JEFF OWENS V. COMMONWEALTH OF KENTUCKY

In early April 2016, Owens was discovered inside Lola Baker’s

outbuilding with papers in his hands and pockets and papers scattered on the

ground. Ms. Baker’s brother Rocky and son Corey McCullough found him.

Rocky Baker noticed Owens outside his sister’s residence entering the

outbuilding in the backyard. He woke his nephew, McCullough, who went

outside to confront Owens. McCullough asked Owens what he was doing in

the outbuilding, and Owens muttered that he was trying to keep warm.

McCullough then restrained Owens until police arrived.

Following Owens’s arrest, the court appointed him a public defender.

The Department of Public Advocacy has represented Owens throughout the

trial and appellate process. At trial, Owens testified that he had no place to

sleep on the night in question, and he was trying to keep warm and looking for

papers to bum to keep his fire going—which he had built outside his sister’s

house next door to the Bakers. He further testified that the previous tenant of

the Baker residence, Chris Earl, who—unbeknownst to Owens—had moved out

2 Kentucky Revised Statutes.

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a little over a month earlier, had let him stay in the outbuilding when he had

no other place to stay. At the end of the trial, a jury convicted Owens of the

aforementioned charges, and he was sentenced to twenty-years’ imprisonment,

$186 in court costs, and a fine of $250 for the disorderly conduct

misdemeanor. This appeal followed.

II. Standard of Review.

At trial, the court denied both of Owens’s motions for directed verdict.

“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). Owens’s other claims of error are

unpreserved, but he requests palpable error review. RCr3 10.26. An error is

palpable if “it is clear or plain under current law).]” Commonwealth v. Jones,

283 S.W.3d 665, 668 (Ky. 2009). However, even a palpable error does not

justify relief unless the error is both prejudicial and results in manifest

injustice; “unless, in other words, the error so seriously affected the fairness,

integrity, or public reputation of the proceeding as to be ‘shocking or

jurisprudentially intolerable.”’ Id. (quoting Martin v. Commonwealth, 207

S.W.3d 1, 4 (Ky. 2006)).

3 Kentucky Rules of Criminal Procedure.

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III. Analysis.

A. Denial of Directed Verdict Motions.

After the Commonwealth’s case-in-chief and at the conclusion of trial,

Owens moved for a directed verdict. The court denied both motions. Owens

argues that the court should have directed a verdict in his favor because the

Commonwealth failed to prove the elements of third-degree burglary. KRS

511.040. More precisely, Owens argues that the Commonwealth failed to prove

that he entered Ms. Baker’s outbuilding with the intent to commit a crime and

that he knew he did not have permission to be in the outbuilding. KRS

511.040 states that “[a] person is guilty of burglary in the third degree when,

with the intent to commit a crime, he knowingly enters or remains unlawfully

in a building.”

The evidence showed that Owens broke into the locked outbuilding in

order to get out of the cold and to find paper to rekindle his fire. The papers

inside the outbuilding did not belong to him, and he intended on removing

them from the outbuilding which would constitute theft—a crime.

Furthermore, a jury could have reasonably inferred that Owens knew he did

not have permission to be in the outbuilding as Chris Earl no longer lived there

and had not for over a month; the door was locked; and Owens tried to run

when Corey McCullough confronted him. Given this evidence, the trial court

did not err by denying Owens’s directed verdict motions.

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B. Court Costs and Fines.

This issue is unpreserved but arose at Owens’s sentencing when the trial

court imposed $186 in court costs and a $250 fine. Regarding court costs,

KRS 23A.205(2) “mandates the imposition of court costs on a convicted

defendant, ^unless the court finds that the defendant is a poor person defined

by KRS 453.190(2) and that he or she is unable to pay court costs and will be

unable to pay the court costs in the foreseeable future.’” Hall v.

Commonwealth, 551 S.W.3d 7, 21 (Ky. 2018) (quoting KRS 23A.205(2)).

However, the onus is “on the part of a defendant to raise and show poverty

status.” Id. at 23. Here, Owens did not raise the issue of his poverty status at

sentencing, and this Court has previously held that representation by a public

defender is not a proxy for poor person status under KRS 23A.205(2). See id.

at 22 (citing Spicer v. Commonwealth, 442 S.W.3d 26, 35 (Ky. 2014)). Thus, we

affirm the trial court’s imposition of court costs upon Owens.

Conversely, our previous holding in Hall dictates that we must reverse

the $250 misdemeanor fine imposed upon Owens. Id. at 21.

KRS 534.040(4) states, “Fines required by this section shall not be imposed upon any person determined by the court to be indigent pursuant to KRS Chapter 31.” If a defendant is provided court- appointed counsel, the Court “may assume the trial court determined that he was an indigent person.” Because appointed counsel represented Hall throughout the proceedings, we may assume, and the Commonwealth concedes, that the trial court improperly imposed a fine in violation of KRS 534.040(4).

Id. (footnote omitted). Following Hall, the Commonwealth concedes that the

misdemeanor fine was improperly imposed as Owens was represented by a

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public defender throughout the proceedings below. Therefore, we vacate the

judgment insofar as it imposes a $250 misdemeanor fine under KRS 534.040.

For the foregoing reasons, this Court vacates the portion of the judgment

imposing the $250 fine upon Owens and affirms the remainder of the trial

court’s judgment.