Mark Johnson v. Commonwealth of Kentucky ( 2023 )

RENDERED: JUNE 15, 2023
TO BE PUBLISHED
Supreme Court of Kentucky
2021-SC-0541-MR
MARK JOHNSON APPELLANT
ON APPEAL FROM MUHLENBERG CIRCUIT COURT
V. HONORABLE BRIAN WIGGINS, JUDGE
NO. 21-CR-0138
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION OF THE COURT BY JUSTICE CONLEY
AFFIRMING IN PART, REVERSING IN PART & REMANDING
This case comes before the Court on appeal as a matter of right1 by Mark
Johnson, the Appellant, from the conviction and sentence of the Muhlenberg
Circuit Court. After a jury trial, Johnson was found guilty of theft by unlawful
taking, $500 - $1,000; and two counts of burglary in the third degree. The jury
then found him guilty of being a persistent felony offender in the first degree.
The jury recommended a consecutive sentence of five years each for the third-
degree burglaries, totaling ten years, with an enhanced sentence to twenty
years each for being a persistent felony offender. The total sentence imposed by
the trial court was twenty years.
1 Ky. Const. § 110(2)(b).
Johnson now appeals alleging four errors. First, that the greenhouse he
burglarized cannot be considered a building under KRS2 511.010(1); second,
that the instructions for both counts of burglary in the third degree violated his
right to a unanimous jury; third, during the penalty phase, the Commonwealth
elicited misleading testimony as to when Johnson would be eligible for parole
in order to convince the jury to impose the maximum sentence; and fourth,
also during the penalty phase, that the Commonwealth elicited testimony
about alleged crimes Johnson was charged with but subsequently were
dismissed or amended. For the following reasons, we affirm in part, reverse in
part, and remand for a new penalty phase to be conducted.
I. Facts
Johnson was “friends with benefits” of Samantha Hall. Hall had a Chevy
Cobalt vehicle that she frequently used to drive Johnson where he wanted to
go. On January 12, 2021, Johnson asked Hall to drive him to a piece of
property located on Highway 2270 in Muhlenberg County, owned by Kenneth
Dillihay. He told her he wanted to go and steal things. At the Dillihay property,
Hall testified, she waited in the car and from there observed Johnson enter
multiple buildings, including a greenhouse. Dillihay testified this was a “high
tunnel” greenhouse and was being used to store farm equipment and house
goats. Specifically, among the farm equipment stored in the greenhouse, was a
tiller, grinding stone, miter saw, and a corn sheller. Johnson left the
2 Kentucky Revised Statutes
2
greenhouse and placed these items in the trunk of Hall’s car. The vehicle,
however, got stuck in the mud and grass. In the process of dislodging the car,
Hall took a photo of the items in her trunk and sent them to a Sheriff’s Deputy
with whom she worked as an informant. She told the deputy where they were,
that “he”—referring to Johnson—was stealing things, and that the car was
stuck. By the time the deputy arrived on the scene, Johnson and Hall had
dislodged the car, but the deputy testified his visual inspection of the scene
showed tire marks and tracks confirming Hall’s story. Hall testified she and
Johnson drove to his mother’s residence and stored the stolen property there.
The miter saw, at least, was eventually recovered at the residence by police.
Later, on January 18, 2021, Johnson again asked Hall to drive him to
another property for the purpose of theft. This property was on Lonely Lane in
Muhlenberg County, and was owned by the Muhlenberg Alliance for Progress,
Inc. William Scott was the previous owner, and he had sold the property to the
Muhlenberg Alliance but had an agreement with it that he could continue to
use the land for farming purposes. Johnson had told Hall that he had
previously been to the property on January 16, 2021. Once again, Hall testified
to observing Johnson enter multiple buildings on the property, leaving one
building with gas cans and another building with milk cans.
Between January 16 and 18, Scott was aware a theft had occurred
because he noticed some items missing, including a Marlin rifle. He owned
some trail cams and set those cameras up to observe the property. Photos from
the trail cameras taken on January 18 show Johnson carrying the gas jugs.
3
The gas jugs were subsequently recovered at Johnson’s own residence. During
both thefts Johnson was wearing a GPS ankle monitor and records submitted
show that Johnson was indeed on the respective properties on the dates in
question.
At trial, Johnson sought dismissal of the count for third degree burglary
related to the high tunnel greenhouse on the Dillihay property arguing it did
not qualify as a building under the controlling statute. That motion was denied.
A motion for directed verdict for the same reasons was made at the close of the
Commonwealth’s evidence and once more at the close of all evidence. Both
were denied. When the jury was instructed for the guilt phase, it was given
instructions for two counts of burglary in the third degree. No objection was
made to these instructions at trial, but Johnson now argues they violated his
right to a unanimous jury verdict by failing to require the jury to be unanimous
as to which building Johnson had unlawfully entered on either property. After
finding Johnson guilty of both counts of third-degree burglary, as well as a
misdemeanor count of theft by unlawful taking, a penalty phase was
conducted.
During the penalty phase, the Commonwealth called Camron Laycock,
the Muhlenberg Circuit Clerk, to testify to eight other felonies Johnson had
previously committed. One of these was in fact a misdemeanor conviction.
Parole Officer Fouse was called to testify regarding parole eligibility and related
sentencing matters, as well as Johnson’s record while previously on probation
or parole. She testified to numerous parole violations as well as “charges”
4
stemming from said parole violations. Johnson has identified three of these
charges as being incorrect, because they were later amended prior to a guilty
plea or dismissed altogether. Johnson did not object to any of this testimony
during the penalty phase. Regarding parole eligibility, Fouse had a colloquy
with the Commonwealth regarding good time credits, the difference between
two “calendar years” and “jail years,” and the impact this would have on
Johnson’s total sentence and minimum time served to be eligible for parole.
