Colwell v. Commonwealth

COOPER, Justice.

Following a trial by jury, appellants Col-well and Dashielle were each convicted of burglary in the second degree and theft by unlawful taking of property valued at more than $300. Additionally, Colwell was convicted of being a persistent felony offender (PFO) in the second degree. Colwell received an enhanced sentence of fifteen years on the burglary conviction and a *723sentence of five years on the theft conviction. The sentences were ordered to run consecutively for a total of twenty years. He appeals to this Court as a matter of right. Ky. Const. § 110(2)(b). Dashielle was sentenced to five years for burglary and one year for theft to run consecutively for a total of six years. He appealed to the Court of Appeals. We granted transfer so that both appeals arising out of this joint trial could be consolidated for appellate review. CR 74.02(2).

I. FACTS.

On the night of June 30, 1998, Laurel County Deputy Sheriff James Reed received a 911 call from a concerned neighbor advising that a burglary was in progress at the residence of Jake Anderson. Reed and another officer arrived at the Anderson residence ten minutes later. Reed heard someone running through the weeds behind the house and, upon investigation, found Colwell and Dashielle huddled together under a tree approximately thirty yards down a hill behind the Anderson home. A pat-down search of Colwell revealed several items believed to have been stolen from Anderson’s residence.

A search of the residence revealed it to have been ransacked. A gray Dodge pickup truck found parked in Anderson’s driveway was filled with items later identified as having been removed from the residence. The value of the goods removed from the home was in excess of $6,200.00. Upon being advised that he would be taken into custody, Colwell asked Deputy Reed to retrieve his driver’s license and cigarettes from the pickup truck. The driver’s license was found in the glove compartment; the cigarettes were on the passenger side of the dashboard.

At trial, each defendant claimed to have been an innocent bystander to a burglary committed by the other. Colwell claimed the truck belonged to Dashielle who had offered to give him a ride home. Dash-ielle stopped at Anderson’s residence, claiming that Anderson owed him some money and had promised to leave it under the doormat. Instead, Dashielle entered the residence. Because he was on parole for another burglary, Colwell got out of the pickup truck and ran into the woods and over a hill behind the victim’s house. Shortly thereafter, Dashielle, pursued by the police, came running over the hill and collided at full speed with Colwell. Col-well denied entering the Anderson residence.

Dashielle claimed that he had been a passenger in the truck which belonged to Colwell.1 He testified that they were on their way to Colwell’s residence when Col-well pulled into Anderson’s driveway and proposed that they burglarize Anderson’s residence. Dashielle declined and was attempting to leave the scene when he fell down drunk in the woods. Shortly thereafter, Colwell, chased by the police, came running toward him and both were arrested. Dashielle, too, denied entering the Anderson residence.

II. DENIAL OF CONTINUANCE.

Colwell’s only claim of error on appeal is the trial court’s denial of his motion for a continuance. When the case was called for trial, Colwell’s counsel made the following motion:

Judge, I have a motion to continue through this jury pool. This is a new jury pool. However, it turns out that Jake Anderson, the complaining witness, is Juror No. 1 of that pool.
The judge responded:
That’s correct. He was not brought into the courtroom, so he has had no *724contact with the other jurors. Mr. Beckner [the prosecutor] made me aware of this on Friday and I advised Mr. Beckner to have him just come to his office, and I told him that I would excuse him from the jury pool, which I did.

In other words, although Anderson was scheduled to serve on the jury pool assigned to this case, the trial judge had previously excused him from jury duty so that he was not in the courtroom mingling with the other jurors prior to trial. Furthermore, since this was the first case for that jury pool, Anderson had not had any prior contact with the other jurors. Col-well’s reliance on Hellard v. Commonwealth, Ky.App., 829 S.W.2d 427 (1992), overruled on other grounds, Commonwealth v. Burge, Ky., 947 S.W.2d 805 (1996), is misplaced. In that case, the witness actually had served as a juror on other cases with other members of the same jury pool.

This case clearly involves a “close relationship” of the situational type. As a member of the jury pool, the video store owner had numerous opportunities to meet the other members of the pool. Indeed, the record reveals that the owner had previously sat with at least four of the potential jurors in Hellard’s case and had agreed with them on a verdict in that case. We feel that the possibility of a jury according the testimony of a witness greater weight than it otherwise would have received is just too great when the witness is a member of the same jury pool.

Id. at 429-30.

Here, the judge had made prior arrangements to insure that there would be no interaction between Anderson and other members of the jury pool. Under the facts of this case, there was no possibility that Anderson’s assignment to the jury pool could have tainted the other jurors or otherwise prejudiced Colwell’s entitlement to a fair trial.

