HILL (ANTHONY) VS. COMMONWEALTH OF KENTUCKY
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RENDERED: MARCH 26, 2010; 10:00 A.M.
NOT TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2008-CA-001376-MR
ANTHONY HILL
v.
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE GEOFFREY P. MORRIS, JUDGE
ACTION NO. 07-CR-003793
COMMONWEALTH OF KENTUCKY
AND
NO. 2008-CA-001527-MR
CHARLES BONNER
v.
APPELLEE
APPELLANT
APPEAL FROM JEFFERSON CIRCUIT COURT
HONORABLE GEOFFREY P. MORRIS, JUDGE
ACTION NO. 07-CR-003793
COMMONWEALTH OF KENTUCKY
OPINION
AFFIRMING IN PART,
REVERSING IN PART, AND REMANDING
** ** ** ** **
APPELLEE
BEFORE: ACREE, STUMBO AND WINE, JUDGES.
ACREE, JUDGE: Anthony Hill and Charles Bonner (collectively Appellants)
appeal the judgments of conviction and sentence of the Jefferson Circuit Court
convicting them each of three counts of first-degree robbery, one count of
tampering with physical evidence, and one count of misdemeanor fleeing/evading.1
They were sentenced to ten years to run concurrently for each robbery count, one
concurrent year for tampering with physical evidence, and six months for
fleeing/evading. For the following reasons, we affirm in part and reverse in part.
In the early morning hours of September 13, 2007, plainclothes
officers apprehended the Appellants for the suspected first-degree robbery of three
persons in a parked vehicle at a lot outside a bar in Louisville. Officers had
observed Hill and Bonner approach the vehicle, brandish guns, then walk away
from the vehicle. As Appellants moved away from the vehicle, the officers
announced their presence and ordered Hill and Bonner to stop. Instead of
complying with the officers’ instruction, they fled. Both were apprehended outside
a nearby building. Investigators also found a semi-automatic handgun and a
revolver, both loaded, in the area in which Hill and Bonner were apprehended.
Appellants now assert the trial court committed reversible error by:
(1) denying their motions for directed verdict; (2) declining to instruct the jury on
lesser included offenses; and (3) assessing certain fines, fees, and costs.
1
Although Bonner and Hill have filed separate appeals, they were tried together, and their
arguments on appeal are substantially similar. We therefore address their appeals together for
convenience. Where their arguments or circumstances differ meaningfully, we will make note of
the differences.
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They first claim they were entitled to a directed verdict of acquittal.
Specifically, they urge this Court either to overturn the statutory interpretation
articulated in Merritt v. Commonwealth, 386 S.W.2d 727 (Ky. 1965), and
reaffirmed in Kennedy v. Commonwealth, 544 S.W.2d 219 (Ky. 1976), and to
conclude the Commonwealth presented insufficient evidence to support a
conviction, or to find that the jury instructions required the Commonwealth to
demonstrate beyond a reasonable doubt the firearms used in commission of the
robbery were operable. Both are questions of law to be reviewed de novo. See
Carroll v. Meredith, 59 S.W.3d 484, 489 (Ky.App. 2001). We will address each of
Appellants’ arguments in turn.
Kentucky Revised Statute (KRS) 515.020(1) provides,
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.
KRS 515.020(1). KRS 500.080, in relevant part, defines a deadly weapon as
“[a]ny weapon from which a shot, readily capable of producing death or other
serious physical injury, may be discharged.” KRS 500.080(4).
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The history of the cases interpreting Kentucky’s laws regarding firstdegree robbery is well-known. The Supreme Court ruled in Merritt, with respect
to the version of the armed robbery statute then in effect, KRS 433.140, that “any
object that is intended by its user to convince the victim that it is a pistol or other
deadly weapon and does so convince him is one.” Merritt, 386 S.W.2d 728
(emphasis in original). In Kennedy, the Kentucky Supreme Court affirmed the
viability of Merritt in the context of the current first-degree robbery statute.
Kennedy, 544 S.W.2d at 221.
The holdings of Merritt and Kennedy have been criticized. Robert G.
