Opinion of the Court by Justice SCOTT.
A Campbell Circuit Court jury found Appellant, James M. Wright, guilty of first-degree fleeing or evading police,
Having reviewed the record, we hold that the trial court's jury instructions on the fleeing or evading charge were erroneous. Thus, we reverse Appellant's convictions and sentences for first-degree fleeing or evading and first-degree PFO and remand this matter to the trial court for further proceedings consistent with this opinion. We further hold that the trial court erred by imposing fines upon Appellant and therefore vacate those portions of his sentences for fourth-degree assault and possession of marijuana imposing fines.
Appellant and Lawanna Covington began dating in May 2008. One month later, Appellant moved into Covington's apartment. Although their relationship had its share of problems, Appellant and Covington were allegedly still living together as of March 2010.
The night of March 10, 2010, Covington spent some time at Stacie Jenkins's apartment and eventually fell asleep. When she woke up in the early-morning hours of March 11, she decided to walk back to the apartment she shared with Appellant and asked Jenkins to accompany her. While walking to the apartment, Appellant pulled up in his vehicle, exited, and began arguing with Covington.
During the argument, Covington realized she had left some of her belongings at Jenkins's apartment. Covington and Jenkins then returned to Jenkins's apartment and Appellant followed. Covington and Jenkins went inside, where Covington retrieved her belongings and left; Jenkins, however, remained in her apartment. Shortly thereafter, the argument between Appellant and Covington escalated and became physical. Jenkins heard the commotion, went back outside, and found Appellant on top of Covington.
When Jenkins threatened to call the police to report the assault, Covington was able to break free from Appellant's grasp. Jenkins then returned to her apartment and immediately called 911. Meanwhile, Covington placed her own emergency phone call while running down the street. Appellant, however, quickly caught up to her, snatched the phone from her hand, and headed toward a nearby apartment building. Officer Brady Buemi arrived on the scene around this time.
Covington testified that when Buemi exited his vehicle, she identified Appellant as her assailant and Buemi immediately ordered him to stop. Appellant, however, continued toward an apartment building. Buemi followed Appellant into the building and, as he entered, heard Appellant exiting through the back door. Shortly thereafter, another officer found Appellant hiding behind some nearby bushes. The officer arrested Appellant and found Covington's cell phone and a bag of marijuana on his person.
Appellant asserts that the trial court erroneously instructed the jury on the fleeing or evading charge. Specifically, he contends (1) that the instruction is unconstitutionally vague in that it does not adequately define "living together" and (2) that it essentially instructed the jury that Appellant and Covington were living together, thereby taking that determination away from the jury. We agree that the trial court's instruction was erroneous, but for a different reason.
"Kentucky has long employed the use of `bare bones' jury instructions that avoid an abundance of detail, providing only a framework of the applicable legal principles." Hilsmeier v. Chapman, 192 S.W.3d 340, 344 (Ky.2006). At a minimum, however, "[instructions must be based upon the evidence and they must properly and intelligibly state the law." Howard v. Commonwealth, 618 S.W.2d 177, 178 (Ky.1981). Their purpose "is ... to state what the jury must believe from the evidence ... in order to return a verdict in favor of the party who bears the burden of proof." Webster v. Commonwealth, 508 S.W.2d 33, 36 (Ky.1974). In criminal cases, instructions "should conform to the language of the statute," Parks v. Commonwealth, 192 S.W.3d 318, 326 (Ky.2006), and "[i]t is left to the lawyers to
Having reviewed the instructions, we hold that the trial court erred when it did not conform its instructions to the applicable statutory provisions. Given this error, we remand the case for retrial on Appellant's fleeing or evading and first-degree PFO charges. We include a model instruction for the trial court's benefit on remand.
Under KRS 520.095, a person is guilty of fleeing or evading in the first degree "[w]hen, as a pedestrian, and with the intent to elude or flee, the person knowingly or wantonly disobeys an order to stop, given by a person recognized to be a peace officer, and ... [t]he person is fleeing immediately after committing an act of domestic violence as defined in KRS 403.720." KRS 403.720(1) defines an act of domestic violence as an "assault ... between family members or members of an unmarried couple." Further, "`[m]ember of an unmarried couple' means each member of an unmarried couple which allegedly has a child in common, any children of that couple, or a member of an unmarried couple who are living together or have formerly lived together." KRS 403.720(4).
The pertinent instructions tendered to the jury read:
(Emphasis added.) Thus, under this instruction, the jury was required to find
Clearly, these instructions were at odds with KRS 520.095, which requires the jury to find beyond a reasonable doubt that Appellant was "fleeing immediately after committing an act of domestic violence as defined in KRS 403.720."
Under the statute, the jury was required to make two determinations to find that Appellant committed an act of domestic violence under the facts of this case. See KRS 403.720. First, the jury must have found Appellant committed a particular act of violence, as enumerated by KRS 403.270.
We conclude that the first requirement was met, as the jury found that Appellant committed an assault against Covington. However, we cannot say with reasonable certainty that the jury found that Appellant and Covington were an "unmarried couple" because no definition of "unmarried couple" was included in the instructions, even though this is a statu to rily-defined phrase.
Absent a finding that the participants in an alleged domestic altercation were an unmarried couple, mere roommates could be charged with having domestically abused one another. This is clearly outside the boundaries of the statute. As former-Justice Keller and Professor Graham's treatise on Kentucky domestic relations law, notes:
Louise E. Graham and James E. Keller, 15 Kentucky Practice: Domestic Relations
Moreover, in Barnett, we quoted with approval the Iowa Supreme Court's analysis of jury instructions much like those in the case at bar:
Barnett, 103 S.W.3d at 19-20. As in Kellogg, the jury instructions in Appellant's case were simply too broad. The jury was not instructed to find that he and Covington were members of an unmarried couple. Thus, the tendered instructions erroneously failed to require the correct findings.