This testimony was also not objected to at trial.
We will develop the facts further below in our analysis, but the law must
first be clarified before any fruitful consideration of the facts can be made.
II. Analysis
A. Unanimous Verdicts
The issues presented by this case are the two that have bedeviled this
Court for more than a decade in jury unanimity cases: defining precisely what
constitutes a juror unanimity issue and proper application of the palpable error
standard of review. Justice Cunningham once wryly observed, “we typically
spend page after page doing textbook analysis of this issue with almost every
jury unanimity issue we review.” Johnson v. Commonwealth, 405 S.W.3d 439,
461-62 (Ky. 2009) (Cunnigham, J., concurring in part and dissenting in part).
Alas, we must venture “once more unto the breach[.]” William Shakespeare,
Henry V, act. III, sc. 1, l. 1. The dispositive questions we must answer are first,
whether the Commonwealth has presented multiple theories (alternative
means) of one burglary in the third degree for each count, or whether each
5
instruction encompassed multiple, separate criminal acts (multiple acts) of
burglary in the third degree. If there has been an error in the jury instructions,
then we must secondarily determine whether it was palpable.
We begin with a review of our recent precedent on what constitutes a
juror unanimity violation. In Harp v. Commonwealth, we held
that in a case involving multiple counts of the same offense, a trial
court is obliged to include some sort of identifying characteristic in
each instruction that will require the jury to determine whether it
is satisfied from the evidence the existence of facts proving that
each of the separately charged offenses occurred.
266 S.W.3d 813, 818 (Ky. 2008). In Johnson v. Commonwealth, we held “a
general jury verdict based on an instruction including two or more separate
instances of a criminal offense, whether explicitly stated in the instruction or
based on the proof—violates the requirement of a unanimous verdict.” 405
S.W.3d 439, 449 (Ky. 2013).
This type of unanimous-verdict violation occurs when a jury
instruction may be satisfied by multiple criminal acts by the
defendant. When that is the case, and the instruction does not
specify which specific act it is meant to cover, we cannot be sure
that the jurors were unanimous in concluding the defendant
committed a single act satisfying the instruction.
Martin v. Commonwealth, 456 S.W.3d 1, 7 (Ky. 2015), abrogated on other
grounds by Sexton v. Commonwealth, 647 S.W.3d 227 (Ky. 2022). Finally, a
third type of unanimity error also appears to exist in our
jurisprudence—a potential violation of unanimity stemming from a
‘combination jury instruction.’ ‘A “combination” instruction
permitting a conviction of the same offense under either of multiple
alternative theories does not deprive a defendant of his right to a
unanimous verdict, so long as there is evidence to support a
conviction under either theory.’
6
Brown v. Commonwealth, 553 S.W.3d 826, 839 (Ky. 2018) (quoting Robinson v.
Commonwealth, 325 S.W.3d 368, 370 (Ky. 2010)). This leads to the conundrum
of the present case as Johnson contends the Johnson rule is controlling—that
the proof for each count of burglary in the third degree actually supported two
separate unlawful entries into two buildings, i.e., multiple acts of the same
criminal offense. The Commonwealth contends that the rule cited in Brown is
controlling—that the two separate unlawful entries into a building for each
count are merely alternative theories of how a single crime was committed, and
that the proof for each theory was sufficient to support the convictions.
No published authority addressing this precise issue exists in Kentucky.
In an unpublished case, however, the Court of Appeals did address it. In
Owens v. Commonwealth, it wrote
it can be argued that two theories of guilt were submitted to the
jury as to the charge of third-degree burglary. The first theory was
that Owens burglarized one or both of Hensley's sheds which abut
a locked outbuilding. The second theory was that Owens
burglarized the locked outbuilding whose door was pried open.
However, as previously discussed, since there is sufficient evidence
to support conviction under both of these theories, there is no
violation of Owens' right to a unanimous verdict.
No. 2008-CA-000711-MR, 2009 WL 2408382, at *4, (Ky. App. Aug. 7, 2009).
The unpublished decisions of an inferior court are not binding upon this Court,
and a close reading of Owens reveals that this passage was mere dicta and did
not actually address the jury unanimity argument advanced by the appellant.
Id.7
With its ruling in Ramos v. Louisiana, 140 S.Ct. 1390, 1397 (2020), the
Supreme Court of the United States made the Sixth Amendment’s guarantee of
a unanimous jury applicable to the states via the Fourteenth Amendment. That
changed little in the way of Kentucky law since our own constitution also
guarantees unanimous jury verdicts. Ky. Const. § 7. Moreover, the Johnson
case clearly looked to federal case law for guidance, noted previous instances of
the same, and held “certainly ‘unanimity’ has the same dictionary meaning in
any court.” Johnson, 405 S.W.3d at 455. In other words, the Sixth Amendment
and Section 7 are coterminous. Nonetheless, Supreme Court precedent is now
binding on this issue rather than merely persuasive. But federal case law offers
little in the way of guidance when it comes to differentiating between multiple
acts and alternative theories.
The leading cases from the Supreme Court are Schad v. Arizona, 501
U.S. 624 (1991) and Richardson v. United States, 526 U.S. 813 (1999).
Richardson’s application outside of its specific statutory context, however, “has
been expressly—and consistently—rejected.” State v. Gardner, 118 Ohio St. 3d
420, 431, 889 N.E.2d 995, 1008 (2008). Richardson is readily distinguishable
because the crime there focused on a federal statutory crime regarding a
“series of violations” thus, it has nothing to offer us in the context of this case.
