Robert (Bob) Terry v. Commonwealth of Kentucky ( 2007 )

CORRECTED : AUGUST 26, 2008
MODIFIED : JUNE 13, 2008
RENDERED: DECEMBER 20, 2007
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2005-SC-000749-MR
ROBERT (BOB) TERRY
ON APPEAL FROM OWSLEY CIRCUIT COURT
V HONORABLE DENNIS JEFFREY CHOATE, JUDGE
NO. 04-CR-00036-001
COMMONWEALTH OF KENTUCKY APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING IN PART
AND VACATING AND REMANDING IN PART
A jury convicted Robert Terry of two counts of criminal mischief in the first
degree, one count of desecration of venerated objects, one count of violating a grave,
one count of theft by unlawful taking over $300, and one count of abuse of a corpse.
The jury recommended that Terry be sentenced to five years on each criminal mischief
count, eight years for the desecration of venerated objects conviction, five years on the
violating a grave charge, five years for the theft by unlawful taking charge, and twelve
months for the abuse of a corpse charge . At sentencing, Terry's aggregate sentence
for all offenses was set at the statutory maximum of twenty years' imprisonment.' Terry
then filed this appeal as a matter of right.
See Kentucky Revised Statutes (KRS) 532 .110(1)(c); KRS 532 .080(6)(b).
See KY. CONST . § 110(2)(b) .
Terry argues that (1) some of his convictions violate the prohibition against
double jeopardy, (2) his convictions must be reversed because he was not arraigned on
the charges contained in a superseding indictment, and (3) the trial court erred when it
orally held a fine in abeyance for future levy. We reject Terry's double jeopardy
arguments . But we vacate and remand Terry's criminal mischief convictions because
he was never arraigned on those charges before trial. We reject as moot Terry's
argument regarding the allegedly improper imposition of a fine because the written
judgment of conviction does not reflect the imposition of a fine.
1 . FACTUAL AND PROCEDURAL HISTORY .
While driving through the cemetery looking for truants, the Booneville, Kentucky,
Chief of Police noticed a casket lying outside a mausoleum . Upon inspection, the chief
discovered that the casket had been pried open; and the remains of Peggy Cornett had
been disturbed . Several items of jewelry had been removed from Cornett's remains.
One of the hands had been severed from the corpse, and a finger from the other hand
was missing .
Terry was quickly identified as a suspect . Two people told the authorities that
before the disturbance of the remains, Terry had offered to sell them jewelry that he
intended to take from a grave. Furthermore, the authorities recovered from a pawnshop
a necklace that had been interred with Cornett's body . Terry's name was on the pawn
ticket, and the pawnshop's surveillance video showed Terry pawning Cornett's
necklace. A search of Terry's home yielded additional items taken from Cornett's tomb.
Two months later, Terry, along with his girlfriend and others, was indicted for
complicity in the desecration of venerated objects, complicity in violating a grave,
complicity in theft by unlawful taking over $300, and complicity in abuse of a corpse.
Objections raised by the Cornett family over the handling of the case led to the
appointment of a special judge and special prosecutor.
After the indictment had been pending for almost fifteen months, a grand jury
returned a superseding indictment against Terry. That indictment charged Terry alone
with committing two counts of criminal mischief, one count of violating a grave, one
count of first-degree desecration of venerated objects, one count of theft by unlawful
taking over $300, and one count of abuse of a corpse . Approximately two weeks later,
the Commonwealth moved to amend the superseding indictment, reciting that the
amendments were necessary "only to correct scrivener[']s errors." That motion also
stated that "[t]he Commonwealth further moves that the defendant be arraigned, or
arraignment waived, on the morning of trial, or in the alternative[,] at the Court's
pleasure ."
About a week later, Terry filed a written motion to continue the trial because of
the superseding indictment, specifically noting that he "has not been arraigned on either
of these Counts [of criminal mischief] and the arraignment is scheduled for August 29,
2005[,] and his trial to follow thereafter." Nevertheless, Terry's trial commenced as
scheduled on August 29, 2005 .
At the beginning of the trial, Terry's counsel orally moved for a continuance,
noting that Terry had not been arraigned on the charges contained in the superseding
indictment and that Terry had not received in discovery the tapes of the proceedings of
the grand jury that returned the superseding indictment. The trial court denied Terry's
motion, finding that "there is no new evidence, no new information that is going to be
gathered, that this is the same transaction or occurrence that Mr. Terry was previously
charged with."
A jury trial then began. The jury found Terry guilty of all of the charges contained
in the superseding indictment. Terry was sentenced in the manner noted above, and
this appeal followed .
II . ANALYSIS .
A. Double Jeopardy .
1 . General Double Jeopardy Principles.
Section 13 of the Kentucky Constitution provides that "[n]o person shall, for the
same offense, be twice put in jeopardy of his life or limb . . . ."3
The prohibition
contained in Section 13 is referred to as the double jeopardy clause . Terry raises
several related arguments centering on his contention that many of his convictions
violate the prohibition against double jeopardy .
Terry did not make any double jeopardy arguments before the trial court . But
under our longstanding rule, double jeopardy questions may be reviewed on appeal,
even if they were not presented to the trial court. Because we do not want to let stand
a conviction possibly tainted by double jeopardy, we decline the Commonwealth's
invitation to revisit our established precedent on this point.
See also U.S. CONST. AMEND. V.
See, e.g., Beaty v. Commonwealth , 125 S.W.3d 196, 210 (Ky. 2003).