III. DENIAL OF SEPARATE TRIALS.

Dashielle’s first claim of error is that the trial court should have granted his pretrial motion for a severance. At trial, he premised his motion on grounds that he and Colwell had antagonistic defenses in that each intended to cast the blame on the other. Of course, that fact is more supportive of joinder than severance.

[N]either antagonistic defenses nor the fact that the evidence for or against one defendant incriminates the other amounts, by itself, to unfair prejudice- That different defendants alleged to have been involved in the same transaction have conflicting versions of what took place, or the extent to which they participated in it, vel non, is a reason for rather than against a joint trial. If one is lying, it is easier for the truth to be determined if all are required to be tried together.

Burdell v. Commonwealth, Ky., 990 S.W.2d 628, 633 (1999) (quoting Ware v. Commonwealth, Ky., 537 S.W.2d 174, 177 (1976)).

On appeal, Dashielle claims it was presumptively prejudicial to try him jointly with Colwell, who was also charged as a persistent felony offender. He relies on Hardin v. Commonwealth, Ky., 437 S.W.2d 931, 933 (1968) and Jones v. Commonwealth, Ky., 457 S.W.2d 627, 629 (1970), cert. denied, 401 U.S. 946, 91 S.Ct. 964, 28 L.Ed.2d 229 (1971), both of which were tried under the old habitual criminal statute. KRS 431.190 (repealed 1974 Ky. Acts, ch. 406, § 336). During that regime, there was no separate sentencing phase of a criminal trial and trial courts would read the habitual criminal indictment to the jury along with the indictments for the underlying offenses; and proof of the prior convictions was offered along with the evidence proving the underlying offenses.

Under the present persistent felony offender statute, KRS 532.080(1), proof of the prior offense is reserved until a *725separate penalty phase of the trial that does not take place until after the defendant’s guilt of the underlying offense has already been determined. Here, the trial judge not only bifurcated the guilt phase from the penalty phase, but also bifurcated Colwell’s penalty phase from that of Dash-ielle. Thus, the jury was not informed of Colwell’s PFO indictment until after the conclusion of Dashielle’s penalty phase. In other words, all proceedings relating to Dashielle were completed before the jury was informed of Colwell’s PFO indictment. Under present procedures, there is no reason to apply the “presumptive prejudice” rule of Hardin and Jones just because one codefendant is indicted as a PFO and the other is not. Thus, there was no error in the trial judge’s denial of Dashielle’s motion to sever his trial from that of Colwell.

IV. EVIDENCE OF OTHER BAD ACTS.

Dashielle asserts reversible error in the trial court’s denial of his motion to suppress evidence that the gray pickup truck found in Anderson’s driveway had been reported stolen. He claims the evidence was irrelevant other than to infer that he was a thief. We disagree. KRE 404(b) provides as follows:

Other crimes, wrongs, or acts. Evidence of other crimes, wrongs, or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible: (1) If offered for some other purpose, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident .... (Emphasis added.)

While the rule describes some examples of “other purposes,” “it states the ‘other purpose’ provision in a way that leaves no doubt that the specifically listed purposes are illustrative rather than exhaustive.” Tamme v. Commonwealth, Ky., 973 S.W.2d 13, 29 (1998), cert. denied, 525 U.S. 1153, 119 S.Ct. 1056, 143 L.Ed.2d 61 (1999) (quoting R. Lawson, The Kentucky Evidence Law Handbook § 2.25 at 87 (3d ed. Michie 1993)). Here, the “other purpose” for proving that the vehicle had been stolen in Florida was to connect the vehicle to Dashielle, who had formerly resided in Florida. The evidence was relevant to prove which defendant was responsible for the truck containing the stolen property, as well as to rebut Dashielle’s assertion that the truck was not his. Brown v. Commonwealth, Ky., 983 S.W.2d 513, 516 (1999).

V. FAILURE TO INSTRUCT ON LESSER INCLUDED OFFENSE.

Dashielle asserts error in the trial judge’s refusal to instruct the jury on the offense of criminal trespass in the third degree as a lesser included offense of burglary in the first degree. His theory is that a jury could believe that he did not enter Anderson’s residence, but trespassed on Anderson’s property while attempting to flee the scene of the burglary.

KRS Chapter 511 describes three degrees of burglary and three degrees of criminal trespass, all of which proscribe intrusions by the defendant on the property of the victim. All contain one multifaceted common element, viz: that the defendant “knowingly enter[ed] or re-mainfed] unlawfully” in or upon the victim’s property. The three degrees of burglary contain an additional common element that the defendant did so “with the intent to commit a crime,” the element which distinguishes the felony of burglary from the misdemeanor of criminal trespass.