Lawson & William H. Fortune, Kentucky Criminal Law §13-7(c)(3)(1998);2 see
also Whalen v. Commonwealth, 205 S.W.3d 238, 243 (Ky. 2006). Indeed,
although the Supreme Court has noted the time has come to revisit Merritt, the
opportunity to do so directly has not yet arisen. Moore v. Commonwealth, 2008
WL 3890168, *5 (Ky. 2008)(“We recently indicated twice that ‘Merritt’s
continuing viability warrants further analysis.’”), citing Fegley v. Commonwealth,
2008 WL 466150 at *2 (Ky., Feb.21, 2008), and McIntoshi v. Commonwealth,
2008 WL 2167894 at *9 (Ky., May 22, 2008)(holding that “our continuing reliance
upon Merritt has drawn scholarly criticism . . . , and in a case where the issue is
properly preserved would warrant further consideration.”).
2
A more recent edition of Kentucky Criminal Law is attributed to George Seelig. There are no
inconsistencies between the 2007 version and the portions of the version by Professors Lawson
and Fortune cited in this opinion.
-4-
Yet no matter how persuasively they argue their case, this Court is
bound by Supreme Court precedent. Supreme Court Rule (SCR) 1.030(8)(a).
Because the Supreme Court is aware of the criticism levied against Merritt, we
shall not add to it. For the time being, we must and shall follow Merritt and
Kennedy. Hill’s and Bonner’s cases properly preserve the issue. Whether this is a
proper case to revisit Merritt and Kennedy is for the Supreme Court to decide.
Without regard to the applicability of Merritt and Kennedy, we have
no doubt that the defendants were armed with deadly weapons when they
committed the robbery. The deadly weapons were observed by the officers being
used by the Appellants during the robbery; the crime victims also observed the
weapons and were scared by the display; the weapons were later recovered and
determined to be loaded. Appellants’ first argument must fail.
Appellants’ alternative argument is based on their interpretation of
Thacker v. Commonwealth, 194 S.W.3d 287 (Ky. 2006). They argue that Thacker
requires the Commonwealth to prove their weapons were operable. Appellants’
reading of Thacker as establishing the operability of a firearm as an element of
first-degree robbery would not depend, if one accepts Appellants’ argument, on a
rejection of Merritt and Kennedy. The argument focuses on the jury instruction. It
was not possible, they argue, for the jury to find Appellants guilty of first-degree
robbery under the instructions they received because the Commonwealth presented
no evidence that the weapons were operational.
-5-
Appellants’ interpretation of Thacker is simply not the law in
Kentucky. First, Thacker itself states
The gun in this case was a deadly weapon regardless of
its operability. For purposes of first degree robbery, the
gun’s operability is immaterial to the question of whether
it is a deadly weapon. Helpenstine v. Commonwealth,
566 S.W.2d 415, 416 (Ky. 1978) (“Whether the handgun
was operable is not relevant.”).
Thacker, 194 S.W.3d at 291 n.2. The impact of Thacker is that the determination
whether an object used in a robbery was in fact a deadly weapon became,
thereafter, a question of fact for the jury. Contrary to the Appellants’ view, the
jury instructions in Thacker did not specifically require that a jury find a gun used
in a robbery was operable.3 The jury in the instant case was given instructions very
similar to those approved in Thacker.4
Furthermore, even presuming a finding of operability is implicitly
required in the jury’s determination that the weapons were deadly, there was
sufficient evidence upon which the jury could infer operability.
Apart from expert testimony or demonstrations of
operability, circumstantial evidence of various kinds has
been used to establish operability, depending on the
circumstances. In a typical case, the court, upholding the
3
The court in Thacker ruled proper jury instructions would have been as follows: “C. That when
he did so, he was armed with a deadly weapon, to wit: a .22-caliber revolver. D. As a matter of
law, a deadly weapon is defined to include any weapon from which a shot, readily capable of
producing death or other serious physical injury, may be discharged.”
4
The Appellants’ jury instructions were identical, and required the jury to find “C. That is when
[the defendant] did so, he was armed with a pistol. AND D. That the pistol is a deadly weapon
as defined in Instruction No: 9[.]” Instruction No. 9 defined a deadly weapon as “including any
weapon from which a shot, readily capable of producing death or other serious physical injury,
may be discharged.”