Sherlev v. Commonwealth , 558 S.W.2d 615, 618 (Ky. 1977) ("Sherley did not present this
issue of double jeopardy or multiple prosecution to the trial court. However, we are
persuaded that failure to preserve this issue for appellate review should not result in
permitting a double jeopardy conviction to stand.").
In the seminal double jeopardy case of Blockburger v. United States, the United
States Supreme Court held that "where the same act or transaction constitutes a
violation of two distinct statutory provisions, the test to be applied to determine whether
there are two offenses or only one, is whether each provision requires proof of a fact
which the other does not. ,6 Kentucky uses the Blockburger double jeopardy test.' So it
is necessary to scrutinize closely and compare the offenses for which Terry was
convicted to determine if those convictions violate double jeopardy .
2. First-Degree Criminal Mischief and Violating Graves.
A person commits the offense of first-degree criminal mischief "when, having no
right to do so or any reasonable ground to believe that he has such right, he
intentionally or wantonly defaces, destroys or damages any property causing pecuniary
loss of $1,000 or more ." $ By contrast, a person commits the offense of violating a grave
when he intentionally "[m]utilates the graves, monuments, fences, shrubbery,
ornaments, grounds, or buildings in or enclosing any cemetery or place of
sepulture . . . ."9 Thus, the elements of the two offenses are\as follows :
First-degree criminal mischief :
a) having no right to do so (or having no reasonable ground to believe he has
a right to do so) a person
284 U.S. 299, 304, 52 S. Ct. 180, 76 L. Ed. 306 (1932) .
Commonwealth v. Burge, 947 S.W.2d 805, 811 (Ky. 1996) ("Thus, we return to the
Blockburger analysis . We are to determine whether the act or transaction complained of
constitutes a violation of two distinct statutes and, if it does, if each statute requires proof of
a fact the other does not. Put differently, is one offense included within another?") (internal
citation omitted) .
8
KRS 512.020(1) .
9
KRS 525.115(1)(a) . Of course, conduct occurring during routine care and maintenance of a
cemetery is exempt from prosecution by virtue of KRS 525.115(2) .
b) intentionally or wantonly
c) defaced, destroyed, or damaged any property,
d) thereby causing loss of $1,000 or more .
Violating graves :
a) a person intentionally
b) mutilated
c) the grave, monument, fence, shrubbery, ornaments, grounds or buildings
in or enclosing any cemetery or place of sepulture .
Obviously, first-degree criminal mischief and violating a grave do bear some
similar characteristics . For example, each requires intentional (or, for criminal mischief,
wanton) destruction or mutilation of property . For criminal mischief, destruction or
damage to any type of property will suffice . The violating a grave statute requires the
mutilated property to be a grave or the ornaments or grounds surrounding a grave . So
the requirement for property damage in the violating a grave statute is, at its core,
merely a more specific type of property damage than the general property damage
requirement contained in the criminal mischief statute .
But that is not the end of the inquiry because there is, in fact, a key distinction
between the two offenses . Namely, the criminal mischief statute requires the property
damage to be at least $1,000 . That monetary damage threshold is a distinct element
which, for double jeopardy purposes, separates the criminal mischief offense from the
violating a grave offense.'°
10
See, e.g., State v. Timothy K., 27 P.3d 1263 (Wash.Ct.App. 2001) (holding that defendant's
convictions for malicious mischief in the second degree and malicious harassment did not
violate double jeopardy because "[i]n this case, both the malicious harassment offense and
the second degree malicious mischief offense require proof of an element not found in the
other offense. Malicious harassment requires proof that the act was committed because of
The $1,000 minimum property damage requirement must be considered an
actual element of the offense of first-degree criminal mischief because, in order to avoid
a directed verdict on that charge, the Commonwealth must show that a defendant, such
as Terry, caused at least $1,000 in property damage. If the lack of proof on any aspect
of an offense would lead to a directed verdict of acquittal, that aspect must be
considered an element of the offense for double jeopardy purposes. No such monetary
damage requirement was necessary in order for the Commonwealth to avoid a directed
verdict on the violating a grave charge . So the criminal mischief offense clearly
contains a separate additional element from the violating a grave offense, which means
that Terry's convictions for violating a grave and first-degree criminal mischief did not
violate double jeopardy ."
actor's perception of the victim's sexual orientation, whereas second degree malicious
mischief requires proof that the act resulted in damage to property in excess of $250.
Timothy contends in a footnote contained in his brief that the $250 damage requirement
found in the second degree malicious mischief offense is something short of an element
because it ``is unrelated to the guilt of a defendant and is simply [a legislative] distinction for
determining the degree of malicious mischief in particular case .' This contention does not
survive scrutiny. The sum of the damage caused is precisely what determines the degree of
the offense, and for that reason is a true element that must be proved beyond a reasonable
doubt.") (footnote omitted) ; United States v. Perez-Gonzalez, 445 F.3d 39, 45 (1st Cir.
2006) ("Perez-Gonzalez asserts that the legislative intent with regard to the joint application
of the two statutes is ambiguous and proceeds to a Blockburger analysis. We accept
arguendo that Blockburger applies, but a review of the relevant statutes dooms his
argument . While both provisions clearly pertain to the damaging of government property,
Section 844(f) includes the additional element of the use of fire or explosives and
Section 1361 includes the additional element of a minimum monetary damage amount (to
be charged as a felony), distinctions that Perez-Gonz[a]lez's counsel conceded at oral
argument . The offenses are distinct under Blockburger." (footnotes omitted) (emphasis
added).
