Opinion
NO. 2018-CA-001407-MR
02-21-2020
Joseph FOGLE, Appellant v. COMMONWEALTH of Kentucky, Appellee
BRIEF FOR APPELLANT: Paul J. Dickman, Covington, Kentucky. BRIEF FOR APPELLEE: Andy Beshear, Attorney General, Joseph A. Beckett, Assistant Attorney General, Frankfort, Kentucky.
BRIEF FOR APPELLANT: Paul J. Dickman, Covington, Kentucky.
BRIEF FOR APPELLEE: Andy Beshear, Attorney General, Joseph A. Beckett, Assistant Attorney General, Frankfort, Kentucky.
BEFORE: JONES, KRAMER, AND TAYLOR, JUDGES.
OPINION
JONES, JUDGE:
Joseph Fogle appeals the Campbell Circuit Court's judgment convicting him of one count of first-degree fleeing or evading police. The judgment was entered following Fogle's conditional guilty plea. Prior to pleading guilty, Fogle filed a motion in limine seeking to exclude any and all evidence by the Commonwealth aimed at establishing that he was "driving under the influence of alcohol or any other substance or combination of substances in violation of KRS 189A.010," which is necessary to prove fleeing and evading in the first-degree under KRS 520.095(1)(a) 2. Fogle argued that because the Commonwealth did not charge and convict him of having violated KRS 189A.010 it was legally impossible for the Commonwealth to establish at trial that Fogle was guilty of KRS 520.095(1)(a) 2. The trial court denied Fogle's motion. It reasoned that KRS 520.095(1)(a) 2. only required the Commonwealth to prove a violation of KRS 189A.010 as opposed to obtaining an actual conviction thereof. Fogle expressly reserved the right to appeal the trial court's denial of his motion as part of his conditional guilty plea. Having reviewed the record in conjunction with all applicable legal authority, we AFFIRM.
Kentucky Revised Statutes (KRS) 520.095.
See Kentucky Rules of Criminal Procedure (RCr) 8.09 ("With the approval of the court a defendant may enter a conditional plea of guilty, reserving in writing the right, on appeal from the judgment, to review of the adverse determination of any specified trial or pretrial motion. A defendant shall be allowed to withdraw such plea upon prevailing on appeal.").
I. BACKGROUND
On July 5, 2016, a law enforcement officer in Campbell County, Kentucky, observed Joseph Fogle operating a motor vehicle at a speed of 81 mph in a 65 mph zone. The officer activated his lights and sirens, but Fogle refused to stop. With the officer still in pursuit, Fogle crossed over from Campbell County, Kentucky, into Ohio, at which time the Kentucky officer alerted Ohio authorities. Fogle was ultimately stopped by the Ohio State Police on State Route 32 in Clermont County, Ohio, and placed under arrest. Law enforcement personnel observed that Fogle had slurred speech, was unsteady on his feet, and had bloodshot, glassy eyes. Following his arrest, Fogle pleaded guilty to operating a motor vehicle under the influence (DUI) in Clermont County, Ohio, pursuant to ORC 4511.19.
Ohio Revised Code.
On June 29, 2017, Fogle was indicted in Campbell County, Kentucky, for first-degree fleeing or evading and speeding. Shortly before Fogle's trial was scheduled to begin, the Commonwealth filed a notice of intent to introduce KRE 404(b) testimony. Specifically, the Commonwealth sought to introduce testimony of Fogle's condition at the time of his initial arrest, as well as his Ohio DUI conviction. In response, Fogle filed a motion in limine to exclude all such evidence. He argued it was a legal impossibility for him to be in violation of KRS 189A.010 because the Commonwealth had not obtained (and was not seeking) a conviction under that statute.
Kentucky Rules of Evidence.
The trial court heard oral arguments, after which it entered an opinion and order. The trial court agreed with Fogle that the Commonwealth could not establish that Fogle violated KRS 189A.010 based on the Ohio DUI conviction making that conviction inadmissible. However, the trial court did not agree that KRS 520.095(1)(a) 2. required the Commonwealth to obtain a separate conviction, of KRS 189A.010. The trial court pointed out that KRS 520.095(1)(a) 2. referred to a violation, not an actual conviction. It reasoned that the Commonwealth could establish Fogle violated KRS 189A.010 by introducing evidence of Fogle's condition after he was stopped in Ohio, because the Ohio stop occurred immediately after he was observed driving in Kentucky with the police in pursuit.
Shortly thereafter, Fogle entered a conditional plea to first-degree fleeing or evading police. As part of his plea, Fogle reserved the right to appeal the trial court's decision denying exclusion of evidence related to his behavior in Ohio for the purpose of establishing a violation of KRS 189A.010. The trial court entered its final judgment and sentence on September 13, 2018.
This appeal followed.
II. ANALYSIS
As framed by the parties, the issue before us is whether the "violation" terminology in KRS 520.095(1)(a) 2. requires an actual conviction. Since the construction and application of statutes is a matter of law, our review is de novo. Wheeler & Clevenger Oil Co., Inc. v. Washburn , 127 S.W.3d 609, 612 (Ky. 2004). "Under de novo review, we owe no deference to the trial court's application of the law to the established facts." KL & JL Investments, Inc. v. Lynch , 472 S.W.3d 540, 544 (Ky. App. 2015).
