severed."5 If evidence from one of the offenses joined in the indictment would
be admissible in a separate trial of the other offenses, the joinder of offenses
generally will not be prejudicial.6 Additionally, considerations of judicial
economy and the efficiency of avoiding multiple trials are reasons for joint
trials .?
Sebastian v. Commonwealth, 623 S .W.2d 880, 881 (Ky. 1981) .
Sherley v. Commonwealth, 889 S.W.2d 794, 800 (Ky. 1994).
Humphrey v. Commonwealth, 836 S.W.2d 865, 868 (Ky. 1992).
Sherley, 889 S.W.2d at 800.
Spencer v. Commonwealth, 554 S .W .2d 355, 357 (Ky. 1977).
Brown v. Commonwealth, 458 S.W.2d 444, 447 (Ky. 1970) .
Cohron argues that the incidents of May 28, June 9, and June 12 were
completely separate incidents occurring on different days; and the trial court
erred in not severing them . Evidence from one incident, he argues, would not
have been admissible in a separate trial of the other incidents. He argues they
were not inextricably interconnected since it was not necessary to know that
Cohron had escaped from a correctional facility before learning of the reckless
driving incident in the stolen car or to know the events that led him to be taken
to the hospital from which he fled the police. He claims that it was possible for
the Commonwealth to show that Cohron was charged with felonies at the time
of the June 12 escape without detailing the specific charges of June 9 or the
underlying events .
The trial court ordered the June 9 and June 12 incidents to be tried
together because the events of the reckless driving, car accident, and drug
charges helped to explain Cohron's state of mind at the hospital . We do not
observe a clear abuse of the trial court's discretion. The trial court concluded
that the June 9 and 12 incidents could not be separated because the events of
June 9 explained why Cohron was in the hospital from which he escaped . So
these offenses were sufficiently connected as a series of events. The trial court
did not abuse its discretion by trying them together. Instead, as a matter of
judicial economy, it made sense to try these offenses all at once . Most
importantly, Cohron did not identify specific prejudice from trying these
charges together.
The May 28 escape charge is more problematic. The trial court decided
to separate the May 28 escape charge and try it separately to the same jury
after it had rendered a verdict on the other offenses .
We are aware of no other case tried in this manner . We must conclude
the decision of the trial court to attempt to bifurcate the May 28 escape offense
was an implicit determination that a joint trial that included that charge would
be prejudicial. But the trial court's novel solution - trying the May 28 escape
charge to the same jury after that jury had already rendered a verdict on the
other charges - did not serve to lessen the perceived prejudice. Here, the
bifurcated charge was tried to the same jury. The result was that the jury was
presented with collective proof of escapes that is the very ill that the trial court
was presumably attempting to avoid. So we conclude the trial court's novel
partial severance of the May 28 charge was improper . But we also conclude
that impropriety was, at most, a harmless error since the May 28 offenses
could have been joined with the June 9 and June 12 offenses.
RCr 9 .24 provides that we are to "disregard any error or defect in the
proceeding that does not affect the substantial rights of the parties ." We do not
believe the unusual procedural method used by the trial court affected
Cohron's substantial rights because the May 28 escape charge could have been
joined with the June 9 and June 12 charges. More specifically, the May 28
escape charge could have provided a motive for Cohron's conduct that followed
on June 9 and June 12.8
Under Kentucky Rules of Evidence (KRE) 404(b), evidence of other crimes
or wrongs is admissible to prove, among other things, motive. It is certainly
reasonable to conclude that Cohron's May 28 escape provided a motive for him
to flee or escape from custody on June 9 and June 12 . So the fact that the
trial court's unusual procedural methodology had the net result of permitting
the same jury to hear evidence of the May 28 charge after it had already heard
evidence of the June 9 and June 12 charges and rendered a verdict on those
charges did not affect Cohron's substantial rights. In other words, the trial
court's attempted bifurcation was procedurally improper ; but that impropriety
is of no real moment since the same jury should have heard evidence of all of
Cohron's charges all along in order to present the jury with a complete picture
of Cohron's actions. Accordingly, we conclude that Cohron was not unduly
prejudiced by the trial court's improper attempted bifurcation of the May 28
charge . 9
See, e.g., Ringstaff v. Commonwealth, 275 S.W.2d 946, 949-50 (Ky. 1955)
("Evidence of other crimes is competent when it tends to establish identity, or
knowledge of guilt, or intent or motive for the commission of the crime under
trial . . . . ") .
