Wilburn v. Com., No. 2008-SC-000787-MR.

CourtUnited States State Supreme Court (Kentucky)
Writing for the CourtOpinion of the Court by VENTERS
Citation312 S.W.3d 321
Docket NumberNo. 2008-SC-000787-MR.
Decision Date17 June 2010
PartiesEssamond WILBURN, Appellant, v. COMMONWEALTH of Kentucky, Appellee.

312 S.W.3d 321

Essamond WILBURN, Appellant,
v.
COMMONWEALTH of Kentucky, Appellee.

No. 2008-SC-000787-MR.

Supreme Court of Kentucky.

March 18, 2010.

Rehearing Denied June 17, 2010.


312 S.W.3d 322

Daniel T. Goyette, Louisville Metro Public Defender, Cicely Jaracz Lambert, Assistant Appellante Defender, Charles Hall Stopher, Assistant Public Defender, Louisville, KY, Counsel for Appellant.

Jack Conway, Attorney General, Stephen Bryant Humphress, Assistant Attorney General, Office of Criminal Appeals, Frankfort, KY, Counsel for Appellee.

Opinion of the Court by Justice VENTERS.

Appellant, Essamond Wilburn, appeals from a judgment entered upon a jury verdict by the Jefferson Circuit Court convicting him of first-degree burglary, two counts of first-degree robbery, and of being a second-degree persistent felony offender. He was sentenced to a total of 20 years to serve. He now appeals his conviction as a matter of right pursuant to Ky. Const. § 110(2)(b), alleging that he was entitled to a directed verdict on the burglary and robbery charges and that the Commonwealth improperly used a peremptory strike against an African-American juror. For the reasons stated below, we affirm in part and reverse and remand in part.

FACTUAL AND PROCEDURAL BACKGROUND

In the light most favorable to the verdict the facts are as follows. At about 12:30 a.m. on the morning of April 18, 2007, Wilburn and his brother, Terrance, attempted to rob Expressway Liquors located on Lee Street in Louisville, Kentucky. They used their father's 1989 Volvo as the getaway car.

That evening night manager Erik Bussman and employee Scott Reid were working at the liquor store. As they were beginning their closing procedures, Wilburn and Terrance entered the store with Wilburn in the lead carrying a .38 caliber revolver. Wilburn pointed the pistol at Reid and stated to the effect "we are here for the money; we know your buddy is back there."

Bussman was in the stock room performing his closing duties when the men arrived. Wilburn went toward the stock room, pointed the pistol at Bussman, and pulled the trigger; however, the gun did not fire. Bussman grabbed the store's .38 caliber revolver from the shelf next to the stock room door. He fired three shots, and the two robbers immediately fled the store and ran in different directions.

Police responders drove the area searching for the robbers. A short distance from the liquor store, on Floyd Street, a policeman apprehended Terrance. Not long afterward Terrance confessed to the attempted robbery and identified Wilburn as his accomplice. He also identified Wilburn as the gunman.

The next morning, Kenneth Singer, the owner of the liquor store, found a .38

312 S.W.3d 323
caliber revolver near the business. The gun was not loaded, which perhaps explains why it did not fire the night of the robbery. Meanwhile, a box containing .38 caliber bullets was found in the getaway car, which suggests that the Wilburn brothers may have simply forgotten to load the gun before the robbery attempt

In July 2008, Wilburn was tried upon the charges of first-degree burglary, two counts of first-degree robbery, and as being a second-degree persistent felony offender. At trial, Terrance testified consistently with his confession, identifying Wilburn as his accomplice and as being the gunman. Various circumstantial evidence also implicated Wilburn. Wilburn's defense was a denial that he committed the crimes, and that Terrance was lying to gain favor in the prosecution against him.

At the conclusion of the trial Wilburn was convicted of all charges. He was sentenced to 15 years enhanced to 20 on each of the three charges. All sentences were ordered to run concurrently for a total of 20 years to serve. This appeal followed.

Wilburn presents three arguments: 1) that he was entitled to a directed verdict on the burglary charge; 2) that he was entitled to a directed verdict on the two robbery charges; and 3) that the Commonwealth improperly used a peremptory strike on an African-American juror.