-6-
sufficiency of such evidence, noted that (1) the gun in
question was introduced into evidence; (2) a police
officer testified that the gun was loaded; (3) the
defendant was seen with the gun in his hand; and (4) the
defendant fled when he saw the police officer.
Jeffrey F. Ghent, “Fact that gun was broken, dismantled, or inoperable as
affecting criminal responsibility under weapons statute,” 81 A.L.R.4th 745 § 2[b]
(1990 & 2010 Supp.). Evidence of each of these factors was present in the case
before us. Consequently, even if Thacker and Helpenstine did not make the
weapons’ operability immaterial, there was substantial evidence from which the
jury could infer that the weapons were operable and the trial court properly denied
the Appellants’ motions for directed verdict.
We agree with the majority of states that have addressed the issue that
the Commonwealth’s burden of showing the operability of a weapon “is not a
heavy one.” Commonwealth v. Nieves, 43 Mass.App.Ct. 1, 680 N.E.2d 561, 562
(Mass.App.Ct. 1997)(Commonwealth’s burden to show operability of weapon “is
not a heavy one”); see also, e.g., State v. Valles, 162 Ariz. 1, 780 P.2d 1049, 1055
(Ariz. 1989)(“Absent reasonable doubt as to the operability of a firearm, the state
has no burden to prove the gun was not permanently inoperable.”).
This Court has said, in the context of KRS 527.020 (Carrying
concealed deadly weapon), that a weapon’s
inoperability is an affirmative defense. See, Stark v.
Commonwealth, Ky., 828 S.W.2d 603 (1991), overruled
in part on other grounds in Thomas v. Commonwealth,
Ky., 931 S.W.2d 446, 447 (1996). In Mosely v.
Commonwealth, Ky., 374 S.W.2d 492, 493 (1964), the
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Court held that the accused bore the burden of proving
the operability of the weapon:
In Couch v. Commonwealth, Ky., 255
S.W.2d 478, and Prince v. Commonwealth,
Ky., 277 S.W.2d 470, it was stated that a pistol
is a deadly weapon per se and when the
Commonwealth has proved that the accused
had such a weapon concealed on or about his
person it has made out a case and if the
weapon was in such a defective condition that
it could not be fired, the burden was upon the
accused to prove such a fact in the way of an
affirmative defense. Counsel for appellant
faces up to the fact that such is the law in this
state, but suggests that the cases should be
overruled and the burden placed upon the
Commonwealth. We have been offered no
sound reason for such action.
Arnold v. Commonwealth, 109 S.W.3d 161, 163 (Ky.App. 2003)(emphasis in
original). Arnold is consistent with Thacker’s interpretation of KRS 515.020(1)
and we see no reason why we should not apply the same reasoning to the
interpretation of both statutes. Appellants did not assert the affirmative defense of
the inoperability of the weapons nor did they ask for an instruction relative to their
inoperability.
For the foregoing reasons, we find Appellants’ alternative argument
that the Commonwealth failed to establish the operability of their weapons to be
unpersuasive.
Appellants next argue the trial court erred in denying their motions to
instruct the jury on three lesser included offenses and one defense. Specifically,
Appellants argue the jury should have been given instructions regarding menacing,
-8-
wanton endangerment, criminal attempt to commit first-degree burglary, and the
defense of renunciation. Our review of alleged errors in jury instructions is de
novo. Hamilton v. CSX Transp., Inc., 208 S.W.3d 272, 275 (Ky.App. 2006).
A lesser included offense is one which
(a) . . . is established by proof of the same or less than all
the facts required to establish the commission of the
offense charged; or
(b) . . . consists of an attempt to commit the offense
charged or to commit an offense otherwise included
therein; or
(c) . . . differs from the offense charged only in the
respect that a lesser kind of culpability suffices to
establish its commission; or
(d) . . . 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.
KRS 508.020(2). A trial court should not give an instruction on a lesser included
offense 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.” Luttrell v. Commonwealth, 554 S.W.2d 75, 78 (Ky. 1977),
citing Muse v. Commonwealth, 551 S.W.2d 564 (Ky. 1977).
Appellant Hill cites Reed v. Commonwealth, 738 S.W.2d 818 (Ky.