Spencer, 554 S .W.2d at 357 (holding that usually not prejudicial to join offenses
when evidence of one offense would be admissible in evidence at trial of other
offense) .
III .
THE LACK OF EVIDENCE THAT COHRON HAD BEEN
CHARGED WITH FELONIES NECESSITATES REVERSAL
OF THE JUNE 12 ESCAPE CONVICTION .
Cohron argues that the trial court was required to instruct on thirddegree escape on the June 12 escape charge because the Commonwealth failed
to establish that he had been charged with a felony at the time of his escape
from custody at the hospital. 10 Second-degree escape requires that the jury
find as an element of the offense that the defendant was charged with or
convicted of a felony at the time he escapes from custody.' 1 The instruction
given by the trial court stated that the defendant was guilty only if the jury
found beyond a reasonable doubt: "[t]hat at the time of his escape, the
defendant had been charged with certain felonies ." So the felonies were not
detailed for the jury as they should have been . 12
Cohron argues that the Commonwealth never met its burden of proof
since Officer Elder only testified that Cohron had been charged before the
escape, but Officer Elder's testimony did not specify that the charges were
felonies . Indeed, Officer Elder testified only that he had taken out charges
against Cohron regarding the events of June 9 . He did not specifically testify
as to whether those charges were felonies . As a result, Cohron argues the jury
should have been instructed on the lesser included offense of third-degree
escape, which requires a finding that the defendant escaped from the custody
10
Cohron does not argue that he was entitled to an instruction on third-degree
escape as to the May 28 escape charge.
Kentucky Revised Statutes (KRS) 520.030 .
See 1 COOPER, KENTUCKY INSTRUCTIONS TO JURIES (CRIMINAL) § 7.27 (5th ed. 2006) .
of a public servant under a lawful detention, arrest, or order of the court for
law enforcement purposes, but not that the defendant was charged with or
convicted of a felony. 13
The trial court ruled that because the offenses for which Cohron could
have been charged on June 9 were "pretty serious charges," the jury could
believe that he had been charged with a felony. We disagree .
Since it bore the burden of proof, the Commonwealth had the
responsibility to present evidence of the fact that Cohron was in custody on
June 12 on a charge or conviction of a felony offense . Since this is what
separates second-degree escape from third-degree escape, the fact that Cohron
had been charged with felonies at the time of the June 12 escape was an
element that had to be proved beyond a reasonable doubt. Because there was
a total absence of evidence of that element, the jury could only surmise what
the June 9 charges were.
We do not believe it is obvious to an average person what charges are
felonies and what are misdemeanors, particularly when the offenses charged
were not specifically enumerated for the jury. We also disagree with the trial
court's conclusion that a lesser included instruction was not proper because
Cohron could have been charged with serious offenses . The proper question is
what offenses Cohron was actually charged with, not what theoretical charges
may have been supported by the evidence . Since the jury was not specifically
informed of the felonious nature of Cohron's June 9 charges, he was entitled to
13
KRS 520 .010(2) (defining custody) ; KRS 520.040.
10
an instruction on a lesser included offense; and the trial court's failure to so
instruct the jury was error.