KRS 520.095(1)(a) 2. provides:
(1) A person is guilty of fleeing or evading police in the first degree:
(a) When, while operating a motor vehicle with intent to elude or flee, the person knowingly or wantonly disobeys a direction to stop his or her motor vehicle, given by a person recognized to be a police officer, and at least one (1) of the following conditions exists:
...
2. The person is driving under the influence of alcohol or any other substance or combination of substances in violation of KRS 189A.010 [.]
Id. (emphasis added).
To resolve the issue before us, we must determine the meaning of the phrase "in violation of KRS 189A.010." "In the interpretation of statutes, the function of this or any court is to construe the language so as to give effect to the intent of the legislature." Fiscal Court of Jefferson Cty. v. City of Louisville , 559 S.W.2d 478, 480 (Ky. 1977). When determining legislative intent "[w]e must look first to the plain language of a statute and, if the language is clear, our inquiry ends." Seeger v. Lanham , 542 S.W.3d 286, 291 (Ky. 2018) (citing Revenue Cabinet v. O'Daniel , 153 S.W.3d 815, 819 (Ky. 2005) ). "Where a statute is intelligible on its face, the courts are not at liberty to supply words or insert something or make additions however just or desirable it might be to supply an omitted provision." Berry v. Commonwealth , 782 S.W.2d 625, 626 (Ky. 1990), overruled on other grounds by Chestnut v. Commonwealth , 250 S.W.3d 288 (Ky. 2008).
KRS 520.095(1)(a) 2. unambiguously states that the defendant need only be found in violation of KRS 189A.010. A "violation" is defined as "[a]n infraction or breach of the law[,]" while in contrast, a "conviction" is "[t]he act or process of judicially finding someone guilty of a crime[.]" BLACK'S LAW DICTIONARY (11th ed. 2019). The terms are legally distinct. Additionally, "the customary meaning of violation tends toward the broad (any failure to conform to a legal standard) rather than the narrow (a criminal conviction)." Prewett v. Weems , 749 F.3d 454, 458 (6th Cir. 2014). Perhaps most telling, however, is that the language of KRS 189A.010, itself, references "prosecutions for violations." This bolsters our conclusion that the violation is the act itself, which is distinct from the prosecution and ultimate conviction of having committed the act.
The terms "violation" and "conviction" are different in their standards and meanings. Had our General Assembly intended for a conviction or formal prosecution to be necessary with respect to the driving under the influence prong of KRS 520.095, it could have used more precise terms. See Ekman v. Miller , 812 N.W.2d 892, 896 (Minn. Ct. App. 2012) ("There is a meaningful difference between the concepts of ‘violation’ and ‘conviction.’ Had the legislature intended that only convictions for violating an OFP could serve as a basis for an increased term, it could easily have made that clear.").
We also note that our interpretation of the statute is consistent with prior decisions of this Court. In Cordle v. Commonwealth , No. 2013-CA-001666-MR, 2015 WL 3643428, at *2 (Ky. App. June 12, 2015), we held that, "[f]irst-degree fleeing or evading only requires proof the defendant was driving under the influence of alcohol[.]" The facts in Cordle are similar to the facts of this case in many respects. Cordle and Adams visited the home of a mutual acquaintance, Lemaster. A fight soon broke out between Cordle and Lemaster. The fight ended when Cordle took Lemaster's car keys and fled the scene in Lemaster's vehicle. Police arrived and attempted to stop Cordle, who was in the process of backing out of Lemaster's driveway. The police activated their lights and sirens and told Cordle to stop, but he drove through Lemaster's backyard and into an alleyway. Cordle was apprehended with Lemaster's vehicle a few hours later in Ohio. The Commonwealth charged Cordle with theft, fleeing or evading in the first degree, unauthorized use of a motor vehicle, fourth-degree assault, and being a persistent felony offender. He was tried by a jury and convicted of all the charges except theft. It does not appear that he was ever separately charged and convicted of driving under the influence. Despite the obvious lack of a conviction for DUI, we held that "all the evidence indicate[d] Cordle was under the influence of alcohol at the time he fled, including the testimony of Adams and Lemaster," making his conviction proper because the aggravating factor for the first-degree fleeing or evading offense was driving under the influence of alcohol. Id.
We cite to Cordle for illustrative purposes only as we recognize that it is unpublished and, therefore, nonbinding. See Kentucky Rules of Civil Procedure (CR) 76.28(4)(c).
Fogle was ultimately stopped in Ohio, but the chase began in Kentucky. The observations of the apprehending Ohio officers regarding Fogle's behavior were directly relevant to the issue of whether he was driving under the influence when he fled Kentucky to Ohio with the police in pursuit. As such, the trial court correctly determined that the Commonwealth could introduce evidence of Fogle's behavior, when stopped, for the purposes of proving that he was "driving under the influence of alcohol or any other substance or combination of substances in violation of KRS 189A.010." The fact that Fogle had not been previously convicted of KRS 189A.010 is of no consequence. As the trial court correctly recognized, KRS 520.095(1)(a) 2. requires factual proof that the defendant was in violation of KRS 189A.010 while fleeing or evading police; it does not require the Commonwealth to actually convict the defendant of KRS 189A.010.
III. CONCLUSION
For the foregoing reasons, we affirm the Campbell Circuit Court.
ALL CONCUR.