                                                   MODIFIED : MARCH 18, 2010
                                                  RENDERED : MARCH 19, 2009
                                                           TO BE PUBLISHED


                   uyrrut-r (~Vurf           of
                              2007-SC-000127-DG


COMMONWEALTH OF KENTUCKY                                                APPELLA


                   ON REVIEW FROM COURT OF APPEALS
V.                     CASE NO . 2004-CA-001850-MR
                  BULLITT CIRCUIT COURT NO. 02-CR-00201


KEVIN T. MCCOMBS                                                          APPELLEE



            OPINION OF THE COURT BY JUSTICE CUNNINGHAM

               REVERSING IN PART AND AFFIRMING IN PART

      Appellee, Kevin T. McCombs, and his wife, Lisa, were divorced in

September, 2002 . Shortly thereafter, McCombs assaulted Lisa's son, Curtis

Carney, and a domestic violence order was issued preventing any contact

between Curtis and McCombs . The protective order further prevented

McCombs from entering Lisa's house .

      Though McCombs had sought reconciliation, Lisa informed him in

December of 2002 that the divorce was permanent and no reconciliation was

possible . Later that evening, McCombs went to    Lisa's   house, intoxicated . He

broke into the garage in order to gain entry into the home through a door

leading into the kitchen . He also admitted at trial that he cut the outside

phone line for the express purpose of disabling the home's alarm system.
       Krystal Carney, Lisa's daughter, testified that McCombs kicked the

 garage door open, which struck her in the face . She noticed he had a crowbar

 in his hand, and he ordered her to be quiet . She ran into her brother's room

 for help. McCombs followed and began beating Curtis with the crowbar.

 Krystal fled the room and alerted her mother that McCombs was in the house .

 She then found her sister, and both girls ran outside to a neighbor's house .

       Curtis's and Lisa's testimony corroborated this version of events . Curtis

further testified that McCombs hit him multiple times with the crowbar before

Lisa began striking McCombs with a fire extinguisher. Realizing that McCombs

was unfazed by the blow, she retrieved a knife from the kitchen and stabbed

him. At this point, Curtis was able to escape the house and flag down a

passing motorist. After being stabbed, McCombs calmed down somewhat .

Lisa, a registered nurse, attempted to treat McCombs's wounds, but he

refused. She then called police.

       McCombs's version of events differed somewhat . Though admitting he

cut the phone line to the house, he claimed that he was in the garage retrieving

personal items when Krystal invited him into the home . He further claimed

that a quarrel ensued between him and Curtis which developed into a physical

altercation, but that he did not remember who threw the first punch . He

denied ever using a crowbar. McCombs acknowledged that his presence in the

home was in violation of the protective order.

      A Bullitt County jury found McCombs guilty of first-degree burglary,

fourth-degree assault, and violation of a protective order. He was sentenced to

fifteen years, one year, and six months, respectively, to be served concurrently .
                                         2
The Court of Appeals affirmed the conviction of violation of a protective order,

but reversed the burglary and assault convictions, determining that they

constituted double jeopardy. The Court of Appeals further held that the trial

court erred when it determined, as a matter of law, that the crowbar was both

a deadly weapon and a dangerous instrument. The Commonwealth appealed

the decision to this Court and discretionary review was granted.

      The thrust of McCombs's argument to the Court of Appeals, which the

Commonwealth challenges herein, is that the jury instructions were erroneous.

McCombs was convicted of first-degree burglary pursuant to the following jury

instruction:

      That in this county on or about the 4th day of December 2002 and
      before the finding of the Indictment herein, he entered or remained
      unlawfully in a building owned by Lisa Presley without the permission of
      Lisa Presley or any other person authorized to give such permission; AND
      That in doing so, he knew he did not have such permission ; AND
      That he did so with the intention of committing a crime therein; AND
      That when in effecting entry or while in the building or in immediate
      flight there from [sic], he:

         (1) Used or threatened the use of a "crow bar" [sic] against Curtis
             Carney; OR
         (2) Was armed with a "crow bar" [sic] ; OR
         (3) Caused physical injury to Curtis Carney.

McCombs was convicted of fourth-degree assault pursuant to the following jury

instruction:

                                           h day of December 2002 and within
      That in this county on or about the 41
      twelve (12) months before the finding of the Indictment herein, he caused
      physical injury to Curtis Carney; AND
      That in so doing:

         (1) The Defendant was acting intentionally ; OR
         (2) The Defendant was acting wantonly ; OR
         (3) The Defendant was acting recklessly when he struck Curtis Carney
             (if he did so) with the "crow bar." [sic]
                                        3
       According to McCombs, the trial court erred in determining, as a matter

of law, that the crowbar constituted a deadly weapon . Further, McCombs

claims the problem was compounded by the fact that the instructions allowed a

finding of guilt under multiple theories of first-degree burglary and fourth-

degree assault. The Court of Appeals agreed that if the burglary conviction was

reached under the "physical injury to Curtis Carney" element, double jeopardy

would bar the conviction . The Court of Appeals reasoned that in such

circumstances, the fourth-degree assault did not require proof of an additional

fact than the burglary conviction ; in other words, both could not be based on

the injury to Curtis. Of course, this reasoning implicitly rests on the

conclusion that the physical injury requirement of burglary requires a finding

of an intentional, wanton, or reckless mental state.