We find Shavers v. Commonwealth, 14 cited by the Commonwealth, to be
distinguishable . In Shavers, the Commonwealth established that the
substance in which the defendant was accused of trafficking was heroin ; but it
did not introduce evidence that the drug at issue was a Schedule I or II
controlled substance. This Court affirmed the conviction because there was no
question under the law that the drug at issue was a Schedule I controlled
substance. 15 Shavers differs from the case at hand in that the witness testified
to everything one needed to know to determine that the offense was a
Schedule I controlled substance. In the present case, the officer did not testify
to what the June 9 charges were ; and so we cannot say enough information
was adduced to show that Cohron was charged with felonies .
Additionally, we are not persuaded by the Commonwealth's argument
that the trial court took judicial notice of the level of the offense. First, the trial
court was never actually asked to take judicial notice . Next, it is not for this
Court to accept the evidence as having been established by means ofjudicial
notice. Proof of an essential element of a crime should not be supplied by
judicial notice taken at the appellate level. 16 Third, the felonious nature of the
June 9 charges was an element of the offense of escape in the second degree.
14
15
16
514 S.W.2d 883 (Ky. 1974) .
Id. at 885.
United States v. Jones, 580 F.2d 219, 224 (6th Cir. 1978) (construing Federal Rules
of Evidence 201) ; Commonwealth v. Kingsbury, 393 N.E .2d 391, 393-94 (Mass .
1979) .
It was necessary for the jury to have evidence on this element to find guilt
beyond a reasonable doubt. 17
We are aware that any error that does not affect the substantial rights of
the defendant is deemed a harmless error. 18 And even erroneous jury
instructions may sometimes be deemed a harmless error. 19 But we also
"adhere to the presumption of prejudice inherent in an erroneous (jury]
instruction . . .
."20
The Commonwealth contends that any error here was harmless because
the record reflects that Cohron was, in fact, in custody with felony charges on
June 12. So the Commonwealth contends Cohron's substantive rights were
not affected because there is no substantial possibility that the result would
have been different without the error. But the Commonwealth's argument is
not premised upon our current harmless error standard . Instead, a nonconstitutional error is harmless if a "reviewing court can say with fair
assurance that the judgment was not substantially swayed by the error." 21
Certainly, there is at least a "grave doubt" about whether the Commonwealth's
failure to present evidence of a crucial element of the second-degree escape
charge contributed to Cohron's conviction for that charge.22 In other words,
17
18
19
See KRS 500 .070(1) ("The Commonwealth has the burden of proving every element
of the case beyond a reasonable doubt . . . .").
RCr 9.24.
Harp v. Commonwealth, 266 S .W.3d 813, 818 (Ky. 2008) .
20
21
22
Winstead v. Commonwealth, 283 S .W.3d 678, 689 (Ky. 2009) .
Id. (quoting Kotteakos v. United States, 328 U .S. 750, 765 (1946) ("The inquiry is
not simply `whether there was enough [evidence] to support the result, apart from
12
the Commonwealth's failure to present any evidence regarding an element of an
offense was a serious error that should have resulted in the jury being
instructed only on third-degree escape . So Cohron's conviction for seconddegree escape for the events of June 12 must be reversed . The question then
becomes whether Cohron may be retried for the June 12 second-degree escape
charge or whether a retrial on that charge violates the proscription against
double jeopardy.
IV.
RETRIAL OF THE JUNE 12 SECOND-DEGREE ESCAPE
CHARGE BARRED BY DOUBLE JEOPARDY .
Generally, the double jeopardy clause does not bar retrial after reversal
of a criminal conviction.23 But retrial is barred if an appellate court has found
there was insufficient evidence to support the conviction .24 In the case at
hand, although Cohron has couched his argument only in terms of stating that
the trial court erred by failing to instruct on third-degree escape, the actual
crux of his argument centers around the fact that the Commonwealth failed to
offer proof to the jury that Cohron had been charged with felony offenses at the
time of the June 12 escape. 2s
the phase affected by the error. It is rather, even so, whether the error itself had
substantial influence. If so, or if one is left in grave doubt, the conviction cannot
stand. ") .
23
24
25
Couch v. Maricle, 998 S.W.2d 469, 471 (Ky. 1999) .
