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RENDERED: APRIL 3, 2009; 10:00 A.M. NOT TO BE PUBLISHED

Commonwealth of Kentucky Court of Appeals
NO. 2008-CA-000240-MR KIM DEE ASKEW APPELLANT

v.

APPEAL FROM MCCRACKEN CIRCUIT COURT HONORABLE CRAIG Z. CLYMER, JUDGE ACTION NO. 07-CR-00392

COMMONWEALTH OF KENTUCKY

APPELLEE

OPINION AFFIRMING ** ** ** ** ** BEFORE: CAPERTON AND THOMPSON, JUDGES; GRAVES,1 SENIOR JUDGE. THOMPSON, JUDGE: Kim Dee Askew appeals his conviction in the McCracken Circuit Court for third-degree burglary and theft by unlawful taking of property

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Senior Judge John W. Graves sitting as Special Judge by assignment of the Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and Kentucky Revised Statutes (KRS) 21.580.

valued under three hundred ($300) dollars. For the reasons stated herein, we affirm. On May 28, 2007, Paducah Police Officer Anthony Copeland observed Askew removing windows, doors, and wiring from a dilapidated house. When questioned, Askew initially informed police that he had permission to be there. Askew later stated that he was removing items from the house because he believed the house was vacant and condemned. On July 13, 2007, Askew was indicted for third-degree burglary, theft by unlawful taking over $300, and third-degree criminal mischief. At the close of each party's case-in-chief, Askew moved for a directed verdict of acquittal, but both motions were denied. At the conclusion of the jury trial, Askew was found guilty of third-degree burglary and theft by unlawful taking of property valued under $300 and received a one-year sentence. This appeal followed. Askew contends that the trial court erred by denying his motion for a directed verdict of acquittal on the charge of third-degree burglary. Specifically, he contends that a condemned, dilapidated, and vacant house is not within the definition of a "building" as provided in KRS 511.010(1). Therefore, he contends that he could not have been convicted of third-degree burglary because he did not enter a "building," as contemplated by the statute. Because Askew's interpretation of the applicable statute is erroneous, we disagree.

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Our review of a denial of a motion for directed verdict of acquittal is governed by the standard set forth in Commonwealth v. Benham, 816 S.W.2d 186 (Ky. 1991): On motion for directed verdict, the trial court must draw all fair and reasonable inferences from the evidence in favor of the Commonwealth. If the evidence is sufficient to induce a reasonable juror to believe beyond a reasonable doubt that the defendant is guilty, a directed verdict should not be given. For the purpose of ruling on the motion, the trial court must assume that the evidence for the Commonwealth is true, but reserving to the jury questions as to the credibility and weight to be given to such testimony. 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. Id. at 187. KRS 511.040(1) provides 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." KRS 511.010(1) provides that a "building," in addition to its ordinary meaning, is "any structure, vehicle, watercraft or aircraft . . . . " As defined in KRS 511.010(1), a "building" is any structure that meets the definition of a building as used in common parlance, including abandoned, uninhabitable, and condemned structures. Soto v. Commonwealth, 139 S.W.3d 827, 870 (Ky. 2004). The evidence allowed a jury to believe that Askew entered an uninhabited, dilapidated, condemned house and removed windows, doors, and -3-

wiring. When he engaged in this action, he did not have permission to enter or to remove any items from the house. Although the house was dilapidated, uninhabitable, and had been condemned, Askew committed third-degree burglary when, with the intent to convert personal property, he knowingly and unlawfully entered into the house, which constituted a "building" as defined in KRS 511.010(1). Funk v. Commonwealth, 842 S.W.2d 476, 482-83 (Ky. 1992). Accordingly, the trial court did not err by denying his motions for directed verdict. For the foregoing reasons, the judgment of conviction in the McCracken Circuit Court is affirmed. ALL CONCUR.

BRIEFS FOR APPELLANT: J. Brandon Pigg Assistant Public Advocate Department of Public Advocacy Frankfort, Kentucky

BRIEF FOR APPELLEE: Jack Conway Attorney General of Kentucky Courtney J. Hightower Assistant Attorney General Frankfort, Kentucky

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