IMPORTANT NOTICE 

NOT TO BE PUBLISHED OPINION 

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED." 

PURSUANT TO THE RULES OF CIVIL PROCEDURE 

PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C), 

THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE 

CITED OR USED AS BINDING PRECEDENT IN ANY OTHER 

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UNPUBLISHED KENTUCKY APPELLATE DECISIONS, 

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OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE 

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BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED 

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ACTION. 
RENDERED: OCTOBER 20, 2016 

NOT TOBE PUBLISHED 

r tu rr Courf of Tfirtt;it-riii i

2015-SC-000436-MR U u 

ROBERT MAY 

H,oliait 14;„ bc_ 

APPELLANT 

ON APPEAL FROM HARDIN CIRCUIT COURT 

V. HONORABLE KELLY M. EASTON, JUDGE 

NO. 14-CR-00666 

COMMONWEALTH OF KENTUCKY APPELLEE 

MEMORANDUM OPINION OF THE COURT 

AFFIRMING 

On October 13, 2014, Appellant, Robert James May, led police officers on 

a high-speed car chase while driving a stolen vehicle. The pursuit was initiated 

after officers observed Appellant driving at a high rate of speed forcing a car off 

the road, causing the car to crash into a residence located near the road. 

Appellant eventually abandoned the vehicle and fled on foot. 

Louise Martin was at her daughter's house located in a nearby 

subdivision when she observed Appellant run by a window. Ms. Martin, who 

was approximately sixty-nine years old at the time, went to the garage where 

she encountered Appellant. While outside of the garage, he stated that he had 

been jogging and needed water. He then walked through the garage and 

toward the door to the house. Ms. Martin told him to leave. Appellant refused 
and attempted to enter the van that was located in the garage. Ms. Martin 

repeatedly said "no, you're not taking the car." Appellant stopped and exited 

the car. Ms. Martin removed the keys which were inside the car. 

While still inside the garage, Appellant again walked toward the door to 

the house. Ms. Martin pursued him but then started to leave the scene 

believing that Appellant was attempting to trap her in the garage by closing the 

garage doors. Appellant grabbed her multiple times, causing her to fall to the 

ground. She suffered physical injuries as a result. 

Appellant eventually released Ms. Martin, who then fled the scene. While 

fleeing, she observed Appellant enter the house. The police arrived sometime 

thereafter and searched the house. Appellant was not inside. He was 

eventually discovered near a tree line by the police dog Pharaoh, who bit 

Appellant, causing puncture wounds to his side. Appellant was then taken 

into custody. 

Appellant was subsequently arrested and indicted on several charges. A 

Hardin Circuit Court jury convicted Appellant of first-degree burglary, receiving 

stolen property (over $500), first-degree fleeing or evading the police, and for 

being a first degree persistent felony offender. Appellant was acquitted of 

kidnapping Ms. Martin. The jury recommended a total sentence of 20 years' 

imprisonment. The trial court imposed a total sentence of 25 years' 

imprisonment. Appellant now appeals his judgment and sentence as a matter 

of right pursuant to § 110(2)(b) of the Kentucky Constitution. Two issues are 

raised and addressed as follows. 

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Directed Verdict 

Appellant argues that the trial court erred in denying his motion for a 

directed verdict on the first-degree burglary charge. We will reverse the trial 

court's denial of a motion for directed verdict "if under the evidence as a whole, 

it would be clearly unreasonable for a jury to find guilt[.]" Commonwealth v. 

Benham, 816 S.W.2d 186, 187 (Ky. 1991) (citing Commonwealth v. Sawhill, 660 

S.W.2d 3 (Ky. 1983) (emphasis added)). Our review is confined to the proof at 

trial and the statutory elements of the alleged offense. Lawton v. 

Commonwealth, 354 S.W.3d 565, 575 (Ky. 2011). 

