Eversole v. Commonwealth

In my view, the trial court erred when it refused to give the tendered instruction on the lesser included offense of third-degree burglary. This offense is the basic burglary crime. KRS 511.040. Under the circumstances of this case this is the offense of which Eversole and Pelfrey were guilty unless the jury unanimously believed beyond a reasonable doubt that the Commonwealth proved a critical element which differentiates first-degree burglary from third-degree burglary, to wit, that the offense occurred at night. KRS 511.020(l)(b). Night means the period between thirty minutes after sunset…