Although the precise issue is not before us, Terry's double jeopardy argument might have
been valid if he had been charged with third-degree criminal mischief (KRS 512.040) since
that offense does not require the Commonwealth to prove that a defendant committed a
threshold monetary amount of property damage. See Timothy K., 27 P.3d at 1265 n .5.
3 . Theft by Unlawful Taking and First-Degree
Desecration_ of Venerated Obiects.
A person commits first-degree desecration of venerated objects "when, other
than authorized by law, he intentionally excavates or disinters human remains for the
purpose of commercial sale or exploitation of the remains themselves or of objects
buried contemporaneously with the remains. "' 2 A person commits theft by unlawful
taking when he "[flakes or exercises control over movable property of another with
.,03
.
intent to deprive him thereof Theft by unlawful taking is a Class A misdemeanor
unless the value of the property in question is $300 or more, in which case the offense
is a Class D felony. Terry was convicted of the felony version of the offense .
When the elements of first-degree desecration of venerated objects are
compared with the elements of theft by unlawful taking over $300, it becomes clear that
Terry's convictions for those offenses did not violate double jeopardy principles . First,
theft by unlawful taking over $300 contains a threshold minimum monetary property
value for the item(s) taken . By contrast, first-degree desecration of venerated objects
contains no such monetary property value requirement .
Additionally, desecration of venerated objects in the first degree is complete upon
excavation or disinterment of human remains with the intent to exploit commercially the
remains themselves or objects buried with them . There is no requirement that the
remains or the objects buried with them actually be taken or destroyed . Theft by
unlawful taking, by contrast, requires the perpetrator actually to take control of the
purloined objects . Thus, Terry committed the crime of desecration of venerated objects
12
KRS 525.105(1) .
13
KRS 514 .030(1)(a) .
when he disinterred Cornett's remains with the intent to exploit commercially the jewelry
buried with her body. Terry committed the additional crime of theft by unlawful taking
over $300 when he took control over the jewelry buried with Cornett's remains . This
situation is akin to the offenses of burglary and theft. A burglary is completed when a
person unlawfully enters a building with the intent to commit a crime . 14 The burglar is
subject to separate prosecution for any additional offenses committed inside the
building, such as theft of property located in the building. 15 Thus, because theft by
unlawful taking over $300 and first-degree desecration of venerated objects contain
separate elements, Terry's conviction for violating both of those statutes does not
violate double jeopardy .
Terry's claim that he cannot be convicted of theft by unlawful taking because the
items interred with the corpse lost their status as "property' upon interment was not
argued before the trial court and is, therefore, unpreserved . And no palpable error on
this point occurred under Kentucky Rules of Criminal Procedure (RCr) 10.26 . Property
is broadly defined in the penal code as "anything of value, "'6 and it is clear that the
items taken from the casket had value . We reject Terry's argument that the items
interred with a body fall outside the purview of the theft statute because items buried
14
See, e.g., KRS 511 .020(1) .
15
See, e.g., Phillips v. Commonwealth , 679 S.W .2d 235, 236 (Ky. 1984) ("Phillips contends
that, because the intent to commit the theft was an element of burglary, the act of taking the
property was culminated when the burglary was culminated . Based upon this reasoning, he
argues that his act of receiving stolen property merged with the burglary. We disagree . It is
clear that two distinct offenses occurred here. The burglary was completed when Phillips
entered the apartment with the intent to commit a crime inside. Even if he had then and
there abandoned his activity, he would be guilty of burglary. KRS 511 .020- .040. The fact
that he stole the television set after he entered the apartment constituted a completely
separate offense-theft or receiving stolen property.").
16
KRS 514.010(6) .
with a person's remains constitute "abandoned property." Tellingly, Terry has not cited
any authority so holding, nor are we aware of any.
4. Dual Counts of Criminal Mischief.
The superseding indictment charged Terry with one count of first-degree criminal
mischief for the damage he inflicted upon the mausoleum and a separate count of first-
degree criminal mischief for the damage he inflicted upon the casket. Terry contends
that he should have been subject to conviction for only one count of criminal mischief
because the damage he inflicted to the mausoleum and to the casket was part of the
same course of conduct. We disagree .
Testimony at trial showed that the damage to the mausoleum exceeded $1,000
and that the damage to the casket exceeded $1,000 . So there is no question that
Terry's conduct met the $1,000 threshold as to both the casket and the mausoleum .
Rather, the question is whether Terry may be separately punished for damaging the
mausoleum and the casket.
Terry's argument centers around KRS 505 .020(1)(c), which provides that a
defendant may not be convicted of more than one offense that occurred during a single
course of conduct if "[t]he offense is designed to prohibit a continuing course of
conduct . . . ... We do not find that first-degree criminal mischief is designed to prevent a
continuing course of conduct. Rather, the offense of first-degree criminal mischief is
completed once the perpetrator, without the authority to do so, "intentionally or wantonly
defaces, destroys or damages any property causing pecuniary loss of $1,000 or
more." No continuing course of conduct is necessary to commit that offense . Criminal
17
KRS 512.020(1).
10
mischief is, thus, unlike the most obvious offense involving a continuing course of
conduct-nonsupport of a dependent . Each missed support payment could,
theoretically, constitute a new offense were it not for the general prohibition of
KRS 505 .020(1)(c) against multiple punishments for offenses that constitute a
continuing course of conduct. 18
Terry forced open the mausoleum thereby damaging it in excess of $1,000 . He
removed the casket from the mausoleum . He then pried the casket open, causing over
$1,000 in damage to it. So he had a "sufficient period of time" between forcing open the
mausoleum and prying open the casket to "reflect on his conduct and formulate intent to
commit another act ." 19 Indeed, Terry committed two distinct criminal acts of damage :
one to the mausoleum and one to the casket. Those separate acts can be separately
punished. After all, if we accepted Terry's argument, he would have had little incentive
to refrain from damaging the casket once he had already damaged the mausoleum . We
reject Terry's argument that he was subject to being convicted of only one count of first-
degree criminal mischief .
