·RENDERED: SEPTEMBER 28, 2017 ·TO BE PUBLISHED 

# cSuprttttt filnurf nf**~tnfurku** 2015-SC-000655-MR LONNIE CONYERS


### v. ON APPEAL FROM CAMPBELL CIRCUIT COURT HONORABLE JULIE REINHARDT WARD, JUDGE NO. 15-CR-00296. COMMONWEALTH OF KENTUCKY AND 2015-SC-000687-MR ROY EDWARD TUCKER


## v. QN APPEAL FROM CAMPBELL CIRCUIT COURT HONORABLE JULIE REINHARDT WARD, JUDGE NO. 15-CR-00295 ·COMMONWEALTH OF KENTUCKY AND 20l 6-SC-000340-MR JOSEPH HARDY ·


## v. ON APPEAL FROM CAMPBELL CIRCUIT COURT HONORABLEJULIE REINHARDT WARD, JUDGE NO. 15-CR-00294 COMMONWEALTH OF KENTUCKY

•OPINION OF THE COURT BY JUSTICE HUGHES AFFIRMING APPELLANT

· APPELLEE

APPELLANT

APPELLEE.

APPELLANT

APPELLEE

Following a jointjury trial, Lonnie Conyers, Roy Tucker, and Joseph Hardy were all found guiltY oftwo counts offirst-degree burglary. Eachdefendant was sentenced as a first-degree persistent felony offender (PFO) to concurrent, twenty-year terms ofimprisonment, and each has now appealed to this Co.urt as a matter ofright. Because ofthe large degree ofoverlap in the ( . . factual background and·in the legal issues raised, we have consolidatedthe appeals for disposition in this single opinion. All thrt:!e defendants contend that, in light of juror and witness misconduct during the recess following the trial's first day, the trial court should have declared a mistrial. Each defendant _also_ insists that the trial court erred by refusing to dismiss the first-degree burglary charges and by failing to give a jury instruction on receiving stolen
. property as a lesser, alternative offense to burglary. In addition, Hardy claims that he was entitled to a jury instruction on the defense ofvoluntary intoxicatio_n, while Conyers seeks resentencing·on the ground-that he was improperly found to be a PFO in the first degree. Convinced thatnone ofthe alleged errors gives the defenqants_, eitherjointly or singly, a right to relief, we affirm all threejudgments. RELEVANT FACTS During the morning ofFebruar,Y 11, 2015, in Melbourne, Kentucky, two residences about one-halfmile apart were burglarized. The proofat trial, construed favorably to the Commonwealth, showed the. following. Brothers Stan and BrianTurpen, the owners/occupants ofone ofthe homes, testified that they left for. work early that morning after having locked the doors. When Stan returned that afternoon, he found one ofhis gt.litar
cases lying in the driveway and signs ofwhat appeared to be a forced entry. 2His home was in shambles with drawers and cupboards opened, their contents strewn over countertops and on floors, mattresses removed from the beds and

. . closets ransacked. Stan confirmed that photographs introduced by the Commonwealth accurately showed, the state ofhis home that afternoon. After his initial look around, Stan called both his brother and 911. ·Officer Robert Diamond ofthe Campbell County Police Department responded to the 911 call. Earlier that day**h~** had participated in the arrest of three persons suspected ofanother burglary in the area,.and after talking with
. Stan.Turpen and walking through the residence, he thought it likely that the
same persons were responsible for the scene he found there. The Turpens'missing property list included a wide-screen television, a Fender guitar, and severai other household items and five handguns, at least two ofwhich (the two from the brothers' bedside tables) were loaded and ready to fire. The list also-included two long guns (a Remington shotgun and a Winchester rifle) and a starter's pistol-a blank gun-that looked like a .22 caliberrevolver. Also missing was ammunition for several ofthe weapons. Earlier that day,· a 91 

### l caller had reported what he believed to be a

. I

. '

. burglary in progress. George Crawford testified that at about 10:30 that morning he wl3.s looking out his kitchen window toward the rear ofhis property. His residenceborders on a pasture, Crawford testified, across which
.

.· he could**se~** the garage side ofthe residence ofJoe and Brittany Vance. 1

, IAt that time Crawford had notyet spoken to Joe and believed thatBrittany's name was Tiffany.. 3Crawford testified that his attention was attracted to the Vances' driveway by a dark-colored, sedan-type car he had never seenthere before. Three men appeared to have gotten outofthe car, and one ofthe men had apparently gone up the steps to the front door. Although Crawford was suspicious; he was about to dismiss·his suspicions in light ofthe fact that one ofthe men could be Joe Vance. Before he could turn away, however, he saw one ofthe men walk toward the "pedestrian" door ofthe garage and kick·the door open. All three
men then disappeared inside the garage. At that point Crawford called 911. /' On the 911 recording, after Crawford.relayed what he had observed, the dispatcher asked Crawford for a more detailed description ofthe vehicle. As Crawford tried to comply with that request, it occurred to him that a Nikon
camera with a 300mm zoom lens that he used for bird-watching was sitting on his kitchen table. While using the cainera, Crawford exclaimed to the 911 dispatcher that one ofthe mep hadjustco"me out ofthe house and appeared to have put somethingin the backseat ofthe car. At that point, Crawford started taking pictures: At trial, the Commonwealth was able to introduce about two dozen .photographs-authenticated b:y Crawford-ofthe burglary as it happened, of the vehicle and ofthe three men as they came and went carrying things from the house to the vehicle. After a few minutes, Crawford toldthe**d~spatcher** that all three men had exited the house, one ofthem puttingwhat looked like a white pillowcase filled with**some~hing** into the backseat. In the closing portion of.the call, Crawford narrated for the·dispatcher the burglars' sport-lived get4awa.y: their entering the car; the car's descent down the sloped driveway to Kohls Road; the car's rightturn in the direction ofTen-Mile Road; and the almost immediate appearance ofa police cruiserright behind the car. When Crawford's direct examination resumed after the 911 recording, he reiterated that he saw all three persons enter the Vances' residence and later
come out carrying items which they placed in the .car. During the various

·, cross-examinations, Crawford admitted that he could not see clearly enough, eitherwith or without his camera, to identify any ofthe persons he saw or to say what items they brought from the house. In**particular~** he admitted that he saw no one with a gun. He also admitted.that while there arephotos showing**tw~** ofthe men (in the enlarged photos introduced by the Commonwealth tWo persons clearly resembling Hardy and Conyers) carrying items from the house, the photo ofthe third man (strongly resemblingTucker) does·not make it clear that he is carrying any property. Duringredirect examination, however; Crawford explained that during the episode he was juggling the_phone and his camera and was not able.to photograph everything he saw. Crawford testified emphatically, however, that notwithstanding the lack ofa clear photograph ofthe third man removing property from the home, he witnessed all three men do so. The Commonwealth's case included testimony from the officers who stopped the suspects' car moments after it left the_Va,nces' driveway. Tbey stopped it as it approached the intersection ofKohls Road and Ten-Mile Road and arrested its three occupants: Hardy the driver, Tucker in the front 5passenger seat, and Conyers behind him in the backseat.
.