Burks v. United States, 437 U.S. 1, 11 (1978) ("The Double Jeopardy Clause forbids
a second trial for the purpose of affording the prosecution another opportunity to
supply evidence which it failed to muster in the first proceeding.") ; Couch,
998 S.W.2d at 471 .
It is well settled that a claim of double jeopardy may be addressed on appeal even if
insufficiently preserved . See, e.g., Dixon v. Commonwealth, 263 S .W.3d 583, 593
n .50 (Ky. 2008) .
13
As discussed above, we agree with Cohron that the Commonwealth did
fail to present the proof necessary to convict Cohron of second-degree escape .
Because we have reversed Cohron's second-degree escape conviction for a lack
of evidence to support that conviction, retrial on that charge would constitute
impermissible double jeopardy . We recognize that the Commonwealth could
have presented evidence that Cohron had been charged with felonies at the
time of the June 12 escape . But the focus is upon the evidence that was
presented and not upon the evidence that could have been presented. On
remand, Cohron may only be tried for third-degree escape, not second-degree
escape . 26
V. CONCLUSION .
For the foregoing reasons, we reverse Cohron's conviction for seconddegree escape, which occurred on June 12, and remand for further proceedings
consistent with this opinion. All of Cohron's other convictions are affirmed.
26
Although the United States Supreme Court has not ruled upon this precise issue,
at least three federal appellate courts have determined that it is permissible for a
defendant to be retried for a lesser included offense on remand after an appellate
court has determined that there was insufficient evidence to support the jury's
decision to convict a defendant of a greater offense . Anderson v. Mullin, 327 F.3d
1148, 1154-58 (10th Cir. 2003) (permitting retrial on lesser included offense and
citing and relying upon Beverly v. Jones, 854 F.2d 412 (11th Cir. 1988) and
Shute v. Texas, 117 F.3d 233 (5th Cir. 1997)) . Although we did not discuss the
issue in detail, we have ruled before today, at least as it pertains to PFO charges, in
accordance with the aforementioned federal courts' conclusion that a retrial on a
lesser included offense is permissible if an appellate court determines that there
was insufficient evidence to support a guilty verdict on the greater offense. White v.
Commonwealth, 770 S .W .2d 222, 223 (Ky. 1989) ("Here there was insufficient
evidence of PFO I but sufficient evidence and a finding of guilt on all the elements
of PFO II. Therefore, a retrial would not be barred by double jeopardy.") .
14
All sitting. Abramson, Cunningham, Noble, Schroder, and Venters, JJ .,
concur. Scott, J., concurs, in part, and dissents, in part, by separate opinion .
SCOTT, J., CONCURRING, IN PART, AND DISSENTING, IN PART:
Although I concur with the majority's conclusion that the bifurcation of the
May 28, 2006, charge of second-degree escape was unnecessary and thus
harmless, I must respectfully dissent from the further conclusions that
(1) there was insufficient evidence to support the fact that Appellant had been
charged with a felony prior to the June 12, 2006, escape, and (2) that such a
failure - in the face of the uncontested previous felony charges of May 28 and
June 9, 2006 - was not harmless error, at least in view of the fact that the
same jury was purposely held over to try the guilt phase of the preceding
escape charge of May 28, 2006, upon which Appellant was also convicted.
Appellant, then an inmate, escaped from a Jefferson County work release
program on May 28, 2006 . Appellant was charged with second-degree escape,
a class D felony, that same day; and a warrant was issued for his arrest. He
was apprehended on June 9, 2006, after a dangerous car chase that resulted
in his wrecking the stolen vehicle. Due to the injuries sustained in the
accident, he was taken to the hospital and placed under guard . L During his
admission, he was belligerent and abusive and struck an emergency room
technician on several occasions. Three days later, on June 12, 2006, as he
was being discharged from the hospital under guard, Appellant broke away
Appellant was charged under uniform citation with first-degree wanton
endangerment, first-degree fleeing and evading (in a motor vehicle), and receiving
stolen property over $300, along with several misdemeanors .
