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RENDERED: MARCH 14, 2019

NOT TO BE PUBLISHED

2018-SC-000186-MR

RODNEY WEINEL APPELLANT

ON APPEAL FROM CAMPBELL CIRCUIT COURT

V. HONORABLE DANIEL ZALLA, JUDGE

NO. 16-CR-00867

COMMONWEALTH OF KENTUCKY APPELLEE

MEMORANDUM OPINION OF THE COURT

AFFIRMING

Rodney Weinel appeals his convictions of first-degree burglary and of

being a first-degree persistent felony offender which resulted in his being

sentenced to life in prison.

Weinel contends that the trial court erred by (1) denying his Batson

challenge; and (2) by denying his request for an instruction on the lesser

included offense of third-degree burglary.

Having reviewed the record, we conclude the Commonwealth did not

violate Batson v. Kentucky, 476 U.S. 79 (1986), because the Commonwealth

articulated a race-neutral reason for the peremptory strike of the juror. We

further hold that Weinel was not entitled to an instruction on the lesser

included offense of third-degree burglary. We accordingly affirm.
I. FACTUAL AND PROCEDURAL BACKGROUND

Rebekah Osterhage was watching television at home when she noticed

movements at the front door. Rebekah went to the door and saw Weinel

attempting to look into the residence. When Rebekah opened the door, Weinel

stepped off the porch and walked quickly around the side of the house.

Rebekah called her husband Steven, and then called 911. As she spoke to the

dispatcher she observed Weinel walk toward a tree line at the rear of the

residence.

Police responded and began searching the tree line area. During their

search police found a blue duffel bag labeled with the name of the company

Steven worked for and a red duffel bag. Inside the red bag were various tools

and several boxes of ammunition. The blue duffel bag contained tools and a

battery charger. Near these items the police found a backpack containing

several full bottles of alcohol, a box containing various tools, three bows, and

several arrows. Also located nearby was a loaded muzzle-loader firearm. Closer

to the house, police found several fishing poles, an additional bow and several

arrows, a gun scope, a welding tool, and racks of frozen ribs taken from the

Osterhages’ garage freezer. Steven identified all of the items as belonging to the

family and having come from the Osterhages’ detached garage.

Police eventually located Weinel hiding in the tree line near the

residence. Police also found a vehicle with Ohio tags parked nearby which

belonged to Weinel’s girlfriend. Weinel had the keys to the vehicle in his

pocket. Weinel initially refused to comply with police commands. When

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apprehended Weinel had in his possession a ball cap belonging to Steven

Osterhage which was kept in the garage. Rebekah identified Weinel as the

person she had seen at the door peering into her residence. Police later

determined that Weinel lived on the other side of the tree line from the

Osterhages.

Following a jury trial, Weinel was convicted of first-degree burglary, of

being a first-degree persistent felony offender, and was sentenced to life in

prison. This appeal followed.

II. THE COMMONWEALTH’S PEREMPTORY STRIKE

DID NOT VIOLATE BATSON

Weinel contends that the trial court erred by denying his Batson

challenge to the Commonwealth’s peremptory strike of Juror 433, the lone

African American on the jury panel. For the reasons stated below, we disagree.

During voir dire, the Judge explained the juror qualifications to the

prospective jurors with one requirement being that the jurors live in Campbell

County. Five prospective jurors indicated that they had served on a jury

during the last twenty-four months. The trial court gave each of these

individuals the option of being excused if they chose, but all chose to remain

on the venire. Also, a minister informed the court that he ministered at several

of the local jails and indicated that he had a conflict of interest and was

excused for cause. It was at that point, the juror in question, Juror 433, raised

her hand. The following colloquy between Juror 433 and the trial court

occurred:

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Juror 433: So, three days out of the week I do live down there, but the

other four I live in Boone County - or the other three I live in Boone

County.

Court: So, what are you telling the court, ma’am?

Juror 433: OK, I don’t know if I live . . . I’m like . . .

Court: Oh, you’re determining your residency of Campbell County?

Juror 433: Yeah, because I’m here four days out of the week, because I

go to school in Boone County, so it’s kind of easier for me to travel to

Cincinnati, than Boone County, so I just stay down here four days out of

the week.

Court: What is your residence address? Is it Campbell County?

Juror 433: Yeah.

Court: And do you, are you a registered voter in the county?

Juror 433: Yes.

Court: But you think you might not be a resident of the county?

Juror 433: Well, I don’t know.