### bn Hardy's person the arresting officer found eightprescription pills, slightly more ·than $1,200 in cash, a silver money clip engraved "Vance," a gold chain necklace·; and a silver pocket knife. From 'f:ucker the arresting officer took a pocket 

### knife, about $570

• I

. • ' in cash, a .gold chain necklace, headphones, part ofa wall .cell phone charger, and an ID card. · Conyers was carrying 8; wallet with his ID card ahd a cell phone. One ofthe officers**expl~ned** that**th~y** did not go directly to the Vances' house, butwaited for the suspects to leave, because itwas safer to approach a

.defined set ofsuspects··all contained in a car than an.indeterminate set spread throughout a**resi~ence.** The detective who searched the defendants' car the next morning ·pursuant to a warrant testified that he and an assisting officer photographed the various items .seized during the search. They included a starter's pistol, later identified by the Turpens as theirs, which was found under the driver's seat near the back, and a 9mm Ruger handgun, loaded with a live round of

. ammuriitionin the chamber and a fullclip, which was found under the front

passenger seat. TheVances identifie_d that gun as belonging to Brittany. Brittany testified that she. kept itin herjewelry case, which was found, among other**item~** later identified by the Vances, in a white**.pillowcas~** in_the car's backseat. The Vances also testifiedregardingphotographs taken by one oft!J.e



### . . investigating officers depicting their home in shambles shortly after the

. . burglary.**T~e** Turpens and the \lances

## all testified that items found in the. 6defendants'possessionhad been taken from their respective homes. The items identified includedjewelry, the silver "Vance" money clip, a TV, a guitar, handguns, long glins, ammunition, a jewelrybox, a purse,·a hanimer, savings bonds, an electric drill, and a set ofexercise weights: The Commonwealth's proofi:q.cluded some additional evidence, but the first-degree burglary charges rested primarily 6n the evidence summarized above. Notwithstanding the obviously sufficient evidence ofburglary; the defendants all maintain the-trial court erred by including first-degree burglary charges in thejury instructions. We begin our analysis with this contention. ANALYSIS I. 

### The Trial Court Did Not Err by 

### Refusing to Dismiss the Charge of Burglary in The First Degree. · Burglary; the basic offense, is a crime against real property-an unlawful intrusionthereon. Because such intrusions pose risks to persons on the

. . . I

. . ' I premises, the basic offense is punished more-or-less severely depending on the presence or absence ofcircumstances which increase or decrease t_hose risks.

r 

### Litton v. Commonwealth, 597 s:W.2d 616 (Ky. 1980) .(discussingthe 1978 amendments to the burglary statutes); 

### Colwell v. Commonwealth, 37 S.W.3d 721 (Ky. 2000) (discussing the interrelationship ofthe burglary and trespass offenses). Kentucky Revised**Statut~** (KRS) 511.040 outlaws the basic offense-
_ burglary in the third**d~gree-·**as follows: "A person is guilty ofburglary in the third degree when, with intent to commit a crime, he knowingly enters or remains unlawfully in a building." KRS 511.040(1). A "building," for the purposes ofthe burglary statutes, is a_ buildingin its ordinary sense plus "any 7structure, vehicle, watercraft or aircraft: (a) Where any person lives, or (b). Where people assemble for [various] purposes...." KRS 511.010(1). Thirddegree burglary is a Class D .felony. KRS 511.040(2). 'The risks posed by the intrusion increase ifthe building involved is a dwelling-"a building which is usually occupied by a person lodging therein." KRS 511.010(2): Accordingly, a person is guilty ofburglary In the second

. . degree, a Class C felony, "when, with the intent to commit a crime, he knowingly enters or remains unlawfully in a**dwelling~"** KRS 511.030(1). Burglary in.the first degree, a Class B felony, occurs if, in the course of the intrusion, the intruder actually injures someone (a non-participant in the crime), or if, as reievant here, he "[i]s armed with explosives or a deadly

. . weapon." KRS 511.020(1). "Deadlyweapon" means, in pertinent part, "[a]ny. weapon from which a shot, readily capable ofprod.ucing death or other serious physical injury, may be discharged[.]" KRS 500.080(4)(b). Finally, as relevant to this case, KRS 502.020, the complicity statute, provides in pertinent part t,hat:
. A person is guilty ofan offense committed by another person when, with the intention ofpromoting or facilitating the commission of**th~** offense, he: · (b) Aids, counsels, or attempts to aid such person in planning or committingthe offense[

## .J · KRS 502.020(l)(b). The Commonwealth's theory ofthe case was that the three deferidants all participated as principals in the burglaries ofboth residences,.

8.and were also complicit in the burglaries, with each defendant being guilty, by complicity, ofthe offense committed by any ofthem. Because the buildipgs involved in this case were clearly dwellings, the jucyinstructions for each defendant included two second-degree burglary instructions (Vance and Turpen residences), 

### and the defendants raise no objections to those instructions. Because both sets ofvictims reported the loss ofat least one firearm and the police found weapons corresponding to those reports in the'car occupied 

### by the defendants at the time oftheir arrests, the instructions for each defendant also included provisions such as the following for each residence: Youwill fi:nd the defendant
... guilty ofFirst Degree Burglary
·under this instruction if, and only if, you believe from the evidence beyond a reasonable doubt all ofthe following: A. That in this County, on or about Februacy 11, 2015, and before the finding ofthe indictment herein, the Defendant
... either entered or was in complicity.with [either ofthe others] to their entry ofthe building owned by the Vances [the Turpens] and without the permission ofthe [owners] or any other person authorized to give such permission; AND B. That in so doing, he knew that they did not have such permission; AND C. That it was the Defendant's intention that either the Defendant or [either:ofthe others] would commit a crime therein; AND D. That when effecting entcy or while in the building or in

.immediate flight there from, the Defendant or [either ofthe others] was armed.with a deadly weapon. The defendants all objected at trial and continue to object to the givi_ng of this instruction on a number ofgrounds. Each insists that there was·n.o evidence that he was armed, that he was armed with a deadly weapon, or that he knew or intended that either ofthe other two men was armed
..Implicitly, at least, the defendants concede that their complaint on all ofthese points is not 9really with the trial·court, which only_applied existing law, but rather with prior
. decisions ofthis Court. TWo ofthose**decis~ons** they ask us expressly to reconsider. 

### A. There Was Evidence That the Defendants Were Armed During Both Burglaries. ·

· We begin, however, with the defendants'invocation of 

### Wilson v. · Common.wealth, 438 S.W.3d 345 (Ky. 2014), in support oftheir contentions

. . . . that the Commonwealth failed to prove that they_were "armed," for first-degree burglary purposes, because it failed to show "access" to any ofthe stolen firearins. In 

### Wilson, this Court qualified the general rule that "[a] person may beGome 'ar.med with a deadly weapon'for thepurposes offirst-degree burglary when he enters a building or dwelling unarmed and subsequently steals a '· firearm therein."· 438**S~W.3d** at 354 (quoting 

### Hayes 

# v .. Commonwealth, 698 S.W.2d 827, 830 (Ky. 1985)). 

### See also Riley v. Commonwealth, 91 S.W.3d 560, 563 (Ky. 2002) ("[o]ne who steals a deadlyweapon during the course.ofa burglary is armed within the meaning ofKRS 511.020."). That rule applies, we held in 

### _Wilson, where the thiefhas access to the deadly weapon, but not to the theft ofa locked fire safe· containing a handgun, since the thief, in the four or

. . five minutes it.took to complete the burglary and leave the scene, had no remotelyrealistic chance ofgaining access to the gun and using it as a weapon. The defendants would have us apply· 

### Wilson's narrow exception to this

. . case, where the Turpens' guns were ultimately found in.the trunk and Brittany

10 

# ..Vance's 9mm Ruger was found under the frorit passenger seat.2 Clearly the exception we noted in 

### Wilson does not apply here, where one or more ofthe defendants had the gilns in hand at**so~e** point inside the.residences or in the
car while leaving the residences, and where the defendan_ts had ready access to

'
. . the car's trunk and to the area beneath the seat. 

