Opinion
NO. 2012-CA-000424-MR
04-19-2013
TRUMAN ADAMS APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Stephen H. Poindexter Burkesville, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Susan Roncarti Lenz Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM MONROE CIRCUIT COURT
HONORABLE EDDIE C. LOVELACE, JUDGE
ACTION NO. 11-CR-00031
OPINION
AFFIRMING
BEFORE: CLAYTON, LAMBERT, AND VANMETER, JUDGES. LAMBERT, JUDGE: Truman Adams has directly appealed from the judgment of the Monroe Circuit Court convicting him, following a jury trial, of second-degree burglary and for being a persistent felony offender (PFO) in the second degree, and sentencing him to fifteen years' imprisonment. On appeal, Adams contends that the Commonwealth did not present sufficient evidence to support the burglary conviction under Kentucky Revised Statutes (KRS) 511.030. Having carefully considered the record and the parties' briefs, we find no error and affirm the judgment of conviction.
In May 2011, the Monroe County grand jury indicted Adams on charges of second-degree burglary pursuant to KRS 511.030 and for being a persistent felony offender pursuant to KRS 532.080(2). The burglary charge arose from an incident on April 4, 2011, when Adams allegedly broke in the basement door of the home of Jeff and Amanda Cornelius on Chandler Road in Tompkinsville, Kentucky. The indictment charged that Adams knowingly entered or remained unlawfully in the residence with the intent to commit a crime. Adams was arrested on the warrant issued when the indictment was returned. Adams entered a not guilty plea, and a trial was scheduled for January 5, 2012.
At trial, the first witness to testify was Amanda Cornelius. She and her husband live on Chandler Road in Monroe County. On the morning of April 4, 2011, Mr. and Mrs. Cornelius left the house prior to 7:00 a.m. to go to work. Their twenty-one-year-old son, Brad, remained in the house, and no vehicles were in the driveway. Mrs. Cornelius testified that she knew Adams, but she had never invited him to enter her home or given him permission to be on her property or in her house.
The next witness to testify was Brad Cornelius. He is a college student, has a part-time job at Lowe's, and lives in his parents' home. Brad was home at the time of the incident on April 4th. He testified that soon after his mother left for work, at approximately 7:05 a.m., he heard a knock at the back door near the deck. He was awake but was still in bed when he heard the knock, and he did not respond. When the person continued to knock, Brad became suspicious. He got out of bed, and then heard a "crack" from the direction of the window like someone was trying to kick the back door in. Brad walked quickly to the window and looked directly down to see a person leaving the doorway. Brad identified that person as Adams. Brad testified that the person got into a four-door Saturn with blue windshield wipers. Brad called his mother to tell her what had happened. His mother called 911, and law enforcement officers responded within twenty minutes. Later that day, they went to the sheriff's office to identify a suspect. Brad recognized Adams as the person he saw from his window who had broken in the back door. The back door had been opened inwardly and the frame was cracked. Brad did not see anyone other than Adams around the house that day, and he thought Adams left because he heard him inside.
On cross-examination, Brad confirmed that he thought Adams left because he heard him, and that the person had his foot on the doorstep as he was exiting. He could tell that a portion of the person's body was shaded by the house as he was looking directly down from his window. Adams' attorney continued questioning Brad about the shade and how he could have seen that the person was in the house. From the deck, Brad could see the damage to the door and that it was open. He then went to the basement. Nothing was taken from the house.
For its next witness, the Commonwealth called Monroe County Sheriff Roger Barlow. In response to a 911 call, Sheriff Barlow went to the Cornelius residence to investigate a breaking and entering complaint. After he arrived at the residence at 7:22 a.m., Sheriff Barlow asked what happened, and Brad told him someone kicked in the basement door as he was looking out of the window above. He asked for a description of the person, and Brad provided one. Once he secured this information, Sheriff Barlow put out an alert regarding the perpetrator and the vehicle he was driving. Sheriff Barlow examined the basement door and the doorway of the Cornelius residence. He described it as a recessed door. He agreed that if the door had been broken into, at least some part of that person's body would have been inside of the house. Photographs showed that an instrument had been placed to force or pry the door open.
