CHARLES COX V. COMMONWEALTH OF KENTUCKYAnnotate this Case
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RENDERED : JANUARY 20, 2011
NOT TO BE PUBLISHED
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ON APPEAL FROM SCOTT CIRCUIT COURT
HONORABLE PAUL F. ISAACS, JUDGE
NO . 06-CR-00090
COMMONWEALTH OF KENTUCKY
MEMORANDUM OPINION OF THE COURT
A circuit court jury convicted Charles Cox of first-degree burglary, two
counts of wanton endangerment, and kidnapping. He appeals the kidnapping
conviction, claiming that it was barred by the statutory kidnapping exemption .
This Court disagrees and affirms the trial court's judgment .
I . BACKGROUND .
While bingeing on alcohol, Cox broke into the home of his ex-girlfriend,
Barbara Jackson (now Barbara Ziemski) . After talking to Jackson's fourteenyear old daughter for five minutes, Cox, carrying a gun, proceeded upstairs to
Jackson's bedroom. Meanwhile, Jackson phoned police to report that Cox was
in the house with a gun .
When Cox arrived in the bedroom, he threatened Jackson repeatedly,
stating, "I'm going to [expletive] you before I blow your brains out." Waving his
gun at Jackson, he forced her to remove her gown . He then attempted sexual
intercourse but was unable to perform. Cox then took Jackson downstairs .
Police were outside the house with the daughter. Cox dragged Jackson back
upstairs, where he again attempted unsuccessfully to rape her. While Cox
detained Jackson, police initiated brief telephone conversations with them
several times. During at least two of those conversations, Cox notified police
that he wanted 30 minutes more with Jackson.
Eventually, Jackson was able to throw Cox onto the bed and run
downstairs . Cox shot at her; but, with the aid of police officers, she escaped
out the door.
Cox was then arrested. The entire episode lasted approximately one
Cox was charged with first-degree burglary, attempted murder,
attempted rape, first-degree wanton endangerment, and kidnapping . At trial,
he was acquitted of the attempted rape and attempted murder but was
convicted of first-degree wanton endangerment as a lesser-included offense .
He was also convicted on the other wanton endangerment charge and the
burglary and kidnapping charges. He was sentenced to fifteen years for
burglary, five years for each wanton endangerment, and twenty years for
kidnapping, all to be served concurrently, for a total of twenty years . This
matter-of-right appeal contests only the kidnapping conviction .
II. ANALYSIS .
For purposes of this appeal, Cox concedes his conduct amounted to
kidnapping as described in KRS '509 .040 (1) : "A person is guilty of kidnapping
when he unlawfully restrains another person and when his intent is . . . (b) To
accomplish or to advance the commission of a felony; or (c) To inflict bodily
injury or to terrorize the victim .
As Cox apparently concedes, his
kidnapping conviction could stem from his intent to commit the felonies of rape
or murder, both of which he threatened, or even his intent generally to terrorize
Jackson with those threats .
Cox's sole argument on appeal is that his conviction for kidnapping was
barred by the kidnapping exemption set forth in KRS 509 .050. At trial, Cox
moved to dismiss the kidnapping charge under the exemption; but the trial
court denied his motion . The kidnapping exemption statute provides, in
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.
KRS 509 .050.
This Court has read the statute as laying out a three-prong test to
determine the applicability of the exemption.
First, the criminal purpose must be the commission of an offense
defined outside Chapter 509 ; second, the interference with the
victim's liberty must occur immediately with and incidental to the
commission of the underlying offense ; and finally, the interference
with the victim's liberty must not exceed that which is normally
incidental to the commission of the underlying offense .
Murphy v. Commonwealth, 50 S.W.3d 173, 180 (Ky. 2001) . If all three of these
criteria are met, the kidnapping effectively merges under the statute into the
other offense, thereby barring a duplicative conviction .
"The purpose of the statute is to prevent misuse of the kidnapping
statute to secure greater punitive sanctions for rape, robbery, and other
offenses which have as an essential or incidental element a restriction of
another's liberty." Gilbert v. Commonwealth, 637 S .W.2d 632, 635 (Ky. 1982) .
The exemption also prevents the addition of a kidnapping charge when paired
with "[o]ther offenses [that] may involve a restriction of someone's liberty
because of the manner in which they are committed." KRS 509 .050 cmt.
In other words, the exemption serves to prevent double punishment for
essentially the same act.
"The trial court, rather than the jury, determines whether the
[kidnapping] exemption applies . . . ." Duncan v. Commonwealth, 322 S .W.3d
81, 94 (Ky. 2010) .
Accordingly, on appellate review, we must determine
whether the trial court abused its discretion in refusing to apply the exemption.
Id. This observation carries significance in the present case because the jury
acquitted Cox of attempted rape and attempted murder, charges that could
potentially merge with kidnapping . Those acquittals notwithstanding, they
factor into the exemption analysis .
Cox's request for the exemption is, in fact, premised on his contention
that kidnapping merged into the attempted rape or, alternatively, into the
attempted murder .' Neither theory suffices .
Cox's argument that kidnapping merges with attempted murder in this
case is inconsistent with the second prong of the exemption : the restraint was
not immediate with and incidental to the other crime . Although Cox might
have had designs on murder from his initial break-in, the actual attempt did
not occur until Jackson had actually escaped Cox's control and was running
out of the house . By this point, the restraint had ceased. There was no
overlap between the restraint and the attempted murder. So the restraint did
not occur immediately with the attempted murder.
Merger with attempted rape, on the other hand, fails the third prong of
the exemption: the restraint must not exceed that amount normally incidental
to the commission of the offense . In this case, Cox restrained Jackson even
beyond his final attempted rape, until she actually escaped. Such restraint
was excessive for purposes of the exemption. Cf. Murphy, 50 S.W .3d at 180 .
We hold that the trial court correctly determined that the kidnapping
exemption did not apply.
1 Appellant has not claimed that the kidnapping merged with the burglary .
III. CONCLUSION .
For the foregoing reasons, the judgment is AFFIRMED .
All sitting. Minton, C.J. ; Abramson, Cunningham, Schroder, Scott, and
Venters, JJ ., concur. Noble, J ., concurs in result only.
COUNSEL FOR APPELLANT:
Shelly R. Fears
Assistant Public Advocate
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, Kentucky 40601--1133
COUNSEL FOR APPELLEE :
William Bryan Jones
Office of the Attorney General
Office of Criminal Appeals
1024, Capital Center Drive
Frankfort, Kentucky 40601