18
See Commentary to KRS 505.020 ("Subsection (1)(c) provides for the third exception to the
general proposition . This exception applies to offenses which seek to proscribe a continuing
course of conduct. An example would be the offense of nonsupport of a-dependant, which
is committed when a parent intentionally fails to provide support for his child when able to so
provide . With this type of offense, subsection (c) limits the number of convictions of an
offender to one unless it can be shown that: the offender's conduct was interrupted by legal
process ; or the statute defining the offense designates specific periods of time as separate
offenses . This approach places the burden on the legislature to determine the instances in
which a continuing course of conduct involves sufficient danger to be treated as multiple
offenses .").
19
Welborn v. Commonwealth , 157 S .W .3d 608, 612 (Ky. 2005) (holding that defendant's
conviction for three counts of assault for shooting a state trooper three times did not violate
KRS 505 .020(1)(c) because "[e]ach shot was preceded by a sufficient period of time in
which Welborn could reflect on his conduct and formulate intent to commit another act.") .
5. Other Double Jeopardy Issues .
Although not specifically argued by Terry, we will briefly address two additional
double jeopardy arguments . It could be argued that Terry's convictions for first-degree
desecration of venerated objects and his conviction for violating a grave impermissibly
violate double jeopardy principles. Likewise, it could be argued that Terry's convictions
for first-degree desecration of venerated objects and criminal mischief violate double
jeopardy . But we reject those contentions .
In order to violate a grave, one must "mutilate[]" a grave or the shrubbery,
grounds, etc., immediately surrounding a grave .2° By contrast, no mutilation
requirement exists in the first-degree desecration of venerated objects statute .
We must give effect to the words chosen by the General Assembly in enacting
statues ; and if the statute is clear, we are constrained to give effect to the statutes as
written .2' Thus, we must give actual effect to the General Assembly's use of the term
"mutilate."
Although the term "mutilate[]" has not been defined by the General Assembly, its
dictionary definition is "to cut up or alter radically so as to make imperfect . . . .)122 In
other words, in order to give effect to the General Assembly's decisions (1) to use the
term "mutilate[]" in the violating a grave statute, and (2) not to use "mutilate[]" in the
desecration of venerated objects statute, the requirement that a grave be mutilated for
purposes of the violating a grave statute must be construed not to be identical to the
first-degree desecration of venerated object's statutory requirement that human remains
20 KRS 525.115(1)(a).
21
See, e.g., White v. Check Holders, Inc. , 996 S.W.2d 496, 497 (Ky. 1999).
22
Merriam Webster's Collegiate Dictionary 766 (10th ed. 2002).
12
be "disinterred" or "excavated ." Accordingly, committing an act that constitutes
desecration of venerated objects does not simultaneously constitute violating a grave .
Another key distinction exists between the desecration of venerated objects
offense and the violating a grave offense . In order to commit first-degree desecration of
venerated objects, a person must "intentionally excavate[] or disinter[] human remains
for the purpose of commercial sale or exploitation of the remains themselves or of
objects buried contemporaneously with the remains."2s Clearly, the desecration of
venerated objects offense, unlike violating a grave, contains an additional element in
that it requires the actor to have a purpose of commercial gain or exploitation of the
contents of a grave.24 Thus, we reject any contention that double jeopardy bars Terry's
convictions for violating a grave and for first-degree desecration of venerated objects .
Also, because there is a $1,000 threshold monetary property damage
requirement for criminal mischief in the first degree, but no property damage
requirement for desecration of venerated objects, Terry's convictions for desecration of
venerated objects in the first degree and criminal mischief in the first degree do not
violate double jeopardy .
B . Failure to Arraign on Superseding, Indictment .
Having determined that Terry's convictions do not constitute double jeopardy, we
now turn to his contention that his convictions must be reversed because he was not
arraigned on the superseding indictment prior to trial . We must agree, in part.
23
KRS 525.105(1).
24
See Robert G . Lawson & William H . Fortune, Kentuckv Criminal Law § 16-6(b)(1) (1998)
(opining that violating graves "is similar to desecration of venerated objects in the first
degree (``grave robbing') but does not require a commercial or other exploitative purpose.").
13
As previously mentioned, the grand jury returned a superseding indictment
issued against Terry about three weeks before his scheduled jury trial . That
superseding indictment added two criminal mischief charges, and it also changed
Terry's role in the other originally charged offenses from being complicit in the
commission of those offenses to being the principal actor in the commission of the
offenses .
Under Kentucky law, "an arraignment and taking of a plea are necessary to a
valid conviction."25 Yet, the record does not reflect that Terry was arraigned on the
superseding indictment . And Terry clearly apprised the trial court of the fact that he had
not been arraigned, which properly preserved this issue for appellate review.
We utterly reject the Commonwealth's disingenuous argument that Terry did not
bring the lack of an arraignment on the superseding indictment to the trial court's
attention. Terry filed a written pretrial motion for a continuance in which he stated that
he had not been arraigned on the superseding indictment. And in his oral motion for a
continuance shortly before the trial began, Terry again reminded the trial court that he
had not been arraigned on the superseding indictment.