Later that day, Sheriff Barlow received a response from the alert via a private call telling him the Saturn Brad described the suspect as driving was on White Street. Sheriff Barlow went to the address given on White Street, which was Adams' residence. He saw the Saturn fitting Brad's description in the driveway. Sheriff Barlow went to the door, and Adams' wife, Jessie, answered his knock. Adams then came to the door, and his clothing matched the description Brad had provided. Sheriff Barlow testified that when he was on the scene at the Cornelius residence, he saw a silver Ford Taurus drive by slowly, which was later identified as Adams' car. Adams told Sheriff Barlow the Saturn did not work, but Sheriff Barlow felt that the engine was hot when Adams lifted the hood. Adams told him he had forgotten that he had driven the car around the block that morning. Sheriff Barlow then said he was going to take him to the office so that he could have someone come in to identify him. They went to the office, and Sheriff Barlow had Brad come in to identify Adams. Brad started shaking when he saw Adams. Sheriff Barlow took Brad and his mother into his office, and Brad told him that Adams was the person he saw. Upon Brad's identification, Sheriff Barlow arrested Adams for burglary.
On cross-examination, Sheriff Barlow agreed that the door had not been broken down, as had been reported. He admitted that he did not have any training in evidence collection and had not attended the police academy. He did not collect any evidence at the scene, but only took photographs. After some discussion about the marks on the door and the doorknob, Sheriff Barlow admitted that he had no evidence that anyone had ever gone into the home, agreeing that there was no evidence of footprints or fingerprints inside. He also went by what Brad told him regarding what he could see from the window; Sheriff Barlow did not go to Brad's room to investigate this. He did not look at any suspects other than Adams.
Bobby Bartley was the final witness to testify for the Commonwealth. Mr. Bartley is Amanda Cornelius' father. Mr. Bartley testified that the door, the doorjamb, and the lock were broken beyond repair. He said he could not tell where an entry had been made, but the door had to have been pushed in because the door was one-third to one-half opened. He stated that the door was open when he saw it.
With that witness, the Commonwealth closed its case. Adams moved for a directed verdict on the burglary charge based on Sheriff Barlow's testimony that someone had popped the lock, which he argued was not enough to meet the criteria for second-degree burglary. The Commonwealth noted that only a miniscule entry is necessary. The court denied the motion, holding that the jury could find that Adams had been partially inside, which would be sufficient pursuant to Kentucky caselaw.
At the conclusion of the guilt phase of the trial, the jury returned a verdict finding Adams guilty of second-degree burglary. Following the penalty phase, the jury found Adams guilty on the PFO II charge. The jury fixed his punishment on the burglary conviction at five years' imprisonment, enhanced to fifteen years by the PFO II conviction. The court held the final sentencing hearing the following month and sentenced Adams to fifteen years' imprisonment pursuant to the jury's recommendation. The judgment was entered February 15, 2012. This appeal from the judgment of conviction now follows.
On appeal, Adams presents two arguments. The first is whether the circuit court properly denied Adams' motion for a directed verdict based upon his argument that the Commonwealth did not produce sufficient evidence that Adams had entered the residence to support the burglary charge. The second argument is unpreserved, and it addresses whether the Commonwealth established the intent element of the crime charged.
The Supreme Court of Kentucky set forth the directed verdict rule as well as the appellate court's standard of review in Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991) (citing Commonwealth v. Sawhill, 660 S.W.2d 3 (Ky. 1983)).
On motion for directed verdict, the trial court must draw all fair and reasonable inferences from the evidence in favor of the Commonwealth. If the evidence is sufficient to induce a reasonable juror to believe beyond a reasonable doubt that the defendant is guilty, a directed verdict should not be given. For the purpose of ruling on the motion, the trial court must assume that the evidence for the Commonwealth is true, but reserving to the jury questions as to the credibility and weight to be given to such testimony.See also Wilburn v. Commonwealth, 312 S.W.3d 321 (Ky. 2010); Hedges v. Commonwealth, 937 S.W.2d 703 (Ky. 1996).
