Mistaken Belief of Authorization Negates Burglary Mens Rea: The Kentucky Supreme Court’s Unpublished Decision in McVey

Case: Charles J. McVey v. Commonwealth of Kentucky

Court: Supreme Court of Kentucky

Date: October 23, 2025

Disposition: Affirmed in part, reversed in part, and remanded (unpublished; RAP 40(D) limits precedential use)

Introduction

In this unpublished memorandum opinion, the Kentucky Supreme Court affirmed Charles McVey’s convictions for complicity to murder and four counts of unlawful imprisonment, but reversed his conviction for first-degree burglary. The decision, issued alongside the companion case of Joseph Masters v. Commonwealth of Kentucky, 2024-SC-0314-MR, addresses three principal issues:

Whether a detective’s testimonial summary of rape-kit and DNA testing (without calling the nurse or analyst) was inadmissible hearsay violating confrontation rights and, if error, whether it was palpable;
Whether the trial court erred by admitting a “purported copy” of a lease to the trailer and, if so, whether the error was harmless as to the burglary charge; and
Whether McVey was entitled to a jury instruction on criminal facilitation as a lesser-included offense of complicity to murder.

Although labeled “Not to Be Published” under RAP 40(D), the opinion offers a clear reaffirmation of core Kentucky principles: (i) mistake of authorization negates the mens rea for burglary; (ii) the Commonwealth cannot uphold a burglary conviction by a harmless-error argument that effectively concedes the absence of an essential element; and (iii) a facilitation instruction requires affirmative evidence of a lesser mental state (“wholly indifferent” to the consummation of the crime) and is not warranted by mere speculation that jurors might disbelieve evidence of complicity.

Summary of the Opinion

Rape-kit/DNA testimony: The Court held it was error for a detective to testify to rape-kit and DNA results without the nurse who performed the examination or the lab analyst who conducted the tests. However, the error was not palpable. The prosecution used the testimony to rebut a defense theory (that the complainant had been raped), and in McVey’s trial the extreme-emotional-disturbance (EED) instruction was not given; thus, the admission, though procedurally defective, caused no manifest injustice.
Lease document: As in the companion Masters opinion, the Court concluded that admitting the “purported copy” of the lease lacked sound legal basis and was prejudicial. The Commonwealth’s harmless-error response—essentially conceding McVey reasonably believed Masters was authorized to be on the premises—undercut the burglary mens rea (knowledge of unauthorized presence). The Court therefore reversed the first-degree burglary conviction.
Facilitation instruction: The Court rejected McVey’s request for a facilitation instruction. The evidence showed he was invested in the criminal venture: arriving armed, initiating violence, standing by during torture, and physically preventing the victim’s escape while Masters stabbed him. Without affirmative proof that McVey was “wholly indifferent” to the murder, a facilitation instruction was unwarranted.
Disposition and sentencing effect: Convictions for unlawful imprisonment and complicity to murder were affirmed. The burglary conviction was reversed and remanded for amendment of judgment. Because the burglary sentence ran concurrently with the murder sentence, the total incarceration term was unaffected.

Analysis

Factual context (abridged)

The case arises from a violent confrontation at a trailer that Joseph Masters claimed to have leased. After Masters’s wife reported she had been gang-raped at a party at that trailer, Masters gathered McVey and Ethan Young. Armed with guns, knives, a taser, and a bat, they entered the trailer, assaulted William Miller to rouse him, corralled the adults, and Masters tortured the hostages. When one victim, Matthew Welsh, seized a knife and stabbed Masters, the evidence indicated that Welsh then attempted to flee. McVey physically stopped Welsh, and Masters fatally stabbed him. McVey did not testify at trial.