Since we are bound by the record presented to us, we also reject the
Commonwealth's baseless speculation that because the trial transcript reflects that a
break of indeterminate time occurred between Terry's oral motion for a continuance and
the start of voir dire that "it can only be presumed that [Terry] was arraigned out of the
presence of the court reporter between the in-chambers hearing and the beginning of
voir dire."
25
Hutson v. Commonwealth , 171 S .W.3d 743, 745 (Ky.App. 2005) .
14
Terry was convicted of criminal mischief charges of which he had never been
formally advised, and to which he had never entered a formal plea of not guilty . A
criminal conviction may not be had on a new charge in a superseding indictment to
which a defendant has not entered a formal plea, even if the new charges are based on
the same essential underlying facts as the original indictment . So Terry's criminal
mischief convictions must be vacated. A more difficult question exists as to whether the
remainder of Terry's convictions must also be vacated.
There are minor grammatical changes between the original and superseding
indictments as to the desecration of venerated objects, violating a grave, theft by
unlawful taking, and abuse of a corpse charges. But the most important change is the
fact that the original indictment charged Terry and the other named defendants with
complicity to having committed those offenses . By contrast, the superseding indictment
eliminated the co-defendants and the complicity language from the charges.
Although better practice would be for a defendant to be arraigned on all charges
in a superseding indictment, rearraignment is absolutely necessary only if the charges
in the superseding indictment are materially different than those in the original
indictment . Thus, we must determine if the changes contained in the superseding
indictment were material .
26
See 21 Am.Jur.2d Criminal Law § 592 (2007) ("Whether it is necessary to arraign the
accused and give him or her an opportunity to plead after the indictment or information has
been amended, usually depends on the materiality of the amendment. If the indictment or
information has been materially changed, the accused should not be put on trial without
rearraignment .") (footnote omitted).
15
Removing the element of complicity from the charges against Terry did not mean
that Terry was suddenly charged with a wholly new set of offenses . Consistent with
that reasoning, we have recently held that allowing the Commonwealth to amend an
indictment during trial to add complicity language to a charge did not prejudice a
defendant's substantial rights . By the same token, Terry's substantial rights must not
have been prejudiced by the removal of complicity language in the superseding
indictment . Terry was, by virtue of the original indictment, well aware of the pertinent
underlying facts relied upon by the Commonwealth . In short, Terry has not specifically
shown any prejudice that he suffered as a result of his not being arraigned on the
charges that were amended by the superseding indictment .
Under the particular facts of this case, the lack of a rearraignment on the
desecration of venerated objects, violating a grave, theft by unlawful taking, and abuse
of a corpse charges does not require reversal since Terry has not shown specific
prejudice stemming from the lack of rearraignment on those charges.
27
Commonwealth v. McKenzie , 214 S.W.3d 306, 307 (Ky. 2007) ("amending the indictment to
include an allegation that the defendant is guilty of the underlying charge by complicity does
not constitute charging an additional or different offense.").
2s
Id. at 307-08. See also Epperson v . Commonwealth , 197 S.W.3d 46, 52 (Ky. 2006) (no
unfair surprise where defendant was given adequate notice of the evidence against him but
was not given notice by the Commonwealth of the role it believed the defendant played in
the crimes).
2s
McKenzie , 214 S.W.3d at 308-09 ("In fact, [a]ppellee was on notice prior to trial that the
Commonwealth intended to present testimony alleging that [a]ppellee was, at the very least,
an accomplice in the burglary. The Commonwealth did not charge its theory of the case
mid-trial . . . and it did not allege any charges that were not substantiated by the evidence .
Rather . . . . the Commonwealth fairly informed [appellee] of its intentions and [a]ppellee was
free to have developed its strategy accordingly . . . . When these circumstances are
considered in their totality, we find that [a]ppellee suffered no unfair surprise and was not
misled as a result of the original indictment being amended at the close of the
Commonwealth's case in chief to include a charge that the underlying offense was
committed by complicity. Accordingly, the Court of Appeals' opinion must be reversed
because the substantial rights of [a]ppellee were not prejudiced in this case .") (quotation
marks omitted) .
16
C. The Fine .
At the sentencing hearing, the trial court orally stated that a $500 fine stemming
from Terry's misdemeanor abuse of a corpse conviction would be "held in abeyance"
while Terry was incarcerated . The following colloquy regarding the fine occurred at the
sentencing hearing :
Mr. Smith [for the Commonwealth] : Your Honor, what about the matter of
the five hundred dollar ($500) fine[?]
The Court: There is a five hundred dollar ($500)
fine. That will be held in abeyance. I
don't - if, in fact, there is a way for
you to make money while you are in
prison, then that can be levied upon it.
If not, you'll owe it when you get out.
The final judgment made no mention of a fine. Terry contends that since he was
found to be indigent, the trial court's purported delayed imposition of a fine is contrary
to, among other matters, KRS 534.040(4) . 30
We note in passing that Terry made no contemporaneous objection to the
purported delayed levy of the fine . Regardless, any potential preservation problem is
rendered moot by the fact that the judgment of conviction does not impose a fine.
Under our precedent, a written judgment takes precedence over any arguably contrary
oral statements made by the court. Since the written judgment contains no imposition
30
KRS 534.040(4), which governs fines for misdemeanors, provides that "[finnes required by
this section shall not be imposed upon any person determined by the court to be indigent
pursuant to KRS Chapter 31 ."