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 the defendant is entitled to a directed verdict of acquittal.
Adams' first argument is that he was entitled to a directed verdict of acquittal because the Commonwealth failed to establish the entry element to support a second-degree burglary conviction. KRS 511.030(1) codifies the crime of second-degree burglary: "A person is guilty of burglary in the second degree when, with the intent to commit a crime, he knowingly enters or remains unlawfully in a dwelling."
As both Adams and the Commonwealth point out, the most recent published Kentucky case on point is Paulley v. Commonwealth, 323 S.W.3d 715 (Ky. 2010). Paulley and Gunn were convicted of several charges, including first-degree burglary and murder. The victim, who was holding the door shut to prevent a forced entry into the home, died when he was shot and killed by a gunshot through the door. Regarding the entry element, the Supreme Court stated:
Both Gunn and Paulley contend they were entitled to directed verdicts because there was no evidence that either entered Stone's home. The evidence showed that, at most, the front door of Stone's residence opened slightly when it was kicked by Gunn. So Gunn's foot could have crossed the threshold when the door was ajar. The question of whether entry as slight as this is sufficient to support a burglary charge has rarely been addressed by this Court, especially since the adoption of the Kentucky Penal Code in 1974.Paulley, 323 S.W.3d at 722-24. See also State v. Bryant, 101 So. 3d 429, 432 (La. 2012), for the Supreme Court of Louisiana's discussion of the definition of "entry" for purposes of the crime of burglary: ("'Entry' is not statutorily defined in Louisiana. While this Court has never directly addressed the issue, our appellate courts have found 'entry' for purposes of the crime of burglary whenever any part of the defendant's body passes the line of the threshold.").
As it pertains to this case, a person is guilty of burglary in the first degree if he "with the intent to commit a crime ... knowingly enters or remains unlawfully in a building, and when in effecting entry or while in the building or in the immediate flight therefrom, he or another participant in the crime ... [i]s armed with explosives or a deadly weapon...." [Kentucky Revised Statutes (KRS) 511.020(1)(a).] The question raised by Gunn and Paulley is whether a slight entry—here, a foot crossing the threshold of a residence when a door is kicked slightly ajar—constitutes a sufficient entry. We hold that it does.
Other courts have concluded that even a slight entry is sufficient. [People v. Walters, 249 Cal.App.2d 547, 57 Cal.Rptr. 484, 486 (1967) ("The slightest entry is sufficient to constitute the crime of burglary, if it be with felonious intent.").] For example, the Supreme Court of Tennessee has held that "[e]ntry is an indispensable element in the crime of burglary[;] but, to prove entry, it
is not necessary to show that the defendant's whole body made an entrance into the house." [State v. Crow, 517 S.W.2d 753, 753 (Tenn. 1974).] Instead, as our counterpart in Maine has held, "[a] burglarious entry is accomplished by the intrusion into the building of any part of the body, an arm, a hand, a finger[,] or a foot...." [State v. Liberty, 280 A.2d 805, 808 (Me. 1971).]
Although not cited by the parties, our precedent is in general accord with this "slight entry" rule. At the beginning of the last century, our predecessor Court had to decide whether loosening a window strip—but not actually opening the window—was a sufficient "breaking" to constitute breaking into a warehouse. [Gaddie v. Commonwealth, 117 Ky. 468, 78 S.W. 162 (1904).] The Court ultimately concluded that no breaking occurred since there was no actual entry into the warehouse.[Id. at 473, 78 S.W. at 164.] In the course of coming to that conclusion, the Court cited, with approval, various treatises and scholarly works that generally agreed that "[a]n actual breaking may be by ... removing or breaking a pane of glass, and inserting the hand, or even a finger...." [Id. at 461-72, 78 S.W. at 163.] In a similar case, which is also over one hundred years old, our predecessor Court held that a defendant could not be guilty of breaking into a railroad car without actually entering the car. [Price v. Commonwealth, 129 Ky. 716, 112 S.W. 855 (1908).] In the course of arriving at that conclusion, the Court opined that "an entry into the car, however slight, such as putting the hand through the opening with the intent to steal property, etc., therefrom, would be an entry in the meaning of the statute...." [Id. at 718, 112 S.W. at 855.]