### B. There Was Evidence That the Defendants Were Armed With a · DeadlyWeapon. The defendants also contend that because there was insuffici_ent evidence that any ofthe guns was operable, none ofthe guns could reasonably be deemed a "deadlyweapon." They s11ggest that, in addition to proofthat the gun was loaded, the Commonwealth should be required**~o** prove·either that the**~n** wasactually fired during the burglary or that ballistics evidence establishes that it could have been fired
... The defendants.acknowledge that we rejected this contention·in 

### Wilburn
v. Commonwealth, 312 S.W.3d 321 (Ky. 2010), where a plurality ofthe Court deemed the statutorydefinition satisfied ifthe particularweapon was one ofa

. ' ·class ofweapons from which a shotreadily capable ofcausing death or serious

physical injury could be discharged. Under 

### Wilburn, BrittanyVance's Ruger and all ofthe Turpens' guns (excluding the starter's pistol) could reasonably be deemed "deadlyweapons." The defendants acknowledge this and acknowledge

2 We agree with the defendants' assertion that the Turpens' starter's pistol, which was found under the driver's seat, was not a deadly weapon under KRS 500.080, since a starter's pistol is not a type ofweapon from which a shot may be discharged. 11(

. further that we appli,ed 

### Wilburn in 

### Johnson 

### v. Commonwealth, 327

### S.W.~d. 501 (Ky. 2010), but they ask us to revisit this precedent and reconsiderJustice

. 

### . . ·.Noble's 

### Wilburn dissent, which construes KRS 500.080(4)

### i~ a manner similar.

to what they advocate. In 

### Wilburn, the Court considered the pre-Penal Code understanding of "deadly weapon"·in the burglary context.and compared that meaning to the current statutory definition ofthe term. Two members ofthe Courtread the

· statute as not affecting the prior law, whiCh provided, in effect, that a deadly.

weapon·was anything a l;>urglarpassed offas,a deadly\Yeapon, whether an actualweapon or not. The three-memberplurality agreed with Justice Noble to the extent that it understood the**~~atutory** definition as precluding objects,**·~** such as sticks

# or fingers in pockets, merelypassed offas weapons. However, the plurality rejected the proposition that first-degree burglary·prosecutions should.hfnge on.the savviness ofburglars, who could easily defeat prosecution under the dissent's approach merely by discarding the weapon after the crime (so its operability could never be determined) or bydisabling it. ·The Court's reasoned consideration in 

### Wilbu.rn is not yet·even eightyears old, and we will .not revisitthe question here. 

## c. There Was Sufficient Evidence ofthe Defendants' Complicity.

. . . . . . We.also decline the defendants'invitation to reconsider our construction ' ofthe _coinplicify statute, KRS 502.020. Section (1) ofthat statute, the sectionapplicablein this case, provides, with respect to crimes outlawing certain acts,3

. thato:he person may be found guilty "of

### an offensecommitted by another

person when, with the intention ofpromoting orfacilitating the commission of 

### the offense, he" in any ofvarious ways lends support or.assistance to the principal offender. KRS 502'.020(1) (emphasis supplied). The defendants insist that an alleged complicitor cannot be found 

### guilty ofthe 

### aggravated offenseof another 

### (e.g., burglary in the first.degree) unless he intended to promote or facilitate the aggravated offense, 

### i.e., unless he knew that the principal offender he was aiding was armed with a deadly weapon. Arguably, the evidence in this case-. a trunk full ofguns and a loaded Ruger handgun in the passenger compartment-could reasonably·be thol:!.ght to satisfy ·even the defendants' take on the statute, but we· need not make that assessment because, as the defendants acknowledge and as we noted in 

### Smith
v. Commonwealth, 370 S.W.3d 871 (Ky. 2012), the law in Kentucky has always

. I

. been otherwise. The 

### mens rea for complicity, we have held, is that the coinplicitor intend the principal's .commission ofthe basic offense.· Ifhe does
so and in addition aids or encourages the principal's act (as couid certainly be found in this case with respect to all ofthe defendants) then he exposes himself ·to liability for whatever degree ofthe offense the ·principal actually commits. 

### See Smith, 370 S.W.3d at 877-78 (citing post-Penal Code cases to this effect).

a As opposed to crimes that outlaw certainresults-those crimes are addressed

. in section (2) ofthe complicity statute. See Smith v. Commonwealth, 370 S.W.3d'871

(Ky. 2012) (discussingthe distinction). 13The Commentary to the Perial Code supports that constructionby noting thatthese provisions ofthe.Code were not intended to change existing law and by emphasizing thatunder section (1) ofthe complicity statute, the complicitor's mental**~tate** must be the "intent to promote orfacilitate the**commiss~on** ofan offense," not necessarily the particular degree ofthe offense actually committed. 

### KentuckyPenal Code, Final Draft, p. 30 (Nov. 1971). As we observed in 

### Smith, the defendants' contention that imputing to. them as complicitors an aggravated offense withoutproofthatthey knew the principal was engaged in aggravated conduct somehow'runs afoul of

### Jackson v. Virginia, 443 U.S. 307 (1979) (holding that the government must prove all the elements ofa crime beyond a reasonable doubt), is simply wrong. Asjust discussed,.the elements ofcomplicity do not simply track the elements ofthe principal offense.· We**reject~** in short, the**defendants~** proposed reconstruction

·ofthe complicity statute.

' 

## .. D. There Was Sufficient Circumstantial Evidence That the Defenda·nts Participated in the Turpen Burglary. Finally, we reject the defendants' contentions that the lack ofwitnesses and the lack offorensic evidence connecting any ofthe defendants to the Turpens' residence precludes a :(inding that any ofth,em participated in that burglary. On the contrary, The possession of stolen property is.primafacie evidence ofguilt of theft ofthe property. Where there is a breaking and entering and property taken from a dwelling and the property isfound in possession ofthe accused, such showing makes a submissible case for thejury on a charge ofburglary.

14

### Riley v. Commonwealth, 91 S.W.3d 560, 563 (Ky. 2002) (quoting 

### Jackson v. Commonwealth, 670 S.W.2d 828, 830 (Ky. 1984))'. 

### See KRS 500.080(14) (defining "possession," for Penal Code purposes as either actual or constructive**posse~sion);** arid 

### seeHouston v. Commonwealth, 975 S.W.2d 925 (Ky. 1998) (recognizing the applicability of"constructive possession" to guns as well as illegal drugs). The inference that the defendants who possessedthe Turpens'property · burglarized their residence i.s strengt?enedin this case by the defendants' commission ofvery similar crimes at the Vance residence a short time after the Turpen burglary, as·witnessed by Mr. Crawford. The trial court did. not err for this or for anyofthe other reasons discussed above when it instructed thejury
as to first-degree burglary for the Vance and Turpen residences. II. The Trial Court Did Not Err by Refusing to Instruct on Receiving Stolen Property. · No more availing

### ~re the defendants' claims that the trial court erred by denying their requests forjuryinstnictions on the "lesser" offense ofreceiving stolen property as a defense to the charge offirst-degree burglary. They insist the trial.courtviolated its duty to provide instructions on the whole law of

# the
case, including requested instructions on any lawful defense. None ofthe defendants testified but, through counsel, they·suggested the possible involvement ofsomeone other than the defendants, apparently hoping to induce thejury to doubt that all ofthe defendants were equally involved in the offenses and therefore perhaps acquitor convict one or more ofthem ofa less serious offense. To allow for those "fourth man" arguments, the· trial 15court, in addition to the first-degree burglary by complicity instructions noted above, also gave instructions for all the defendants with respect to the Turpen burglary on facilitation to first-degree burglary, on second-degree burglary by
. complicity, and on facilitation to second-degree burglary
.