      We turn first to the Court of Appeals' determination that McCombs's

convictions for first-degree burglary and fourth-degree assault constitute

double jeopardy. Both the Fifth Amendment of the United States Constitution

and Section 13 of the Kentucky Constitution protect a criminal defendant from

being punished twice for the same offense. Principles of double jeopardy do

not, however, prevent a person from being charged with multiple offenses

arising from the same course of conduct. "Double jeopardy does not occur

when a person is charged with two crimes arising from the same course of

conduct, as long as each statute `requires proof of an additional fact which the

other does not.'" Commonwealth v. Burge, 947 S.W .2d 805, 809 (Ky. 1996),
quoting Blockburger v. United States, 284 U .S . 299, 304 (1932) . See also KRS

505 .020 (codifying Blockburger test) .

         Thus, we apply the Blockburger test to KRS 511 .020 (first-degree

burglary) and KRS 508 .030 (fourth-degree assault) . KRS 511 .020 states, in

pertinent part:

         (1) A person is guilty of burglary in the first degree when, with the intent
             to commit a crime, he knowingly enters or remains unlawfully in a
             building, and when in effecting entry or while in the building or in the
             immediate flight therefrom, he or another participant in the crime :

               (a) Is armed with explosives or a deadly weapon ; or
               (b) Causes physical injury to any person who is not a participant in
                   the crime; or
               (c) Uses or threatens the use of a dangerous instrument against
                   any person who is not a participant in the crime .

KRS 508 .030 states, in pertinent part:

         (1) A person is guilty of assault in the fourth degree when :

               (a) He intentionally or wantonly causes physical injury to another
                   person; or
               (b) With recklessness he causes physical injury to another person
                   by means of a deadly weapon or a dangerous instrument.

         When a defendant is convicted of first-degree burglary under the "armed

with explosives" theory or the "dangerous instrument" theory, and is convicted

of fourth-degree assault, there is clearly no double jeopardy violation . The

physical injury required for assault is not required for the burglary conviction,

while the unlawful entry requirement for burglary distinguishes it from assault.

The issue becomes more complicated when the first-degree burglary conviction

rests on a finding that physical injury was inflicted on a non-participant in the

crime.
      We addressed this issue in Butts v. Commonwealth, 953 S.W.2d 943 (Ky.

1997), where Butts committed an assault which resulted in physical injury

during the course of a burglary. He was convicted of fourth-degree assault and

first-degree burglary. Looking to O'Hara v. Commonwealth, 781 S .W.2d 514

(Ky. 1989), in which an assault was not permitted to form the basis of both an

assault conviction and a robbery conviction ; we found a double jeopardy

violation in Butts. Focusing on the specific facts alleged in the indictment, we

based this conclusion on the fact that the physical injury element which

constituted the assault was the same physical injury alleged and proven as an

element of the burglary.

      Upon careful reconsideration, we believe Butts was incorrectly decided.

The physical injury element of fourth-degree assault and the physical injury

element of first-degree burglary are not one and the same. The assault statute

requires a finding that the injury was inflicted with an intentional, wanton, or

reckless mental state. The burglary statute requires no such finding; it merely

states that the offender "causes physical injury" to a non-participant . Under

the burglary statute, the injury could be accidental .

      Nonetheless, McCombs argues that the physical injury element of

burglary has an implied mental state. He also urges that when the same injury

in fact forms the basis of both convictions, the culpable mental state will

necessarily be the same. Stated otherwise, if the jury believed McCombs acted

intentionally with respect to the assault on Curtis, it necessarily believed he

acted intentionally with respect to the physical injury underlying the burglary

charge. Of course, our focus is directed towards the statutory elements of the
                                         6
offenses, as "[a]n overlap of proof does not necessarily establish a double

jeopardy violation." Smith v. Commonwealth, 905 S.W .2d 865, 867 (Ky. 1995) .