After the adoption of the Penal Code, we have, apparently, only had one occasion to address the continued viability of the slight entry rule; and that occasion occurred thirty years ago. In Stamps v. Commonwealth, a defendant was convicted of third-degree burglary based upon his having penetrated into the "air pockets of the concrete blocks" at the rear of a store without having "penetrate[ed] into the store" itself. [Stamps v. Commonwealth, 602 S.W.2d 172, 172 (Ky.
1980).] We cited Price and Gaddie for the general proposition that a slight entry was sufficient but held that the defendant in Stamps was not guilty of burglary because he had penetrated only the air pockets in the exterior concrete blocks and not penetrated the interior of the building. [Id. at 173.]
So, consistent with precedent and with the viewpoint of other courts, we reaffirm that even a slight entry is sufficient to support a charge of burglary, assuming, of course, the evidence supports all the other requisite elements of a burglary offense, none of which are at issue in these appeals.
Drawing all reasonable inferences in favor of the Commonwealth, a reasonable juror could have concluded that Gunn's foot crossed the threshold of Stone's home when Gunn kicked Stone's front door. So the trial court did not err when it refused to grant Gunn's and Paulley's motions for directed verdict on the burglary charges.
See 12A C.J.S. Burglary § 22 (2010) ("Any kind of entry, complete or partial, will suffice for purposes of a burglary statute. All that is needed is entry inside the premises, not entry inside some inner part of the premises. Moreover, the slightest entry is sufficient to constitute the crime of burglary, if it be with felonious intent. Thus, it is not necessary that the person enter the structure with his or her entire body, and the least entry of any part of the body of the accused is sufficient, such as penetration by his or her hand, arm, finger, or foot.") (internal footnotes omitted). (Footnote 31 in original).
Although he, apparently, did not personally kick Stone's door open, there was sufficient evidence presented from which a reasonable juror could have concluded that Paulley was guilty of burglary under a complicity theory of liability. (Footnote 32 in original.)
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The Paulley Court relied on earlier Kentucky cases holding that the entry by an instrument is sufficient to constitute a burglary. In Gaddie v. Commonwealth, 117 Ky. 468, 78 S.W. 162, 163 (1904), the former Court of Appeals stated: "To constitute burglary, an entry must be made into the house with the hand, foot, or an instrument with which it is intended to commit a felony." Id. at 163 (quoting State v. McCall, 39 Am. Dec. 314.). Decades later, the Supreme Court of Kentucky discussed this holding in Stamps v. Commonwealth, 602 S.W.2d 172, 173 (Ky. 1980):
In Gaddie, supra, the defendant was convicted of burglary when an outside window strip which held a window in a warehouse in place was pried open. The window remained intact although it was unprotected on one side and could have easily been lifted out. The opening had been made to the interior of the building. The court reversed the conviction and stated, supra, 78 S.W. p. 163, that "an entry must be made into the house with the head, foot, or an instrument with which it is intended to commit a felony."Stamps, 602 S.W.2d at 173.
In the instant case, Stamps and his accomplice had only broken through the concrete blocks to the air pockets. No part of the body or an instrument had extended into the interior of the building.
Adams attempts to distinguish the holding in Paulley based upon the Court's discussion of the applicable standard for a directed verdict and because there was no evidence that the door had been kicked in. We disagree with both attempts to distinguish the case and hold that Paulley is precisely on point in this case.