. With respect to the Vance burglary; Tucker, who did not appear in ariy of CraWford's photographs with property tn his hands;was given the same four instructions.**Cony~rs** andHardy were given first- and second-degree burglary by complicity instructions, but the courtdenied their requestsfor facilitation instructions since., in the court's view, Crawford's photos ofthem actually ·carryingproperty out ofthe Vances'home precluded a finding that either of · them merely facilitated that crime. Aside from their**already-discus~ed** qbjections to the first-degree burglary instructions, the defendants do not complain aboutthe instructions the court gave. They**comp~ain,** rather, that the court erred by refusing·to give additional instructions at leastwith respect to the Turpen burglary on the "lesser" offense ofreceiving stolen property.**Whe~e,** as.here, such a claim has been properly preserved, 

### Martin v. Commonwealth, 409 S:W.3d 340 (Ky. 2013), and where the. trial court's decision is based on its assessment ofthe evidence, we review that claim for. an abuse ofdiscretion. 

### Sargent v.

### Shaffe~, 467 S.W.3d 198, 20.3 (Ky. 2015). In.this cohtext as in**oth~rs,** however, where the issue 

### is purely a matter offaw, our standard ofreview is 

### de novo. Sargent, 467 S.W.3d at 204. The receiving stolen property statlite, KRS 514.110, provides in its first section that a person is.guilty ofthat offense 16when he receives, retains, or disposes'ofmovable property of another knowing that it has been stolen, or havingreason to . believe that it has been stolen, unless the property is received,· retained, or disposed ofwith intent to restore it to the owner.

. The basic offense is a Class A misdemeanor, butifthe property received·

includes a firearm or is worth more than $500 but less than $10,000, then the offense is enhanced to a Class D felony. KRS 514.110(2)(3). The trial court decidedagainst a "receiving stolen property" instruction with respect to both burglaries not because the evidence did not support it, but rather because, in**th~** court's view, receiving stolen property is not an 

### included offense ofburglary and'so, at least in this case, was·not an available 

### lesser offense.· The defendants contend that the trial courtthus**~rred.** We disagree. Although not technically a "defense" under the Penal Code, a lesserincluded**offen~e** is "in fact and principle, a defense against the higher.charge." 

### Hudson v. Commonwealth, 202 S.W.3d 17, 20 (Ky. 2006). (quoting 

### Slaven v. Commonwealth, 962 S.W.2d 845, 856 (Ky. 1997)). In Kentucky, "KRS 505.020(2) establishes whether a charge is a lesser-included offense." 

### Id. (citing 

### Perry v. Co.mmon_wealth, 839 S.W.2d 268 (Ky. 1992)). Under that statute, as pertinent here, [a] defendant may be convicted ofan offense that is included in any offe.nse with which he is formally charged. An offense is so included when:
. (a) It is established by.proofofthe same or less than all the facts · required to establish the·commission ofthe offense charged[.] .As the trial court correctly observed, thus defined, receiving stolen property is not an "included" offense ofburglary. Receiving stolen property
17requires proofofthe retention or disposition ofproperty with the knowledge that the property has been stolen. ·Burglaryrequires an unlawful intrusion

.upon real propertyWith an intent to commit a crime. In terms oftheir

elements, therefore, the two crimes are utterly distinct. To establish burgl8.ry



### . . in thi_s case, moreover, it was not necessaryfor the Commonwealth to show that the defendants also received stolenproperty. While their retention-of

. · .

. stolen property was certainly partofthe evidence allowing an inference 

### Of

. . . . : . \ criminal intent, to showthat the defendants.entered the two residences with the intent to commit crimes the evidence oftheft, the evidence that the residences were ransacked, or the evidence tpat convicted felons stole guns. could also have sufficed. As the Court·noted in 

### Hudson, "the fact thatthe

· evidence would support a guilty**verd~ct** on a lesseruncharged offense does not

entitle a defendant to an instruction on that offense." 202 S.W.3d at 21. The trial court correctly so ruled. Arguing against that ruling Ute defendants refer_us to

### H~ll v. 

### Commonwealth, 337**S~W.3d** 595 (Ky. 2011), and to 

### Perry v. Commonwealth,

. . . 

### supra. Those cases involved prosecutions for attempted mμ.rder where the

. . defendant had shot and injured a victim,_ but had not kiiled him. In both, an fssue developed at trial concei-ning the defendant's ·intent at the time of**t~e** shooting-:...to injure or**~o** kill-and in both, at the close ofproofthe**commonwe~th** was granted an instruction on assault as a "lesser-included .·offense" ofattempted murder.·

. 18Notwithstanding the seemingly obvious tension with KRS 505.020, in \ both cases this Court upheld the "lesser-included" instruction. Doing so in 

### Hall, we declined to overrule Perryand instead reiterated its view that KRS 505.020(2) does· not require a "strict statutory elements" approach to lesserincluded offenses, butrather allows for "instructions on uncharged offenses
. where the facts alleged in the indictment or the evidence presented at trial support[] such instructions." 337 S.W.3d at 606. The defendants contend that the trial court ignored this teaching from 

### Hall and subjected their requests for a receiving stolen property instruction to . a "strict statutory elements" test. We disagree. As noted above, the Commonwealth's proofofburglary in this case did not necessarily entail proof ofreceiving stolen property. Without attempting to explicate.the possible relationship between 

### Hall and 

### Hudson, moreover, we n?te the trial court's observation that nothing, 

### i.e.,.none ofthe doublejeopardy provisions ofKRS 505.020, precluded conviCting the defendants ofreceiving stolen property as

.well as.burglary. ThatpossibHio/ makes this case more like 

### Hudson, where conviction ofboth the charged offense and the proposed**~esser** offense was possible, 202 S.W.3d at 21, than 

### Hall, where conviction ofboth assault and attempted murder would run afoul ofKRS 505.020(1)(b), which prohibits conviction ofmore than one offense when the· separate offenses require inconsistent finc:lings offact.· 

### SeeKiper v. Commonwealth, 399 S.W.3d 736 (Ky. 2012).**Ass~ult** in the latter situation can, perhaps, like an elements-based lesser-included offense, be thought a "defense" to a charge ofattempted 19murder, whereas receiving stolen property in this case does not have the same significance. In sum, Hudsonis the more apt analog to this case, and the trial. '

. court did not violate Hall. Finally, it is also worth**-~eiterating** that the trial court gave thejury appropriate lesser-offense options-especiallywith respect to theTurpen · burglary-but nevertheless thejury convicted the defendants offirst-degree ·burglaries'. The defendants'.suggestion that the trial coures refusal to instruct · on receiving stolen property somehow coerced thejury to find them guilty ofa
more serious·crime than it would have done had it been giveri their requested · instruction is thus belied by the record.



### -III. Juror andWitness Misconduct Did Not**Necessitat~** 

### a Mistrial. A. The Juror "Misconduct" Was Not Prejudicial. The defendants also contend that the trial court erred by denying their jointmotion for a mistrial. That motion was premised on·a fluny of juror and witness misconduct that occurred during the eveningrecess following the first day oftriaL All ofthat misconduct involved witness George Crawford, t}1e ·neighborwho saw and photographed the break-in at the Vances'**~esidence~** Crawford was the Commonwealth's second witness and the last witness at the end ofthe trial's first day, most ofwhich was devoted tojury selection and opening statements. Very·soon after Crawford's testimony concluded, the trial court. admonished thejury members not to discuss the case among themselves orwith anyone else and dismissed them for the night. As it happened, about halfofthejuryrode down on the courthouse elevator at the ·20same time Crawford did. Another person on the elevator-a venire member who had not been selected to hear the case but who hadremained in the courtroom as a spectator-complimented Crawford on his testimony and asked