1987), for the proposition that an instruction on a lesser included offense should be
given if there is any evidence to support it. That is not entirely correct. The court
in Reed uses relatively strong language, which at first glance appears to require
-9-
broad application of the rule regarding instructing the jury on lesser included
offenses. Quoting Lee v. Commonwealth, 329 S.W.2d 57 (Ky. 1959), the Court in
Reed said, “Our law requires the court to give instructions ‘applicable to every
state of case covered by the indictment and deducible from or supported to any
extent by the testimony.’” Reed, 738 S.W.2d at 822; Lee at 60. Ultimately, the
court in Reed held the defendant was entitled to the requested jury instruction
because “there was other evidence from which the jury could have reasonably
concluded that he committed a lesser offense.” Id. at 823 (emphasis added).
Reasonableness, then, is the standard.
Critical to the analysis is whether the evidence before the jury could
have reasonably supported all the elements of the lesser included offenses. The
relevant elements of armed robbery are set forth above. Menacing is the
intentional placement of “another person in reasonable apprehension of imminent
physical injury.” KRS 508.050(1). A person commits first-degree wanton
endangerment “when, under circumstances manifesting extreme indifference to the
value of human life, he wantonly engages in conduct which creates a substantial
danger of death or serious physical injury to another person.” KRS 508.060(1).
For menacing or wanton endangerment to constitute a lesser included offense of
first-degree robbery, there must be some evidence that the defendants’ intention
was not to commit theft. 1 Cooper and Cetrulo, Kentucky Instructions to Juries,
Criminal § 6.14, Comment (5th ed. 2008). For menacing, there also must be
evidence Appellants’ intent was to merely frighten the victims, while for wanton
-10-
endangerment there also must be evidence Appellants’ intent was to merely place
them at risk of injury. Id.
We find no evidence of alternative intent in this case. The evidence
which explained why Appellants pointed their guns at the victims uniformly
indicated Appellants’ goal was to take the victims’ money. While Appellants’
attorneys suggested other reasons in their cross-examination of the witnesses, there
simply was no evidence to support their suggestions.5 Appellants cite the fact they
walked away from the confrontation with none of the victims’ property as evidence
on which the jury could have found Appellants did not intend to commit a theft.
The significance of that fact, however, is speculative and would not permit a
reasonable juror to conclude Appellants intended to accomplish anything other
than commission of a theft. The trial judge’s ruling was proper.
Criminal attempt to commit first-degree robbery is a lesser included
offense of first-degree robbery. Pevlor v. Commonwealth, 638 S.W.2d 272, 278
(Ky. 1982). KRS 506.010(1) provides:
A person is guilty of criminal attempt to commit a crime
when, acting with the kind of culpability otherwise
required for commission of the crime, he:
(a) Intentionally engages in conduct which would
constitute the crime if the attendant circumstances were
as he believes them to be; or
(b) Intentionally does or omits to do anything which,
under the circumstances as he believes them to be, is a
5
Appellants’ trial attorneys asked the victims if any of them had shouted a racial slur at
Appellants or if they had been engaging in a drug transaction with Appellants. The victims all
denied doing either.
-11-
substantial step in a course of conduct planned to
culminate in his commission of the crime.
KRS 506.010(1). This contemplates the inchoate commission of a crime; once a
crime has been completed, however, there is no need for a jury instruction on
criminal attempt. See Kirkland v. Commonwealth, 53 S.W.3d 71, 76 (Ky. 2001).
Appellants make much of the fact that they actually took nothing from
the victims and told them to “Have a nice day” in support of their argument that
the jury could have found the robbery was incomplete. However,
The robbery statute requires only the use of force “in the
course of committing theft” and “with intent to
accomplish the theft.” KRS 515.020(1). It does not
require a completed theft.
Wade v. Commonwealth, 724 S.W.2d 207, 208 (Ky. 1986)(emphasis in original).
That Appellants took nothing from the victims does not necessarily entitle them to
an instruction on criminal attempt to commit first-degree robbery. As with other
potential lesser included offenses, there must have been sufficient evidence to
persuade reasonable jurors to believe Appellants only attempted robbery. The
victims all testified Appellants demanded money while brandishing guns. There
was no evidence that Appellants did anything less than fully commit a first-degree
robbery. The trial judge properly declined to instruct the jury on criminal attempt
to commit first-degree robbery.