15
from custody and was again apprehended. A hospital security officer was hurt
during the apprehension.
Thereafter, in August of 2006, Appellant was indicted by the Jefferson
County Grand Jury for the eleven (11) offenses occurring on the three (3) dates:
May 28, June 9, and June 12, 2006. The May 28th charges involved the
second-degree escape charge; and the June 9th charges involved four (4) felony
charges: second-degree assault on the emergency room technician, first-degree
wanton endangerment for dangerous driving during the car chase, receiving
stolen property over $300 for possession of the stolen car, as well as firstdegree fleeing and evading police in a motor vehicle. The June 12th charges
included three (3) felony charges: first-degree fleeing and evading police (as a
pedestrian), third-degree assault during which the security officer at the
hospital suffered injury, and second-degree escape. A subsequent grand jury
indictment charged Appellant with being a first-degree persistent felony
offender.
All of the charges against Appellant were tried before a Jefferson Circuit
Court jury from April 2-5, 2007 . The guilt phase of all the charges, excepting
the May 28, 2006, initial escape charge, was completed on April 4, 2007 - the
jury heard the guilt phase of the May 28, 2006, escape charge the next day, on
April 5, 2007. That afternoon, the same jury completed the penalty phase of all
the charges, including finding that Appellant was a persistent felony offender in
the first degree .
In addition to finding Appellant guilty of the separate second-degree
escape charges (May 28 and June 12, 2006), the jury found him guilty of three
(3) additional felonies on June 9, 2006 - i.e., first-degree wanton
endangerment, receiving stolen property over $300, and fleeing or evading
police in a motor vehicle. As a result, Appellant was sentenced to a term of
forty (40) years, with each of the escape charges counting for ten (10) years
each, each of which ran consecutive to the other and consecutive to the twentyyear sentence for the other felony charges.
On appeal, Appellant seeks two things . First, he asks that this Court
reverse his convictions due to the trial court's denial of his motions to sever the
various counts according to the dates on which they were committed.
Secondly, he asks that his conviction for the second-degree escape of June 12,
2006, from the hospital be reversed because he was "entitled to an instruction
regarding escape in the third degree because the jury might have had a
reasonable doubt that he was charged with a felony at the time he allegedly
escaped . . . and yet believed he was guilty of the lesser offense of escape in the
third degree ." 2 As aforementioned, I agree with the majority on the issue of
severance.
As to the second issue, the trial court denied the requested instruction,
concluding: "under the facts and circumstances it was pretty clear that
[Appellant] was in custody and it was pretty serious charges when you're
driving down the expressway at 90-plus miles per hour going the wrong way."
Even Appellant did not assert that the evidence was insufficient to support the
charge, i.e., that he was charged with a felony at the time.
17
Moreover, evidence was introduced that the car he was driving had been stolen
from a construction site in Louisville where it had been parked and locked . In
addition, Officer Link testified that Appellant was handcuffed and in custody at
the time he escaped from the hospital; and Officer Elder testified that he filed
charges against Appellant regarding the June 9, 2006, events, which involved
the dangerous car chase and wreck in the stolen vehicle .
Thus, it was clear from the evidence before the jury that at the time of
his escape from custody on June 12, 2006, Appellant had been charged with a
felony - in fact, several felonies, all from May 28 and June 9, 2006 .3 Even the
fact of fleeing custody is an evidentiary reflection upon the seriousness of the
offense for which the defendant was held.
In Shavers v. Commonwealth, 514 S.W2d 883, 885 (Ky. 1974), the
appellant argued that his conviction for selling narcotics should be overturned
because the Commonwealth did not put on evidence that heroin was a
Schedule I or Schedule II controlled substance as required by the statute
prohibiting the sell of heroin or other similarly classed drugs. The court
rejected his argument, pointing out that there was no question that the drug
sold was heroin. The court then acknowledged, "(heeroin is listed in
KRS 218A.050(2) as a Schedule I controlled substance and is defined as a
`narcotic drug' in KRS 218A .010(a) ." Id. at 885. The court thus concluded that
the jury was properly instructed . If nothing else, Shavers, properly reflects the
As an aside, consider how many people, if asked, would say that "car theft" is a
minor (misdemeanor) offense .
