CRIMINAL LAW – Crimes, appeals failure to preserve isse regarding inoperability of firearm: Commonwealth v. Bobby A. Jones (SC 2/19/2009)

Commonwealth v. Bobby A. Jones
2006-SC-000650-DG 2/19/2009
Opinion by Justice Abramson; all sitting.

Jones was convicted of possession of a firearm by a convicted felon. On appeal, Jones argued that the prosecution failed to prove the operability of the firearm– which Jones contended was an element of the offense. The Court of Appeals reversed, holding that even if Jones had failed to properly preserve the issue, as was argued by the Commonwealth, the lack of proof that the rifle was an operational firearm rendered the conviction manifestly unjust under the palpable error standard in RCr10.26. The Supreme Court agreed with the Court of Appeal's conclusion that Jones had not properly preserved the sufficiency-of-the-evidence issue, noting that Jones' trial counsel did not state specific grounds for relief when making the motion for a directed verdict and did not renew the motion for directed verdict upon conclusion of the prosecution's rebuttal. However, the Supreme Court disagreed with the Court of Appeal's finding of palpable error and reinstated the jury's guilty verdict. The Court held that under Campbell, the KRS 527.010(4) definition of “firearm” incorporates the pre-penal code presumption that firearms work. Further, in Arnold, the Court held that inoperability of the firearm is an affirmative defense for which the defendant bears the burden of proof. Accordingly, the Court held proof of operability of the firearm is not necessary “unless there is non-speculative evidence at trial which calls the presumption into reasonable doubt.” In his concurring opinion Justice Venters (joined by Justice Noble and Justice Schroder) stated that the statutory definition of a firearm as “any weapon which will expel a projectile by the action of an explosive” does not create an operability element to the offense, rather it is intended to distinguish firearms from weapons that expel projectiles via other means (i.e. air rifles, crossbows, etc.).

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