Appellants also contend the trial court should have instructed the jury
regarding the defense of renunciation. The trial court is required to instruct the
jury on the whole law of the case, including lawful defenses. RCr 9.54(1). See
-12-
also Mondie v. Commonwealth, 185 S.W.3d 203 (Ky. 2005). Renunciation,
however, is a defense to an attempted crime:
In any prosecution for criminal attempt to commit a
crime, it is a defense that, under circumstances
manifesting a voluntary and complete renunciation of his
criminal purpose, the defendant abandoned his effort to
commit the crime and, if mere abandonment was
insufficient to avoid the commission of the crime, took
the necessary affirmative steps to prevent its commission.
KRS § 506.020 (emphasis added). Appellants were not charged with criminal
attempt to commit first-degree robbery and were not entitled to a jury instruction
on that offense. Accordingly, they were not entitled to a jury instruction on
renunciation.
Finally, Appellants assert the court costs, fines for felony convictions,
and public defender fees assessed against them were contrary to statute. Hill was
assessed $125 in court costs, $500 in public defender fees, and $1000 as a felony
conviction fee. Bonner was assessed $125 in court costs, $1000 in public defender
fees, and $1000 as a felony conviction fee.
The Commonwealth acknowledges that the court awarded these costs
and fines, but argues that the matter is not ripe because they are not required to
make payment until they complete their sentences. “[I]t is a fundamental rule that
courts must refrain from deciding matters that have not yet ripened into concrete
cases and controversies. Stated otherwise, courts are not authorized to render
advisory opinions concerning moot or hypothetical issues.” Sullivan v. Tucker, 29
S.W.3d 805, 808 (Ky.App. 2000) (citations omitted). However, this matter has
-13-
ripened. The portion of the sentence which requires Appellants to pay fees, costs,
and fines is part of a final order and is just as ripe as any other portion of the
sentence. It is the fact that Appellants have been ordered to pay these monies, and
not the fact that they will only have to pay upon completion of their sentences,
which creates a real, present controversy. Therefore, the matter properly may be
considered on appeal.
KRS 23A.205(2) and KRS 534.040(4) prohibit the assessment of
court costs and fines to indigent persons. Because Appellants were represented at
trial by public defenders and permitted to proceed in forma pauperis on appeal, we
can assume the trial court ruled them indigent. See Simpson v. Commonwealth,
889 S.W.2d 781, 784 (Ky. 1994). Imposing court costs and fines was therefore
inappropriate, and we vacate that portion of the sentence. Id.
Additionally, before a defendant may be assessed a public defender
fee, the trial court must hold a hearing at arraignment “to determine whether a
person who has requested a public defender is able to pay a partial fee for legal
representation, the other necessary services and facilities of representation, and
court costs.” KRS 31.211. The Commonwealth admits there was no such hearing.
The portion of Appellants’ sentences assessing fees, costs, and fines was imposed
in direct contravention of the mandatory language of the relevant statutes.
For all the foregoing reasons, we affirm the trial court’s denial of
Appellants’ motions for directed verdict and motions to instruct the jury on lesser
included offenses and defenses, reverse the trial court’s assessment of court costs,
-14-
public defender fees, and felony fines, and remand this case for further proceedings
consistent with this opinion.
ALL CONCUR.
BRIEFS FOR APPELLANT,
ANTHONY HILL:
BRIEF FOR APPELLEE ON CASE
NO. 2008-CA-001376:
Cicely J. Lambert
Assistant Appellate Defender
Louisville, Kentucky
Jack Conway
Attorney General of Kentucky
BRIEFS FOR APPELLANT,
CHARLES BONNER:
Bruce P. Hackett
Deputy Appellate Defender
Louisville, Kentucky
James C. Shackelford
Assistant Attorney General
Frankfort, Kentucky
BRIEF FOR APPELLEE ON CASE
NO. 2008-CA-001527:
Jack Conway
Attorney General of Kentucky
W. Bryan Jones
Assistant Attorney General
Frankfort, Kentucky
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