Precedents and authorities cited

Peters v. Commonwealth, 345 S.W.3d 838 (Ky. 2011): Forensic/lab reports are testimonial; admitting results without the analyst violates confrontation rights. Applied here to the detective’s testimony about rape kit and DNA testing—error to admit without the nurse and analyst, though not reversible as palpable error under the case’s facts.
Winstead v. Commonwealth, 283 S.W.3d 678 (Ky. 2009): Harmless-error analysis for non-constitutional error asks whether the error had a substantial influence on the verdict. The Court used this standard to find the lease-admission error prejudicial as to burglary.
Bingham v. Davis, 444 S.W.2d 123 (Ky. 1969): For non-constitutional errors, the appellant bears the burden to show prejudice to substantial rights on appeal. The Court measured the prejudice from the lease error against this posture.
Commonwealth v. McCarthy, 628 S.W.3d 18 (Ky. 2021): In constitutional error contexts, the Commonwealth bears the burden to show harmlessness. Cited to contrast the burden allocations.
LRC Commentary to KRS 511.020; Hedges v. Commonwealth, 937 S.W.2d 703 (Ky. 1996); Fletcher v. Commonwealth, 59 S.W.3d 920 (Ky. App. 2001); Commonwealth v. Partee, 122 S.W.3d 572 (Ky. 2003): These authorities stress that burglary “emphasizes the unlawfulness of an intrusion,” requires knowledge of the lack of license or privilege, and should not be used to compound other crimes where the entry/remaining element is not independently met. Mistake of authorization negates burglary’s mens rea.
McCoy v. Taylor Tire Co., 254 S.W.2d 923 (Ky. 1953): A possessor may use force reasonably believed necessary to eject trespassers but may not use excessive, injurious force where only property is threatened. Cited to show that inviting help to eject trespassers is not per se unlawful, though excessive force can lead to other crimes.
Thompkins v. Commonwealth, 54 S.W.3d 147 (Ky. 2001); Skinner v. Commonwealth, 864 S.W.2d 290 (Ky. 1993): A lesser-included instruction is warranted only if a reasonable juror could harbor reasonable doubt as to the greater offense but find the defendant guilty of the lesser beyond a reasonable doubt.
KRS 506.080(1) (Facilitation) and LRC Commentary; KRS 502.020(1) (Complicity); Monroe v. Commonwealth, 244 S.W.3d 69 (Ky. 2008): Facilitation requires knowing provision of means or opportunity without intent that the offense occur (a “wholly indifferent” mental state); complicity requires intent to promote/facilitate the offense.
White v. Commonwealth, 178 S.W.3d 470 (Ky. 2005): A facilitation instruction requires affirmative proof of the lesser mental state; it is not enough that jurors could disbelieve evidence of complicity.
Berry v. Commonwealth, 680 S.W.3d 827 (Ky. 2023): Intent can be inferred from conduct.
Catlin v. Justice, 156 S.W.2d 107 (Ky. 1941): Appellate courts do not scour the record for unpreserved errors; issues such as entitlement to a directed verdict must be preserved to be reviewed.

Legal reasoning

1) Confrontation/hearsay and “palpable error”

The Court agreed it was error to allow Detective Middleton to testify about the rape kit and DNA results without calling the nurse and lab analyst. Under Peters, forensic results are testimonial and must be presented through the declarant witnesses to satisfy confrontation. Nevertheless, the Court found no “palpable error.” In Kentucky, palpable error is a high bar—an unpreserved error that affects substantial rights and results in manifest injustice.

Several considerations supported finding no manifest injustice. First, “the belief that [the complainant] had been raped was the principal defense of Masters and McVey.” The Commonwealth was entitled to rebut that defense theory. Second, the defect was “procedural” (the mode of proof), not substantive (the content itself was not uniquely prejudicial in the case’s posture). Third, unlike in the companion Masters case where EED was at issue, McVey’s jury did not receive an EED instruction; thus, the rape-kit evidence had even less potential to alter the verdict structure in McVey’s trial.

2) The lease, harmless error, and burglary’s mens rea

As in Masters, the Court concluded that admitting the “purported copy of the lease” was erroneous and prejudicial under Winstead’s harmless-error standard for non-constitutional errors. The Commonwealth attempted to minimize prejudice by arguing McVey reasonably believed Masters had authority over the trailer, so the lease’s admission did not affect McVey’s state of mind. That strategy proved “extremely awkward”: it effectively conceded that McVey entered under a mistaken belief of authorization, which negates the core mental element of burglary—knowledge that one is on the property unlawfully.

Kentucky law is plain on this point. The LRC Commentary to KRS 511.020 (emphasized by Hedges, Fletcher, and Partee) explains that the “true essence” of burglary is unlawful intrusion; a person who enters under a mistaken belief of authorization is not guilty of burglary. The Court underscored:

“Burglary cannot be accidental or unknowing; there must be proof beyond a reasonable doubt that the defendant knew he was on the property unlawfully. … [C]riminal conduct does not become burglary solely by reason of commission of the act on the property of another.”

Although the Court noted that a directed-verdict challenge on this ground was not preserved (so it would not sua sponte reverse for insufficiency under Catlin), the Commonwealth’s own harmless-error position made it unjust to uphold the burglary conviction. The Court therefore reversed the first-degree burglary count and remanded for judgment amendment.

The Court also clarified the role of proportional force in property defense. Citing McCoy, it observed that a lawful possessor may use force reasonably believed necessary to eject trespassers, and inviting assistance is not inherently unlawful; however, resort to excessive or deadly force where only property is at stake is not justified. That limitation goes to other offenses (e.g., assault, homicide), not to burglary’s mental element of unlawful entry or remaining.

3) No facilitation instruction on the murder charge

A facilitation instruction is proper only if there is affirmative evidence that the defendant, while knowingly providing means or opportunity, was “wholly indifferent” to whether the crime would be committed—i.e., lacked the intent to promote or facilitate (Thompkins, White, Monroe, KRS 506.080 and 502.020). It is not enough to argue the jury might disbelieve parts of the complicity evidence (White).