I. WILBURN WAS ENTITLED TO A DIRECTED VERDICT ON THE BURGLARY CHARGE

Wilburn contends that he is entitled to a directed verdict on the first-degree burglary charge because he did not enter or remain unlawfully on the premises of the liquor store. He argues that the liquor store is a public place that he was licensed to enter, and that he immediately fled following Bussman's gunshots, and so did not unlawfully remain once his license was revoked. We agree with Wilburn that the "enters or remains unlawfully" element of the burglary charge was not met, and, consequently, reverse the first-degree burglary conviction.

On a motion for a directed verdict, the trial judge must draw all fair and reasonable inferences from the evidence in favor of the Commonwealth. Commonwealth v. Benham, 816 S.W.2d 186 (Ky. 1991). The standard for appellate review of a denial of a motion for a directed verdict based on insufficient evidence is if, under the evidence as a whole, it would be clearly unreasonable for a jury to find the defendant guilty, he is entitled to a directed verdict of acquittal. Commonwealth v. Sawhill, 660 S.W.2d 3 (Ky.1983).

The first-degree burglary statute, KRS 511.020(1), provides as follows:

(1) A person is guilty of burglary in the first degree when, with the intent to commit a crime, he knowingly enters or remains unlawfully in a building, and when in effecting entry or while in the building or in the immediate flight therefrom, he or another participant in the crime:
(a) Is armed with explosives or a deadly weapon; or
(b) Causes physical injury to any person who is not a participant in the crime; or
(c) Uses or threatens the use of a dangerous instrument against any person who is not a participant in the crime.

(Emphasis added).

Also relevant to our review is the General Provisions statute of the burglary chapter, KRS 511.090. It provides, in relevant part, as follows:

312 S.W.3d 324
(1) A person "enters or remains unlawfully" in or upon premises when he is not privileged or licensed to do so.
(2) A person who, regardless of his intent, enters or remains in or upon premises which are at the time open to the public does so with license or privilege unless he defies a lawful order not to enter or remain personally communicated to him by the owner of such premises or other authorized person.

In the light most favorable to the Commonwealth, the relevant evidence presented at trial discloses the following: (1) at about 12:30 a.m. on the morning of April 18, 2008, the liquor store was open for business, including to the walk-in public; (2) Wilburn, with his brother following behind, entered the store armed with an unloaded .38 caliber revolver; (3) Wilburn demanded money and attempted to shoot Bussman with the empty gun; (4) Bussman quickly grabbed the store's gun and fired it at Wilburn; (5) Wilburn and his brother fled as quickly as possible; and (6) when Wilburn and his brother entered the store they intended to rob it.

Under KRS 511.020(1), the "enters or remains unlawfully" element of first-degree burglary may be committed in one of two ways: (1) by entering the building unlawfully; or (2) by remaining in the building unlawfully.

KRS 511.090(2) quickly disposes of the first possibility. The liquor store was open to the public. So even though Wilburn had the intent to rob the business when he entered, the statute provides that he nevertheless was licensed or privileged to be there upon his initial entry. It follows that Wilburn did not enter the premises unlawfully. KRS 511.090(2).

The question then becomes whether Wilburn "remained unlawfully" in the premises while at the same time maintaining his intent to commit a crime. Based upon the factual background as stated above, we must conclude that, as a matter of law, he did not.

Wilburn agrees that Bussman's firing of the gun at him was the functional equivalent of a personally communicated lawful order by an authorized person not to remain in the store, and that at that point Wilburn's license to remain in the store was revoked. KRS 511.090(2). However, at that juncture, Wilburn did not remain upon the premises; rather, he fled immediately. Based upon this fact, we must conclude that once his license to remain was revoked, Wilburn did not "remain unlawfully" upon the premises of the liquor store with the intent of committing a crime. It follows that his conviction must likewise fail under this provision of the first-degree burglary statute.

The Commonwealth's brief contains little countervailing analysis. It merely cites us to the cases Bowling v. Commonwealth, 942 S.W.2d 293 (Ky.1997), and Fugate v. Commonwealth, 993 S.W.2d 931 (Ky.1999). It then concludes "as these cases make clear, Appellant's privilege to enter the liquor store terminated when he entered and remained for the purpose of committing robbery." The cited decisions, however, are distinguishable from the case at bar.