      We have previously expressed our disagreement with this position : "KRS

511 .020(1)(b) requires no culpable mental state to prove the `physical injury'

aggravator, and a defendant may be found guilty of burglary first degree upon

the physical injury of any nonparticipant if the injury is casually connected,

pursuant to 501 .060, to his conduct." Grundy v. Commonwealth, 25 S .W.3d

76, 87 n .36 (Ky. 2000) . Furthermore, the plain language of the statute belies

any contention that the physical injury must be committed with a specific

mental state. Rather, we believe it is clearly the intent of the legislature that

the basic crime of burglary - that is, the knowing and unlawful entry into a

dwelling - be elevated when physical injury results, whether that injury was

intended or not. See also Polk v. Commonwealth, 679 S .W.2d 231, 234 (Ky.

1984) (finding no double jeopardy where defendant was convicted of first-

degree assault and first-degree burglary, because assault conviction required

additional finding that physical injury was both intentional and serious) .

      In this case, we have considered "whether a single course of conduct has

resulted in a violation of two distinct statutes and, if so, whether each statute

requires proof of an additional fact which the other does not." Clark v.

Commonwealth, 267 S .W.3d 668, 675 (Ky. 2008) . Here, fourth-degree assault

requires a specific finding of an intentional, wanton, or reckless mental state .

The physical injury element of first-degree burglary does not require such a

finding and, therefore, McCombs's convictions for both offenses do not violate
 principles of double jeopardy. To the extent that this holding conflicts with

 Butts v. Commonwealth, that case is hereby overruled.

       The Court of Appeals also determined that the trial court erred in

determining, as a matter of law, that the crowbar used by McCombs was both a

"deadly weapon" and a "dangerous instrument." As noted above, the trial court

inserted the term "crowbar" in the jury instructions where the terms "deadly

weapon" and "dangerous instrument" are used by the first-degree burglary and

fourth-degree assault statutes.

       We first address the trial court's determination that the crowbar was a

deadly weapon . At the time of trial in this case, the question of whether an

instrument is a deadly weapon was a matter of law to be determined by the

trial court pursuant to Hicks v. Commonwealth, 550 S .W.2d 480, 481 (Ky.

1977) . Since then, we overruled Hicks and stated that the determination is a

mixed question of law and fact properly left to the jury. Thacker v.

Commonwealth, 194 S.W .3d 287, 290-91 (Ky. 2006) . Therefore, although for

different reasons, we agree with the Court of Appeals that the trial court erred

by not submitting this issue to the jury.

      Any error in jury instructions is presumed to be prejudicial. Harp v.

Commonwealth, 266 S.W.3d 813, 818 (Ky. 2008) . Nonetheless, this

presumption can be successfully rebutted upon a showing that the error was

harmless . Id. An erroneous jury instruction that omits an essential element of

the offense is subject to the harmless error analysis elucidated in Chapman v.

California . Neder v. United States, 527 U.S . 1, 9 (1999) . "That test . . . is

whether it appears `beyond a reasonable doubt that the error complained of did
                                           8
not contribute to the verdict obtained.' Neder, 527 U .S. at 15, quoting

 Chapman v. California, 386 U.S. 18, 24 (1967) . See also Harp, 266 S.W .3d at

818 (noting that presumption of prejudice can be rebutted where error in jury

instructions did not "affect" the verdict or judgment) . Stated otherwise in

Neder. "If, at the end of that examination, the court cannot conclude beyond a

reasonable doubt that the jury verdict would have been the same absent the

error . . . it should not find the error harmless ." 527 U .S. at 19 (applying

Chapman principles of harmless error where an element of the offense has

been omitted from the jury's consideration) .

      We have thoroughly reviewed the record in this case and conclude that

the jury verdict would have been the same if the instructions had used the

term "deadly weapon" rather than "crowbar." A "deadly weapon" includes "a

billy, nightstick or club ." KRS 500.080(4)(d) . A club is "a heavy [usually]

tapering staff [especially] of wood wielded as a weapon ." Merriam-Webster's

Collegiate Dictionary, 217 (10th ed. 2002) . A billyclub or nightstick is a police

officer's club, made of steel or wood . Id. A crowbar is a solid iron or steel bar

with a wedged end, commonly used as a pry or lever. Id. We believe that a

crowbar is very similar to a nightstick or billyclub, particularly when wielded as

a weapon. In this case, there was substantial evidence that McCombs used the

crowbar as a metal club in his attack on Curtis. Furthermore, there was no

evidence that the crowbar was anything other than a standard, metal club with

a tapered end. For these reasons, we believe beyond a reasonable doubt the

jury would have reached the conclusion that the crowbar was a deadly weapon
and, therefore, the error did not affect the verdict. The error in the instructions

was harmless .

      The Court of Appeals further held that the trial court erred by

determining, as a matter of law, that the crowbar was a dangerous instrument .

Ordinarily, the question of whether an object is a "dangerous instrument" is a

jury determination, unless "it is undisputed from the evidence that the

instrument employed on the occasion in question is one [capable of causing

death or physical injury] and that it was infact used or attempted or

threatened to be used in such a manner[.]" Commonwealth v. Potts, 884

S .W .2d 654, 656 (Ky. 1994) (emphasis added) . Because McCombs denied ever

using the crowbar against Curtis, we agree that the issue should have been

submitted to the jury. Again, however, we believe the error is harmless .