Regarding the first point, the directed verdict standard as set forth in Paulley is a verbatim quote from Benham, as was the quotation in Hedges. We do not agree with Adams that Benham fails to articulate a consistent standard. Rather, the Benham Court was providing instruction for both the trial court level ("If the evidence is sufficient to induce a reasonable juror to believe beyond a reasonable doubt that the defendant is guilty, a directed verdict should not be given." Benham, 816 S.W. 2d at 187) and the appellate court level ("if under the evidence as a whole, it would be clearly unreasonable for a jury to find guilty, only then the defendant is entitled to a directed verdict of acquittal." Id.), and the scrutiny at each level is not inconsistent with the other. Accordingly, Paulley includes an accurate recitation of the directed verdict standard. Even if this Court were inclined to agree with Adams' argument in this regard, as an intermediate appellate court, we cannot alter precedent as set forth by the Supreme Court. "The Court of Appeals is bound by and shall follow applicable precedents established in the opinions of the Supreme Court and its predecessor court." Rules of the Supreme Court (SCR) 1.030(8)(a). See also Fields v. Lexington-Fayette Urban County Gov't, 91 S.W.3d 110, 112 (Ky. App. 2001) (stating that the Court of Appeals is without the authority to overturn a decision of the Supreme Court of Kentucky even if it were inclined to do so.).
We also agree with the circuit court that the Commonwealth met its burden to establish the entry element to overcome Adams' motion for directed verdict, which is also consistent with the holding in Paulley. For purposes of ruling on the motion, the court had to assume the evidence presented by the Commonwealth was true. The proof elicited at trial was that Brad heard what sounded like someone was trying to kick the basement door in and saw Adams' foot on the threshold as he looked down from his window. Furthermore, the testimony established that the door had been opened by means of a tool or other instrument that had extensively damaged the door and the doorjamb. This evidence would have permitted a reasonable juror to conclude that some part of Adams' body, or at least some instrument, had crossed the threshold to the house in order to force the door open. Accordingly, we hold that the circuit court did not err in denying Adams' motion for a directed verdict.
Next, Adams argues that the Commonwealth did not present sufficient evidence of intent to commit a crime to support the second-degree burglary conviction. Adams concedes that this issue was not preserved and requests this Court to review the alleged error for palpable error pursuant to Kentucky Rules of Criminal Procedure (RCr) 10.26.
RCr 10.26 defines a palpable error as an "error which affects the substantial rights of a party [that] may be considered by the court on motion for a new trial or by an appellate court on appeal, even though insufficiently raised or preserved for review, and appropriate relief may be granted upon a determination that manifest injustice has resulted from the error." In Martin v. Commonwealth, 207 S.W.3d 1, 3-4 (Ky. 2006), the Supreme Court of Kentucky set forth one of the most recent expressions of the palpable error standard of review:
This Court reviews unpreserved claims of error on direct appeal only for palpable error. To prevail, one must show that the error resulted in "manifest injustice."See also Jones v. Commonwealth, 283 S.W.3d 665, 668 (Ky. 2009) (holding that palpable error relief is not available unless three conditions are present: 1) the error was clear or plain under existing law; 2) it was more likely than ordinary error to have affected the judgment; and 3) it so seriously affected the fairness, integrity, or public reputation of the proceeding to have been jurisprudentially intolerable). With this standard in mind, we shall address Adams' argument that the Commonwealth failed to establish the intent element.
. . .
This Court has stated:
Under [RCr 10.26], an error is reversible only if a manifest injustice has resulted from the error. That means that if, upon consideration of the whole case, a substantial possibility does not exist that the result would have been different, the error will be deemed nonprejudicial.[Graves v. Commonwealth, 17 S.W.3d 858, 864 (Ky. 2000) (quoting Jackson v. Commonwealth, 717 S.W.2d 511, 513 (Ky. App. 1986)).] While this statement is not inaccurate, it fails to adequately describe the necessary degree of prejudice associated with the unpreserved question in the context of the whole case. The language "[a] substantial possibility does not exist that the result would have been different" is at best confusing, and it falls short of the required standard. A better understanding is gained from an examination of RCr 10.26 with emphasis on the concept of "manifest injustice." While the language used is clear enough, we further explain that the required showing is probability of a different result or error so fundamental as to threaten a defendant's entitlement to due process of law.
