Opinion
NO. 2012-CA-000622-MR
06-14-2013
JEREMY RUSSELL BREWER APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Brandon Neil Jewell Assistant Public Advocate Department of Public Advocacy Frankfort, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky J. Hays Lawson Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED
APPEAL FROM FAYETTE CIRCUIT COURT
HONORABLE JAMES D. ISHMAEL, JR., JUDGE
ACTION NO. 11-CR-00622
OPINION
AFFIRMING
BEFORE: CAPERTON, MOORE, AND NICKELL, JUDGES. MOORE, JUDGE: Appellant, Jeremy Russell Brewer, appeals from a conditional guilty plea to fourth-degree assault, domestic violence, third or greater offense within five years. The sole issue on appeal is whether the trial court erred by ruling that evidence of Brewer's prior convictions of fourth-degree assault and the surrounding circumstances was admissible during the guilt phase of the trial. We affirm.
The Fayette County Grand Jury indicted Brewer on one count of fourth-degree assault, domestic violence, third or greater offense within five years, a Class D felony. The Commonwealth filed a motion in Fayette Circuit Court to permit the introduction of evidence of Brewer's prior fourth-degree assault convictions and the surrounding circumstances as well as evidence of uncharged crimes and Brewer's drug activity. Following a hearing, the trial court ruled that the evidence of prior convictions and the surrounding circumstances was admissible during the guilt phase of the trial and that the evidence of uncharged crimes and drug activity was inadmissible. Subsequently, Brewer entered a conditional guilty plea to fourth-degree assault, domestic violence, third or greater offense within five years. Brewer reserved the right to appeal the trial court's ruling on the admissibility of the prior convictions and surrounding circumstances. The trial court accepted the conditional guilty plea and sentenced Brewer to two and one-half (2½) years of imprisonment probated for five years with certain conditions. This appeal followed.
Brewer argues that the trial court erred by admitting the evidence of his prior convictions and the surrounding circumstances during the guilt phase of the trial. He further argues that such evidence is only admissible during the penalty phase because the prior convictions requirement of KRS 508.032 operates as a sentencing enhancement rather than an element of a separate offense. We disagree.
Kentucky Revised Statutes (KRS) 508.032 states:
(1) If a person commits a third or subsequent offense of assault in the fourth degree under KRS 508.030 within five (5) years, and the relationship between the perpetrator and the victim in each of the offenses meets the definition of family member or member of an unmarried couple, as defined in KRS 403.720, then the person may be convicted of a Class D felony. If the Commonwealth desires to utilize the provisions of this section, the Commonwealth shall indict the defendant and the case shall be tried in the Circuit Court as a felony case. The jury, or judge if the trial is without a jury, may decline to assess a felony penalty in a case under this section and may convict the defendant of a misdemeanor. The victim in the second or subsequent offense is not required to be the same person who was assaulted in the prior offenses in order for the provisions of this section to apply.In Lisle v. Commonwealth, 290 S.W.3d 675, 679 (Ky.App. 2009), this Court held that prior convictions of fourth-degree assault was an essential element of KRS 508.032 rather than a sentencing enhancement factor. This Court stated:
(2) In determining the five (5) year period under this section, the period shall be measured from the dates on which the offenses occurred for which the judgments of conviction were entered by a court of competent jurisdiction.
We are persuaded by the approach that a prior conviction for family violence is an essential element of the felony assault offense. While the analogous statute KRS 189A.010(5) (the "DUI statute") is viewed as merely an enhancement statute, it does not require any additional proof beyond the existence of prior DUI convictions. See, e.g., Commonwealth v. Duncan, 939 S.W.2d 336
(Ky. 1997); Commonwealth v. Ramsey, 920 S.W.2d 526, 528 (Ky. 1996). In addition to the elements necessary to prove fourth-degree assault, KRS 508.032 requires: (1) proof of prior conviction(s); (2) proof that the prior conviction(s) occurred within the past five years; and (3) proof that the prior victim(s) were a family member or member of an unmarried couple. We are further guided by the fact that an action under KRS 508.032 originates in the circuit court as a felony offense, whereas violations of KRS 508.030 originate in the district court. A separate element, other than the prior conviction, is required under KRS 508.032: proof of the identity of the victim and the nature of the relationship between the perpetrator and the victim.
Id.
The cases cited by Brewer are misplaced because they involve sentencing enhancements rather than elements of a separate offense. Lisle is directly on point. The introduction of evidence of prior convictions and the nature of the relationship between the perpetrator and victim was not only permissible, but required to obtain a conviction under KRS 508.032. Id. The trial court properly ruled that evidence of prior convictions of fourth-degree assault and the surrounding circumstances were admissible under Lisle.
Accordingly, the judgment of the Fayette Circuit Court is affirmed.
ALL CONCUR. BRIEFS FOR APPELLANT: Brandon Neil Jewell
Assistant Public Advocate
Department of Public Advocacy
Frankfort, Kentucky
BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky
J. Hays Lawson
Assistant Attorney General
Frankfort, Kentucky