WILLIAM C. DANIEL v. COMMONWEALTH OF KENTUCKY

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RENDERED: March 12, 1999; 10:00 a.m. NOT TO BE PUBLISHED C ommonwealth O f K entucky C ourt O f A ppeals NO. 1997-CA-003107-MR WILLIAM C. DANIEL APPELLANT APPEAL FROM OHIO CIRCUIT COURT HONORABLE RONNIE C. DORTCH, JUDGE ACTION NO. 96-CR-000107 v. COMMONWEALTH OF KENTUCKY APPELLEE OPINION AFFIRMING ** ** ** ** ** BEFORE: HUDDLESTON, McANULTY, AND SCHRODER, JUDGES. McANULTY, JUDGE: William C. Daniel (hereinafter, appellant) and Jeffrey A. Springer were indicted in November 1996 for theft by unlawful taking over $300. A jury found appellant guilty of theft by unlawful taking by complicity. Appellant then entered into an agreement with the Commonwealth to accept a three year sentence, and the court sentenced him accordingly. Appellant now directly appeals this judgment. He alleges that the trial court erred in instructing on complicity to commit theft by unlawful taking since complicity was not charged in the indictment. Furthermore, he contends that there was insufficient evidence of his involvement in the crime to convict him of any offense. He argues that the trial court incorrectly ordered him to serve this sentence consecutively with another sentence he received during the pendency of this trial. Finally, he claims that he is entitled to reversal because of cumulative error in this case. First, we find that the trial court correctly instructed the jury on complicity. The indictment does not have to specifically charge a defendant with complicity. As this court stated in Commonwealth v. Caswell, Ky. App., 614 S.W.2d 253, 254 (1981): KRS 502.020 does not create a new offense known as complicity. It simply provides that one who aids, counsels or attempts to aid another in committing an offense with the intention of facilitating or promoting the commission of the offense is himself guilty of that offense. Thus, the indictment did not have to charge appellant with complicity as it is not a different offense, but a theory of culpability. Caswell notes, however, that the indictment must give notice of the complicity theory. Id. at 254. An indictment is sufficient if it fairly informs the accused of the nature of the charged crime, without detailing the factual elements, and if it informs the accused of the specific offense with which he is charged and does not mislead. S.W.2d 446, 449 (1996). Thomas v. Commonwealth, Ky., 931 We find that since appellant was indicted jointly with his co-defendant, the indictment sufficiently informed appellant that he could be found guilty of complicity to commit the charged offense. -2- Furthermore, had appellant's counsel required more information to prepare for trial, it was incumbent on him to request a bill of particulars. Id. at 450. He did not do so. The trial court correctly instructed on complicity to commit theft by unlawful taking. Second, appellant alleges that the court should have granted the motion for directed verdict because the Commonwealth did not prove him guilty of complicity to commit theft by unlawful taking. In Commonwealth v. Benham, Ky., 816 S.W.2d 186, 187 (1991), the Supreme Court articulated the standard for a directed verdict as follows: 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 it would be clearly unreasonable for a jury to find guilt under the evidence as a whole, only then is the defendant entitled to a directed verdict of acquittal. Commonwealth v. Sawhill, Ky., 660 S.W.2d 3 (1983). At trial, the owner of the Spinks Pharmacy in Ohio County testified to the theft of $360 worth of medicine from his store. He said that on September 5, 1996, a man walked into the prescription department of the pharmacy. From the office, Mr. Spinks observed the man enter and knew that he was not permitted -3- to be there. The man ducked between two bays containing the prescription medicines. He emerged with two quart bottles of Tussionex cough syrup with codeine, a controlled substance. Mr. Spinks chased the man, and nearly apprehended him at the exit door. The man dropped one of the bottles, which shattered, and ran out of the store. Mr. Spinks did not try to chase him any farther, and went back to call the sheriff. Mr. Spinks testified that he observed appellant at the front of the prescription department, and suspected that appellant had entered with the thief. him, and appellant denied it. The pharmacist questioned Appellant attempted to leave shortly afterward, but was told to stay and speak to the authorities. He gave sheriff's deputies a description of the suspect, then left. One of the deputies observed appellant and a female get into a red Camaro and drive away. The deputy discovered later that the vehicle was registered to