31
Commonwealth v. Taber , 941 S.W.2d 463, 464 (Ky. 1997) ('When there is an inconsistency
between oral statements of a court and an order reduced to writing, the latter must prevail.");
Commonwealth v. Hicks , 869 S.W.2d 35, 38 (Ky. 1994) ("And where there is an
inconsistency between the oral statements of a court and that which is reduced to writing as
the court's final judgment, the latter shall prevail and the former shall be disregarded. Such
a construction is essential to the operation of the Court of Justice for judges often voice
views and opinions which may be inconsistent with their final judgments . If this Court should
17
of a fine, we need not decide whether the trial court's purported oral statement
regarding the imposition of a fine to be "held in abeyance" was error.
III . CONCLUSION.
For the foregoing reasons, . Terry's convictions for criminal mischief in the first
degree are vacated and remanded to the trial court for proceedings consistent with this
opinion . Terry's convictions for desecration of venerated objects in the first degree,
violating a grave, theft by unlawful taking over $300, and abuse of a corpse are
affirmed .
All sitting, except Noble, J. Abramson, Cunningham, Minton, and Scott, JJ .,
concur . Lambert, C.J ., concurs in part and dissents in part by separate opinion in which
Schroder, J ., joins.
announce a rule whereby the comments of a trial judge could be used to impeach the effect
of a court's final judgment, the result would be the destruction of any certainty as to the
effect of judgments and a state of chaos in judicial proceedings .").
18
COUNSEL FOR APPELLANT :
Irvin Halbleib, Jr .
P. 0. Box 16175
Louisville, KY 40256
COUNSEL FOR APPELLEE:
Gregory D. Stumbo
Attorney General of Kentucky
James C. Shackleford
Assistant Attorney General
Office of Criminal Appeals
1024 Capital Center Drive
Frankfort, KY 40601
RENDERED : DECEMBER 20, 2007
TO BE PUBLISHED
uprt (9ourf of Arttfurkg
2005-SC-000749-MR
ROBERT (BOB) TERRY APPELLANT
ON APPEAL FROM OWSLEY CIRCUIT COURT
V. HONORABLE JEFFREY D . CHOATE, JUDGE
NO. 04-CR-00036-001
COMMONWEALTH OF KENTUCKY APPELLEE
OPINION BY CHIEF JUSTICE LAMBERT DISSENTING IN PART
Appellant, Robert Terry, was convicted of five felony offenses and one
misdemeanor offense for breaking into a tomb, disturbing human remains, and stealing
objects interred with the remains . On appeal to this Court, he raised several claims of
error, including claims of double jeopardy . Because I believe Appellant was convicted
of multiple, functionally identical offenses for the same despicable act, I must conclude
that some of his convictions violated his right to be free of double jeopardy .
On March 19, 2004, Johnny Logsdon, the Chief of Police of Booneville, drove
through a local cemetery looking for truant children . While there, he discovered a
casket lying outside of a small mausoleum that had been forced open . Chief Logsdon
stopped to investigate, and found that the casket which contained the remains of Peggy
Cornett had been opened and her body disturbed . It was determined that several items
of jewelry that had been interred with the deceased were missing . One of the
deceased's hands and a finger from the other hand were also missing .
The ensuing police investigation quickly led to Appellant as a suspect. Two
people who testified at trial told the police that Appellant had approached them about
buying some jewelry he intended to take from a grave in the cemetery. The police
recovered a necklace that had been entombed with the deceased from a pawnshop in
Winchester. Appellant's name was on the pawn ticket, and a security video from the
pawn shop showed Appellant completing the transaction . The police obtained a search
warrant for Appellant's home where a watch, bracelet, and rings from the tomb were
discovered . When the police arrested Appellant, he slipped the wedding band that had
been taken from the tomb to his girlfriend, and she hid the ring while she was being
questioned by police. The ring was later recovered .
In May 2004, Appellant, his girlfriend, and three others were indicted on four
criminal counts: first-degree complicity in the desecration of venerated objects,
complicity in violating a grave, complicity in theft by unlawful taking over $300, and
complicity in the abuse of a corpse. Remarkably, the foreman of the grand jury that
returned the indictments was Ova Cornett, Jr ., the son of the deceased woman whose
grave had been plundered .'
After the indictment, Mr. Cornett continued his involvement in the case . He sent
the trial judge multiple letters that were included in the record . In one letter, he
chastised the judge for releasing one of the co-defendants for surgery; in another, he
asked that Appellant's bond, which had been reduced from $50,000 cash to $20,000
cash, be increased . The trial judge eventually recused himself from the case, and a
special judge was assigned to preside .
' No issue was raised on appeal regarding this fact.
2
Mr. Cornett persisted with his involvement by filing a pro se motion asking for the
removal of the prosecutor, alleging lax prosecution . The special judge assigned to the
case heard argument from the attorneys about Mr. Cornett's motions . The
Commonwealth's attorney decided to disqualify himself, thus rendering moot any
discussion of the merits of the motion . However, the judge and attorneys discussed the
propriety of the filings themselves, as Mr. Cornett was not a party to the proceeding and
appeared to be attempting to practice law without a license . The judge barred Mr.
Cornett from filing any further motions and stated that he would refer Mr. Cornett to the
state bar for investigation .
The Commonwealth's Attorney in neighboring Madison County, was assigned as
the special prosecutor. He obtained a superseding indictment of Appellant. The
superseding indictment alleged that Appellant was the actor in the criminal acts, rather
than an accomplice, and two new felony charges of first-degree criminal mischief for the
damage done to the mausoleum and to the casket were added. Though not relevant to
the issues in the case, a subpoena issued prior to trial to Ova Cornett, Sr. (the widower
of the deceased) by the special prosecutor was styled, "Commonwealth of Kentucky v.