Indeed, it must be noted at this point that the Commonwealth has not argued
Johnson was engaged in a continuous course of conduct. Schad is more
helpful but only in the abstract. It reiterated “there is no general requirement
that the jury reach agreement on the preliminary factual issues which underlie
8
the verdict.” 501 U.S. at 632. It then extended that rule to the element of mens
rea. Id. In other words, where two culpable mental states would satisfy the
finding of guilt for one crime, the jury need not agree unanimously on the
mental state. Apart from that, however, the plurality opinion of Schad is more
an explanation of what the law is not, rather than what it is. As Justice Scalia
noted in his concurrence, “the plurality approves the Arizona practice in the
present case because it meets one of the conditions for constitutional validity.
It does not say what the other conditions are, or why the Arizona practice meets
them.” Id. at 651.
Despite this, Schad has proven helpful in the past. For example, in
Brown, we followed the Supreme Court in applying the rule that “[a] . . . jury
need not always decide unanimously which of several possible sets of
underlying brute facts make up a particular element, say, which of several
possible means the defendant used to commit an element of the crime.” 553
S.W.3d at 839 (quoting Richardson, 526 U.S. at 817, citing Schad, 501 U.S. at
631-32). Applying that rule, we held that the jury did not have to agree which
pieces of jewelry the defendant stole in one, singular act of robbery; only that
the jury had to agree that movable property was taken. Id. at 840.
The case law in Kentucky most instructive on the issue of distinguishing
between multiple acts and alternative theories is that which defines how to
distinguish multiple acts from a continuous course of conduct. The difference
between multiple, independent criminal acts and one continuous course of
criminal conduct generally is “a sufficient break in the conduct and time so
9
that the acts constituted separate and distinct offenses.” Wellborn v.
Commonwealth, 157 S.W.3d 608, 612 (Ky. 2005). This break need only be “a
cognizable lapse in his course of conduct during which the defendant could
have reflected upon his conduct, if only momentarily, and formed the intent to
commit additional acts.” Kiper v. Commonwealth, 399 S.W.3d 736, 745 (Ky.
2012). These two cases illustrate the principle well. In Wellborn, the defendant
shot a state trooper three separate times in three different areas of the body. All
three shots were fired after a cognizable lapse in time occurred that allowed the
defendant time to reflect upon his conduct. Wellborn, 157 S.W.3d at 611. In
contrast, the defendant in Kiper shot one person in a drive-by shooting. But
given the “rapid rate of the gunfire . . . the evidence does not support a
reasonable conclusion that some of the shots were fired with the intent to
wound while others were fired with the intent to kill.” 399 S.W.3d at 746.
Though there is an obvious conceptual difference between “alternative
theories” and a “continuous course of conduct,” we fail to see why
distinguishing multiple acts from the latter category is not applicable to
distinguishing multiple acts from the former category. If there is a break in
time and conduct that allows for the defendant, even momentarily, to pause
and reflect, and form or reform intent to commit an additional act, then the
Commonwealth has not presented two alternative theories for the perpetration
of one crime; it has presented proof of two separate criminal acts.
Statutory law and case law does not support the argument that the two
separate unlawful entries on each property in this case are merely brute facts
10
which make up a particular element of burglary in the third degree. Cf. Brown,
553 S.W.3d at 840. “A person is guilty of burglary in the third degree when,
with the intent to commit a crime, he or she knowingly enters or remains
unlawfully in a building.” KRS 511.040(1). A building is defined as
in addition to its ordinary meaning, means any structure, vehicle,
watercraft or aircraft:
(a) Where any person lives; or
(b) Where people assemble for purposes of business, government,
education, religion, entertainment or public transportation.
Each unit of a building consisting of two (2) or more units separately
secured or occupied is a separate building.
KRS 511.010(1). The General Assembly’s declaration that where there are two
or more units in one building that are separately secured or occupied, then
each unit constitutes a distinct building is obviously meant to facilitate
multiple charges for burglary even when those units are attached to one
another and physically constitute one structure. This is precisely what we
ruled in Ordway v. Commonwealth, where the defendant burglarized nine
different storage units at one storage facility, but the jury instructions did not
differentiate between the individual units. 352 S.W.3d 584, 592-93 (Ky. 2011).
It only stands to reason then that two separate physical structures which are
in no way connected must also be considered two distinct buildings. In other
words, unlawful entry into two separate buildings cannot be treated as a brute
fact or merely presenting alternative means for one crime because the statute
itself provides for treating both unlawful entries as separate crimes. It may be
that prosecutorial discretion allows for the Commonwealth to not separately
11
charge each unlawful entry individually. But if that course is chosen, then the
Commonwealth must steer away from introducing evidence regarding the
uncharged unlawful entry.
In this case, Samantha Hall testified that she observed Johnson, at each
property, enter multiple buildings—two greenhouses at the Dillihay property
and a garage and barn at the Muhlenberg Alliance property. There is no
argument that for either property the buildings were connected and not
separately secured or occupied. Instead, the evidence shows they were distinct
buildings and Johnson would obviously have had more than a momentary
lapse of time while proceeding to the buildings to reflect on what he was doing
and form a specific intention to unlawfully enter that particular building. We
therefore hold that the instructions in this case were erroneous because the
proof at trial demonstrated “two or more separate instances of a criminal
offense[.]” Johnson, 405 S.W.3d at 449. “When that is the case, and the
instruction does not specify which specific act it is meant to cover, we cannot
be sure that the jurors were unanimous in concluding the defendant
committed a single act satisfying the instruction.” Martin, 456 S.W.3d at 7.