First-degree burglary, as charged against Appellant, requires proof of 

physical injury. KRS 511.020(1)(b). Pursuant to KRS 500.080(13), physical 

injury is defined as "substantial physical pain or any impairment of physical 

condition." The Commonwealth presented evidence indicating that Ms. Martin 

was attacked by Appellant in her daughter's garage while he was attempting to 

steal a van that was located in the garage. As previously stated, the victim 

testified that Appellant grabbed her multiple times while she was attempting to 

flee, causing her to fall to the ground. As a result of the encounter, the victim's 

shirt was torn, she had marks on her body indicating a struggle, and her ear 

was bleeding. The Commonwealth introduced photographic evidence taken 

soon after the commission of the crime documenting the victim's injuries. The 

victim required medical attention, including having her' ear lobe sutured as a 

result of her ear ring being torn from her ear during the altercation. 

3 
In support of his argument, Appellant cites to Ms. Martin's trial 

testimony, wherein she stated that she did not feel any injury to her ear during 

the physical encounter with Appellant and that she could not say whether 

Appellant caused the injury to her ear lobe. Appellant claims that because the 

victim could have injured herself at various points during and after the 

altercation, the precise moment of her injury is unknown. As such, Appellant 

argues that no reasonable juror could have found that Appellant caused the 

victim's physical injury. We disagree. 

The Commonwealth presented more than enough evidence here to 

instruct the jury on the first-degree burglary charge. Ms. Martin's testimony 

that she did not feel any injury to her ear while in the heat of the moment as 

well as her inability to pinpoint the precise moment of her injury did not 

require a directed verdict in Appellant's favor. There was no error here. 

Sentencing 

Appellant also claims that the trial court abused its discretion when it 

ran one of Appellant's sentences consecutively instead of concurrently, which 

the jury had recommended. Appellant specifically argues that Kentucky's 

sentencing scheme violates his Sixth Amendment right to jury trial. This issue 

is unpreserved and we will review for palpable error. See Walker v. 

Commonwealth, 349 S.W.3d 307, 313 (Ky. 2011) ("even alleged constitutional 

errors, if unpreserved, are subject to palpable error review."); see also Jones v. 

Commonwealth, 319 S.W.3d 295, 297 (Ky. 2010). 

4 
Appellant correctly observes that Kentucky law authorizes a trial judge to 

run sentences consecutively even if the jury recommended concurrent 

sentences. KRS 532.110; and Dotson v. Commonwealth, 740 S.W.2d 930 (Ky. 

1987). As previously stated, however, Appellant argues that our sentencing 

scheme violates this Sixth Amendment. He relies primarily on the recent U.S. 

Supreme Court case of Hurst v. Florida, No. 14-7505, 2016 WL 112683 (2016). 

Hurst involved Florida's capital sentencing scheme under which an advisory 

jury issues a sentencing recommendation to a judge, and then the judge makes 

the ultimate findings needed for imposition of a death sentence. The Court 

held that such a sentencing scheme violated the Sixth Amendment. See also 

Ring v. Arizona, 536 U.S. 584, 589 (2002) (holding that Iciapital defendants, no 

less than noncapital defendants, we conclude, are entitled to a jury 

determination of any fact on which the legislature conditions an increase in 

their maximum punishment."). 

Unlike Hurst and Ring, the judge in the present case did not make any 

findings of fact constituting "the functional equivalent of an element of a 

greater offense[.]" Id. at 585 (citation omitted). Nor was he required to make 

any findings. He merely ordered that one of the sentences be ran consecutively 

instead of concurrently with the remaining sentences. Such a determination is 

permissible under Kentucky law and current U.S. Supreme Court precedent. 

Oregon v. Ice, 555 U.S. 160 (2009) (holding that the Sixth Amendment does not 

inhibit States from assigning to judges, rather than to juries, finding of facts 

5 
necessary to imposition of consecutive, rather than concurrent, sentences for 

multiple offenses.) Therefore, there was no error here. 

Conclusion 

For the foregoing reasons, we hereby affirm the judgment of the Hardin 

Circuit Court. 

All sitting. All concur. 

COUNSEL FOR APPELLANT: 

Susan Jackson Balliet 

Assistant Public Advocate 

COUNSEL FOR APPELLEE: 

Andy Beshear 

Attorney General of Kentucky 

Matthew Robert Krygiel 

Assistant Attorney General 

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