Robert (Bob) (The most inhuman that ever lived) Terry."
Appellant was convicted of all six charges brought against him and punishment
was recommended by the jury as follows: five years each on the two criminal mischief
counts; eight years for the desecration of venerated objects count; five years for the
violating a grave count ; five years for the theft count ; and twelve months and a $500 fine
for the abuse of a corpse count. Appellant was sentenced to a total of twenty years, the
maximum allowable sentence since the highest charge was a Class C felony. The court
stated orally that it was holding the fine in abeyance for future levy, though such was not
included in the judgment.
1. Double Jeopardy
Appellant makes multiple claims of double jeopardy violations . The specific
double jeopardy question presented by Appellant requires an application of the
Blockburger test: "The applicable rule is that, where the same act or transaction
constitutes a violation of two distinct statutory provisions, the test to be applied to
determine whether there are two offenses or only one is whether each provision
requires proof of an additional fact which the other does not." Blockburger v. United
States, 284 U .S. 299, 304, 52 S .Ct. 180, 182, 76 L.Ed . 306 (1932) . The Blockburger
test is codified in Kentucky law at KRS 505.020 .
A. First-Degree Criminal Mischief and,Violating Graves
Criminal mischief in the first degree is denounced in KRS 512.020(1) : "A person
is guilty of criminal mischief in the first degree when, having no right to do so or any
reasonable ground to believe that he has such right, he intentionally or wantonly
defaces, destroys or damages any property causing pecuniary loss of $1,000 or more."
The basic element of the crime, indeed of all degrees of criminal mischief, is intentional
or wanton damage to property . The' statute makes no distinction among types or kinds
of property . First-degree criminal mischief is a Class D felony . KRS 512.020(2).
Violating graves is denounced in KRS 525.115(1) and (2), as follows :
(1) A person is guilty of violating graves when he intentionally:
2 The only difference between the three degrees of criminal mischief is the
amount of damage to the property. First degree requires that the property damage
equal a "pecuniary loss of $1,000 or more," KRS 512.020; second-degree requires that
the property damage equal a "pecuniary loss of $500 or more," KRS 512.030 ; and third-
degree has no pecuniary loss requirement .
4
(a) Mutilates the graves, monuments, fences, shrubbery,
ornaments, grounds, or buildings in or enclosing any cemetery or
place of sepulture ; or
(b) Violates the grave of any person by destroying, removing, or
damaging the headstone or footstone, or the tomb over the
enclosure protecting any grave; or
(c) Digs into or plows over or removes any ornament, shrubbery, or
flower placed upon any grave or lot.
(2) The provisions of subsection (1) of this section shall not apply to
ordinary maintenance and care of a cemetery nor the removal and
relocation of graves pursuant to procedures authorized by and in
accordance with applicable statutes .
This statute is specific in providing punishment for one who intentionally damages or
destroys part of a grave, tomb, or cemetery.
These crimes, criminal mischief and violating graves, require the same basic
element: intentional damage or destruction of property, but violating graves is specific to
places of burial. It applies only where the damage is to certain types of property,
namely, that related to burial grounds . Unlike criminal mischief which applies generally
and provides for punishment according to pecuniary damage, violating graves is a Class
D felony for every such violation without regard to value.
The fact that the two statutes essentially describe the same crime, and in this
case, provide for the same punishment is an oddity in double jeopardy jurisprudence .
In fact, it could be argued that a person who damages a grave simply does not commit
criminal mischief and therefore could not be convicted of that crime . However, we have
no doubt of the reason for the violating graves statute . The General Assembly believed
that places of burial should be given specific protection and that the crime should be a
felony without regard to pecuniary loss. From the statutory scheme I do not believe the
3 See Rutledge v. United States , 517 U .S . 292, 297,116 S .Ct. 1241, 1245, 134
L.Ed .2d 419 (1996) ("[Two different statutes define the ``same offense,' typically
because one is a lesser included offense of the other.") .
5
General Assembly intended to punish the same act twice, and therefore must conclude
that the more general conviction of criminal mischief must give way to the more
specific. The U .S. Court of Appeals for the First Circuit has recognized that Blockburger
is not all-encompassing ; that it represents a default rule of law where legislative intent is
not otherwise clear. In this case enactment of the violating graves statute manifests
legislative intent with respect to punishment of the act. As Appellant was convicted of
violating a grave, he cannot also be convicted of first-degree criminal mischief for
damage to the mausoleum and of first-degree criminal mischief for damage to the
casket.
B. Violating Graves and First-Degree Desecration of Venerated Objects
Our previous determination, however, does not resolve the entirety of Appellant's
conviction for violating graves. Appellant was also convicted of first-Degree
Desecration of Venerated Objects . That statute, KRS 525.105(1) is as follows : "A
person is guilty of desecration of venerated objects in the first degree when, other than
authorized by law, he intentionally excavates or disinters human remains for the
4 United States v. Patel, 370 F.3d 108, 114 (1 St Cir. 2004)(" The limited effect of
the Double Jeopardy Clause on multiple punishment claims derives from ``the principle
that the power to define criminal offenses and prescribe punishments . .. belongs solely
to the legislature .' As a result, if the legislature decides to impose multiple punishments
for the same offense, it may do so . Thus, determining the permissibility of imposing
multiple punishments for one course of conduct is a matter of discerning the
legislature's intent.