B. No Palpable Error
Having concluded the instructions were erroneous we must now
determine whether the error was palpable. Throughout our recent cases, a
minority of this Court has consistently charged that we were weakening our
standard for palpable review. In Johnson, it was Justice Cunningham, joined
by Justice Scott, who concluded
12
Our trial judges are being ambushed by such decisions as this one
when we so lightly deem palpable error when the mistake has not
been preserved. We are watering down our palpable error standard
with holdings such as this to the point that it behooves the defense
lawyer not to object on jury instructions and just allow the trial
court to walk—unwarned—onto the unanimity land mine.
405 S.W.3d at 461 (Cunningham, J., concurring in part and dissenting in
part). In Ordway, Justice Cunningham, also joined by Justice Scott, once again
concluded no palpable error occurred “where there is sufficient evidence to
convict a defendant on all of the identical instructions and the jury does, in
fact, convict.” 352 S.W.3d at 594 (Cunningham, J., concurring in part and
dissenting in part). In King v. Commonwealth, 554 S.W.3d 343, 374-76 (Ky.
2018), Justice Keller addressed the issue. She was joined by Justices
Cunningham and Wright in that opinion.
It is true enough that this Court has taken our palpable error standard
of review to the limits when it comes to jury unanimity. For example, in Martin
we wrote “that without regard for the probability of a different result an ‘error
so fundamental as to threaten a defendant's entitlement to due process of law’
will also constitute manifest injustice under RCr 10.26.” 456 S.W.3d at 8
(quoting Martin v. Commonwealth, 207 S.W.3d 1 (Ky. 2006)). Based upon
Johnson and Kingery v. Commonwealth, 396 S.W.3d 824 (Ky. 2013), we held
violation of the right to a unanimous verdict is reversible palpable
error. To reach that conclusion, both cases relied solely on the
substantial nature of the unanimous-verdict right coupled with the
due-process impingement resulting from its violation. Nowhere in
either case did this Court weigh the strength of the evidence or the
probability of a different result.
13
Id. at 9. Indeed, we have even noted “that this Court has taken a minority view
by regarding this instructional error, in certain instances, as structural error
beyond the reach of harmless error or palpable error analysis.” King, 554
S.W.3d at 355.
Last year, however, this Court ruled in Sexton v. Commonwealth, that
“reversal is not the universal, essential result of a unanimous verdict error.”
647 S.W.3d 227, 232 (Ky. 2022). In that case, “Sexton, through counsel,
acknowledged guilt; the jury agreed that he was guilty of two counts each of
rape and incest. Such an error, to the extent that it occurred, cannot have
resulted in manifest injustice.” Id. Such circumstances demonstrated “the
necessity for cabining our precedent . . . [because] we cannot hold that any
potential unanimity error would have resulted in a manifest injustice.” Id.Beyond the fact-specific ruling of Sexton, there are two underlying principles
that must be true for Sexton to have any validity—that jury unanimity errors
are not structural errors and when unpreserved the correct standard of review
is palpable error. We specifically distinguished Sexton from the holdings of
Martin and Johnson in order to remove the effect of their precedential
compulsion. We believe this case also provides another opportunity to cabin
our precedent. Justice Cunningham spoke of trial courts being ambushed by
the unanimity land mine. That proverbial land mine has, unfortunately, been
laid by this very Court. Our decision today should be understood as clearing
the minefield.
14
The error can be traced to Martin v. Commonwealth, 207 S.W.3d 1 (Ky.
2006). In that case we explained the defendant’s burden under RCr 10.26—
"the required showing is probability of a different result or error so
fundamental as to threaten a defendant's entitlement to due process of law.” Id.
at 3. “To discover manifest injustice, a reviewing court must plumb the depths
of the proceeding . . . to determine whether the defect in the proceeding was
shocking or jurisprudentially intolerable.” Id. But a key misapplication of
Martin I, as explained in Martin II,3 is largely responsible for our Court’s lax
application of the palpable error standard in recent years. In Martin II we
adopted the view that Martin I had “outlined a clear, dichotomous test allowing
manifest injustice to be found in two distinct ways.” 456 S.W.3d at 8.
Elucidating further, we wrote
First, we reaffirmed the then-prevailing palpable-error standard,
acknowledging that manifest injustice may be found upon a
showing of “a probability of a different result” absent the
error. Second, the Martin court expanded the definition of palpable
error by explaining that without regard for the probability of a
different result an “error so fundamental as to threaten a
defendant's entitlement to due process of law” will also constitute
manifest injustice under RCr 10.26.
Id. (quoting Martin I, 207 S.W.3d at 3). A close reading of Martin I, however,
does not support the conclusion that we created two classes of manifest
injustice, one focusing on the probability of a different result and the other
3 Martin v. Commonwealth, 207 S.W.3d 1 (Ky. 2006) and Martin v.
Commonwealth, 456 S.W.3d 1 (Ky. 2015) did not share the same appellant. But the
similitude of names can make it confusing to understand which case we refer to, so we
adopt the distinction Martin I and Martin II, respectively, solely for purposes of
clarifying our discussion.
15
focusing on a fundamental error threatening a defendant’s right to due process.
What Martin I actually held was
The language “[a] substantial possibility does not exist that the
result would have been different” is at best confusing, and it falls
short of the required standard. A better understanding is gained
from an examination of RCr 10.26 with emphasis on the concept of
“manifest injustice.” While the language used is clear enough, we
further explain that the required showing is probability of a
different result or error so fundamental as to threaten a
defendant's entitlement to due process of law.