Court: So, what is your intent, do you receive mail in the county?

Juror 433: Yes. So, even though I still live in Boone, I’m, like, a resident

of Campbell County.

Court: Well, if you vote here, and you live here, and your domicile’s

here, that is ... do you consider Campbell County your county of

residence?

Juror 433: Yes.

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Court: And you do vote in Campbell County, even though you might

reside a few days a week somewhere else?

Juror 433: Right.

Court: OK, if you fill out an official form for the government or the

county, would you use your Campbell County address?

Juror 433: Correct.

Court: OK, then the court will determine that you are a Campbell

County resident for the purpose of this jury pool.

The trial court did not dismiss Juror 433 for non-residency, finding that

the juror was a Campbell County resident. At the conclusion of voir dire the

Commonwealth exercised one of its peremptory strikes against Juror 433.

Weinel challenged the strike under Batson v. Kentucky.1 The Commonwealth

justified the strike as follows:

I don’t know how that [a race-based strike] can be inferred When

there’s only one African-American juror on the whole juiy. . . .

This was the individual who wasn’t even sure if this was her

county of residence; she was not even clear if she is a Campbell

County resident; she spends half her time out of the county.

For preservation of the record, I do not want an issue on appeal

that a person who was not a Campbell County resident ended up

serving on a jury ... so in an abundance of caution, I did strike

[Juror 433] based on her confusion about her residency.

The trial court responded that it had questioned the juror about the

circumstances of her residency and determined that she was a Campbell

County resident. Defense Counsel agreed with the trial court and argued that

1 Weinel is white and Juror 433 is African American.

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her residency had been determined by the trial court, and therefore no

remaining issue existed concerning her residency. The trial court then

recessed the proceedings to further research the issue.

After completing its research, the trial court reconvened the proceedings

and asked the Commonwealth to again state its race neutral reason for the

strike. The Commonwealth responded:

I think she was still equivocal about where she resides, I think she

wasn’t even confident that she was a county resident and should

be serving on a jury—that made me uncomfortable. Beyond that, I

think her attitude generally, I just got the vibe that she didn’t want

to be here and I didn’t think she would be a good juror.

In addition to reiterating its initial reason, the Commonwealth cited to a

second reason for the strike. Namely, a “vibe” based on Juror 433’s attitude

which the prosecutor interpreted to mean that the juror did not want to serve,

based on the statements to the Court which indicated she might not live in

Campbell County. Defense counsel responded that Juror 433 was the sole

African American juror on the panel, was a resident of the county, and that she

voted in the county. Therefore, she should have been retained on panel. The

trial court responded that “that doesn’t entitle her to serve on the jury,” and

that the Commonwealth was entitled to strike her if it was unsure of her

residency. The trial court accordingly denied Weinel’s Batson challenge.

In Batson, the United States Supreme Court prohibited deliberate racial

discrimination during jury selection. The Supreme Court set forth a three-step

process for trial courts to follow to determine whether a peremptory challenge

was improperly based on race. Id. at 97-98. First, the defendant must make a

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prima facie showing that a peremptory challenge has been exercised on the

basis of race; second, if that showing has been made, the prosecution must

offer a race-neutral basis for striking the juror in question; and third, in light of

the parties’ submissions, the trial court must determine whether the defendant

has shown purposeful discrimination. Id. See also Snyder v. Louisiana, 552

U.S. 472, 476-477 (2008); Miller-El v. Dretke, 545 U.S. 231, 277 (2005)

(Thomas, J., dissenting); Miller-El v. Cockrell, 537 U.S. 322, 328-329 (2003);

McPherson v. Commonwealth, 171 S.W.3d 1, 3 (Ky. 2005); Johnson v.

Commonwealth, 450 S.W.3d 696, 702 (Ky. 2014).2

“[T]he trial court’s ultimate decision on a Batson challenge is akin to a

finding of fact, which must be afforded great deference by an appellate court.”