In Bowling, the defendant killed two victims in the course of a gas station robbery and then fled with money stolen from the business. Bowling, 942 S.W.2d at 307. Similarly, in Fugate, the defendant initially went to the victim's home for a social visit and was invited in. Subsequently, however, he shot the victim in the leg, and then twice in the head, killing him. He then "ransacked the victim's trailer looking for something to steal and tore the victim's wallet off its chain, taking the cash." Fugate, 993 S.W.2d at 940.

312 S.W.3d 325

Thus, in Bowling and Fugate, the defendant killed the victim(s), thereby ending, by implication, his license and his lawful presence on the property, and then unlawfully remained to commit an additional crime. Those are not the facts in this case. Nor did Wilburn remain to commit crimes after Bussman terminated his license by firing the shots at him. Thus Bowling and Fugate are not analogous.1

Nor is the significant principle stated in the two...

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150 practice notes
  • Lane v. State, CR-15-1087
    • United States
    • Alabama Court of Criminal Appeals
    • 29 May 2020
    ...wrongfully convicted of murder and becausePage 90 she suffered from back pain, hypertension, and diabetes.12 See Wilburn v. Commonwealth, 312 S.W.3d 321, 331 (Ky. 2010) (prospective juror's belief that friend had been wrongfully arrested was race-neutral reason for peremptory strike); and S......
  • United States v. Tate, No. 20-5071
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • 28 May 2021
    ...trump administrative deference to the 999 F.3d 392 Commission's expansion of that language in its commentary. Wilburn v. Commonwealth , 312 S.W.3d 321, 327 (Ky. 2010).CThe pre-guidelines cases on which my colleagues rely do not convince me that the phrase "possessed" a "dange......
  • Lane v. State, CR-15-1087
    • United States
    • Alabama Court of Criminal Appeals
    • 29 May 2020
    ...been wrongfully convicted of murder and because she suffered from back pain, hypertension, and diabetes.12 See Wilburn v. Commonwealth, 312 S.W.3d 321, 331 (Ky. 2010) (prospective juror's belief that friend had been wrongfully arrested was race-neutral reason for peremptory strike); and Sco......
  • Fischer v. Fischer, No. 2009–SC–000245–DG.
    • United States
    • United States State Supreme Court (Kentucky)
    • 27 October 2011
    ...to the appellate court.” Kennedy v. Commonwealth, 544 S.W.2d 219, 222 (Ky.1976), overruled on other grounds by Wilburn v. Commonwealth, 312 S.W.3d 321 (Ky.2010). In such an instance, the trial court has made no decision related to the specific legal question that is later raised for the fir......
  • Request a trial to view additional results
150 cases
  • Lane v. State, CR-15-1087
    • United States
    • Alabama Court of Criminal Appeals
    • 29 May 2020
    ...wrongfully convicted of murder and becausePage 90 she suffered from back pain, hypertension, and diabetes.12 See Wilburn v. Commonwealth, 312 S.W.3d 321, 331 (Ky. 2010) (prospective juror's belief that friend had been wrongfully arrested was race-neutral reason for peremptory strike); and S......
  • United States v. Tate, No. 20-5071
    • United States
    • United States Courts of Appeals. United States Court of Appeals (6th Circuit)
    • 28 May 2021
    ...trump administrative deference to the 999 F.3d 392 Commission's expansion of that language in its commentary. Wilburn v. Commonwealth , 312 S.W.3d 321, 327 (Ky. 2010).CThe pre-guidelines cases on which my colleagues rely do not convince me that the phrase "possessed" a "dange......
  • Lane v. State, CR-15-1087
    • United States
    • Alabama Court of Criminal Appeals
    • 29 May 2020
    ...been wrongfully convicted of murder and because she suffered from back pain, hypertension, and diabetes.12 See Wilburn v. Commonwealth, 312 S.W.3d 321, 331 (Ky. 2010) (prospective juror's belief that friend had been wrongfully arrested was race-neutral reason for peremptory strike); and Sco......
  • Fischer v. Fischer, No. 2009–SC–000245–DG.
    • United States
    • United States State Supreme Court (Kentucky)
    • 27 October 2011
    ...to the appellate court.” Kennedy v. Commonwealth, 544 S.W.2d 219, 222 (Ky.1976), overruled on other grounds by Wilburn v. Commonwealth, 312 S.W.3d 321 (Ky.2010). In such an instance, the trial court has made no decision related to the specific legal question that is later raised for the fir......
  • Request a trial to view additional results

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