REGINALD MACK V. COMMONWEALTH OF KENTUCKY
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RENDERED : JUNE 17, 2004
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2002-SC-0924-MR
REGINALD MACK
V.
APPELLANT
APPEAL FROM BELL CIRCUIT COURT
HONORABLE JAMES L . BOWLING, JR., JUDGE
2002-CR-0054
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION OF THE COURT BY JUSTICE KELLER
AFFIRMING
I. INTRODUCTION
Appellant, Reginald Mack, was convicted by a Bell Circuit Court jury of FirstDegree Robbery and received a sentence of twenty years.' He appeals to this Court as
a matter of right 2 and contends that the trial court committed reversible error by failing
to instruct the jury on the lesser-included offenses of Theft by Unlawful Taking Over
$300.00 ("TBUT") and Fourth-Degree Assault . We disagree with Appellant's contention
and affirm his conviction .
Appellant was also charged with Receiving Stolen Property Over $300 and with
being a Second-Degree Persistent Felony Offender. The trial court directed a verdict of
acquittal on the Receiving Stolen Property charge, and the jury found that Appellant
was not a Persistent Felony Offender .
2 KY. CONST. § 110(2)(b).
II. BACKGROUND
In May 2002, Lillie May Evans, 71 years old, was shopping at Big Lots in
Middlesboro, Kentucky. When she returned to her car, which was parked in the store's
parking lot, she opened the door, climbed into the vehicle, and placed her purse on the
passenger seat. Before she was able to close the car door, Appellant appeared in the
open doorway and requested money from Evans, explaining that he needed gas for his
car. Evans informed Appellant that she did not have any money . Appellant then
reached across Evans, grabbed her purse from the passenger seat, and ran to his own
car, also parked in the lot. Evans pursued Appellant and reached for her purse as he
jumped in his car. Appellant slammed the door on Evans's hand. Appellant then
opened the door and shoved Appellant away from the vehicle, knocking her to the
ground, before driving away. Appellant, indeed, needed gas as his vehicle ran out of
gas in close proximity to the store, and Appellant was apprehended on foot shortly
thereafter . Evans's purse contained approximately one thousand ($1,000.00) dollars in
cash . She suffered lacerations and bruising on her hands, as well as a broken finger,
and a knot on her head .
In his statement to the police, Appellant admitted that he had taken the purse in
order to obtain money for gas. Thus, the only point of contention at trial was whether
Appellant used force against Evans in order to accomplish the theft. The jury was
instructed on First and Second-Degree Robbery in the guilt phase of the trial and on
Second-Degree Persistent Felony Offender in the penalty phase . The trial court denied
Appellant's request for instructions on TBUT and Fourth-Degree Assault as lesserincluded offenses of Robbery.
III. ANALYSIS
Appellant contends that the trial court committed reversible error in failing to
instruct the jury on TBUT and Fourth-Degree Assault . Appellant preserved these
claimed errors by fairly and adequately presenting his position to the trial court by
offering instructions on these offenses .
A. TBUT
Although TBUT is a lesser-included offense of Robbery,4 it is well-settled that "an
instruction on a lesser included offense is required only if, considering the totality of the
evidence, the jury might have a reasonable doubt as to the defendant's guilt of the
greater offense, and yet believe beyond a reasonable doubt that the defendant is guilty
of the lesser offense .,,5
The Kentucky Penal Code defines First-Degree Robbery as follows :
A person is guilty of robbery in the first degree when, in the
course of committing theft, he uses or threatens the
immediate use of physical force upon another person with
intent to accomplish the theft and when he :
(a)
Causes physical injury to any person who is not a
participant in the crime; or
(b)
Is armed with a deadly weapon ; or
(c)
Uses or threatens the immediate use of a dangerous
instrument upon any person who is not a participant
in the crime.
And, under the Penal Code, a person commits Second-Degree Robbery "when, in the
course of committing theft, he uses or threatens the immediate use of physical force
3 RCr 9 .54(2).
4 Roark v . Commonwealth , Ky., 90 S .W .3d 24, 38 (2002).
5 Caudill v. Commonwealth , Ky., 120 S .W .3d 635, 668 (2003) .
6 KRS 515 .020(1) .
upon another person with intent to accomplish the theft."' Thus, "Robbery," regardless
of whether First or Second-Degree, "is the use or threat of immediate use of physical
force upon another in the course of committing a theft with the intent to accomplish the
theft .,,8 "If the act is accompanied by an aggravating circumstance, i .e., physical injury
to another person, a perpetrator armed with a deadly weapon, or a perpetrator who
threatens the use of a dangerous instrument,] the offense is robbery in the first
degree ."9
The trial court instructed the jury on First and Second-Degree Robbery as
follows :
First-Degree Robbery
You will find the Defendant, Reginald Mack, guilty of FirstDegree Robbery under this Instruction if, and only if, you
believe from the evidence beyond a reasonable doubt all of
the following:
A . That in Bell County, Kentucky, on or about the 27th day of
March, 2002, and before the finding of the Indictment herein,
he stole a purse from Lill[ie] Mae Evans;
B. That in the course of so doing and with the intent to
accomplish the theft, he caused physical injury to Lill[ie] Mae
Evans by pushing and/or shoving her to the ground .