Springer. Springer testified that on September 5, 1996, he, appellant and three other people had been riding around in his car and drove to Ohio County. He admitted that he entered the prescription area in Spinks Pharmacy and took the Tussionex. stated that he acted alone. He He could not remember if appellant shared in drinking the cough syrup. Another passenger in the car, Tamala Parker, testified. She said she was with appellant, Springer and another female when they went to Spinks Pharmacy. Appellant went in, and Springer followed a few minutes later. Springer ran out with a bottle of Tussionex, but did not return to the car. -4- Parker then saw appellant talking to the deputies. Appellant joined her in Springer's car, and drove it from the scene. He drove them down a back road, and Springer signaled to them. She said they picked Springer up, and everyone in the car shared the Tussionex. Appellant alleges that this evidence was insufficient to convict him of complicity to commit theft by unlawful taking, as it only proved that he was present and that he later drove Springer's car. A person is guilty by complicity of an offense committed by another when he intends to promote or facilitate the commission of the offense, and aids or attempts to aid in the planning or commission of the offense. KRS 502.020; Slone v. Commonwealth, Ky. App., 677 S.W.2d 894, 896 (1984). Complicity ... may be accomplished without physical aid or involvement in the crime, so long as the defendant's actions involve participating with others to carry out a planned crime. Perdue v. Commonwealth, Ky., 916 S.W.2d 148, 160 (1995). Drawing all fair and reasonable inferences in favor of the Commonwealth, the jury could reasonably conclude from the evidence that appellant assisted in committing the theft. Parker's testimony established that appellant drove Springer's vehicle away from the scene, and went to pick him up afterward. This enabled Springer to hide, and temporarily hindered the identification of Springer's vehicle as the getaway car. Springer was thus able to elude immediate apprehension with appellant's assistance. The jury could infer that appellant entered the store to attempt to assist in the theft or escape. Afterward, appellant shared in consuming the Tussionex with the others in the car. The jury could infer from the fact that -5- appellant shared in the spoils of the crime that he intended to aid in its commission. There was sufficient evidence for the jury to reasonably find that appellant was an accomplice to the theft. The motion for directed verdict was properly denied. Third, appellant alleges that the trial court incorrectly ran this sentence consecutively under KRS 533.060 with a sentence he received in Muhlenberg County. KRS 533.060(3) states: When a person commits an offense while awaiting trial for another offense, and is subsequently convicted or enters a plea of guilty to the offense committed while awaiting trial, the sentence imposed for the offense committed while awaiting trial shall not run concurrently with confinement for the offense for which said person is awaiting trial. Appellant committed this offense in September 1996. He informed the trial court that he was sentenced in Muhlenberg Circuit Court in January 1997. The final judgment in this case does not contain any order that the sentences run consecutively. We find that the trial court did not intend to run the sentences consecutively, and did not enter this into its final sentencing order. The record reveals that during the sentencing hearing, the court reviewed the matter and informed appellant that the judgment in the Muhlenberg Circuit Court would have been ordered to run consecutively with the sentence in this case under KRS 533.060. He told appellant that he would be serving this sentence consecutively, but appellant would have to challenge the application of KRS 533.060 in the Muhlenberg Circuit Court. -6- We can only conclude that since the court did not order the cases to run consecutively herein, there is nothing to attack. Appellant's final contention is that the cumulative effect of the errors in this case deprived him of due process of law. We have not found any error after reviewing appellant's allegations, and so we find that he has failed to establish cumulative error in his trial. S.W.2d 253, 259 (1989). Milburn v. Commonwealth, Ky., 788 For the foregoing reasons, the appellant's conviction for complicity to commit theft by unlawful taking is affirmed. ALL CONCUR. BRIEF FOR APPELLANT: BRIEF FOR APPELLEE: Paul J. Neel, Jr. Louisville, Kentucky A. B. Chandler III Attorney General Anitria M. Franklin Assistant Attorney General Frankfort, Kentucky -7-

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