Furthermore, as noted, we cannot say this error was harmless. Erroneous instructions are "presumed to be prejudicial" and the Commonwealth "bears the burden of showing affirmatively that no prejudice resulted from the error." Harp v. Commonwealth, 266 S.W.3d 813, 818 (Ky.2008). The presumption may be rebutted by establishing that the error "did not affect the verdict or judgment." Id. (citing 5 C.J.S. Appeal and Error § 968 (2008)). However, "[o]ur prior case law holds that it is error to convict a defendant of a crime when the jury has not been properly instructed on the elements of the crime." Sanders v. Commonwealth, 301 S.W.3d 497, 499 (Ky.2010) (citing Varble v. Commonwealth, 125 S.W.3d 246 (Ky.2004); Harper v. Commonwealth, 43 S.W.3d 261 (Ky.2001)).
Because the jury was not properly instructed as to the domestic violence element (in that the trial court failed to include a definition of an "unmarried couple") we find the trial court's error to be prejudicial. Thus, we reverse and remand for anew trial on the fleeing or evading and PFO charges.
On retrial, the trial court should use the following definitional instructions,
As to the fleeing or evading police charge, the trial court should employ the following instruction:
You will find the Defendant, James M. Wright, guilty of first-degree fleeing or evading under this Instruction, if and only if, you believe from the evidence beyond a reasonable doubt all of the following:
A. That in this county on or about March 11, 2010, and before the finding of an indictment herein, he knowingly disobeyed a direction to stop, which direction was given by a person who he recognized to be a police officer;
B. That he did so with the intent to flee or elude;
C. That he was fleeing immediately after committing an act of domestic violence, as defined in Instruction No. 3, on Lawanna Covington.
In addition to his convictions for first-degree fleeing or evading and firstdegree PFO, Appellant was convicted of fourth-degree assault (for which he was sentenced to twelve-months' imprisonment and fined $500) and possession of marijuana (for which he was fined $100). Appellant does not allege error in his convictions for these offenses;
Although Appellant admits this error was not properly preserved for review, he is correct in his assertion that this issue may be presented for the first time on appeal. Travis v. Commonwealth, 327 S.W.3d 456, 459 (Ky.2010). "[Sentencing... cannot be waived by failure to object." Wellman v. Commonwealth, 694 S.W.2d 696, 698 (Ky.1985).
At Appellant's arraignment, the trial court found him to be an "indigent person" under KRS 31.100(3) and appointed the Department of Public Advocacy to aid him in his defense. Despite this finding, the trial court nevertheless included fines totaling $600 in Appellant's sentence pursuant to KRS 534.040(2). Under KRS 534.040(4), however, "[f]ines required by this section shall not be imposed upon any person determined by the court to be indigent pursuant to KRS Chapter 31." Because the trial court found Appellant to be indigent under KRS Chapter 31, it erred
Therefore, we vacate Appellant's fines for the fourth-degree assault and possession of marijuana convictions; however, the convictions and sentences for these crimes are otherwise affirmed.
For the foregoing reasons, we reverse Appellant's convictions and corresponding sentences for first-degree fleeing or evading and first-degree PFO and remand those matters to the Campbell Circuit Court for further proceedings consistent with this opinion. Furthermore, we affirm Appellant's convictions for fourth-degree assault and possession of marijuana; however, we vacate the fines imposed for those crimes.
MINTON, C.J.; ABRAMSON, CUNNINGHAM, NOBLE, and VENTERS, JJ., concur. SCHRODER, J., not sitting.
816 S.W.2d 186, 187 (Ky.1991). For our purposes, we review the trial court's ruling on Appellant's motion as follows: "`If under the evidence as a whole it would not be clearly unreasonable for a jury to find the defendant guilty, he is not entitled to a directed verdict of acquittal.'" Commonwealth v. Sawhill, 660 S.W.2d 3, 5 (Ky.1983) (quoting Trowel v. Commonwealth, 550 S.W.2d 530, 533 (Ky. 1977)).
Here, the trial court properly denied Appellant's motion. It would not be clearly unreasonable for a jury to find Appellant guilty under the evidence adduced. There was, in fact, ample evidence presented at trial. Officer Buemi and Covington both testified that Appellant was given an order to stop and immediately started running. Furthermore, Officer Buemi testified that Appellant informed him that Covington was his girlfriend and that the two had formerly lived together. As will be discussed, infra, in Section II. A. 1., the trial court erred in its instructions to the jury; however, had the instructions been correct, there was extensive evidence allowing a reasonable jury to find Appellant guilty. Therefore, the trial court did not err in denying Appellant's motion for a directed verdict.
While the inclusion of the Barnett factors in the jury instructions was inappropriate, we note that they were included at Appellant's request. Therefore, Appellant invited any error which might have resulted solely from their inclusion. Quisenberry v. Commonwealth, 336 S.W.3d 19, 37 (Ky.2011) ("Generally, a party is estopped from asserting an invited error on appeal. Gray v. Commonwealth, 203 S.W.3d 679 (Ky.2006)."). This error, however, is not the error on which we reverse; rather, the error on which we reverse is that the jury instructions did not conform to the statutory language as discussed herein.
