Baker v. Com.

• Decision Date: 21 May 1998
• Docket Number: No. 97-SC-476-TG,97-SC-476-TG
• Parties: James H. BAKER, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 54

973 S.W.2d 54

James H. BAKER, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

No. 97-SC-476-TG.

Supreme Court of Kentucky.

May 21, 1998.

Rehearing Denied Sept. 3, 1998.

John Palombi, Assistant Public Advocate, Frankfort, for Appellant.

A.B. Chandler III, Attorney General, Frankfort, Christopher M. Brown, Assistant Attorney General, Frankfort, for Appellee.

STEPHENS, Chief Justice.

Appellant, James H. Baker, appeals from a decision of the Jefferson Circuit Court sentencing him to twenty years imprisonment on one count of unlawful imprisonment in the first degree enhanced by a persistent felony offender in the first degree conviction. He appeals as a matter of right. Finding no error, we affirm.

Appellant was charged with kidnapping and sexual abuse against the victim, L.T., and being a persistent felony offender. The charges resulted from an incident which occurred on February 19-20, 1996, in Louisville, Kentucky. He was acquitted of kidnapping and sexual abuse, but was found guilty of unlawful imprisonment, first degree, and of being a persistent felony offender, first degree, and sentenced to twenty years imprisonment. Appellant now raises two issues on appeal.

The first issue on appeal is sufficiency of the evidence presented against appellant. Appellant argues that the Commonwealth failed to prove an essential element of the crime of unlawful imprisonment, being that the alleged restraint must expose a victim to a risk of serious physical injury. In support of this argument, appellant states that there was no credible evidence shown which would prove that such a risk existed. However, we find that this issue was not properly preserved for our review.

Appellant moved for a directed verdict at the close of the Commonwealth's case, alleging insufficiency of the evidence. This motion was properly denied by the trial court as appellant was not entitled to a complete acquittal of all charges in the indictment and all lesser included offenses. See Campbell v. Commonwealth, Ky., 564 S.W.2d 528 (1978). In the instant case, appellant made no objection to any of the instructions, thus failing to allow the trial court the opportunity to pass on the issue, and leaving the issue unpreserved. RCr 9.54(2).

Furthermore, this Court has held that a "motion for a directed verdict made at the close of the plaintiff's ... case is not sufficient to preserve error unless renewed at the close of all the evidence...." Kimbrough v. Commonwealth, Ky., 550 S.W.2d 525, 529 (1977). There was no such renewal in the case at bar. Appellant argues that our holding in Dyer v. Commonwealth, Ky., 816 S.W.2d 647 (1991), should be read as rejecting the holding in Kimbrough which mandates a renewal of the directed verdict motion. However, as Dyer was a plurality opinion with the majority of the Court rejecting such a limitation on Kimbrough, Dyer does not control this issue. Noting that some confusion has been caused by that portion of Dyer which contradicts our holding in Kimbrough, we now expressly reject the proposition that a directed verdict motion not renewed at the close of all of the evidence is sufficient to preserve insufficiency of the evidence issues for appellate review. In so doing, we hereby overrule that portion of Dyer which is in conflict with the ruling laid down in Kimbrough. A defendant must renew his motion for a directed verdict, thus allowing the trial court the opportunity to pass on the issue in light of all the evidence, in order to be preserved for...