Commonwealth v. Cross , 1988 Ky. App. LEXIS 202 ( 1988 )

GUDGEL, Judge,

concurring by separate opinion.

I concur in the result but choose to express my views separately. KRS 513.010, as originally enacted in 1974, defined a “building” for purposes of the arson statutes as including, in addition to the ordinary meaning, the following property:

... structure, vehicle, watercraft or aircraft:

(a) Where any person lives; or

(b) Where people assemble for purposes of business, government, education, religion, entertainment or public transportation; or

(c) Which is used for overnight accommodation of persons.

In 1982, the legislature amended this definitional statute to provide as follows:

“Building,” in addition to its ordinary meaning, specifically includes any dwelling, hotel, commercial structure, automobile, truck, watercraft, aircraft, trailer, sleeping car, railroad car, or other structure or vehicle, or any structure with a valid certificate of occupancy.

The amended statute expanded the types of vehicles qualifying as “buildings” for purposes of the arson statutes by deleting the requirement that any such vehicle be used as a residence, meeting place or for overnight accommodation. Moreover, the legislature simultaneously amended KRS 513.-030 to provide, for the first time, that a person who starts a fire with the intent to destroy a “building” in order to collect insurance proceeds is guilty of arson in the second degree.

It is clear that the legislature, by enacting the unambiguous 1982 amendments to KRS 513.010 and KRS 513.030, intended to render appellant’s admitted conduct a class B felony rather than a misdemeanor. See KRS 513.060. There is simply no other reasonable explanation for the enactment of the amendments. It follows, therefore, that the court erred by dismissing the indictment in this case.