Chatman v. Commonwealth, 241 S.W.3d 799, 804 (Ky. 2007). “‘Deference,’ of

course, does not mean that the appellate court is powerless to provide

independent review.’” Dretke, 545 U.S. at 240 (holding that the trial court’s

finding of non-discrimination was erroneous in light of clear and convincing

evidence to the contrary). “But the ultimate burden of showing unlawful

discrimination rests with the challenger.” Rodgers v. Commonwealth, 285

S.W.3d 740, 757-58 (Ky. 2009). “A trial court’s ruling on a Batson challenge

will not be disturbed unless clearly erroneous.” Washington v. Commonwealth,

34 S.W.3d 376, 380 (Ky. 2000); Johnson, 450 S.W.3d at 702.

2 Abrogated in part by Roe v. Commonwealth, 493 S.W.3d 814, 828 (Ky. 2015).

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We agree with the trial court’s finding that Juror 433’s weekly stays in

Boone County for the convenience of attending school did not affect her

Campbell County residence. Edwards v. Logan, 24 Ky.L.Rptr. 1099 (Ky. 1902)

(“a voter’s residence is where his habitation is, and to which, when absent, he

has an intention of returning, and he shall not lose his residence by absence

for temporary purposes; a resident of a county does not lose his residence

therein by going to Indiana to work, with an intention of returning, where he in

fact returned to the county within a few months, and was living there when the

election occurred.”); Combs v. Combs, 301 Ky. 463, 470, 192 S.W.2d 395, 398,

(1946) (“To hold that anyone employed at [Oak Ridge] for as much or even more

than a year or two (requiring the establishment of a temporary home) would

transfer that person's residence, would be unthinkable. It is entirely clear from

the facts in this case that the parties never intended to, nor did, abandon their

residence”).

U.S. ex rel. Garibaldi v. Orleans Parish School Bd., states that “Batson

does not prohibit peremptory challenges based on residency in a particular

county or city, unless the peremptory challenges are a proxy for race.” 46

F.Supp.2d 546, 557 (E.D.La. 1999). In this case, even though Juror 433

remained a resident of Campbell County despite her weekly absences for school

purposes, her residency was called into question. KRS3 29A.080(2) provides:

“A prospective juror is disqualified to serve on a jury if the juror: (a)

Is under eighteen (18) years of age; (b) Is not a citizen of the United

States; (c) Js not a resident ofthe county, (d) Has insufficient

3 Kentucky Revised Statute.

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knowledge of the English language; (e) Has been previously

convicted of a felony and has not been pardoned or received a

restoration of civil rights by the Governor or other authorized

person of the jurisdiction in which the person was convicted; (f) Is

presently under indictment[.]”

(emphasis added).

Unquestionably, a concern that a juror is not legally eligible to serve on

the panel is a race-neutral reason for a peremptory strike. In light of the trial

court’s finding on the issue, and because Weinel himself sought to retain Juror

433 on the jury, it is unlikely that if Juror 433 had served on the jury that the

verdict would have been overturned based upon a later determination by an

appellate court that she was not a Campbell County resident. However, the

concern was legitimate, and a mistake in fact or ofjudgment in making a

peremptory strike does not equate to purposeful discrimination. Aleman v.

Uribe, 723 F.3d 976, 982 (9th Cir. 2013) (“To determine if a prosecutor’s

mistake undermines his or her credibility, we must consider whether, based on

the facts of the case, the mistake indicates purposeful discrimination instead of

innocent error. See Mitleider v. Hall, 391 F.3d 1039, 1049 (9th Cir. 2004)

(“Batson is not violated by prosecutor’s honest, but mistaken belief as long as it

is not pretextual. After all, Batson prohibits purposeful discrimination, not

honest, unintentional mistakes. See Batson, 476 U.S. at 98”).

The trial court’s finding that the Commonwealth’s use of a peremptory

strike against Juror 433 was not related to racial animus is supported by

substantial evidence, and its decision was therefore not clearly erroneous.

Washington, 34 S.W.3d 380

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(“A trial court’s ruling on a Batson challenge will not be disturbed unless

clearly erroneous[]”).4

III. WEINEL WAS NOT ENTITLED TO A

THIRD-DEGREE BURGLARY INSTRUCTION

Weinel also contends that the trial court erred by denying his request for

a third-degree burglary instruction as a lesser-included offense to the firstdegree burglary charge.

RCr5 9.54(1) states,

It shall be the duty of the court to instruct the jury in writing on

the law of the case, which instructions shall be read to the jury

prior to the closing summations of counsel. These requirements

may not be waived except by agreement of both the defense and

the prosecution.

This “‘rule requires instructions applicable to every state of the case

deducible or supported to any extent by the testimony.’” Gribbins v.

Commonwealth, 483 S.W.3d 370, 373 (Ky. 2016) (quoting Taylor v.