207 S.W.3d at 3 (emphasis added). While use of the disjunctive “or” supports
Martin II’s understanding, the surrounding context does not. Martin I used the
language of “fundamental error threatening a defendant’s entitlement to due
process of law” to explain and clarify the manifest injustice standard—an
explanation deemed necessary because of ambiguity in the phrasing of a
“substantial possibility of a different result.” This is because the substantial
possibility of a different result language “fails to adequately describe the
necessary degree of prejudice associated with the unpreserved question in the
context of the whole case.” Id. Thus, Martin I clarified the manifest injustice
standard. Martin I’s further comments on the palpable error standard only
spoke of it in the singular, and not as two distinct categories. "When an
appellate court engages in a palpable error review, its focus is on what
happened and whether the defect is so manifest, fundamental and
unambiguous that it threatens the integrity of the judicial process.” Id. at 5
(Emphasis added). Or “[a] claim of palpable error presupposes a lack of
preservation and such claims are held to the standard described herein.” Id.
16
(Emphasis added). It is strange indeed that having found the language
“substantial possibility of a different result” wanting, the Court would seek a
curative by creating an entirely separate class of palpable errors that have even
less evidentiary rigor than the original standard. After a properly contextualized
understanding of Martin I, we can conclude that the Court was only seeking to
clarify the singular manifest injustice standard in RCr 10.26; not create an
entirely new category of palpable error.
As stated before, Martin II relied on our holdings in Johnson and Kingery.
Kingery does say “the right to a unanimous verdict is a substantial right; the
violation of which we have held requires reversal.” 396 S.W.3d 824, 831-32 (Ky.
2013). But Kingery cited to Miller v. Commonwealth, 283 S.W.3d 690, 696 (Ky.
2009) for that statement. Miller, however, in concluding palpable error existed,
stated “that is not to say that every error in jury instructions rises to the level
of palpable error.” Id. at 696. Instead, prejudice is presumed, and the
Commonwealth may rebut that presumption to show no prejudice resulted
from the error. Id. Nonetheless, Johnson and Kingery have been read to support
the proposition that all that is necessary to reverse on a jury unanimity issue is
“the substantial nature of the unanimous-verdict right coupled with the due-
process impingement resulting from its violation.” Martin II, 456 S.W.3d at 9.
And Martin II clearly held that “even in light of overwhelming evidence of guilt”
the law still compelled reversal under that standard. Id. Such a review eschews
any consideration of “the strength of the evidence or the probability of a
different result,” and “the factual idiosyncrasies contemplated as part of the
17
palpable-error analysis.” Id. Thus, despite ostensibly applying a palpable error
standard of review, we frankly admitted in King that such a review treats “this
instructional error, in certain instances, as structural error . . .” 554 S.W.3d at
355.
At this point, it is worth noting that the federal appellate courts do not
consider jury unanimity errors as structural errors. United States v. Newell,
658 F.3d 1, 28 (1st Cir. 2011) (“Although we have concluded that the failure to
provide a specific unanimity instruction was error and violated the appellants'
right to a unanimous jury verdict, this alone is not sufficient to satisfy the
rigors of plain error review.”); United States v. Gaddy, 174 Fed.App’x. 123, 125
(3rd Cir. 2006) (unpreserved error for failure to give specific unanimity
instruction reviewed for plain error); United States v. Tragas, 727 F.3d 610,
616-17 (6th Cir. 2013) (assuming a jury instruction was erroneous for duplicity
and the error was plain, yet holding defendant could not satisfy third prong of
plain error analysis, “that the error affected her substantial rights”); United
States v. Arreola, 465 F.3d 1153, 1161 (9th Cir. 2006) (“Where a defendant fails
to object to an indictment as duplicitous before trial and fails to object to the
court's jury instructions at trial, we review for plain error[.]”); United States v.
Deason, 965 F.3d 1252, 1269 (11th Cir. 2020) (unpreserved error for failure to
give an unanimity instruction to cure duplicitous indictment subject to plain
error analysis). Federal appellate cases are only persuasive authority but given
the Supreme Court has incorporated the unanimous jury requirement to the
states under the federal constitution, there is a strong incentive to align
18
Kentucky law with the federal circuits.4 And because we can trace our
misalignment to a misreading of Martin I, there is an additional incentive to a
correct course. See Beaumont v. Zeru, 460 S.W.3d 904, 909 (Ky. 2015) (“The
doctrine of stare decisis does not commit us to the sanctification of ancient or
relatively recent fallacy.”) (internal quotation omitted). In fact, Martin I held “the
plain error test of Federal Rule of Criminal Procedure 52(b), [is] the federal
counterpart of RCr 10.26.” 207 S.W.3d at 3. And despite linguistic differences
between FRCP 52(b) and RCr 10.26, Martin I further declared the Supreme
Court’s explanation of FRCP 52(b) in United States v. Cotton, 535 U.S. 625,
631-634 (2002), to be “a valuable guide in the application of our palpable error
rule.” Id. at 4.
What Sexton implicitly began, we now explicitly finish. There is no
separate category of palpable error review for “errors so fundamental as to
threaten a defendant's entitlement to due process of law.” Martin I, 207 S.W.3d
at 3. Instead, that language is an explanation as to the “degree of prejudice”
that must be demonstrated in order for a court to determine there is a
“substantial possibility” a different result would have resulted but for the
unpreserved error. Id. In all cases presenting an unpreserved error regarding a
unanimous jury, the courts must “plumb the depths of the proceeding” and
scrutinize the factual idiosyncrasies of the individual case. Id. That includes a
4 We emphasize this is an incentive only—"neither federal supremacy nor any
other principle of federal law requires that a state court's interpretation of federal law
give way to a (lower) federal court's interpretation.” Lockhart v. Fretwell, 506 U.S. 364,
376 (1993) (Thomas, J., concurring).