18
view that such a "technical" error - in the face of uncontroverted facts proving
the point - is harmless error. Cf. id. at 885 .
"A person is guilty of escape in the second[ ]degree when he escapes from
a detention facility or, being charged with or convicted of a felony, he escapes
from custody." KRS 520.030(l) . A person is guilty of escape in the third
degree when "he escapes from custody." KRS 520 .040(1) . Escape in the
second degree is a Class D felony, while escape in the third degree is a Class B
misdemeanor. Thus, the only question here is whether or not Appellant had
been "charged with or convicted of a felony" at the time of the escape .
KRS 520.030(1) .
A "felony" is defined as "an offense for which a sentence to a term of
imprisonment of at least one (1) year of custody of the Department of
Corrections may be imposed." KRS 500.080(5) . It is also a word used
commonly in the English language, where it has been defined as a "crime, as
murder, rape, or burglary, considered more serious than a misdemeanor and
punishable by a stronger sentence." WEBSTERS II NEW COLLEGE DICTIONARY 420
(3rd ed . 2005) . Consequently, it is not a word that the American public is
unfamiliar with.
Moreover, "felony" is not an instructional word that needs or receives
defining through jury instructions . In fact, as a general rule, the jury is not
presented with the question of whether or not the particular charge or charges
existing prior to the escape are felonies but whether or not Appellant, at the
time of the escape, had been charged with a designated crime . See 1 COOPER,
KENTUCKY INSTRUCTIONS TO JURIES (CRIMINAL) § 7 .27 (4th ed . 1999) ("[T]hat at the
time of his escape, the defendant had been [charged with] [convicted of] the
crime of
(ID felony offense") ; 1 COOPER, KENTUCKY INSTRUCTIONS TO
JURIES (CRIMINAL) § 7 .27 (5th ed. 2006) ("[T]hat at the time of his escape, the
defendant had been [charged with] [convicted of] the crime of
(ID felony offense") . In the case at hand, the jury was instructed: "that at the
time of his escape the defendant had been charged with certain felonies ."
Here, Appellant had been charged with (and the jury convicted him ofl
three (3) separate felonies from June 9, 2006, as well as the escape on May 28,
2006, for which he was charged
on May
28, 2006 . Moreover, it is undisputed
that Appellant had been charged with four (4) felonies, prior to his escape on
June 12, 2006. He was convicted of every one.
And why shouldn't he have been? Officer Link testified that Appellant
was handcuffed and in custody at the time of the escape on June 12, 2006 .
Officer Elder testified that he filed charges against Appellant regarding the
events of June 9, 2006 - the night of the high-speed car chase on the freeway
in the stolen vehicle and the resulting wreck. As the trial court noted, these
were indeed "serious charges." A "serious charge" to any lay person would, in
most instances, call to mind a criminal charge that would result in a
penitentiary sentence . One may be sent to the penitentiary only for a felony,
not a misdemeanor .
"A defendant is entitled to a directed verdict, drawing all reasonable
inferences in favor of the Commonwealth, only `if under the evidence as a
whole, it would be clearly unreasonable for a jury to find guilt. . . . ..
Crossland v. Commonwealth, 291 S .W .3d 223, 235 (Ky. 2009) (citing
Commonwealth v. Benham, 816 S .W.2d 186, 187 (Ky. 1991)) ; see also Bussel v.
Commonwealth, 882 S .W. 2d 111, 114 (Ky. 1994) . Moreover, "circumstantial
evidence may form the basis for a conviction so as long as the evidence is
sufficient to convince a reasonable jury of guilt ." 1d. (citing Davis v.