Second-Degree Robbery
If you do not find the Defendant guilty under Instruction No.
1, you will find the Defendant guilty of Second-Degree
Robbery under this instruction if, and only if, you believe
from the evidence beyond a reasonbable doubt all of the
following :
A. That in Bell County, Kentucky, on or about the 27th day
of March, 2002, and before the finding of the Indictment
herein, he stole a purse from Lill[ie] Mae Evans;
KRS 515 .030.
8 Roark, 90 S.W .3d at 38 .
9 Id . (citation omitted) .
B. That in the course of so doing and with the intent to
accomplish the theft, he used physical force upon Lill[ie]
Mae Evans by pushing and/or shoving her to the ground .
Appellant contends that his admitted use of force upon Evans was not used "in
the course of [committing the theft of her purse] and with the intent to accomplish the
theft" because "[i]t was not until after he had gained control over the purse that Ms.
Evans then suffered an unintentional assault." We disagree with Appellant's contention
because "a use or threat of force during escape from a completed or attempted theft
will . . . satisfy the requirement [of "in the course of committing theft"] and support a
conviction."'° And, in the present case, that is exactly what the jury found and what
Appellant undisputedly did ; he used force on Evans during his escape with her purse,
and because it resulted in physical injury to her, Appellant was guilty of First-Degree
Robbery. We do not believe that the jury could have reasonably doubted Appellant's
guilt of Robbery, and yet believe beyond a reasonable doubt that the defendant was
guilty of TBUT . Accordingly, we hold that the trial court did not err in refusing to instruct
on TBUT as a lesser-included offense of Robbery .
10 ROBERT G . LAWSON & WILLIAM H . FORTUNE, KENTUCKY CRIMINAL LAW § 13(LEXIS, 1998) . Accord Williams v. Commonwealth , Ky.App ., 639 S .W .2d 786,
788 (1982) ("We construe the fair import of the term 'in the course of committing theft'
to include the time, place and circumstances surrounding a theft or attempted theft .
This encompasses the escape stage. We believe the fair import of the meaning of
`escape stage' to be all steps or events in the process of escape which would fall within
the active or continuous pursuit of the criminal actor.") ; KRS 515.020, Official
Commentary (Banks/Baldwin 1974) ("In several other ways, common law robbery was
changed by the provisions of this chapter . . . . KRS 515.020 and 515.030 change this
law by expanding robbery to include all situations involving the use of force 'in the
course of committing theft.' As indicated above, this is intended to extend all the way
from the attempt stage of theft through the escape stage .").
7(b)(2)
B. FOURTH-DEGREE ASSAULT
Appellant contends that Fourth-Degree Assault is a lesser-included offense of
First-Degree Robbery, and thus, the trial court committed reversible error when it
refused to instruct on Fourth-Degree Assault . An offense is a lesser offense of a
charged offense when:
(a)
(b)
(c)
(d)
It is established by proof of the same or less than all the
facts required to establish the commission of the offense
charged ; or
It consists of an attempt to commit the offense charged
or to commit an offense otherwise included therein ; or
It differs from the offense charged only in the respect
that a lesser kind of culpability suffices to establish its
commission ; or
It differs from the offense charged only in the respect
that a less serious injury or risk of injury to the same
person, property or public interest suffices to establish
its commission. 11
Appellant claims that Fourth-Degree Assault was established by proof of the same or
less than all of the facts required to establish the commission of the Robbery charge,
and therefore, under section (a), it was a lesser-included offense of Robbery.
Section (a) codifies into Kentucky law the test set forth in Blockburger v. United
States 12 for determining if a person may be convicted for more than one offense as a
result of a single course of conduct, i.e. , "the test to be applied to determine whether
there are two offenses or only one, is whether each provision requires proof of a fact
which the other does not. "13 In other words, "if `each statute requires proof of an
11
KRS 505 .020(2) .
12
Blockburger v. United States , 284 U.S . 299, 52 S .Ct. 180, 76 L .Ed . 306
(1932). See Hart v. Commonwealth , Ky .App ., 768 S .W .2d 552, 553 (1989) ("As our
state's highest court observed in Polk v. Commonwealth , Ky., 679 S .W .2d 231 (1984),
[section (a)] simply codifies the rule laid down in Blockburger[.]").
13
Blockburger, 284 U .S . at 304, 52 S .Ct. at 182 .
additional fact which the other does not,' the offenses are not the same under the
Blockburger test . "14 Accordingly, in applying the Blockburger test, we must "focus[] on
the proof necessary to prove the statutory elements of each offense, rather than on the
actual evidence to be presented at trial ."' 5 But before applying the Blockburger test to a
multi-purpose criminal statute, the court "must construct from the alternative elements
within the statute the particular formulation that applies to the case at hand .