19
consideration of the weight of the evidence. Only if, upon review, a court can
conclude “the error is so manifest, fundamental and unambiguous that it
threatens the integrity of the judicial process,” will reversal be warranted. Id. at
5. ““It should be so egregious that it jumps off the page ... and cries out for
relief.” Chavies v. Commonwealth, 374 S.W.3d 313, 323 (Ky. 2012) (quoting
Alford v. Commonwealth, 338 S.W.3d 240, 251 (Ky. 2011) (Cunningham, J.,
concurring)). To the extent that Johnson, Kingery, Martin II, and King, can be
read to the contrary they are overruled.
Having settled what the law is, we may now consider the facts of
Johnson’s case. Instruction No. 1 given to the jury reads,
You will find the Defendant guilty of Burglary in the Third-Degree
under this Instruction if, and only if, you believe from the evidence
beyond a reasonable doubt all of the following:
A. That in this county on or about January 12, 2021, and before the
finding of the Indicitment herein, he entered or remained in a building
owned by Kenneth Dillihay without the permission of Kenneth
Dillihay or any other person authorized to give such permission;
AND
B. That in so doing, he knew he did not have such permission;
AND
C. That he did so with the intention of committing a crime therein.
Instruction No. 3 is identical with the exception of Part A, which reads,
A. That in this county on or about January 18, 2021, and before the
finding of the Indictment herein, he entered or remained in a building
owned by the Muhlenberg Alliance for Progress, Inc. without the
permission of the Muhlenberg Alliance for Progress, Inc. or any other
person authorized to give such permission;
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This was a one-day trial and the evidence presented to prove these
crimes was straight-forward and simple. Johnson had an ankle-monitor
attached to his person and the GPS logs showed that Johnson was at the
properties on the respective dates mentioned in the instructions. Several tools
and other equipment from the Dillihay property were taken, including a miter
saw. Samantha Hall testified that she and Johnson drove to his mother’s
residence and left the items there. Law enforcement subsequently recovered the
miter saw from his mother’s residence. Finally, Hall’s testimony was that she
drove Johnson to the respective properties on the dates described in the
instructions. She testified she saw Johnson enter buildings to take tools and
specifically that he entered a greenhouse on the Dillihay property. She also
sent a photograph of said tools lying in the trunk of her car to a Sheriff’s
Deputy while she and Johnson were on the Dillihay property to inform him of
the thefts. She testified those tools in the photograph were taken from the
greenhouse. Mr. Dillihay testified that all the items stolen were located in the
high-tunnel greenhouse. For the Muhlenberg Alliance property, Hall testified
that she once again drove Johnson to the property and observed him enter
multiple buildings, leaving one building with gas jugs and another building
with milk cans. Trail camera photos from the Muhlenberg Alliance property
from January 18 showed Johnson stealing gas jugs. Those gas jugs were
subsequently recovered by law enforcement at Johnson’s residence.
After reviewing this evidence, we conclude the instructional error here is
not “so manifest, fundamental and unambiguous that it threatens the integrity
21
of the judicial process.” Martin I, 207 S.W.3d at 5. Johnson was well aware of
the charges against him and the underlying facts that predicated those
charges. There is hardly any chance this evidence was confusing to the jury.
The GPS location evidence irrefutably placing Johnson at the properties on the
dates in question; the testimony of Hall that she saw Johnson enter buildings
on the properties on the dates in question; and the photographic and physical
evidence of items taken from the property and subsequently recovered either at
Johnson’s residence or his mother’s residence; and the fact that none of this
evidence is confusing nor complex, combine such that we cannot say that but
for the instructional error, there is a substantial possibility of a different result.
Therefore, there was no palpable error.
C. Penalty Phase Errors
Johnson alleges two errors that occurred during the penalty phase of the
trial. First, that Camron Laycock, the Circuit Court Clerk for Muhlenberg
County, testified about eight prior felony convictions for Johnson. One of these
was an indictment of theft by unlawful taking over $300 in 2007. That charge,
however, was amended to unauthorized use of a motor vehicle at the time of
conviction, typically a misdemeanor.5 The Order on A Plea of Guilty in that
case, included in Johnson’s briefing because of an apparent error in not
5 The pertinent statute reads, “Unauthorized use of an automobile or other
propelled vehicle is a Class A misdemeanor unless the defendant has previously been
convicted of this offense, or of violation of KRS 514.030 for having stolen an
automobile or other propelled vehicle in which case it shall be a Class D felony.” KRS
514.100(2).
22
making the document a part of the trial record, shows that Johnson’s plea of
guilty was as a Class A misdemeanor. Parole Office Fouse also testified about
Johnson’s probation and parole history, testifying to a litany of parole
violations and “charges.” Johnson identifies three instances of erroneous
testimony: (1) that he was charged with fleeing or evading the police, wanton
endangerment, and reckless driving but no mention subsequently of no
indictment returned on the wanton endangerment charge and the dismissal of
the reckless driving charge; (2) charged with first degree burglary but no
mention that it was subsequently amended to first degree criminal trespass;
and (3) charged and convicted with theft by unlawful taking “disposition or
auto”, and operating a motor vehicle under the influence of alcohol or drugs,
aggravated third offense, with no mention that the actual conviction was for
attempted theft by unlawful taking of an automobile and operating a motor
vehicle under the influence of alcohol or drugs, aggravated, third offense.