_,, him for additional details about the location ofthe Vances' house and the

·intersection near where the defendants had been stopped. Crawford answered

the question, admitted having been nervousduring his examination, and wondered whether anyone else had found the airjn the courtroom very dry. A jurorwho had suffered a nosebleed during the day's proceedings replied that his nose had, a remark that drew laughs from some ofthe otherjurors. At that point, the elevator ride ended, and thejurors and Crawford went their separate ways. That evening the.Commonwealth learned ofCrawford's encounterwith
some ofthejurors, and the next**mor~ing,** before the trial resumed, it informed the court. One-by-one the courtexamined thejury members to determine which ofthem had been on the elevatorwith Crawford and what; exactly, had been said. The scenario sketched above emerged from their answers. Crawford was also recalled and questioned; and even the spectatorwho asked Crawford to elaborate on the location ofthe arrest was identified and called in to be questioned by the court and examined by the parties. The court concluded that, while unfortunate, Crawford's elevator encounterwithjury members had been inadvertent, had not borne on any of the contested issues in. the case, and did not in any otherway threaten to taint thejury's deliberations or decisions. Beyond.an admonishment to thejurors 21who had ridden on the elevator with Crawford to say nothing about the encounter to others; the courtconcluded that the elevator incident did not entitle the defendants to any relief, and in particular did not necessitate a mistrial. The defendants mainta.in that the trial court's ruling.ignores the important rights at stake: the right to a fair trial, generally, under the Due ProcessClauses ofboth our state and the federal constitutions, and more particularly, the constitutional rights to an unbiasedjury,_

### Remmerv. United States, 347 U.S. 227 ·(1954), and to a jurywhose verdict is based solely on the · evidence received in open co.urt. 

### Sheppard v. Maxwell, 384 U.S. 333 (1966). A juror's exposure to either outside

### influe~ces.-bribes and threats

### ~e the- classic examples-orextrinsic information threatens those rights and, upon a proper showing, obligates the.trial court to inquire and to "ascertain whether thejuror
was 

### otwas not**tainted~"** 

### United States v. Davis, 15 F.3d 1393, 1412.(7th Cir. 1994) (discussing the showing thatwill trigger the trial court's duty to inquire); 

### Commonwealth v. Abnee, 375 S.W.3d 49, 55 (Ky. 2012) (same, and holding that "an unauthenticated and unsworn letter from a lonejuror, without more, is insufficient to trigger the process for further.inquiry"); 

### Smith v. Phillips, 455 U.S. 209, 215 (1982) (notingthat, "This Court has longheld that the' remedy-

. for allegations of jurorpartiality is a hearing in which the defendant has the. opportunity to prove actual bias.").

_

Upon inquiry, "[i]fthere is a 'reasonable possibility' that a jury's verdict has been [or will be] affected by material not properly admitted as evidence, the 

### 22criminal defendant is entitled to a new trial." Davis, 15 F.3d at 1412 (citation ·omitted). In otherwords,jurormisconduct entitles.a defendant to a new trial

(or a mistrial) only ifthere is sufficient·evidence to establish both the misconduct and resulting prejudice. "Prejudice is shown whenever there is a reasonable probability orlikelihood that thejurormisconduct affected the verdict." Meyer v. State; 80 P.3d 447, 455 (Nev. 2003) (discussing the different

.

### ap·p~oaches to the "i;>rejudice" question adopted by the federal Courts of Appeal). Not every incidence ofjurormisconduct requires a mistrial. Rather, "[e]ach case turns on its own facts, and on the degree and pervasiveness ofthe pi:ejudicial influence possibly resulting." Meyer, 80 P.3c:l at 453 (quoting. United States 

### v. Paneras, 222 F.3d 406;411 (7th Cir. 2000)). As the Supreme Court

.stated in Smith, · [D]ue process does not require a new trial every time a jurorhas been placed in a potentially compromising·situation. Were that the rule, few trials would be constitutionally acceptable. The safeguards of jurorimpartiality, such as voir dire and protective instructions from the trialjudge, are not infallible; it is virtually impossible to shieldjurors from every contact or influence that might theoretically affect their vote. Due process means a jury capable·and willing to decide the case solely on the evidence. before it, and a trialjudge ever watchful to prevent prejudicial occurrences and to determine the effect ofsuch occurrences wh.en they happen. Such determinations mayproperly be made at a hearinglike that ordered in Remrrierand held in this case. 455 U.S. at 217 (footnote omitted). In Kentucky these fundamental rights receive protection under both KRS 29A.310 and Rule ofCriminal Procedure (RCr) 9.70. Among other things, the
23. statute forbids.witnesses (without leave ofcourt) from "convers[ing]with the jury or any member thereofupon any subjectafter they [thejury members]
. have been sworn." KRS 29A.310(2). The statute also provides that

### .ifthejury is pe.rmitted to separate priorto deliberatio'n, the court sh:all admonishtheJury [members] that "it.is their duty not to converse with,**~or** allow themselves to be**·~addressed** by, any other person o.n any subject ofthe trial[.]" _KRS 29A.310(1)°. RCr 9.70 provides for the same admonition; requires the court 

### to give it, or at

. . . . . . . least to refer to it, "at each adjournment"; and further requires thatthejury members be admonished to report immediately to the court any attemptS to . ·communicate with theni. Under these provisions, we have heid,.imprqper conversations between third parties (induding witnesses) andjurors I?Ust be assessed for their potential to prejudice the defendant: "The true test is whether the**[third~**

- . -

- party/juror]misconduct has prejudiced the defendantto the extent that he has

.not received a fair trial." 

### Graham v. Commonwealth, 319 S.W.3d 331, 339 (Ky. 2010) (quoting 

### Talbott 

### v. Commonwealth, 968 S.W.2d 76, 86 (Ky. 1998)). At one extreme, in 

### Dalby v. Cook, 434 S.W.2d 35 

### (Ky. 1968)', our .

· predecessor Court presumed prejudice where, during the trial, a Juror

conversed with an interested third-party (the secretary ofone 'side's attorney)

. ' . . and expressed agreement with that person's views as to what t_he outcome of

.·**~** . . 

### - the case should be: ,At the other extreme, in 

### Owings v. Webb's 

### Ex'r,**~04** Ky. 748, 202 S.W.2d-410(1947), ourpredecessor found presumptively nonprejudicial briefconversations duririg a recess bet:Ween the court clerk and

### ~o 24jurors, one ofwhom wo:r:idered "where in the community a corn.shredder was then operating," and th.e other "where they (thejury} would eat lunch that day." "We have several times held," the Court explained, "thatno reversible error was committed when some person innocently conversed with a juror on a matter · foreign to the .trial." 202. S.W.2d at 412 (citation omitted). 

### See also Talbott, supra (deemingharmless similarly "innocent," "non-substantive" conversations between a sheriff /Witness and threejurors). In between the extremes it becomes the duty ofthe trial court to inquire
as to the breach ofthe statute or the·rule and to determine,_ifit appears that misconduct occurred, whether there is a reas<?nable likelihood that it did (or would) affect the fairness ofthe trial. 

### Cf Smith v. Phillips, supra (prescribing, in the due-process context, a hearing for colorable allegations of juror misconduct and. an opportunityfor the complaining party to show prejudice);



### .see also Oro-Jimenez v. Commonwealth; 412S.W.3d174, 180-81 (Ky. 2013)

(approving, under KRS 29A.310, this manner ofproceeding and upholding the trial court's dedsion after the hearingto the effect that brief, consolatory remarks by ajuror to one ofthe victim/witnesses during the recess between the trial's guilt and penalty phases did notne<;;essitate a mistrial). Here, ofcourse, having been presented with the Commonwealth's own
concerns about potentially seriousjuror /witness misconduct, the trial court promptly and**thor~ughly** inquired into what happened**~d** determined, correctly in ourview, that the innocuous elevator encounter posed virtually no risk ofprejudicing the defendants'trials. ·The. trial courtproceeded exactly as 

### it:should have done, and its decision not to declare a mistrial amounted to an appropriate exercise ofits discretion. Arguingto the contrary, the defendants correctly note that Crawford's elevator·comments about his nervousness while testifying, about the courtroom's**drynes~,** and especially about the location ofthe Vances'house and where the defendants were stopped, were not completely "innocent," like the third-party remarks in Owings·and Talbott, in the sense ofbeing completely unrelated to.the trial. The defendants' conclusion, however, that because.this
case is not at the "innocent" extreme it must be at the opposite, "presumptively prejudicial" extreme goes too far. As observed in our more recent cases, such
as Graham and Oro:..Jimenez, between the presumptive extremes there is a

. . middle ground where the trial court must inquire and consider. ·That is preciselywhere the elevator inciderit in this case lies.

