             IMPORTANT NOTICE
        NOT TO BE PUBLISHED OPINION

THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."
PURSUANT TO THE RULES OF CIVIL PROCEDURE
PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
THIS OPINION IS NOT TO BE PUBLISHED AND SHALL NOT BE
CITED OR USED AS BINDING PRECEDENT IN ANY OTHER
CASE IN ANY COURT OF THIS STATE; HOWEVER,
UNPUBLISHED KENTUCKY APPELLATE DECISIONS,
RENDERED AFTER JANUARY 1, 2003, MAY BE CITED FOR
CONSIDERATION BY THE COURT IF THERE IS NO PUBLISHED
OPINION THAT WOULD ADEQUATELY ADDRESS THE ISSUE
BEFORE THE COURT. OPINIONS CITED FOR CONSIDERATION
BY THE COURT SHALL BE SET OUT AS AN UNPUBLISHED
DECISION IN THE FILED DOCUMENT AND A COPY OF THE
ENTIRE DECISION SHALL BE TENDERED ALONG WITH THE
DOCUMENT TO THE COURT AND ALL PARTIES TO THE
ACTION.
                                                RENDERED: OCTOBER 20, 2016
                                                      NOT TO BE PUBLISHED

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                                                i
                               2015-SC-000436-MR            U     u

                                                                       H,oliait 14;„   bc_
ROBERT MAY                                                              APPELLANT


                  ON APPEAL FROM HARDIN CIRCUIT COURT
V.                 HONORABLE KELLY M. EASTON, JUDGE
                             NO. 14-CR-00666


COMMONWEALTH OF KENTUCKY                                                 APPELLEE



                   MEMORANDUM OPINION OF THE COURT

                                   AFFIRMING


      On October 13, 2014, Appellant, Robert James May, led police officers on

a high-speed car chase while driving a stolen vehicle. The pursuit was initiated

after officers observed Appellant driving at a high rate of speed forcing a car off

the road, causing the car to crash into a residence located near the road.

Appellant eventually abandoned the vehicle and fled on foot.

      Louise Martin was at her daughter's house located in a nearby

subdivision when she observed Appellant run by a window. Ms. Martin, who

was approximately sixty-nine years old at the time, went to the garage where

she encountered Appellant. While outside of the garage, he stated that he had

been jogging and needed water. He then walked through the garage and

toward the door to the house. Ms. Martin told him to leave. Appellant refused
and attempted to enter the van that was located in the garage. Ms. Martin

repeatedly said "no, you're not taking the car." Appellant stopped and exited

the car. Ms. Martin removed the keys which were inside the car.

      While still inside the garage, Appellant again walked toward the door to

the house. Ms. Martin pursued him but then started to leave the scene

believing that Appellant was attempting to trap her in the garage by closing the

garage doors. Appellant grabbed her multiple times, causing her to fall to the

ground. She suffered physical injuries as a result.

      Appellant eventually released Ms. Martin, who then fled the scene. While

fleeing, she observed Appellant enter the house. The police arrived sometime

thereafter and searched the house. Appellant was not inside. He was

eventually discovered near a tree line by the police dog Pharaoh, who bit

Appellant, causing puncture wounds to his side. Appellant was then taken

into custody.

      Appellant was subsequently arrested and indicted on several charges. A

Hardin Circuit Court jury convicted Appellant of first-degree burglary, receiving

stolen property (over $500), first-degree fleeing or evading the police, and for

being a first degree persistent felony offender. Appellant was acquitted of

kidnapping Ms. Martin. The jury recommended a total sentence of 20 years'

imprisonment. The trial court imposed a total sentence of 25 years'

imprisonment. Appellant now appeals his judgment and sentence as a matter

of right pursuant to § 110(2)(b) of the Kentucky Constitution. Two issues are

raised and addressed as follows.


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                                 Directed Verdict

       Appellant argues that the trial court erred in denying his motion for a

directed verdict on the first-degree burglary charge. We will reverse the trial

court's denial of a motion for directed verdict "if under the evidence as a whole,

it would be clearly unreasonable for a jury to find guilt[.]" Commonwealth v.

Benham, 816 S.W.2d 186, 187 (Ky. 1991) (citing Commonwealth v. Sawhill, 660

S.W.2d 3 (Ky. 1983) (emphasis added)). Our review is confined to the proof at

trial and the statutory elements of the alleged offense.   Lawton v.