The Commonwealth has not argued for any of the above instances that
the testimony was in fact accurate. Under that circumstance, we have clearly
held, “[n]othing in KRS 532.055(2)(a) permits a jury to hear evidence during the
penalty phase of prior charges that have been amended . . . .” Blane v.
Commonwealth, 364 S.W.3d 140, 152 (Ky. 2012), abrogated on other grounds
by Roe v. Commonwealth, 493 S.W.3d 814, 828 (Ky. 2015). “[I]t is also well
settled that the Commonwealth cannot introduce evidence of charges that have
been dismissed or set aside.” Id. (quoting Cook v. Commonwealth, 129 S.W.3d
351, 365 (Ky. 2004)). Additionally, prior uncharged acts of misconduct are not
23
admissible in the penalty phase. Foster v. Commonwealth, 827 S.W.2d 670 (Ky.
1991). But parole violations are admissible in the penalty phase. Garrison v.
Commonwealth, 338 S.W.3d 257, 260-61 (Ky. 2011).
In Blane, we found the introduction of amended or dismissed charges to
be palpable error because “the Commonwealth not only elicited the testimony
from the deputy circuit clerk regarding the original charges, but it also
emphasized the prior amended charges in its closing argument to the jury.” Id.Moreover, “Appellant received the maximum penalty on all counts for which he
was convicted.” Id. But we have not found palpable error where the maximum
sentence was not given and “the dismissed and amended offenses were never
pointed out to the jury by the trial judge, the Commonwealth, or the
Commonwealth's witness.” Chavies v. Commonwealth, 354 S.W.3d 103, 115
(Ky. 2011). We have also not found palpable error when, despite the maximum
sentence being given, “[i]n contrast to Blane, where there was testimonial or
argumentative reference to the originally charged, but later dismissed or
amended, offenses, in this case there is only the possibility that the jurors
might have gleaned that information if they looked at the judgments during
their deliberations.” Martin v. Commonwealth, 409 S.W.3d 340, 349 (Ky. 2013).
Finally, we have not found palpable error when evidence of prior uncharged
acts of misconduct was admitted but this was outweighed by “evidence of
Miller's three prior convictions on six counts of trafficking in a controlled
substance in the first degree, the fact that he had been granted and violated
parole on three separate occasions and evidence that he continued his illegal
24
drug activity each time he was released on parole.” Miller v. Commonwealth,
394 S.W.3d 402, 408 (Ky. 2011).
Here Johnson received the maximum sentence and direct testimony from
Laycock and Fouse was elicited regarding the erroneous and inaccurate
charges. The Commonwealth argues that Martin should be controlling because
that case distinguished Blane on account of the Commonwealth in Blane
emphasizing the erroneous charges in its closing argument. Id. at 348. In this
case though the Commonwealth did mention the 2007 conviction falsely
portrayed as a felony, along with the other accurately portrayed felony
convictions. The Commonwealth explicitly argued to the jury that “the time for
mercy is past” after reciting this history. Moreover, the dispositive factor in
Martin was not Commonwealth’s closing argument but rather that “the clerk
testified only to the actual charges for which a conviction was adjudged. There
was no mention of any dismissed charges or of the originally-charged higher
offenses that were amended to lesser offenses resulting in convictions.” Id. at
348. Consequently, we were “unable to ascertain from our review of the record
whether the jury actually saw the improper evidence; Appellant cites us to no
evidence that the exhibits went with the jury to the deliberation room, and our
viewing of the video record reveals none.” Id. But the decision of Miller that
inadmissible evidence can be outweighed by otherwise admissible evidence
precluding a finding of palpable error puts Johnson’s case in an awkward grey
zone. There is no doubt that there were several other qualifying felonies the
25
jury might have relied upon to determine Johnson is a persistent felony
offender.
The dispositive factor, the one which moves Johnson’s case out of the
grey zone, is the inclusion of the 2007 conviction in Instruction No. 3 of the
penalty phase as a qualifying felony offense. In Carver v. Commonwealth, we
reversed a first-degree PFO conviction because a misdemeanor charge was
listed in the instructions as a qualifying felony conviction. We stated
We believe that palpable error occurred because of (1) the improper
inclusion of a misdemeanor as a qualifying conviction in the PFO
instruction; (2) our presumption that erroneous jury instructions
are prejudicial, Harp v. Commonwealth, 266 S.W.3d 813, 818
(Ky.2008); and (3) the fact that Carver was assessed the maximum
possible penalty.
303 S.W.3d 110, 123 (Ky. 2010). Thus, because Johnson did receive the
maximum sentence; and there was direct testimony elicited from two persons
regarding four charges which either had been amended or dismissed prior to
final disposition; and the Commonwealth did mention the 2007 conviction
erroneously portrayed as a felony conviction to argue to the jury during the
penalty phase that “the time for mercy is past”; and, finally, because of the
erroneous inclusion of the misdemeanor conviction on the jury instruction as a
qualifying felony conviction, we hold there was palpable error. Therefore, we
vacate the conviction as a persistent felony offender and remand the case for a
new penalty phase with instructions that indictments or charges for felonious
crimes that were subsequently amended to misdemeanors or dismissed not be
mentioned, and specifically that the 2007 conviction in Muhlenberg Circuit
26
Court for unauthorized use of a motor vehicle is not a qualifying felony
conviction.6
D. Greenhouse is a Building
Finally, Johnson argues the trial court erred when it failed to give a
directed verdict on the third-degree burglary charge pertaining to Dilliahy’s
greenhouse. Johnson argues the greenhouse does not qualify as a building
under the statute because the “high tunnel” greenhouse is typically, in
agricultural pursuits, only a temporary structure. Additionally, he cites the
dilapidated state of the greenhouse because most of its plastic sheeting over
the roof and walls was missing. Dillihay testified, and Johnson concedes, the
greenhouse at the time of the burglary was being used “to store either livestock
or a variety of farm-related implements.”
