ANTHONY MARK JORDAN v. COMMONWEALTH OF KENTUCKY
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RENDERED: April 2, 1999; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1996-CA-002054-MR
ANTHONY MARK JORDAN
v.
APPELLANT
APPEAL FROM MADISON CIRCUIT COURT
HONORABLE WILLIAM T. JENNINGS, JUDGE
ACTION NO. 96-CR-0022
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE:
GARDNER, JOHNSON, AND MILLER, JUDGES.
JOHNSON, JUDGE:
Anthony Mark Jordan (Jordan) appeals from a
final judgment and sentence of imprisonment entered in the
Madison Circuit Court on July 18, 1996, which convicted him of
the felony offense of receiving stolen property, in violation of
Kentucky Revised Statutes (KRS) 514.110.
year prison sentence.
Jordan received a one-
We reverse and remand for a new trial.
Jordan was indicted in April 1996, on one count of
receiving stolen property having a value over $300.
Jordan pled
not guilty and his case went to trial on June 28, 1996.
City of
Richmond police officer Bradley Jones (Officer Jones) testified
that he stopped a vehicle driven by Jordan which contained two
passengers, Johnny Moore (Moore) and Oliver Tipton (Tipton).
Officer Jones testified that he stopped the vehicle after he
observed Jordan retrieving from the vehicle’s trunk a purple
Crown Royal bag which appeared to contain a bottle.
Officer
Jones stated that Jordan looked at him, put the bag and bottle
back into the trunk, got into the driver's seat and drove away.
Officer Jones testified that he stopped the vehicle based on his
suspicion that Jordan was a minor in possession of an alcoholic
beverage.
He testified that he discovered that Jordan had no
driver's license and arrested him.
Officer Jones testified that
when he questioned Jordan about the vehicle, Jordan told him that
he did not know who owned it, but he believed it belonged to a
friend of one of the passengers.
Officer Jones stated that he
radioed the police dispatcher and learned that the car had been
reported stolen.
All of the young men were charged with
receiving stolen property valued over $300.
Officer Jones
testified that when they arrived at the police station, he
questioned Jordan further, and that Jordan stated that he had
been walking down a road when Moore drove up in the car and asked
him if he wanted a ride.
Moore testified that he and Jordan walked to the
trailer of a friend named Jesse Rice.
While they found no one at
home, they noticed a vehicle in the driveway with the keys inside
of it.
Moore testified that while they at first left the
residence, Jordan persuaded him to return and take the car.
Moore testified that he drove a short distance and picked up
Jordan who was waiting for him on the side of the road.
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Moore
testified that he drove toward Winchester, saw Tipton walking
down the road, offered him a ride and he accepted.
Moore
testified that somewhere on the interstate highway going to
Lexington Jordan began driving.
Moreover, Moore testified that
he had never been issued a driver's license.
Tipton testified that he was picked up by Moore and
Jordan.
He stated that Moore was driving and that when he asked
them where they had gotten the car, both Jordan and Moore stated
that they had borrowed the car from a friend.
Tipton testified
that Moore drove the vehicle until Jordan took over just outside
of Richmond.
Jordan testified in his own behalf.
He stated that as
he was walking down the road about a mile from his house he was
picked up by Moore.
Jordan denied walking to the Rice trailer,
searching the car, finding the keys or convincing Moore to take
the car.
He testified that he had never been issued a driver's
license, and that he was unaware that Moore did not have a
driver's license.
Jordan claimed that he asked Moore where he
had gotten the car and that Moore told him that the car was
borrowed but he would not say to whom the vehicle belonged.
Jordan testified that he "didn't think [Moore] should have had
the car" but that he did not think the car was stolen.
He
admitted walking on the road between his home and the Rice
residence when Moore picked him up and he admitted stopping in
Richmond to look in the trunk of the car.
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The trial court instructed the jury on both the misdemeanor and felony offenses of receiving stolen property.
Jordan’s request for an instruction on the unauthorized use of a
motor vehicle pursuant to KRS 514.100 was denied by the trial
court.
Jordan was convicted of the felony offense of receiving
stolen property and sentenced to one year in prison.
This appeal
followed.
Jordan argues that the trial court erred when it
refused to instruct the jury on the lesser-included offense of
unauthorized use of a vehicle.
"The law . . . requires the court
to give instructions when they are 'applicable to every state of
[the] case covered by the indictment and deducible from or
supported to any extent by the testimony.
The determination of
what issues to submit to the jury should be based upon the
totality of the evidence.'"
