Opinion
NO. 2014-CA-000261-MR
03-11-2016
ZLATKO SKULJAN APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Kenneth R. Haggard Charles R. Haggard Hopkinsville, Kentucky BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Matthew R. Krygiel Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM CHRISTIAN CIRCUIT COURT
HONORABLE ANDREW SELF, JUDGE
ACTION NO. 13-CR-00255 OPINION
AFFIRMING BEFORE: ACREE, CHIEF JUDGE; STUMBO AND TAYLOR, JUDGES. ACREE, CHIEF JUDGE: Zlatko Skuljan appeals the January 17, 2014 judgment of the Christian Circuit Court entered upon a jury verdict convicting him of obstructing governmental operations, but acquitting him of second-degree terroristic threatening. Skuljan argues that he was entitled to a directed verdict on the obstruction charge. We disagree and affirm.
Hopkinsville Community College in conjunction with the Hopkinsville Police Department and Jennie Stuart Medical Center organized a multi-agency joint training "active shooter" exercise to take place on May 1, 2013. An actor was hired to portray the active shooter. The first leg of the drill was to occur on the College's campus, and the second at the medical center. The College went to great lengths to inform students of the training exercise. Professors and other College personnel notified students of the drill as early as January 2013. Additionally, the College spread the word through e-mail notifications, text messages, a press release, and a radio announcement. Students were not required to participate, but individuals who remained on campus once the drill commenced would be required to follow emergency procedures and instructions.
Skuljan was once a student at the College. He suspended his education a few days before the planned drill. He was aware of the training exercise. A former classmate testified Skuljan had declared the drill "stupid" and a "waste of time," stated he would not be participating, and indicated he thought the drill was designed simply to make the police and College look good.
On the morning of the exercise, Skuljan entered the College's library wearing a camouflage jacket, sunglasses, cover-alls, and military-style boots. An administrative assistant, Tina Spak, noticed Skuljan and thought him suspicious. One witness testified Skuljan repeatedly raised and lowered his hood. He was not carrying a backpack or books. The library is open to non-students and the public.
While inside, Skuljan utilized an available computer to print off paperwork and spoke to at least two individuals. The first was a staff member who reminded Skuljan of the training exercise. The second, Thomas Whitlock, was using a library computer to access the internet. Whitlock did not know Skuljan. Catching Whitlock by surprise, Skuljan approached Whitlock, leaned over the computer, and told him that if someone came onto campus with a gun, he would shoot that person first. Whitlock testified to his belief that Skuljan's statement was related to the training exercise. The comment caught Whitlock off-guard and made him feel uneasy. Whitlock thought it was a strange thing to say to a total stranger. Whitlock initially took Skuljan to be a simple braggart, but a short time later notified a College employee of the incident.
After speaking with Whitlock, Skuljan left the library and sat at a table directly outside the library's entrance. There, Skuljan hailed a passing College student, Shelton Moore. Moore was unacquainted with Skuljan. According to Moore's testimony, Skuljan said he intended not to participate in the drill and, if Moore were similarly inclined, he should not enter the library. Moore said Skuljan questioned why the exercise was not taking place at an empty middle school. Skuljan stated he had had several run-ins with police officers, and that he knew more than the police. Moore testified that Skuljan claimed he would shoot anyone who came onto campus shooting because he would not go out like a coward. Skuljan also stated to Moore that the police would likely show up 10 to 12 minutes too late and by that time he would be waiting at the Purple Cat Café. Moore described Skuljan as talkative and antsy. Moore notified a College employee of Skuljan's statements.
Meanwhile, two female students were conversing outside the library. Skuljan, familiar with the students, approached and reminded them that they did not have to participate in the exercise. He said: "They can't make us do anything"; "We don't have to participate in these drills"; and "Say 'no' to the man." One student described Skuljan as fidgety, frantic, "worked up about something," talking to himself, and gesturing with his hands. Skuljan walked off and the students left. Skuljan never threatened the female students or anyone else.
The drill began and Hopkinsville Police Officer Mark Goforth, who was participating in the training, arrived on campus. He was tasked with establishing an exterior observation perimeter on campus. As Officer Goforth was setting up his position, Skuljan approached him. Skuljan criticized police procedure, asked how long the exercise would last, and departed. Skuljan made no threats and used no physical force to interfere.
In the meantime, College personnel gathered the statements Skuljan had made to Moore, Whitlock, and the female students, and reported them to the administrative assistant who earlier noticed Skuljan, Tina Spak. Concerned, Spak informed John Braun, the Director of Safety and Security, who was almost finished with his rounds of going from building to building to meet with official drill observers and obtaining their reports. Braun was told that Skuljan said that he would shoot in the face anyone who came through a door near him with a gun. Braun estimated there were at least thirty armed individuals on campus that day. Braun notified police. Officer Goforth testified that officers were waiting at the rally point to de-brief when they were told to respond back to the College. An extensive investigation ensued.
On May 24, 2013, Skuljan was indicted on charges of second-degree terroristic threatening and obstructing governmental operations. A jury trial was held in January 2014. The jury found him guilty only of the obstruction charge and fined him $500.00. The circuit court entered a judgment consistent with the jury's verdict, and denied Skuljan's post-trial motion for judgment of acquittal. This appeal followed.