In United States v. Cotton, [535 U.S. 625, 122 S.Ct. 1781, 152 L.Ed.2d 860 (2002),] the Supreme Court analyzed the plain error test of Federal Rule of Criminal Procedure 52(b), the federal counterpart of RCr 10.26. At issue was an indictment that failed to meet the requirements of Apprendi v. New Jersey, [530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000),] but where the respondents had failed to raise the Apprendi claim before the trial court. Despite failure of preservation, the United States Court of Appeals for the Fourth Circuit vacated the sentences on grounds that failure of the indictment to set forth all necessary elements of the offense violated both
mandatory and jurisdictional requirements. Rejecting the holding with respect to jurisdiction, the Supreme Court proceeded to the plain error test of Federal Rule of Criminal Procedure 52(b). The Court reviewed the plain error components from its precedents, but focused primarily on an element from Johnson v. United States [520 U.S. 461, 117 S.Ct. 1544, 137 L.Ed.2d 718 (1997),] as follows: "an appellate court may then exercise its discretion to notice a forfeited error but only if ... the error seriously affects the fairness, integrity or public reputation of judicial proceedings." [Cotton, at 631, 122 S.Ct. 1781; see also Ernst v. Comm., 160 S.W.3d 744, 758 (Ky. 2005)(properly applying this standard to an evidentiary error under KRE 103(e)). Reversing the Fourth Circuit, the Supreme Court remanded for reinstatement of the sentences on grounds that the unpreserved Apprendi error did not meet the requirements for plain error.]
While the language of RCr 10.26 and Federal Rule of Criminal Procedure 52(b) differ substantially, and recognizing that this Court is not obligated to follow Cotton, we nevertheless believe it to be a valuable guide in the application of our palpable error rule. To discover manifest injustice, a reviewing court must plumb the depths of the proceeding, as was done in Cotton, to determine whether the defect in the proceeding was shocking or jurisprudentially intolerable.
Adams relies upon the Supreme Court's holding in Hedges, supra, to support his argument that there was insufficient evidence to establish intent. In Hedges, the Supreme Court held that the Commonwealth failed to establish the intent element, citing to a dissenting opinion by Justice Leibson in McCarthy v. Commonwealth, 867 S.W.2d 469 (Ky. 1993):
For the "intent" element of the burglary statute to have been satisfied in this case, "with the intent to commit any crime" must be understood to refer to intent to commit a crime in addition to criminal trespass. Criminal trespass is committed by "knowingly entering and remaining unlawfully in a building," the first element in the burglary statute. Since anytime someone "knowingly enters or remains unlawfully in a dwelling" that person would necessarily have the intent to commit the crime of coming onto the property, the Majority Opinion has effectively written the intent requirement out of the burglary statute....Hedges, 937 S.W.2d at 706 (quoting McCarthy, 867 S.W.2d at 472). On the other hand, the Commonwealth cites to Commonwealth v. Sanders, 685 S.W.2d 557 (Ky. 1985):
Ordinarily, the Commonwealth need only show that the defendant entered or remained in the dwelling unlawfully. This showing permits the jury to infer intent to commit a crime in the absence of other facts which would justify the lesser degree instruction. Cf. Patterson v. Commonwealth, 251 Ky. 395, 65 S.W.2d 75 (1933), which illustrates the long-standing rule in burglary cases that proof of the act of entering creates the inference of criminal intent.Sanders, 685 S.W.2d at 559.
Based upon the holding in Sanders, we must agree with the Commonwealth that sufficient evidence was presented to permit the jury to infer that Adams intended to commit a crime when he broke into the house, despite the testimony that nothing was taken. Brad testified that he believed Adams fled when he heard him inside of the house. Accordingly, we cannot hold that any manifest injustice occurred or that any error in the proceedings was jurisprudentially intolerable so as to justify relief on this issue.
For the foregoing reasons, the Monroe Circuit Court's judgment of conviction is affirmed.
ALL CONCUR. BRIEF FOR APPELLANT: Stephen H. Poindexter
Burkesville, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
Susan Roncarti Lenz
Assistant Attorney General
Frankfort, Kentucky