The standard of review on appeal of a denial for a motion for directed
verdict is well-established—"the test of a directed verdict is, if under the
evidence as a whole, it would be clearly unreasonable for a jury to find guilt,
only then the defendant is entitled to a directed verdict of acquittal.” Eversole v.
Commonwealth, 600 S.W.3d 209, 217-18 (Ky. 2020). The interpretation of
statutes is a legal question reviewed de novo. Commonwealth v. Love, 334
S.W.3d 92, 93 (Ky. 2011).
6 As a consequence of our decision, we do not think it necessary to consider
Johnson’s second allegation of error in the penalty phase that the Commonwealth
elicited false or misleading testimony regarding good time credits and Johnson’s
eligibility for parole should he receive a maximum sentence, enhanced by a persistent
felony offender conviction.
27
This argument is controlled by our ruling in Soto v. Commonwealth, 139
S.W.3d 827, 870 (Ky. 2004). We held the “ordinary meaning” of a building per
KRS 511.010(1) is
A constructed edifice designed to stand more or less permanently,
covering a space of land, usually covered by a roof and more or less
completely enclosed by walls, and serving as a dwelling, storehouse,
factory, shelter for animals or other useful structure—distinguished from
structures not designed for occupancy (as fences or monuments) and
from structures not intended for use in one place (as boats or trailers)
even though subject to occupancy.
Id. (quoting Webster's Third New International Dictionary of the English
Language Unabridged 292 (Merriam–Webster 1993)). We further reiterated that
the “statute applies to every structure that meets the definition of a building as
used in common parlance, without regard to whether it is inhabited or
inhabitable.” Id. (quoting Funk v. Commonwealth, 842 S.W.2d 476, 482–83 (Ky.
1992)).
Dillihay testified that the greenhouse had been standing for
approximately five years, thus it was “more or less” permanent. It was being
used to store farm tools and house goats; thus, it was a “storehouse” and a
“shelter for animals.” Although the photographic evidence does show that the
plastic covering of the greenhouse was significantly missing, and we may
presume was not particularly effective at storing the tools or sheltering the
animals from the natural elements, we do not think that is a dispositive factor.
Habitability is not a factor in determining whether a structure is a building. Id.The uncontroverted evidence was that the greenhouse had been standing for
approximately five years and tools were being stored in the greenhouse, as well
28
as goats. It was a more or less permanent structure currently in use, however
ineffective, as a storehouse and shelter for animals. The motion for directed
verdict was properly denied.
III. Conclusion
For the aforementioned reasons, we affirm Johnson’s convictions for
burglary in the third degree. We reverse his conviction as a persistent felony
offender. We remand to the Muhlenberg Circuit Court to conduct a new penalty
phase trial.
All sitting. VanMeter, C.J.; Bisig, Lambert, and Nickell, JJ., concur.
Keller, J., concurs in part and concurs in result only in part, by separate
opinion in which Thompson, J., joins.
KELLER, J., CONCURRING IN PART AND CONCURRING IN RESULT
ONLY IN PART: I wholeheartedly concur with the Majority’s well-written
Opinion that the alleged unanimity violation in this case does not rise to the
level of palpable error. For years, a majority of this Court had “continue[d] to
weaken the palpable error analysis” when it came to unanimity violations. King
v. Commonwealth, 554 S.W.3d 343, 366 (Ky. 2018) (Keller, J., concurring in
part and dissenting in part). The Majority has put an end to that today, and
with that holding I am in full agreement. I concur with the Majority’s decision
to overrule, at least in part, Johnson v. Commonwealth, 405 S.W.3d 439 (Ky.
2013), Kingrey v. Commonwealth, 396 S.W.3d 824 (Ky. 2013), Martin v.
Commonwealth, 456 S.W.3d 1 (Ky. 2015), and King, 554 S.W.3d 343. It is a
29
decision which I have long awaited and for which I have spilled much ink
advocating.
However, I write separately because, consistent with my oft-stated
position, I do not believe that the instructions given to the jury in this case
present a unanimity violation. See Justice v. Commonwealth, 636 S.W.3d 407,
420–21 (Ky. 2021) (Keller, J., concurring in part and dissenting in part); King,
554 S.W.3d at 365–74 (Keller, J., concurring in part and dissenting in part);
Gartin v. Commonwealth, No. 2019-SC-0628-MR, 2021 WL 1133625, *4–5 (Ky.
Mar. 25, 2021) (Keller, J., dissenting in part and concurring in result only in
part). As Justice Cunningham stated in his dissent in part in Johnson
v. Commonwealth, the Majority of this Court is “requiring juries to be
unanimous on matters that the unanimous verdict requirement never
anticipated.” 405 S.W.3d at 461 (Cunningham, J., concurring in part and
dissenting in part).
Thompson, J., joins.
COUNSEL FOR APPELLANT:
Aaron Reed Baker
Assistant Public Advocate
COUNSEL FOR APPELLEE:
Jenna M. Lorence
Assistant Solicitor General
Bryan D. Morrow
Assistant Attorney General
30