. 

### . No more persuasive are the defendants' claims ofpr.ejudice arising from that hicident
..Briefly, they contend that the comr:nent by the courtroom spectator complimenting Crawford's testimony and Crawford's "I was scared," and "Did any01;1e else find the courtroom dry?" comments enabled Crawford to. establish rapport and sympathywith thejurors on the elevator, and thus were apt to affect thosejurors' asse_ssments ofCrawford's credibility. Had the facts been different and Crawford's credibility crucial to the Commonwealth's case, this claim might merit more comment. As it was, however, the defendants were essentially caughtred-handed, and Crawford's testimony was cumulative, supported by, among other things, the 911 recording, by·crawford's 26' . photographs, and by the evidence obtained by the police from the defendants'

· car andidentified bythe victims. In these circumstances, the trial court

correctly determined**~at** the risk ofprejudice from Crawford's briefand merely polite elevator remarks was essentially nil. A final facet ofthe defendants'prejudice argument focuses .on their so-

.. . . . called "fourth man" theory.·Through cross-examination ofCrawford, the. defendants established that he could not see through the tinted windows ofthe
car he observed in the Vances' driveway and therefore could not rule out the possibility that there was a fourth manin the vehicle. Similarly, there was a briefinterval when Crawford.lost sight ofthe vehicle, providing opportunity for
a fourth man.tojump out after the car left the Vance residence and before the police stopped it. There was absolutely no evidence to .support the presence of

. .. a "fourtl:l. man" and, significantly, the three men depicted in Crawford's phot<;>s ' look like the three defendants. Nevertheless, they contend that Crawford's elevator comments, by establishingrapport with certainjurors, may have somehow undercut their "fourth man" theory.**~hey** never articulate how this occurred and instead insist that the possibility ofprejudice entitles them to a
new trial. As noted, the innocuous conversation here is**f~** less serious than

. .

. tpe misconduct in our presumptive prejudice cases_and it was therefore the

defendants' burdyn ofshowingprejudice, 

### i.e., providing an evidentiary basis for finding that it was reasonably possible that the elevator incidentwould affect thejury's verdict. With no·such evidence in the record, the trial court properly denied a mistrial. 27

### · B. The.Witness Misconduct Was Not·Prejudicial, Either by 

### Itselfor in · Conjunction With the·Juror "Misconduct."
. . .· . Next,.the defendants contend that evenjfthe elevator inddent was not enough by itselfto call into question the fairness oftheir trial, it was enough when viewed in conjunction with two other gaffes by Crawfordthat same evening. We disagree. During Crawford's testimony, the defendants invoked Kentucky Rule of Evidence (KRE) 615; the ExclusiOn of

### Witnesse~ rule. With a. few exceptions not applical;>le here, that rule requires the trial court, upon a party's request, to "orderwitnesses excluded [from the courtroom] so that they cannot hear the testimony ofotherwitnesses." As we have explained; the letter ofthis rule applies**o~ly** to what happens in the courtroom, but its spirit"is violated 'when · witnesses coordinate their testimony' outside the courtroom." Hall, 337 S.W.3d at 616 (quoting 

### Woodard v. Commonwealth, 219 S.W.3d 723 (Ky. 2007), 

### abrogated on othergroundsby 

### Commonwealt': v. Prater,. 324 S.W.3d 393 (Ky. 2010)). Accordingly, in conjunction with the exclusion ofotherwitnesses from the courtroom, the prosecutor duly advised Crawford not to discuss his

. ' , I . . . . testimony laterwith otherwitnesses. fiowever, after testifying, Crawford accepted a ride home from Stan

...Turpen, one ofthe brothers whose.home was burglarized. Turpen wasat the**c~urthouse** that afternoon because he too was due to testify for the

· Commonwealth. The two men conversed on the drive ho;rne. Also, in response

## to a text message asking how the.day had gone, Crawford telephoned BrittanyVance later that evening, and discussed with her 28in some detrul the questions he had·been

### ~sked and his impressions ofthe

. ' . . . defense. He appears to have noted, in particular, the interest ofboth sides in whether he observed any ofthe defendants with a gun. Brittanywas scheduled
as a prosecution witness. The defendants objected to these apparent breaches-ofKRE 615's spirit. The trial court therefore, along with its inquiry into the elevator incident, inquired of, and allowed the parties to examine; Crawford, BrittanyVance, her husband Joe Vance, and Stan Turpen concerning ari.y attempts among them to coordinate their testimonies. Crawford denied having discussed his testimony with Stan Turpen, whom he had met onlythat·day. Turpen recalled Crawford recounting that he had seen the defendants in the Vances' driveway, but mostly he recalled Crawford's description ofa block-watch program in which he had participated while he was ·a resident ofCincinnati. The trial court, noting that Crawford and Turpen were witnesses ofseparate events and that there was virtually no overlap between what they had observed, ruled that even ifCrawford had mentioned his testimony during the ride home,**Cra~ord's** testimony was not apt to have any bearing onTurpen's and thus the rule violation, if**any~** arising from their conversation was harmless. I

. With one exception, the trial court ruled similarlywith respect to the Vances. The Vances were not home while Crawford was.observingthe break-in attheir house, so their**variou~** testimonies overlapped very little: Crawford describing the break-in from the outside as it occurred and the Vancesdescribingthe effects ofit from the inside after the fact. Given those differences, the trial GOUrt concluded thatthe Vances'testimonies were not apt to be_ significantly affected by knowledge ofCrawford's testimony. ' The exception, in the_trial court's view, was Crawford's possible "heads

' ' . . - up" regarding the significance the.parties appeared to place on Brittany's gun. B!ittany testified during the 

### voir**dir~ tp~t**  only in thelast couple ofdays had her husband located a**doc~ment** identifying the gun by its serial number and

. . . . 

### ' herselfas its own.er. She intended, she said, to provide that document to· the prosecutor. She had also, apparently after talking with Crawford, double checked with her husband to make sure she knew how many bullets the clips

. .. for her gun held.· The trial court excluded all ofthis "new" gun evidence as .**possib~y** the result ofCrawford's tip, but it denied the defendants'request to

. . .. . . . exclude Brittany's identification ofthe gun altogether, since she had told the investigating detective itwas hers long before Crawfordtestified. The trial court also denied motions for mistrial or the exclusion of \... ·

. 

### . . witnesses on the ground that the trial's fairness had been**u~dermined** by the two**vioiatio~s** ofKRE 615 together with the violatiOns ofKRS 29A.310 and the

. . . - ·fact that**Crawford'~** testimony appeared tainted by his apparent desire to help·

out the Vances. Rejecting those claims, the trial courtreiterated that in its view the rule and statutory violations, such as they were, were minor and did

- . . not threaten to prejudice the defendants or to impair the trial's fairness. it also

. . noted that ifthey so desired the defen,dants could recall Crawford and via cross,...examination attempt to impeach him_as_biased.·· The defendants 30maintain that, regardless ofany actUal prejudice, the trial court abused its discretion by failing to remedy the appearancenfunfairness arisingfrom so .many witness andjurorimproprieties. We are convinced, however, that the ' . trial court's hand,ling ofthese matters was appropriEl.te.

