RENDERED: JUNE 2, 2017; 10:00 A.M. NOT TO BE PUBLISHED Commonwealth of Kentucky Court of Appeals NO. 2016-CA-000557-MR COMMONWEALTH OF KENTUCKY APPELLANT APPEAL FROM GREENUP CIRCUIT COURT v. HONORABLE ROBERT CONLEY, JUDGE ACTION NO. 15-CR-00028 JAMES JONATHAN LEMASTER APPELLEE OPINION REVERSING AND REMANDING ** ** ** ** ** BEFORE: CLAYTON, DIXON, AND D. LAMBERT, JUDGES. LAMBERT, D., JUDGE: The Commonwealth appeals an order of the Greenup Circuit Court which granted the motion of the Appellee, James Jonathan LeMaster, to amend the indictment against him. The issue is whether trial courts may determine, as a matter of law, whether an object not specifically listed in KRS 520.010 as dangerous contraband, supports a charge of promoting contraband in
the first degree. Having reviewed the applicable law, we find that such determination invades the exclusive province of the jury, and reverse and remand for further proceedings. I. FACTUAL AND PROCEDURAL HISTORY While incarcerated in the Greenup County Detention Center, a deputy jailer noticed that LeMaster had a fresh tattoo. When asked about the tattoo, LeMaster admitted to having given himself the tattoo. This led to an investigation within the jail and considerable evidence was gathered that LeMaster had possessed a tattooing apparatus while incarcerated. LeMaster was indicted for promoting contraband in the first degree and being a persistent felony offender in the first degree. LeMaster subsequently moved the trial court to amend the indictment, arguing that a tattoo gun did not fall into the definition of dangerous contraband necessary to support a first-degree charge of promoting contraband. The trial court agreed and issued a written ruling find[ing] that the tattoo machine in question is not considered a dangerous instrument as set out in KRS 520.010. The same order directed the indictment be amended to charge LeMaster with promoting contraband in the second degree under KRS 520.060, which requires only contraband as opposed to the dangerous contraband of KRS 520.050. The Commonwealth moved to alter, amend, or vacate, the order, which the trial court denied. This appeal ensued. II. ANALYSIS -2-
Matters of statutory construction and application are questions of law, and thus are reviewed de novo. Pennyrile Allied Community Services, Inc. v. Rogers, 459 S.W.3d 339, 342 (Ky. 2015). In resolving this issue, we must examine the rules governing both the amendment of indictments and the specific statutes defining the criminal behavior at issue. Rule 6.16 of the Kentucky Rules of Criminal Procedure ( RCr ) governs the amendment of indictments. It states that: RCr 6.16. The court may permit an indictment, information, complaint or citation to be amended any time before verdict or finding if no additional or different offense is charged and if substantial rights of the defendant are not prejudiced. If justice requires, however, the court shall grant the defendant a continuance when such an amendment is permitted. The provisions of KRS 520.050, KRS 520.010, and KRS 500.080(3), define the criminal behavior alleged in this instance. KRS 520.050 provides that a person is guilty of promoting contraband in the first degree when [h]e knowingly introduces dangerous contraband into a detention facility or a penitentiary. The definition for dangerous contraband in KRS 520.010 describes it as: [C]ontraband which is capable of use to endanger the security of a detention facility or persons therein, including, but not limited to, dangerous instruments as defined in KRS 500.080, any controlled substances, any quantity of an alcoholic beverage, and any quantity of marijuana, cell phones, and saws, files, or similar metal cutting instruments. KRS 520.010(3). Finally, KRS 500.080 s definition of dangerous instruments: -3-
KRS 500.080(3). [A]ny instrument, including parts of the human body, article, or substance which, under the circumstances in which it is used is readily capable of causing death or serious physical injury[.] The Commonwealth contends that the trial court impermissibly usurped the role of the jury in issuing its finding that the tattoo gun does not fall under the definition of dangerous contraband under these definitions. LeMaster contends the trial court acted appropriately in interpreting the statute and applying it to the facts of the case. The Kentucky Supreme Court has previously held that the jury serves the role of ultimately determin[ing] the essential elements of the offense, and acts in accordance with the law. Thacker v. Commonwealth, 194 S.W.3d 287, 291 (Ky. 2006) (citing U.S. v. Gaudin, 515 U.S. 506 (1995); Apprendi v. New Jersey, 530 U.S. 466 (2000)). More to the point for our purposes in this appeal, Thacker specifically overruled Hicks v. Commonwealth, 550 S.W.3d 480 (Ky. 1977), which stood for the proposition that a court may determine whether an instrument was a deadly weapon as a matter of law. Thacker at 290. The Supreme Court then explicitly reaffirmed the reasoning of Thacker in Doneghy v. Commonwealth, 410 S.W.3d 95 (Ky. 2013), holding that the trial court is not allowed to determine whether the object used to inflict injury is a deadly weapon as a matter of law. A trial court must submit all of the essential elements of the crime to the jury for determination. Id. at 112. The difference between the charges for first and -4-
second-degree promoting contraband is based on a factual not legal determination of the level of danger presented by the contraband item itself, making such determination an essential element of the offense. The role of the trial court in this context is not to evaluate facts, or to apply the law to the facts. The role of the trial court is to inform the jury of the whole law of the case, and allow the jury to apply that law to the facts as it sees fit. Williams v. Commonwealth, 208 S.W.3d 881, 883 (Ky. 2006) (quoting Taylor v. Commonwealth, 995 S.W.2d 355 (Ky. 1999)). The trial court impermissibly extended its role and encroached on the role of the jury. III. CONCLUSION Having carefully reviewed the record and the arguments of the parties, we reverse the circuit court s order amending the indictment and remand for further proceedings consistent with this opinion. ALL CONCUR. BRIEF FOR APPELLANT: Andy Beshear Attorney General of Kentucky BRIEF FOR APPELLEE: James W. Lyon, Jr. Greenup, Kentucky Leilani K. M. Martin Assistant Attorney General Frankfort, Kentucky -5-