Boulder v. Com., 80-SC-93-MR
| Decision Date | 16 December 1980 |
| Docket Number | No. 80-SC-93-MR,80-SC-93-MR |
| Citation | 610 S.W.2d 615 |
| Parties | John George BOULDER, Appellant, v. COMMONWEALTH of Kentucky, Appellee. |
| Court | United States State Supreme Court — District of Kentucky |
Jack E. Farley, Public Advocate, Larry H. Marshall, Asst. Public Advocate, Frankfort, for appellant.
Steven L. Beshear, Atty. Gen., C. David Clauss, Asst. Atty. Gen., Frankfort, for appellee.
John George Boulder was convicted in the Fayette Circuit Court of first degree assault (KRS 508.010) and possession of a handgun by a convicted felon (KRS 527.040). His sentences for these two convictions were respectively enhanced to thirty-five and five years when he was found to be a persistent felony offender (PFO) in the second degree (KRS 532.080). He now appeals from that judgment. We reverse in part and affirm in part, and remand with directions.
During the evening of May 14, 1979, an altercation arose on a Lexington street involving John, his girl friend Deborah, a man called J.J., and J.J.'s "lady," "Cynthia," a 6' 2 transsexual. J.J., armed with a pellet gun, had called John out of his apartment to resolve a squabble between their respective "friends." Approximately 15 minutes of argument followed, then J.J. turned his back and John shot him three times and "Cynthia" five times with a .22-caliber pistol. Neither died, but "Cynthia" received wounds which were stipulated at trial as creating a substantial risk of death due to bleeding in the diaphragm, liver and colon.
John's conviction of first degree assault resulted from his shooting "Cynthia." His conviction of possession of a handgun by a convicted felon was based on his 1976 conviction of first degree assault which was also the basis of the sentence enhancement of both primary convictions. His appeal includes eight assignments of error. One of the issues raised by these assignments-doubt of the unanimity of the first degree assault verdict-requires us to reverse and grant a new trial on that charge. Although we affirm the conviction of possession of a handgun by a convicted felon, we strike down the PFO enhancement of that sentence and further hold that the Commonwealth is precluded from pursuing an enhancement of any future sentence on the assault charge because of John's conviction of possession of a handgun by a convicted felon. The other assignments of error are either patently without merit or not preserved for appellate review.
The instructions submitting count one (first degree assault) to the jury were improper. They provided alternative grounds for a finding of guilt-either that John intended to cause serious physical injury to "Cynthia" or that he was wantonly engaging in conduct which created a risk of death to "Cynthia." The state of the evidence, however, is such that it would be clearly unreasonable for a juror to believe that John's conduct was other than intentional. Because we can not ascertain that all the jurors based their decision on the first theory, which is the only one supported by evidence, we can not say that the verdict was unanimous as required by RCr 9.82(1) and Wells v. Commonwealth, Ky., 561 S.W.2d 85 (1978). Accordingly, we reverse the conviction of first degree assault and grant a new trial on that charge.
We affirm John's conviction of possession of a handgun by a convicted felon. It was not improper for the Commonwealth to prosecute John on this charge and on the first degree assault charge even though a single course of conduct establishes the commission of both offenses. KRS 505.020(1). Furthermore, conviction of both crimes is not double jeopardy because neither offense is necessarily included within the other and each requires proof of an element not required by the other. KRS 505.020; McClain v. Commonwealth, Ky., 607 S.W.2d 421 (1980); Kellett v. Superior Court, 63 Cal.2d 822, 48 Cal.Rptr. 366, 409 P.2d 206 (1966).
The Commonwealth established the violation of KRS 527.040 () by using John's 1976 conviction of first degree assault. The jury recommended a sentence of three years. The same prior felony was then used in the PFO phase of the trial to enhance the sentence to five years and also to enhance the...
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