The record showed that McVey arrived armed, was the first to inflict violence (using the taser and bat to rouse Miller), remained present during torture without intervening, and, most critically, physically prevented Welsh from escaping while Masters—who verbally exhorted to kill—fatally stabbed him. From this conduct, a jury could infer the requisite intent to aid the murder (Berry), not indifference. Because McVey offered no affirmative proof of a lesser mental state, the trial court did not abuse its discretion in refusing a facilitation instruction.

Impact and practical implications

For prosecutors

Confrontation compliance in forensic evidence: Always present rape-kit/DNA results through the SANE nurse and lab analyst to avoid Peters-type errors. Reliance on a detective’s summary risks reversal in a case where prejudice can be shown.
Harmless-error advocacy: Avoid harmless-error arguments that concede or imply the absence of an essential element. Here, portraying McVey’s belief in Masters’s authority as reasonable undermined the burglary mens rea and helped trigger reversal.
Burglary charging decisions: Carefully assess the knowledge-of-unlawfulness element where a defendant acts under a claim or appearance of authority. Kentucky courts disfavor using burglary to “compound” other crimes when the entry/remaining element is not independently satisfied (Partee).

For defense counsel

Preservation matters: If the proof shows a genuine mistake of authorization, make and preserve a directed-verdict motion on burglary’s mens rea to secure sufficiency review.
Facilitation theory: To obtain a facilitation instruction, present affirmative evidence of indifference to the crime’s completion; mere argument that jurors could disbelieve complicity evidence will not suffice under White.
Forensic hearsay challenges: Object on confrontation grounds to testimonial forensic summaries; build a record of prejudice if the state presents results through non-declarant witnesses.

For trial courts

Document admission and authentication: Exercise care before admitting “purported” document copies that bear on essential elements; erroneous admission can be prejudicial under Winstead.
Instructional discipline: Issue lesser-included instructions only when supported by affirmative evidence, and distinguish complicity (intent to promote/facilitate) from facilitation (knowing provision of means with indifference).
Segregating issues: Keep burglary’s mental element distinct from excessive-force concerns; the latter bears on other charges, not on whether entry/remaining was known to be unlawful.

Complex Concepts Simplified

Palpable error: An unpreserved error that is so fundamental it results in manifest injustice. Even if an error occurred, reversal requires showing it likely affected the outcome in a fundamental way.
Harmless error (non-constitutional vs. constitutional): For non-constitutional errors, the appellant must show prejudice to substantial rights (Bingham). For constitutional errors, the Commonwealth must prove harmlessness beyond a reasonable doubt (McCarthy). The lease issue here was analyzed as non-constitutional error.
Burglary mens rea in Kentucky: Burglary centers on knowing, unauthorized entry or remaining. A genuine, mistaken belief of permission or authority (e.g., reliance on a putative tenant’s invitation) negates the mental element, even if other crimes occur inside (Hedges, LRC Commentary).
Complicity vs. facilitation: Complicity (KRS 502.020) requires the intent to promote or facilitate a crime—being an instigator or invested participant. Facilitation (KRS 506.080) involves knowingly providing means or opportunity without caring whether the crime happens—a “wholly indifferent” stance. A facilitation instruction requires affirmative evidence of that lesser mental state.
LRC Commentary: Legislative Research Commission commentary is a recognized aid to interpreting Kentucky statutes. Here, it reinforces that burglary punishes unlawful intrusion, not merely being present on someone else’s property.

Conclusion

Although unpublished, the Court’s decision in McVey crisply reinforces several important Kentucky doctrines. First, confrontation principles govern the admission of forensic results: presenting rape-kit and DNA findings through a non-declarant was error, but not palpably prejudicial in this trial’s posture. Second, and most consequentially, the Court reversed the burglary conviction because the Commonwealth’s harmless-error argument effectively conceded that McVey reasonably relied on Masters’s claimed authority—negating burglary’s knowledge-of-unlawfulness element under Kentucky law. Third, the evidence of McVey’s conduct established intent to aid the murder, defeating his request for a facilitation instruction.

Going forward, prosecutors must avoid “harmless error” arguments that surrender essential elements and must prove burglary’s mental element independently of other violent conduct occurring on the premises. Defense counsel should preserve directed-verdict claims where mistake of authorization is viable and marshal affirmative proof when seeking facilitation instructions. Trial courts should vigilantly police documentary admissions and tailor instructions to the supported mental states.

The judgment stands as affirmed on the unlawful imprisonment and complicity to murder counts and reversed on first-degree burglary, with remand for amendment of the judgment. While it does not alter the length of McVey’s confinement due to concurrent sentencing, the decision provides a meaningful clarification of burglary’s mens rea and a cautionary tale about the perils of overextending harmless-error arguments in the face of statutory and doctrinal constraints.

Note on precedential status: This opinion is designated “Not to be Published” under RAP 40(D). It cannot be cited as binding precedent in Kentucky courts but may be cited for consideration where no published opinion adequately addresses the issue, provided a copy is tendered with the filing.

Separate opinion: Justice Nickell, joined by Justices Bisig and Keller, concurred in part and dissented in part, indicating he would have affirmed the conviction and sentence in full for the reasons set out in the companion Masters dissent.