Often, however, this intent will not be apparent. In such cases, the Blockburger
test is employed to determine whether the legislature intended to authorize multiple
punishments. Under Blockburger , 'where the same act or transaction constitutes a
violation of two (or more) distinct statutory provisions, the test to be applied to determine
whether there are two (or more) offenses or only one is whether each provision requires
proof of an additional fact which the other does not.' It must be emphasized, however,
that for multiple punishment claims, Blockburger merely provides a default rule of
statutory construction and should be employed only in the absence of a clear indication
of legislative intent. (Internal citations omitted .)")
Purpose of commercial sale or exploitation of the remains themselves or of objects
buried contemporaneously with the remains." This crime is a Class C felony . KRS
525.105(2). The elements of first-degree desecration of venerated objects are (1)
excavation or disinterment of human remains, (2) where the disinterment or excavation
is done for the purpose of commercial sale or exploitation of the remains or objects
buried with the remains.
Though the elements of first-degree desecration of venerated objects (KRS
525 .105) appear superficially different than the elements of violating a grave (KRS
525.115), the former includes the latter. The digging up or disinterment of human
remains, as required for a violation of KRS 525 .105 necessarily requires damaging or
destroying a grave or tomb, the fundamental act required for a violation of KRS
525 .115. First-degree desecration of a venerated object, the higher charge (a Class C
felony), requires the added element of causing the damage for the purpose of
commercial exploitation . Commission of an act that would constitute desecration of
venerated objects would of necessity amount to violating graves. In a proper case, if
the trier of fact was unconvinced that the purpose of the act was commercial
exploitation, but believed the evidence of mutilation, guilt of violating graves would be
an appropriate verdict . As such, violating graves is a lesser-included offense of first-
degree desecration of venerated objects, and under the Blockburaer test, a defendant
cannot be convicted of both crimes for the same act.
A similar conclusion would follow with respect to criminal mischief. Conduct that
would amount to desecration of venerated objects would also include conduct that
would constitute ordinary criminal mischief, the difference being that desecration of
venerated objects must include disturbance of a burial place and be for the purpose of
commercial sale or exploitation .
C. First-Degree Desecration of Venerated Objects and Theft by Unlawful Taking
Theft by unlawful taking requires that a defendant "[flake [or exercise] control
over movable property of another with intent to deprive him thereof . . . ." KRS 514.020.
Appellant argues that objects buried with a body lose their character as property, as
contemplated by the theft statute because KRS 525.105 converts the property into
"venerated objects." He also argues that a person cannot be convicted of desecration
and theft of the same object . The first argument is simply incorrect, and the second is
based on a misunderstanding of the act prohibited by the desecration statute .
The desecration statute does not alter the character of an object interred with a
body, nor are such objects abandoned and rendered "there for the taking", as Appellant
implies. Objects interred with human remains belong to the estate of the decedent or to
the decedent's successor in interest, or perhaps to the original owner. Such objects are
neither abandoned property, nor do they cease to be "property" within the purview of
theft statutes .
The criminal act described by the desecration statute is excavation or
disinterment of human remains with the intent to commercially exploit the remains or
objects buried with them. Violation of this statute does not require that objects buried
with the remains be destroyed, damaged, or taken . The crime is completed upon the
excavation or disinterment with the requisite intent. Thereafter, the act of taking the
human remains or objects buried with the remains constitutes the separate crime of
theft by unlawful taking . Application of these statutes is analogous to the crimes of
burglary and theft. The crime of burglary is complete upon unlawful entry accompanied
by the intent to commit a crime . Theft of property or other criminal acts that occur
thereafter may be separately prosecuted. Therefore, Appellant's convictions for first-
degree desecration of venerated objects and theft by unlawful taking do not violate
double jeopardy principles .
As explained hereinabove, I believe Appellant's convictions for two counts of
criminal mischief and one count of violating graves were obtained in violation of double
jeopardy principles . These convictions should be vacated and dismissed . Appellant's
convictions for desecration of venerated objects and theft by unlawful taking should be
affirmed .
Schroder, J., joins this opinion dissenting in part.
5 Campbell v. Commonwealth , 732 S.W.2d 878 (Ky. 1987).
9
~*Uyrrmr C~Vurf of ~irufurhv
2005-SC-000749-MR
ROBERT (BOB) TERRY APPELLANT
ON APPEAL FROM OWSLEY CIRCUIT COURT
V. HONORABLE DENNIS JEFFREY CHOATE, JUDGE
NO . 04-CR-00036-001
COMMONWEALTH OF KENTUCKY APPELLEE
ORDER MODIFYING MEMORANDUM OPINION
OF THE COU RT, RENDERED DECEMBER 20, 2007
On the Court's own motion, the Memorandum Opinion of the Court,
rendered December 20, 2007, is MODIFIED on its face ; and the attached page 1
of the opinion is substituted for the original page 1 . The modification does not
affect the holding of the case .
ENTERED : June 13, 2008 .
ZZ
o vuyrtmt Caixrf of ~6ufurhv
2005-SC-000749-MR
ROBERT(BOB)TERRY APPELLANT
ON APPEAL FROM OWSLEY CIRCUIT COURT
v HONORABLE DENNIS JEFFREY CHOATE, JUDGE
NO. 04-CR-00036-001
COMMONWEALTH OF KENTUCKY APPELLEE
ORDER OF CORRECTION
On the Court's own motion, the Memorandum Opinion of the Court,
rendered December 20, 2007, and modified June 13, 2008, is CORRECTED on
its face; and the attached pages 1 and 18 of the opinion are substituted for the
original pages 1 and 18. Said correction does not affect the holding of the case.
ENTERED: August 26, 2008 .
F JUSTICE JOHN D . MINT