Commonwealth, 147 S.W .3d 709, 729 (Ky. 2004)) .
The test of whether circumstantial evidence is sufficient to support proof
of a fact is whether it "is sufficient to create a reasonable inference" that the
fact exists. See Moody v. Commonwealth, 170 S .W.3d 393, 397 (Ky. 2005)
(circumstantial evidence of age of the defendant at the time of the commission
of the offense) ; Martin v. Commonwealth, 13 S.W.3d 232, 235 (Ky. 1999)
(circumstantial evidence of whether sentence, or parole or probation was
completed within five (5) years of a new charge for PFO purposes) ; Dawson v.
Commonwealth, 756 S.W .2d 935, 936 (Ky. 1988) (circumstances of possession
sufficient proof that controlled substances were possessed for sale) . The test
then is "between a reasonable inference and `guess work':
An inference is the act performed by the jury of inferring or
reaching a conclusion from facts or premises in a logical manner
so as to reach a conclusion . A reasonable inference is one in
accordance with reason or sound thinking and within the bounds
of common sense without regard to extremes or excess . It is a
process of reasoning by which a proposition is deduced as a logical
consequence from other facts already proven . Guesswork, on the
other hand, is the process of making a judgment without adequate
information, or to conjecture, or to speculate .
Martin, 13 S.W .3d at 235 .
"[A]n inference from circumstantial evidence may vary in strength
according to the degree of probability reflected by it, being strong enough in
one case to require a directed verdict while in another case having only enough
strength to create a jury issue." Graves v. Commonwealth, 285 S.W .3d
734 (Ky. 2009) (whether a screwdriver could be a burglary tool) (citing Goss v.
Personnel Bd., 456 S .W.2d 824, 826 (Ky. 1970)) .
Thus, given the serious nature of the charges for which Appellant was
being tried, the fact that he was under guard and in handcuffs while exiting the
hospital where he then fled, and the fact that Officer Elder took out charges
against Appellant regarding the serious events of June 9, 2006, it was clearly
not unreasonable for the jury to find "at the time of his escape [Appellant] had
been charged with certain felonies," a fact that - outside of legal arguments is uncontested.
Thus, this Court should not find that the evidence was insufficient to
support the charge of escape in the second degree on June 12, 2006 - an
issue, which even Appellant, did not raise or believe in. Appellant only
asserted that he "was entitled to an instruction regarding escape in the
third[ ]degree because the jury might have had a reasonable doubt that he was
charged with a felony at the time he allegedly escaped from Officer Link's
custody and believe that he was guilty of the lesser offense of escape in the
third[ ]degree ." This, too, was precluded by the evidence at hand .
Nor, for the reasons noted, should the Court have addressed the issue as
palpable error. "Absent extreme circumstances amounting to a substantial
miscarriage of justice, an appellate court will not engage in palpable error
review pursuant to RCr 10 .26 unless such a request is made and briefed by the
appellant." Shepherd v. Commonwealth, 251 S .W.3d 309, 316 (Ky. 2008)
(emphasis added) . As indicated, no request for insufficiency of the evidence
review was made, nor was it briefed .
For the reasons stated above, 1 respectfully dissent from to the majority's
finding the evidence was insufficient, as well as its consequent holding that a
retrial on the charge is barred by double jeopardy.
COUNSEL FOR APPELLANT:
Daniel T . Goyette
Louisville Metro Public Defender
Advocacy Plaza
717-719 West Jefferson Street
Louisville, Kentucky 40202
Elizabeth B . McMahon
Assistant Public Defender
Office of the Jefferson District Public Defender
200 Advocacy Plaza
717-719 West Jefferson Street
Louisville, Kentucky 40202
COUNSEL FOR APPELLEE :
Jack Conway
Attorney General of Kentuc
David Bryan Abner
Assistant Attorney General
Office of Criminal Appeals
Office of the Attorney General
1024 Capital Center Drive
Frankfort, Kentucky 40601
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.