      A "dangerous instrument" is "any instrument . . . article, or substance

which, under the circumstances in which it is used, attempted to be used, or

threatened to be used, is readily capable of causing death or serious physical

injury[ .]" KRS 500.080(3) . Again, the crowbar used in this case was the typical

solid metal club with a tapered end. A reasonable juror would readily conclude

that such an instrument, when swung by an adult male, is readily capable of

causing serious physical injury and even death . We are easily convinced

beyond a reasonable doubt that the jury would have reached the same verdict,

finding the crowbar to be a dangerous instrument, even if the issue had

properly been included in the instructions . Any error did not affect the verdict

and, therefore, was harmless .


                                        10
       We distinguish this case from the recent decisions in Carver v.

Commonwealth,        S .W.3d     (Ky. 2010) and Sanders v. Commonwealth,

S.W.3d      (Ky. 2010), where we reversed persistent felony offender convictions

because of issues relating to the jury instructions . In Carver, the jury

instruction resulted in an improper conviction for first-degree persistent felony

offender because a misdemeanor conviction served as one of the underlying

prior offenses. In Sanders, the jury instruction allowed for the crime of

possession of drug paraphernalia ( KRS 218A.500) to be enhanced to a first-

degree persistent felony offender conviction, a result expressly forbidden by

KRS 532 .080. In both Carver and Sanders there was sufficient evidence in the

record for a properly instructed jury to convict either defendant on the charge

of being a persistent felony offender. However, reversal was required pursuant

to the rationale used in Varble v. Commonwealth, 125 S .W .3d 246 (Ky. 2004) .

      In Varble, we reversed a conviction for manufacturing methamphetamine

because the jury had actually been instructed on the lesser offense of

possession of drug paraphernalia. Id. at 255 . Thus, in Carver and Sanders

reversal was necessary because the juries in those cases effectively found the

defendant guilty under a jury instruction that on its face, constituted no crime .

The applicability of Carver and Sanders is therefore limited to those situations

where the jury instructions lead the jury to convict the defendant of a crime,

but the elements contained in the jury instructions actually establish a

different, uncharged crime or no crime at all. Our ruling in this matter follows

a different line of cases where the juries are given instructions that are

consistent with the charged crime, but where error has occurred regarding one
                                        11
of the elements of the crime . See Wright v. Commonwealth, 239 S .W .3d 63 (Ky.

2007) ; Thacker, 194 S .W.3d at 287 ; Potts, 884 S.W.2d at 656. For these

reversal is not mandatory, and a harmless error standard may be applied if the

error is preserved. Neder, 527 U .S. at 15 .

      For the reasons stated herein, that portion of the opinion of the Court of

Appeals holding that McCombs's convictions for burglary in the first degree

and assault in the fourth degree was double jeopardy is reversed . Further, that

portion of the opinion of the Court of Appeals upholding McCombs's conviction

for violation of a protective order is affirmed. The trial order and judgment of

the Bullitt Circuit Court is hereby reinstated.

      All sitting. All concur.


COUNSEL FOR APPELLANT :

Jack Conway
Attorney General

Jeffrey Allan Cross
Assistant Attorney General
Office of the Attorney General
1024 Capital Center Drive
Frankfort, KY 40601


COUNSEL FOR APPELLEE:

Eric Griffin Farris
Lee Renee Remington
BUCKMAN, FARRIS 8s RAKES, PSC
193 South Buckman Street
P. O . Box 460
Shepherdsville, KY 40165
              '*UyrrMr Courf of ~irufurhv
                                 2007-SC-000127-DG


COMMONWEALTH OF KENTUCKY                                       APPELLANT


                 ON APPEAL FROM BULLITT CIRCUIT COURT
V.              HONORABLE THOMAS WALLER, JUDGE
                            NO. 02-CR-00201


KEVIN T. MCCOMBS                                                 APPELLEE



               ORDER DENYING PETITION FOR REHEARING
                      AND MODIFYING OPINION

     The Appellant having filed a Petition for Rehearing of the Opinion of

the Court by Justice Cunningham, rendered March 19, 2009 ; and the

Court being otherwise fully and sufficiently advised;

     The Court ORDERS that the Petition for Rehearing is DENIED . The

Court, sua sponte modifies the Opinion of the Court by Justice

Cunningham, rendered March 19, 2009, to reflect recent related

developments in our case law. The attached opinion is SUBSTITUTED in

lieu of the original . Said modification does not affect the holding.

     All sitting . All concur.

     ENTERED : March 18, 2010 .