It should rid the statute of alternative elements that do
not apply. It must, in other words, treat a multi-purpose
statute written in the alternative as it would treat separate
statutes . The theory behind the analysis is that a criminal
statute written in the alternative creates a separate offense
for each alternative and should therefore be treated for
double jeopardy purposes as separate statutes would . After
this process of statutory reformulation is applied to the
statutes in the case before it, a court then determines
whether the two offenses in question should be
characterized under Blockburger as distinct offenses
authorizing cumulative sentences.''
Therefore, in the present case, the critical question is whether Robbery with the
"physical injury" aggravator requires proof of an additional fact that Fourth-Degree
Assault does not and vice versa.
A person commits Fourth-Degree Assault "when[ ] (a) [h]e intentionally or
wantonly causes physical injury to another person ; or (b) [w]ith recklessness he causes
physical injury to another person by means of a deadly weapon or a dangerous
14
Illinois v. Vitale, 447 U .S. 410, 416, 100 S.Ct. 2260, 2265, 65 L .Ed .2d 228,
235 (1980) (citation omitted) (emphasis in original) . Accord Colwell v. Commonwealth ,
Ky., 37 S .W .3d 721, 726 (2000) ("Stated otherwise, if the lesser offense requires proof
of a fact not required to prove the greater offense, then the lesser offense is not
included in the greater offense, but is simply a separate, uncharged offense .") .
15
Vitale , 447 U.S . at 416, 100 S.Ct. at 2265, 65 L .Ed .2d at 235 .
16
Pandelli v. U .S ., 635 F .2d 533, 537 (6 t" Cir. 1980) .
17
Id . (footnote omitted) .
instrument .,,18 Although both the First-Degree Robbery statute and the trial court's
instructions in this case require proof of a theft, which is an additional fact not required
for conviction of Fourth-Degree Assault, the Fourth-Degree Assault statute does not
require proof of an additional fact not required for violation of the First-Degree Robbery
statute as formulated for this case. This point is illustrated by a side-by-side
comparison of the elements of the First-Degree Robbery statute as formulated for this
case and the applicable elements of the Fourth-Degree Assault statute:
First-Degree Robbery Statute
Fourth-Degree Assault Statute
(1) In the course of committing a theft
(1) Intentionally or wantonly
(2) Use physical force
(2) Cause physical injury to another
person
(3) With intent to accomplish the theft
(4) Cause physical injury to a person not
a robbery participant
Thus, from a review of the above comparsion, it is clear that Fourth-Degree
Assault was established by proof of less than all of the facts required to establish the
commission of the First-Degree Robbery charge, and therefore, under KRS
505 .020(2)(a), as Appellant contends, it was a lesser-included offense of First-Degree
Robbery. 19 But, we disagree with Appellant's contention that because Fourth-Degree
18
19
KRS 508 .030.
See O'Hara v . Commonwealth , Ky., 781 S .W .2d 514, 515 (1989) ("The
instructions required proof of the elements listed in K.R.S. 515 .020(1)(a) or (c) for the
conviction of first-degree robbery. These are the same elements charged and
necessary for conviction of first-degree assault."); Commonwealth v. Varney, Ky., 690
S .W.2d 758, 759 (1985) ("As a general rule assault in the first degree is a lesser
included offense of robbery in the first degree ."); Sherley v. Commonwealth , Ky., 558
S .W.2d 615, 617 (1977) ("We are of the opinion that under pre-existing law a conviction
on a charge of assault with intent to rob would preclude prosecution for the offense of
striking and wounding with intent to kill and grand larceny since identical facts would be
-8-
Assault was a lesser-included offense, he was automatically entitled to an instruction
on Fourth-Degree Assault . Appellant does not dispute that he stole Evans's purse, and
the evidence is undisputed that Appellant's assault of Evans occurred during his
escape from the theft of her purse . That is clearly robbery, not separate offenses of
theft and assault as Appellant contends . We do not believe that the jury could have
reasonably doubted Appellant's guilt of robbery, and yet believe beyond a reasonable
doubt that he was guilty of Fourth-Degree Assault .2° For this reason, the trial court did
not err in refusing to instruct on Fourth-Degree Assault as a lesser-included offense.
IV. CONCLUSION
For the above reasons, we affirm Appellant's conviction of First-Degree Robbery.
Lambert, C .J . ; Cooper, Graves, Johnstone and Stumbo, concur. Wintersheimer,
J ., concurs in result only.
present in conviction for assault with intent to rob . By a parity of reasoning the facts
used in the conviction for first-degree assault here resulted in the elevation of the
robbery charge and conviction to first-degree robbery, an element of which is physical
injury, the beating which took place here . We are of the opinion the elements of firstdegree assault merged into the conviction of first-degree robbery and were not subject
to a separate charge .").
20
Caudill v. Commonwealth , Ky., 120 S .W.3d 635, 668 (2003) .
COUNSEL FOR APPELLANT :
Karen Maurer
Assistant Public Advocate
Department of Public Advocacy
100 Fair Oaks Lane, Suite 302
Frankfort, Kentucky 40601
COUNSEL FOR APPELLEE :
Gregory D . Stumbo
Attorney General
Courtney J. Hightower
Assistant Attorney General
Office of Attorney General
Criminal Appellate Division
1024 Capital Center Drive
Frankfort, Kentucky 40601-8204
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