Perry v. Commonwealth, Ky., 839
S.W.2d 268, 273 (1992) citing Reed v. Commonwealth, Ky., 738
S.W.2d 818, 822 (1987).
"It is also the duty of the trial court
by instructions to give the accused the opportunity for the jury
to determine the merits of any lawful defense which he or she
has."
Cheser v. Commonwealth, Ky.App., 904 S.W.2d 239, 242
(1994) citing Cannon v. Commonwealth, Ky., 777 S.W.2d 591, 593
(1989), and Sanborn v. Commonwealth, Ky., 754 S.W.2d 534, 550
(1988).
Thus, we review the trial court's giving or failing to
give a jury instruction as a matter of law.
The Commonwealth argues that based on Logan v.
Commonwealth, Ky.App., 785 S.W.2d 497, 498 (1989), we should
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affirm.
Logan allegedly stole a van and was charged with
receiving stolen property over $300.
At trial, Logan requested
an instruction on the unauthorized use of a motor vehicle because
he claimed that he did not know the van was stolen, but believed
it belonged to a friend.
This Court summarized the law regarding
lesser-included offenses as follows:
A defendant is of course entitled to have
his theory of the case submitted to the jury.
Davis v. Commonwealth, Ky., 252 S.W.2d 9, 10
(1952). Where the defendant's theory is that
his actions amounted to a lesser offense than
the one charged, this essentially constitutes
a defense to the higher charge. Thus, if
"there is any substantial evidence to support
this theory, the appellant will be entitled
upon request to instructions accordingly,
rather than the jury being left with no
alternative except to convict or acquit of
the principal charges." Sanborn v.
Commonwealth, Ky., 754 S.W.2d 534, 550
(1988).
Nevertheless, the instructions must follow
the evidence actually presented. Johnson v.
Commonwealth, Ky.App., 721 S.W.2d 721 (1986).
The trial court’s refusal to give the instruction on the
unauthorized use of a vehicle was affirmed because the trial
evidence, including Logan's testimony, tended to either convict
him of receiving stolen property or to exonerate him of any crime
rather than to convict him of the unauthorized use of a vehicle.
The unauthorized use of a motor vehicle is defined at
KRS 514.100 as follows:
(1) A person is guilty of the unauthorized
use of an automobile or other propelled vehicle when he knowingly operates, exercises
control over, or otherwise uses such vehicle
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without consent of the owner or person having
legal possession thereof.
Receiving stolen property is defined at KRS 514.110 as follows:
(1) A person is guilty of receiving stolen
property when he receives, retains, or
disposes of movable property of another
knowing that it has been stolen, unless the
property is received, retained, or disposed
of with intent to restore it to the owner.
We believe Logan is distinguishable from the case sub
judice because Logan’s defense was that he never drove the car on
the day in question and that he had not known it was stolen but
had believed it belonged to his friend who was driving the car.
If Logan’s testimony and the other evidence favorable to him were
believed, then Logan would have been exonerated of any crime.
Jordan, on the other hand, testified that he did drive the car on
the day in question and that while he did not think the car had
been stolen, he “didn’t think [his friend] should have had the
car.”
Additionally, Moore’s testimony supports the argument that
the young men were merely using the car for “joy riding” as
opposed to having stolen the car.
To constitute theft by
unlawful taking under KRS 514.030(1)(a), a person must “take[] or
exercise[] control over movable property of another with intent
to deprive him thereof[.]”
Based upon the total evidence at
trial, Jordan, unlike Logan, could have been properly convicted
of the lesser offense of unauthorized use of an automobile.
The
Supreme Court in Luttrell v Commonwealth, Ky., 554 S.W.2d 75, 78
(1977), stated:
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An instruction on a lesser included
offense should not be given unless the
evidence is such that a reasonable juror
could doubt that the Defendant is guilty of
the crime charged but conclude that he is
guilty of the lesser included offense. Muse
v Commonwealth, Ky., 551 S.W.2d 564 (decided
April 1, 1977).
Since there was sufficient evidence to convict Jordan
of the lesser offense, the jury instruction should have been
given.
Accordingly, the judgment of the Madison Circuit Court is
reversed and this matter is remanded to the trial court for a new
trial consistent with this Opinion.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Hon. Michael C. Lemke
Louisville, KY
Hon. A.B. Chandler III
Attorney General
Hon. Elizabeth A. Myerscough
Assistant Attorney General
Frankfort, KY
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