To convict Skuljan of obstructing governmental operations, the Commonwealth was required to prove that he: (1) intentionally; (2) obstructed, impaired, or hindered; (3) the performance of a governmental function; (4) by using or threatening to use violence, force, or physical interference. KRS 519.020. The crime "protects all governmental functions from unlawful interference but is limited to intentional obstruction accomplished by some form of physical interference" or the threat of physical interference, violence, or force. Id., 1974 Kentucky Crime Commission/LRC Commentary. Skuljan's only claim of error is that he was entitled to a directed verdict on this offense.
At the close of the Commonwealth's case, Skuljan requested a directed verdict. His directed-verdict motion was grounded on the premise that there was no evidence from which a reasonable juror could find that Skuljan intentionally interfered with a governmental function through threat of force, violence, or other physical inference. The trial court denied Skuljan's motion, finding a reasonable juror could infer from the evidence that Skuljan's repeated threat to use physical force and a firearm during a governmental exercise was intended to disrupt that exercise. Again, at the close of all evidence, Skuljan renewed his motion for a directed verdict. Again, it was denied.
A motion for a directed verdict tests the sufficiency of the evidence. See Mitchell v. Commonwealth, 231 S.W.3d 809, 811 n.2 (Ky. App. 2007); Leslie County v. Hart, 232 Ky. 24, 22 S.W.2d 278, 279 (1929). "On appellate review, the test of a directed verdict is, if under the evidence as a whole, it would be clearly unreasonable for a jury to find guilt, only then the defendant is entitled to a directed verdict of acquittal." Commonwealth v. Benham, 816 S.W.2d 186, 187 (Ky. 1991). "All evidence which favors the prevailing party must be taken as true and the reviewing court is not at liberty to determine credibility or the weight which should be given to the evidence, these being functions reserved to the trier of fact." Lewis v. Bledsoe Surface Min. Co., 798 S.W.2d 459, 461-62 (Ky. 1990) (citations omitted). Furthermore, "[t]he prevailing party is entitled to all reasonable inferences which may be drawn from the evidence." Id. at 462.
Skuljan asserts it was "clearly unreasonable" for the jury to find him guilty of obstructing governmental operations because the Commonwealth exhibited no evidence that: (a) Skuljan intentionally interfered with a governmental operation, and (b) his statements actually constituted a threat of physical violence. As a result, Skuljan argues, the Commonwealth failed to prove every element of the offense, specifically the first and fourth elements, beyond a reasonable doubt, necessitating a directed verdict in Skuljan's favor.
"A person acts intentionally . . . when his conscious objective is to cause that result or to engage in that conduct." KRS 501.020. There was sufficient circumstantial evidence presented at trial from which a reasonable juror could conclude that Skuljan intentionally sought to obstruct, impair, or hinder the College's active-shooter training exercise. Skuljan had expressed disdain for the drill and its coordinators to other students prior to May 1. Despite expressing his intention not to participate in the drill, he arrived on campus shortly before the drill commenced. While he certainly had a right to be on campus, there was nothing preventing his departure once he concluded his task at the library. But he did not.
Remaining on campus, he approached persons unknown to him to malign the training exercise, criticize the police, and make express threats of force, violence, and physical interference with the planned exercise. He encouraged others to avoid the exercise and appeared frantic, fidgety, and worked up when discussing the drill. Drawing all reasonable inferences in favor of the Commonwealth, we cannot state as a matter of law that it was unreasonable for these jurors to conclude that Skuljan intended to interfere with a government operation. See Graves v. Commonwealth, 17 S.W.3d 858, 862 (Ky. 2000) ("Conviction can be premised on circumstantial evidence of such nature that, based on the whole case, it would not be clearly unreasonable for a jury to find guilt beyond a reasonable doubt.").
Skuljan's second point is that his alleged "threats" of force were not threats at all. He claims his statements to Whitlock and Moore - to shoot armed persons coming through doorways - were couched in hypothetical terms. This claim is refuted by the facts. It is a fact that Skuljan knew of the exercise. It is a fact that Skuljan knew an actor carrying a weapon would be on campus going through multiple doorways, portraying an active shooter, and that multiple armed officers would be going through multiple doorways in pursuit. Far from a hypothetical; it was a certainty that the activity Skuljan claimed he would terminate with a bullet would be occurring that day on campus. Considering the evidence in a light most favorable to the Commonwealth, it is possible for a reasonable juror, viewing the evidence as a whole, to construe Skuljan's statements as credible threats of force, violence, or physical interference, eventually conveyed to government officials conducting the drill.
We appreciate Skuljan's view that, on this same evidence, an acquittal would not have been unreasonable. But that is not the standard. Again, we may only cast aside the jury's verdict if it was "clearly unreasonable" under the evidence as a whole for the jury to find guilt. We cannot say it was.
Accordingly, we affirm the Christian Circuit Court's January 17, 2014 judgment finding Skuljan guilty of obstructing governmental operations.
STUMBO, JUDGE, CONCURS.
TAYLOR, JUDGE, DISSENTS AND DOES NOT FILE SEPARATE OPINION. BRIEFS FOR APPELLANT: Kenneth R. Haggard
Charles R. Haggard
Hopkinsville, Kentucky BRIEF FOR APPELLEE: Jack Conway
Attorney General of Kentucky Matthew R. Krygiel
Assistant Attorney General
Frankfort, Kentucky