Opinion
NO. 2015-CA-001230-MR
01-13-2017
OUCKIE J. HUGHES APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEF FOR APPELLANT: Emily Holt Rhorer Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky Courtney J. Hightower Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM NELSON CIRCUIT COURT
HON. JOHN DAVID SEAY, JUDGE
INDICTMENT NO. 15-CR-00064 OPINION
AFFIRMING
** ** ** ** **
BEFORE: ACREE, J. LAMBERT, AND THOMPSON, JUDGES. LAMBERT, J., JUDGE: Ouckie Hughes appeals from the Nelson Circuit Court's judgment of conviction following jury trial, entered July 29, 2015. We affirm the circuit court.
On February 5, 2015, the Nelson Circuit Court entered an order granting Ouckie Hughes, an inmate at the Nelson County Detention Center, a series of furloughs to attend classes relating to driving under the influence (DUI). These classes were held at an offsite location in Bardstown, Kentucky, not far from the detention center. The order specified that Hughes "shall travel directly from the detention center to DUI class and return directly to the detention center and shall travel to no other places." It also stated that Hughes was prohibited from using alcohol or controlled substances during furlough, that he was subject to alcohol/drug testing at any time, and that any violation of his furlough conditions or of state, federal, or local law would result in the termination of furloughs and the possibility of being punished for contempt of court. Hughes attended his first few classes without incident.
On February 14, 2015, Hughes was permitted to leave the detention center at 10:30 a.m. for his scheduled class, with a mandated return time of 2:30 p.m. Despite the custom at the detention center to allow a "grace period" for those returning from furlough, Hughes had not returned by 3:00 p.m., when the supervising deputy jailer went off duty. Upon starting his shift at 7:00 p.m., Officer Riley of the Bardstown Police Department was informed that Hughes had not reported back to the detention center, and so police were to be on the lookout for him. Later that evening, Officer Riley and three other police officers received information that Hughes was located at "Mammy's Kitchen," a local restaurant and tavern, so the officers proceeded to that location.
Officer Riley parked his vehicle in an alley to the side of the restaurant, while Officer Cauley, a K-9 officer also with the Bardstown Police, parked directly behind the restaurant. Two other police officers entered the establishment searching for Hughes, leaving Officers Riley and Cauley outside to monitor the exits. A few minutes later, Officers Riley and Cauley observed Hughes exiting the rear of the restaurant. When confronted, Hughes immediately attempted to flee the scene, despite Officer Cauley's command to stop. Officer Riley unsuccessfully attempted to subdue Hughes using his Taser, while Officer Cauley deployed his canine partner. At one point, in his attempt to evade capture, Hughes shoved Officer Riley away from him as they struggled on the icy ground. Ultimately, Officer Riley was able to apprehend Hughes by tackling him in front of Jailer's Inn on Stephen Foster Avenue.
As a result of this incident, Hughes was indicted by the grand jury on March 18, 2015, on seven separate charges: one count of first-degree fleeing and evading police, two counts of third-degree assault, two counts of resisting arrest, one count of second-degree criminal mischief, and one count of being a first-degree persistent felony offender. An amended indictment filed June 17, 2015, added an eighth count, "Escape in the Second Degree." The circuit court granted Hughes' motion to sever the charge of second-degree escape, since it required evidence of a prior conviction. On July 23, 2015, following a two-day trial, the jury found Hughes guilty of second-degree escape but declined to enhance his sentence as a persistent felony offender. The circuit court sentenced Hughes on July 29, 2015 to three-years' imprisonment, to be served consecutively to his other sentences. This appeal follows.
Hughes brings one issue on appeal, arguing that the circuit court erred by denying his motion for directed verdict on the second-degree escape charge. Hughes testified at trial that he fully intended to return to custody at the Nelson County Detention Center, but that he unintentionally consumed alcohol or drugs which prevented him from doing so. He stated that he failed to return because a female acquaintance at the DUI class, a friend of his ex-girlfriend, gave him a cup of Coca-Cola that he believes in hindsight was laced with some illicit substance. Hughes testified that, after drinking the tainted beverage, he did not distinctly remember leaving the DUI class or going to Mammy's Kitchen. Nor did he clearly remember any other events of the evening, until the moment he was tased by Officer Riley. Hughes admitted that he should not have resisted arrest, but said that it was his intent to run back through the alleys and go back to the jail. The only other witness for the defense was a longtime acquaintance of Hughes, Josh Ramsey. Ramsey saw the appellant inside the restaurant, where he characterized Hughes' behavior as "distracted," and possibly intoxicated. Hughes' legal argument is that the fact of his intoxication meant that he could not possibly have formed the requisite intent for escape, and so was entitled to a directed verdict.
It is clear from the statutes and the case law that Hughes' failure to return from furlough at the required time constitutes second-degree escape. The statutory definition of escape is found in KRS 520.010(5), where it is characterized as "departure from custody or the detention facility in which a person is held or detained when the departure is unpermitted, or failure to return to custody or detention following a temporary leave granted for a specific purpose or for a limited period." (Emphasis added). KRS 520.030(1) defines the specific statutory offense of escape in the second degree as follows: "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." Even an appellant under home incarceration has been held to have escaped from a detention facility when "leaving the specified home without permission, or failing to return to the home after a temporary, authorized leave." Lawton v. Commonwealth, 354 S.W.3d 565, 569 (Ky. 2011). Finally, this Court has previously held that an "[appellant's] conduct meets the definition of second-degree escape because he failed to return to a detention facility, the county jail, following a temporary leave granted for a limited period." Land v. Commonwealth, 366 S.W.3d 9, 10 (Ky. App. 2012).
The only question remaining is whether Hughes was entitled to a directed verdict on the basis of his alleged intoxication.
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.Perdue v. Commonwealth, 411 S.W.3d 786, 790 (Ky. App. 2013) (citing Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991)). Furthermore, "[t]o defeat a directed verdict motion, the Commonwealth must only produce 'more than a mere scintilla of evidence.'" Lackey v. Commonwealth, 468 S.W.3d 348, 352 (Ky. 2015) (quoting Benham, 816 S.W.2d at 187).
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.
Although there is certainly some evidence that Hughes was under the influence of alcohol or drugs on February 14, 2015, "intoxication is a defense to an offense only if it prevents a person from forming the requisite intent, and mere drunkenness will not raise this defense." Reynolds v. Commonwealth, 113 S.W.3d 647, 652 (Ky. App. 2003). A directed verdict on the basis of intoxication is only appropriate if the evidence is "so overwhelming as to compel a finding by the jury as the trier of fact that [Appellant] was intoxicated to the degree that he did not know what he was doing." Salisbury v. Commonwealth, 556 S.W.2d 922, 924 (Ky. App. 1977). The only evidence in this case that Hughes was so intoxicated that he was unaware of what he was doing comes from the testimony of Hughes himself. There were no alcohol or drug tests supporting Hughes' claims, and there were no other witnesses besides Hughes regarding the drugged cup of Coca-Cola. We cannot agree with the proposition that the mere ipse dixit of a criminal defendant amounts to overwhelming evidence. Considering the evidence as a whole, we cannot state that it was "clearly unreasonable for a jury to find guilt." Benham, 816 S.W.2d at 187. Accordingly, we find that the circuit court did not err in denying Hughes' motion for a directed verdict.
For the foregoing reasons, we affirm the Nelson Circuit Court's order entered July 29, 2015.
ALL CONCUR. BRIEF FOR APPELLANT: Emily Holt Rhorer
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky Courtney J. Hightower
Assistant Attorney General
Frankfort, Kentucky