. Beginningwith the asserted violations ofKRE 615, ·W'e explained in 

### Woodard that, although "collusion" among witnesses (whatever their intent)

. ' violates the.·spirit ofKRE 615, because it occurs outside the presence ofthe court;the court's ability to do anythingabout it is limited: "[T]he most [the trial court] could do is question the witnesses in an effort to ensure a fair. trial. The best course is to allow the testimony subject to·proper impeachment on cross examination." 

### Woo<J,ard, 219 S.W.3d at 728-29. The trial court fully complied with that recommendation here. As it did in.the face oflikelyjuror/witness misconduct, the trial court responded 

### to the allegations ofout-of-court witness "collusion" by promptly conducting a very thorough inquiry ofits own into what happened and by

. ' giving the parties.full opportunities to explore both what happened and how what happened might affect them. As with thejuror
.."misconduct," it turns out that the witness "collusion" was much more smoke than fire. StanTurpen learned nothing bearing on his testimony from Crawford. The Vances had

-.nothingthey did not already know to learn from each other. And B.rittany

Vance did not have much to learn from Crawford, either. While Crawford should not have told Brittany_what he was asked duringhis testimony and how

31he responded, the fact that he did, in the circumstances ofthis case·; was simply_·not likely to.have muchimpact on Brittany's testimony
.. The possible exception, Crawford's observation that both sides wanted to

. . know about Brittany's gun, the trial court defused by disa1,lowing Brittany's testimony in the least bitlikely to be responsive to it.**Th~t** was a remedy well beyond the cross-examination that Woodard suggests would have sufficed. In**short~** the.trial court applied KRE 615 to an out-of-court "collusion" situatfon· precisely as Woodard envisioned: by inquiring so as to identify possible effects
on a fairproceeding, and byresponding so as to resolve the problems and keep the proceeding-fair. The defendants insist that that was not enough, that at some point,

· flame or no flame, smoke itselfrequires relief. "This trial could not possibly

have appeared fair," the defendants complain, to anyone who sat, as they did, "for hours the second day oftrial observing a parade ofjurors and witnesses admitting to rule violation after rule violation undermining the fairness in their case." Onthe .contrary, what an observer might have seen, and what the record ·plainly shows, is a trialjudge takingpains to determine exactly what had happened outside the courtroom and its effect, ifany, on the ongoing trial. The tri8.I court did not err or abuse its discretion in ultimately determining that
none ofthe alleged incidences of juror or witness misconduct, considered singly or cumulatively, necessitated a mistrial. The well-developedrecord allows us to saywith confidence that the defendants "received a fundamentally fair trial with.any errors being so minor that even their cumulative .effect does

. 32not demand reversal." 

### Hall, 337 S.W.3d at 616-17 (quoting 

### Roach v. Commonwealth, 313 S.W.3d 101, 113 (Ky. 2010)). IV. Defendant Hardy Was Not Entitled to· an Instruction on Voluntary Intoxication.

. Hardy individually claims that he was entitled to a jury instruction on the statutory defense ofvoluntary intoxication. As he correctly notes, a trial court is required to instruct thejury on affirmative defenses ifthe evidence· would permit a jurorreasonably to condude that the defense exists. 

### Fredline.
v. Commonwealth, 241 S.W.3d 793 (Ky. 2007); 

### Nichols v. Commonwealth, 142 S.W.3d 683 (Ky. 2004). On the otherhand, such an instruction is to be

.. rejected ifthe evidence does not warrant it. 

### Payne v. Commonwealth, 656 S.W.2d 719 (Ky. 1983). The. tdal court made the latter determination in this case, and we review that decision for an abuse ofdiscretion. 

### Sargent v. Shaffer, 467 S.W.3d at 202-04. Under KRS 50.1.080(1), voluntary intoxication is a defense to a.criminal charge only ifthe intoxication "[n]egatives the existence of an element ofthe offense." As Hardy notes, an intrusion into ariother's real property that is knowingly wrongful, as well as an intent to commit a crime therein are both ' elements ofburglary that could conceivably be "negatived" by intoxication. 

### See Weaver v. Commonwealth, 298 S.W
..3d 851, 855 (Ky. 2009) (noting that intoxication is a potential defense to burglary). We have interpreted**K~S** · 501.080(1), however, "to mean that the [voluntary intoxication] defense is justified only where there is evidence reasonably sufficient to prove thatthe

33defendant was so [intoxicated] that he did not know what he was doing." 

### Fredline, 241 S.W.3d at 797 (quoting

### Rogers v.**Commonw~alth,** 86 S.W.3d 29,. 44 (Ky. 2002)). "[M]ere drunkenness," in otherwords-i.e., the mete. impairment of judgment and/or physical controlthat commonly leads intoxicated persons to do things they would not ordinarily do-
.. "does not equate with the Kentucky Penal Code's definition ofthe 'c:lefense' ofvoluntary intoxication." 

### Nichols, .142**~.W.3d** at 688 (quoting

### Rogers, 86 S.W.3d at 44). The defense requires proofof something "more" than "mere drunkenness." Id.
. I Here itjs doubtful that the evidence would. have permitted a finding that Hardy
was intoxicated, much.iess that he was so intoxicated that he ceased to be
aware ofwhat.he.was doip.g. The evidence Hardy relies on was all introduc.ed in conjunction·with the

. .**~** . . evidence ofhis arrest. Officer Champaign, the arresting officer; testified that the**s~arch** ofHardy's person incident to the arrestyielded, among other items, eight prescription pills, later identified as five hydrocodone pills .arid three Xanax pills. Additionally, the**se~ch** incident to Hardy's arrest was captured by the "dash cam"**vi~eo** camera ofone·ofthe police cars. Hardy's counsel played that video for thejury, andmaintained that it shows Hardy.moving slowly, as though under fu.e influence ofpills at the time ofthe arrest. The.officer testified, however, thatHardy was the driver ofthe defendants' car and that his driving had not appeared impaired. According to

.the officer, Hardy wasthe firstdefendant ordered out ofthe car, and he exited
. without stm;nbling or showing any othersign ofintoxicatio;n. His eyes were not . 34glassy. The "dash cam" video, as the officer noted, shows Hardy cooperating with·the search and, despite having his hands cuffed behind his back, obeying

. . . without any loss.ofbalance or other difficulty such commands as turning around and raising each ofhis feet as the officerremoyed Hardy's shoes and searched his socks. The officer testified at no point during.Hardy's arrest did he·suspect that Hardymight be intoxicated. The "dash cam"· video in no way . belies that testimony
.. Defense counsel asked the officer ifhe was aware that while waiting to be booked into the Campbell County Detention Center Hardy had wet his pants. Unfortunately, on the trial video the officer's response, yea or nay, is not clear, but in·any event defense counsel thereafter referred to Hardy's purported accident as further evidence ofintoxication. Could a reasonablejurorinfer from the foregoing evidence that at the time ofeither crime Hardy was so intoxicated that he was not aware ofwhat he
was doing? The trial court properly conduded "no." Even ifthe evidence. perrriitted an inference that Bardyhad ingested pills prior to the crimes,'the evidence, much like the evidence ofpre-crime cocaine and alcohol use in Btanford·v. Commonwealth, 793 S.W.2d 112 (Ky. 1990), als? showed that Hardy could drive, walk, and understand what was said to him. Hardy was apparently aware ofhis actions and appeared to be functioning normally. On the other hand, there was no evidence, as there was in Nichols v. Commonwealth, supra, that Hardy was wild or out ofcontrol, nor was there evidence, as there was in Lloyd v. State, 587 S.E.2d 372 (Ga. App. 2003), the 

### 35 , ,Iother case upon which Hardy relies, that hewas.acting strangely and was so

. . ·intoxicated immediately after the crime as to pass out and urinate on himself. In sum, none ofthe evidence suggested that Hardy was so intoxicatedthathe
was unaware_ofwhat he did.· 'Accordingly, the trial _court did hot abuse its discretion when"it decided that Hardywas not entitled to an intoxication instruction. 