Commonwealth, 354 S.W.3d 565, 575 (Ky. 2011).

       First-degree burglary, as charged against Appellant, requires proof of

physical injury. KRS 511.020(1)(b). Pursuant to KRS 500.080(13), physical

injury is defined as "substantial physical pain or any impairment of physical

condition." The Commonwealth presented evidence indicating that Ms. Martin

was attacked by Appellant in her daughter's garage while he was attempting to

steal a van that was located in the garage. As previously stated, the victim

testified that Appellant grabbed her multiple times while she was attempting to

flee, causing her to fall to the ground. As a result of the encounter, the victim's

shirt was torn, she had marks on her body indicating a struggle, and her ear

was bleeding. The Commonwealth introduced photographic evidence taken

soon after the commission of the crime documenting the victim's injuries. The

victim required medical attention, including having her' ear lobe sutured as a

result of her ear ring being torn from her ear during the altercation.




                                         3
       In support of his argument, Appellant cites to Ms. Martin's trial

testimony, wherein she stated that she did not feel any injury to her ear during

the physical encounter with Appellant and that she could not say whether

Appellant caused the injury to her ear lobe. Appellant claims that because the

victim could have injured herself at various points during and after the

altercation, the precise moment of her injury is unknown. As such, Appellant

argues that no reasonable juror could have found that Appellant caused the

victim's physical injury. We disagree.

      The Commonwealth presented more than enough evidence here to

instruct the jury on the first-degree burglary charge. Ms. Martin's testimony

that she did not feel any injury to her ear while in the heat of the moment as

well as her inability to pinpoint the precise moment of her injury did not

require a directed verdict in Appellant's favor. There was no error here.

                                   Sentencing

      Appellant also claims that the trial court abused its discretion when it

ran one of Appellant's sentences consecutively instead of concurrently, which

the jury had recommended. Appellant specifically argues that Kentucky's

sentencing scheme violates his Sixth Amendment right to jury trial. This issue

is unpreserved and we will review for palpable error.   See Walker v.

Commonwealth, 349 S.W.3d 307, 313 (Ky. 2011) ("even alleged constitutional

errors, if unpreserved, are subject to palpable error review."); see also Jones v.

Commonwealth, 319 S.W.3d 295, 297 (Ky. 2010).




                                         4
       Appellant correctly observes that Kentucky law authorizes a trial judge to

run sentences consecutively even if the jury recommended concurrent

sentences. KRS 532.110; and Dotson v. Commonwealth, 740 S.W.2d 930 (Ky.

1987). As previously stated, however, Appellant argues that our sentencing

scheme violates this Sixth Amendment. He relies primarily on the recent U.S.

Supreme Court case of Hurst v. Florida, No. 14-7505, 2016 WL 112683 (2016).

Hurst involved Florida's capital sentencing scheme under which an advisory

jury issues a sentencing recommendation to a judge, and then the judge makes

the ultimate findings needed for imposition of a death sentence. The Court

held that such a sentencing scheme violated the Sixth Amendment.         See also

Ring v. Arizona, 536 U.S. 584, 589 (2002) (holding that Iciapital defendants, no

less than noncapital defendants, we conclude, are entitled to a jury

determination of any fact on which the legislature conditions an increase in

their maximum punishment.").

      Unlike Hurst and Ring, the judge in the present case did not make any

findings of fact constituting "the functional equivalent of an element of a

greater offense[.]" Id. at 585 (citation omitted). Nor was he required to make

any findings. He merely ordered that one of the sentences be ran consecutively

instead of concurrently with the remaining sentences. Such a determination is

permissible under Kentucky law and current U.S. Supreme Court precedent.

Oregon v. Ice, 555 U.S. 160 (2009) (holding that the Sixth Amendment does not

inhibit States from assigning to judges, rather than to juries, finding of facts




                                         5
necessary to imposition of consecutive, rather than concurrent, sentences for

multiple offenses.) Therefore, there was no error here.

                                  Conclusion

      For the foregoing reasons, we hereby affirm the judgment of the Hardin

Circuit Court.

      All sitting. All concur.



COUNSEL FOR APPELLANT:

Susan Jackson Balliet
Assistant Public Advocate


COUNSEL FOR APPELLEE:

Andy Beshear
Attorney General of Kentucky

Matthew Robert Krygiel
Assistant Attorney General




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