Commonwealth, 995 S.W.2d 355 (Ky. 1999)). While an instruction on a lesser

included offense is required if the evidence would support a jury’s belief beyond

a reasonable doubt as to the defendant's guilt,6 such an instruction is not

4 “Findings of fact are not clearly erroneous ifthey are supported by substantial

evidence.” Commonwealth v. Jennings, 490 S.W.3d 339, 346 (Ky. 2016) (citing

Simpson v. Commonwealth, 474 S.W.3d 544, 546-547 (Ky.2015)). Substantial

evidence means evidence that when “taken alone or in light of all the evidence ... has

sufficient probative value to induce conviction in the minds of reasonable men.” Moore

v. Asente, 110 S.W.3d 336, 354 (Ky. 2003) (citation omitted); Commonwealth v.

Abukar, 497 S.W.3d 231, 237 (Ky. 2016).

5 Kentucky Rule of Criminal Procedure.

6 Swan v. Commonwealth, 384 S.W.3d 77, 99 (Ky. 2012).

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required where the evidence does not support the instruction. Houston v.

Commonwealth, 975 S.W.2d 925, 929 (Ky. 1998).

The first-degree burglary statute, KRS 511.020, provides in relevant part:

(1) A person is guilty of burglary in the first degree when, with the

intent to commit a crime, he knowingly enters or remains

unlawfully in a building, and when in effecting entry or while in the

building or in the immediate flight therefrom, he or another

participant in the crime:

(a) Is armed with ... a deadly weapon; . . .

The third-degree burglary statute, KRS 511.040, provides as follows:

(1) A person is guilty of burglary in the third degree when, with the

intent to commit a crime, he knowingly enters or remains

unlawfully in a building.7 * * * 11

As relevant here, the difference between the two crimes is that firstdegree burglary requires that the defendant be in possession of a deadly

weapon at some stage in the commission of the crime, whereas the third-degree

burglary statute does not.

It is well-established that the deadly weapon element of KRS 511.020 is

satisfied if the defendant steals a firearm during the course of the burglary.

Riley v. Commonwealth, 91 S.W.3d 560, 563 (Ky. 2002) (“[o]ne who steals a

deadly weapon during the course of a burglary is armed within the meaning of

KRS 511.020.”); Wilson v. Commonwealth, 438 S.W.3d 345, 354 (Ky. 2014) (“[a]

7 A “building,” for the purposes of the burglary statutes, is a building in its

ordinary sense plus “any structure, vehicle, watercraft or aircraft: (a) Where any

person lives, or (b) Where people assemble for (various] purposes....” KRS 511.010(1).

It is uncontested that an unattached garage qualifies as a “building” under this

definition.

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person may become ‘armed with a deadly weapon’ for the purposes of firstdegree burglary when he enters a building or dwelling unarmed and

subsequently steals a firearm therein.” (quoting Hayes v. Commonwealth, 698

S.W.2d 827, 830 (Ky. 1985)); Conyers v. Commonwealth, 530 S.W.3d 413, 421

(Ky. 2017). Nor must the Commonwealth prove that a firearm was capable of

firing for the firearm to qualify as a deadly weapon. Conyers at 421.

We review a trial court’s decision concerning whether to give a jury

instruction under the abuse of discretion standard. Sargent v. Shaffer, 467

S.W.3d 198, 203 (Ky. 2015). A trial court abuses its discretion when its

decision is arbitrary, unreasonable, unfair, or unsupported by sound legal

principles. Commonwealth v. English, 993 S.W.2d 941, 945 (Ky. 1999).

Here, the items stolen from the Osterhages’ detached garage included a

muzzle-loader firearm and four bows with several arrows. Weinel suggests

that, because the only item from the burglary found on his person was a hat,

the jury could have believed that he only stole the hat, and someone else

committed a burglary at about the same time and left the other items stashed

about the area. We are persuaded that the trial court did not abuse its

discretion in ruling that no reasonable juror could have made this finding, and

thus hold there was no reason for the lesser included instruction.

IV. CONCLUSION

For the foregoing reasons the judgment of the Campbell Circuit Court is

affirmed.

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Minton, C.J.; Hughes, Keller, Lambert, VanMeter and Wright, J.J.;

sitting. All concur.

COUNSEL FOR APPELLANT:

Molly Mattingly

Assistant Public Advocate, Department of Public Advocacy

COUNSEL FOR APPELLEE:

Andy Beshear,

Attorney General of Kentucky

Mark Barry,

Assistant Attorney General of Kentucky

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