### V. The Trial.Court Did Not Err During the PFO Proceedings by 

### Refusing to Exclude Evidence ofOne ofConyers's Prior Felonies. · Finally, Conyers contends·that he was improperly**sentenced~** Thejury initially sentenced him to serve fifteen years in prison o_n each**first-d~gree** . burglary count, with those sentences to be served concurrently. In light of proofthat Conyers had two prior felony convictions,thejury then.found him

. . subject to sentencing as a PFO in the first degree arid recommended the two ·concurrent sentences be enhanced,to twentyyears; The trialcourt sentenced Conyers accordingly. On appeal, Conyers contends, as he did in the trial court,"that due to a change in the law one ofhis prior felonies should nolonger count for PFO purposes. He maintains that he is entitled to be resentenced at a· new penalty**p~ase**·from which evidence ofthe."lapsed" felony is.excluded. In 2004 Conyers pled guilty to trafficking in less than eight ounce.s of

. . . marijuana. At the·time ofthe offense (and still today), first-offense trafficking in less than eight ounces ofmarijuana was a Class A misdemeanor. KRS. 214A.1421 (1992). However, because Conyers did his peddlingwithin 1000

.yards ofa school, the offense was enhanced under KRS 2l4A. l411 (1992) to a 36Class D felony.4 Conyers, only nineteen at the time ofhis 2004 guilty plea, was sentenced to five years but that sentence was probated. Some seven years later, in June 2011, the General Assembly amended KRS 2 l 4A. l 41 l so as to shrink the enhancement zone around schools. Under the amended statute, misdemeanor trafficking offenses do not become feloI?-ies unless they take place within "one thousand (1000)

### feet," notyards, ofa classroo:rp.. KRS 214A.1411(1) (2011) (emphasis added). Conyers claims (a point the Commonwealth does not contest for _the purposes ofthis case) that hjs 2004 offense did not taj<:e place within 1000 feet ofa clas,sroom and so

. . . would not have been a felony under the 2011 versi9n ofthe statute. From that fact, Conyers argues that his 2004 felony conviction should he**deemed~** retroactively, a misdemeanor for PFO purposes in this case. Thetrial .·

· court rejected that argument, and so do we. KRS 532.080, the PFO sentencing

statute, does not require proofthat prior felonies would still be felonies under current law. As pertinent here, it requires only a prior conviction (or prior convictions) "ofa felony in this state." .KRS 532.080(2) and (3) (defining second and first-degree PFO status, respectively). In 2004, Conyers pled guilty to "a. felony in this state," and the resulting conviction remains a felony. conviction**~The** statute provided in pertinentpart as follows: "Anyperson who u!llawfully traffics iri a controlled substance classifiedin Schedules I, II, III, IV oiV, or a. controlled substance analogue in any buildingused primarilyfor classroom instruction in a school or on anypremises located within one thousand (1,000) yards

.ofany school buildingused primarilyfor classroominstruction shall be guilty ofa ·

Class D felony, unless a more severepenaltyis setforth iD; this chapter, in which case the higher penalty shall apply." Marijuanais classified as a Schedule I controlled substance
.. KRS 218A.050(3). 37 

# ·-·for PFO putposes notwithstandingthe subsequent amendment ofKRS 214A.1411. Against this conclusion Conyers refers us to KRS 446.110, which, ai:nong other things, addresses "Offenses committed
... prior to repeal oflaw
.." In pertinent part, the statute provides: "No newlaw shaU be construed to repeal a

. .**~** former law as to any offense committed against a former law." This, ofcourse, is contrary to Conyers' contention, which is that the 2011 amendment ofKRS 

### 2 l 8A.14l 1 

### didrepeal the earlierversion applicable to Conyers in 2004. This provision ofthe statute is consistentwith the general rule, as stated in KRS 446.080(3), that "[n]o statute shaU be construed to be retroaQtive, unless expressly so declared." Unless the GeneralAssembly says so, in otherwords,
new statutes, such as the 2Q11 amendment to KRS. 218A.l41l, do not apply to offenses committed prior to their enactment. However, Conyers points us to an exception to the presumption against retroactivity: "Ifany pena.lty, forfeiture or

.punishmentis mitigated by any provision of.the new law,**sue~** provision may,

by the consent ofthe party affected, be applied to 

### any judgmentpronounced afterthe new law takes effect." KRS 446.110 (emphasis added). Even 1 assuming that the 201 l amendment to KRS 446.110 addre.ssed the penalty, and not the substance ofthe law, 

### seeRodgers V. 

### Commonwealth, 285 S.W.3d 740, 750 (Ky. 2009)**(~iscussing** that distinction), the problem with**Conyer~'** reliance on this exception is that thejudgment to which he**wan~s** to apply the new, "penalty-mitigating" version ofthe statute-his 2004 trafficking conviction:-was pronounced some seven years 

### before the new law took effect
... 38.. The KRS 446.110 exception, by its own terms, does not apply in this situation. 

### Rogers v. Commonwealth, 366 S.W.3d 446, 456.(Ky. 2012) (noting that "by the statute's [KRS 446.110] plain terms the retroactivity is limited to changes that take effect prior to the 'pronouncement'of judgment.")
.. Conyers'unsupported.constitutional arguments fare no better. He contends that he was found to be a first-degree PFO upon proofofonly one priorfelony, in violation ofthe Due Process Clause ofthe federal constitution. He also contends that thejudicial branch's use ofa crime that the legislature

.. has determined should not be a felony to enhance his sentence as a prior felony offender is·a violation ofthe separatfon ofpowers doctrine. As discussed above, the GeneralAssembly has made crystal clear its ·intent that unless it clearly says otherwise, even.the penalty provisions ofnew laws have only a limited retroactive_reach. The GeneralAssembly did not except the 2011 amendment from those limits, and Conyers' 2004 conviction· lies far outside them.· The real due-:process and separation ofpowers violations would occurwere we to follow the course urged by Conyers and give the 2011 amendment ofKRS 21BA.1411 a retroactive effect far in excess ofwhat the GeneralAssembly has indicated it should have. In short, the trial CO\lrt did not
err by allowing use ofConyers' 2004 felony marijuana-trafficking conviction in the PFO portion ofthis case. CONCLUSION For th,e foregoing reasons, we reject the three defendants' shared appellate arguments, as well as theindividual arguments raised by Hardy and 39Coi:iyers. Accordingly, we hereby affirm the Cam:pbell Circuit Court's

. . . . judgments convicting and sentendng each·defendant. All sitting: All concur.

COUNSEL FOR APPELLANT, LONNIE CONYERS: Emily Holt Rhorer Assistant PublicAdvocate Department ofPublic Advocacy· COUNSEL FORAPPELLEE:
. Andy Beshear
. Attorney General ofKentucky Jeffrey Ray Prather ·.Assistant Attorney General
COUNSEL FORAPPELLANT, ROY'EDWARD TUCKER: Susan Jackson Balliet Assistant Public Advocate Department 

### of Public Advocacy COUNSEL FORAPPELLEE: Andy Beshear Attorney General ofKentucky· Joseph Todd Henning AssistantAttorney General

40. _/.COUNSEL FORAPPELLANT, JOSEPH HARDY: Erin Hoffman Yang Assistant PublicAdvocate Department ofPublicAdvocacy COUNSEL FORAPPELLEE: Andy Beshear Attorney General ofKentucky Joseph Todd Henning AssistantAttorney General

41
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