CRIMINAL: MCCOMBS V. COMMONWEALTH (COA 1/12/2007)

MCCOMBS V.  COMMONWEALTH
CRIMINAL:  Crimes (deadly weapon); Blockburger
2004-CA-001850
PUBLISHED: AFFIRMING IN PART, REVERSING IN PART, REMANDING; TAYLOR
DATE RENDERED: 1/12/2007

Appellant contends the trial court erred by concluding as a matter of law that the crowbar was a “deadly weapon.” The definition of deadly weapon is codified in KRS 500.080(4), and COA held that the trial court erred by deciding, as a matter of law, that the crowbar constituted a deadly weapon under KRS 500.080(4). Rather, such question should have been submitted to the jury.

There exists a substantial possibility the jury would not have found the crowbar to be a deadly weapon under KRS 500.080(4)(d). As such, it was reversible error for the trial court to decide the issue and not submit it to the jury.

When the same physical injury is utilized to satisfy the physical injury elements of KRS 511.020(1)(b) and KRS 508.030(1)(a), it is clear that first-degree burglary contains more than one element that fourth-degree assault does not, thus satisfying Blockburger.

However, the Supreme Court of Kentucky has held that fourth-degree assault does not contain an element different from first-degree burglary when the same physical injury is utilized, thus offending Blockburger.  The Kentucky Supreme Court has held that a conviction upon first degree burglary and fourth-degree assault violated the prohibition against double jeopardy when the same physical injury was used to satisfy the physical injury elements of both KRS 511.020(1)(b) and KRS 508.030(1)(a).

Although the first-degree burglary statute (KRS 511.020(1)(b)) does not expressly provide the culpable mental state(s) relevant to the physical injury element, we believe that such culpable mental states are necessarily implied.  To fulfill legislative intent, we now hold the physical injury element of first-degree burglary, found in KRS 511.020(1)(b), impliedly requires that defendant acted intentionally, knowingly, wantonly, or recklessly to cause the physical injury.

Where the same physical injury is used to satisfy the physical injury elements of KRS 511.020(1)(b) and KRS 508.030(1)(a), it is clear that fourth-degree assault does not contain an element different from first-degree burglary, thus offending Blockburger.

COA reversed his convictions upon first-degree burglary (KRS 511.020) and fourth-degree assault (KRS 508.030).

Digested by Michael Stevens

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