An additional (third) element which distinguishes third-degree burglary, a Class D felony, from second-degree burglary, a Class C felony, is the nature of the property in or upon which the offense occurred. If the property is a “building,” the offense is third-degree burglary, KRS 511.040(1); if it is a “dwelling,” the offense is second-degree burglary, KRS 511.030(1). The definitions of “building” and “dwelling” are *726similar, but not identical. A “building” is defined, inter alia, as “any structure ... [w]here any person lives,” KRS 511.010(l)(a); whereas, a “dwelling” is defined as “a building which is usually occupied by a person lodging therein.” KRS 511.010(2). Thus, every dwelling is a building, but every building is not a dwelling. Since the burglary of a building is a Class D felony, KRS 511.040(2), and the burglary of a dwelling is a Class C felony, KRS 511.030(2), the legislature obviously considered the distinction to be significant and the burglary of a dwelling to be more grievous than the burglary of a mere building.

First-degree burglary is committed when the burglary of a building is accompanied by an additional (fourth) aggravating element, viz: that in effecting entry or while in the building or in the immediate flight therefrom, the defendant or another participant in the crime (a) was armed with explosives or a deadly weapon, or (b) caused physical injury to any person who was not a participant in the crime, or (c) used or threatened the use of a dangerous instrument against any person who was not a participant in the crime. KRS 511.020(1). Thus, first-degree burglary is an aggravated burglary of any building, including, but not limited to, a dwelling. Absent proof of the aggravating element, the offense is reduced from first-degree burglary to either second-degree burglary, if the building is a dwelling, or third-degree burglary, if the building is not a dwelling.

Criminal trespass occurs when a defendant “enters or remains unlawfully” on the victim’s property, but without the intent to commit a crime. Like the two lesser degrees of burglary, the degree of criminal trespass depends on the nature of the property in or upon which the trespass occurred. If the property was a dwelling, the offense is first-degree criminal trespass. KRS 511.060(1). If the property was EITHER a building OR “premises as to which notice against trespass is given by fencing or other enclosure,” the offense is second-degree criminal trespass. KRS 511.070(1) (emphasis added). If the property was only a premises, the offense is third-degree criminal trespass. KRS 511.080. While a “premises” can be either a “building” or “any real property,” KRS 511.010(3), that term is obviously used in the context of second- and third-degree criminal trespass to refer only to land, not a building. Otherwise, KRS 511.070 would be redundant, i.e., “either a building or a building,” and KRS 511.080 would criminalize the same conduct, ie., trespass of a building, which is already criminalized in KRS 511.070. The dual definition of “premises” in KRS 511.010(3) applies only when that term is used in the context of KRS 511.090, which describes privileges and licenses to enter or remain upon the premises of another.

This conclusion is supported by the official commentary to the trespass statutes, which provides that since trespass of a building is included within the coverage of the higher degrees of criminal trespass, the “exclusive coverage [of third-degree criminal trespass] is only for unlawful intrusions onto land.” KRS 511.060 (1974 Commentary).

Dashielle was not charged with unlawfully entering upon Anderson’s unimproved land; and had he been, such would not have been a lesser included offense of the burglary of Anderson’s dwelling. As applied to these facts, a lesser included offense is one which “is established by proof of the same or less than all the facts required to establish the commission of the offense charged.” KRS 505.020(2)(a). Stated otherwise, if the lesser offense requires proof of a fact not required to prove the greater offense, then the lesser offense is not included in the greater offense, but is simply a separate, uncharged offense. Commonwealth v. Day, Ky., 983 S.W.2d 505, 509 (1999). To prove guilt of criminal trespass in the third degree, the Commonwealth is required to prove that the defendant entered upon the victim’s unimproved *727land. Proof of that fact is not necessary to convict of any degree of burglary; thus criminal trespass in the third degree is not a lesser included offense of burglary.

Finally, all three degrees of criminal trespass are premised upon a jury’s finding that the defendant did not enter or remain in or upon the victim’s property “with the intent to commit a crime.” Here, the jury also found Dashielle guilty of felony theft under an instruction which required the jury to believe beyond a reasonable doubt that he took a computer, television, stereos and jewelry belonging to Anderson with the intent to deprive Anderson of that property. Thus, the jury could not possibly have believed that Dash-ielle entered or remained on the victim’s property ivithout “the intent to commit a crime.” Under these facts, even if criminal trespass in the third degree were a lesser included offense of burglary, the failure to instruct on that offense would have been harmless beyond a reasonable doubt.

Accordingly, the judgments of conviction and sentences imposed by the Laurel Circuit Court are affirmed.

LAMBERT, C.J.; GRAVES and WINTERSHEIMER, JJ„ concur. KELLER, J., concurs in part and dissents in part by separate opinion in which JOHNSTONE and STUMBO, JJ., join.

. The pickup truck, which bore Indiana license plates, was later determined to have been stolen from Florida. Colwell was a resident of Laurel County, Kentucky. Dashielle, who had lived only briefly in Laurel County, had formerly resided in both Indiana and Florida.