STEVE ALLEN V. COMMONWEALTH OF KENTUCKY
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NOT TO BE PUBLISHED OPINION
THIS OPINION IS DESIGNATED "NOT TO BE PUBLISHED."
PURSUANT TO THE RULES OF CIVIL PROCEDURE
PROMULGATED BY THE SUPREME COURT, CR 76.28(4)(C),
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RENDERED : OCTOBER 21, 2010
NOT TO BE PUBLISHED
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2009-SC-000493-MR
[DAY
STEVE ALLEN
V.
F~
AppLJILAIN I~~ N ~
ON APPEAL FROM JESSAMINE CIRCUIT COURT
HONORABLE C : HUNTER DAUGHERTY, JUDGE
NO . 08-CR-00144-002
COMMONWEALTH OF KENTUCKY
APPELLEE
MEMORANDUM OPINION OF THE COURT
AFFIRMING
Appellant, Steve Allen, was convicted by a Jessamine Circuit Court jury
of complicity to first-degree robbery and of being a second-degree persistent
felony offender. For these crimes, Appellant received a sentence of twenty-four
years' imprisonment . Appellant now appeals to this Court as a matter of right.
Ky. Const. ยง 110.
Appellant asserts two arguments on appeal : 1) that the trial court erred
by denying his request for a jury instruction on first-degree facilitation to
robbery; and 2) that the trial court erred by allowing the Commonwealth to
introduce the parole eligibility guidelines after the close of the penalty phase.
For the reasons set forth below, we affirm Appellant's conviction and sentence .
FACTUAL AND PROCEDURAL BACKGROUND
During the early morning hours of June 8, 2008, an armed robbery
occurred at a duplex in Nicholasville . As a result, on August 8, 2008,
Appellant was indicted by the Jessamine County Grand Jury, for one count of
first-degree robbery, two counts of second-degree assault, I and one count of
being a second-degree persistent felony offender. Appellant's trial began on
July 6, 2009 .
Sasha Burch, one of the robbery victims, testified that on the night of
August 8, 2008, she was awakened by Haley Banta's screaming. Banta was
the girlfriend of Sasha's brother Corey Burch. After calling the police, Sasha
testified that she walked out of her bedroom to find Appellant holding a gun to
her brother's head and Eric Wheat, Appellant's ca-defendant, holding a gun to
Banta's head. Wheat demanded money and Sasha returned to her bedroom to
retrieve $ 100 she was saving for summer school . Wheat and Banta followed
Sasha into the bedroom while Appellant remained in the other room with
Corey.
Sasha gave Wheat her $ 100. Wheat made another demand for money to
which Sasha and Banta told him they did not have any more. Wheat then hit
Banta across her face with his gun and left. Sasha testified that she believes
Appellant left with Wheat because she did not hear the duplex door open or
close prior to Wheat's exit.
1
One of the second-degree assault charges was dismissed prior to trial .
Banta testified that she was watching television with Corey around 3 :30
in the morning when Appellant and Wheat entered the duplex and robbed
them. Both men were armed with guns . The men demanded money and Corey
gave Wheat $200 . Appellant held a gun to Corey's head. Banta testified that
Wheat demanded more money from her and that is when. she woke Sasha up.
The last thing Banta remembers is being hit in the head with Wheat's gun.
Appellant also testified at trial. He denied robbing anyone or helping rob
anyone. Appellant testified that about 3:00 in the morning, Wheat, who was
Appellant's roommate, asked Appellant to go with him to Corey's house .
Appellant said he got the impression from Wheat that he had some sort of a
deal to complete with Corey. Before going to Corey's house, the pair stopped to
pick up guns . Wheat allegedly told Appellant that the guns were necessary to
keep Corey from "running his mouth."
Appellant testified that Corey willingly let them in the duplex . Appellant
admitted to carrying a shotgun while Wheat carried a handgun . Appellant
testified that Wheat told Banta to go into the bedroom . Corey also went while
Appellant stayed in the living room. Appellant then heard Wheat repeatedly
say, "Where's the money?" Banta defiantly told Wheat that they did not have
any money . Wheat then smacked Banta. Appellant at this point testified that
he left the house . When Wheat returned to the car, Appellant said he told him
"You didn't say nothing about going in there and taking no money."
Appellant denied pointing his gun at Corey during the altercation, and
denied taking any money. He also tes6he that he had no knowledge before
going to the duplex that Wheat intended to rob or assault anyone . Appellant
testified that he believed they were just going to talk to Corey and that the guns
were just meant to scare him .
The trial court instructed the jury on first-degree robbery-, complicity to
first-degree robbery, first-degree robbery principal or accomplice, and
complicity to second-degree assault. Appellant requested an. instruction on
facilitation to robbery, but the trial court denied the request because during
Appellant's testimony he claimed to have no prior knowledge of Wheat's intent
to commit robbery.
The jury found Appellant guilty of complicity to first-degree robbery but
not guilty of complicity to second-degree assault. In the penalty phase, the
jury found appellant guilty of being a second-degree persistent felony offender.
Appellant was sentenced to a ten year sentence for the complicity to firstdegree robbery conviction, enhanced to twenty-four years due to the persistent
felony offender conviction. Subsequently, Appellant filed this appeal.
Additional facts will be developed below as necessary.
I. THE TRIAL COURT CORRECTLY DENIED APPELLANT'S
REQUEST FOR A FACILITATION JURY INSTRUCTION
Appellant first argues that the trial court erred by denying his request for
a jury instruction on facilitation to first-degree robbery as a lesser-included
offense to the charge of complicity to first-degree robbery. A person is guilty of
criminal facilitation under KRIS 506.080(1) when :
acting with knowledge that another person is committing or intends to
commit a crime, he engages in conduct which knowingly provides such
person with means or opportunity for the commission of the crime and
which in fact aids such person to commit the crime.
The offense of complicity reads in relevant part:
A person is guilty of an offense committed by another person when, with
the intention of promoting or facilitating the commission of the offense,
he :
(a)
Solicits, commands, or engages in a conspiracy with such
other person to commit the offense ; or
(b)
Aids, counsels, or attempts to aid such person in planning or
committing the offense . . . .
KRS 502 .020(1) . We note that a lesser-included offense instruction is proper
when the jury could maintain doubt concerning the greater offense and also
find guilt beyond a reasonable doubt of the lesser offense. Parker v.
Commonwealth, 952 S .W.2d 209, 211 (Ky. 1997) .
Appellant argued to the trial court that he was entitled to a facilitation
instruction because he presented evidence that he never intended to commit
robbery, but yet did provide Wheat with the means or opportunity to commit
robbery. The trial court initially agreed . However, the Commonwealth argued
that in order for a facilitation instruction to be given, Appellant had to have
actual knowledge that Wheat was going to commit robbery. Thus, based on
Appellant's testimony that he was unaware Wheat intended to commit robbery,
the trial court denied his request for a facilitation instruction .
We agree with the trial court's decision to deny Appellant's request for a
facilitation instruction, but on. different grounds . The trial court correctly
concluded that to be guilty of criminal facilitation for a. specific crime, the
defendant must have actual knowledge that the principal actor is intending to
commit that specific crime . Finnell v. Commonwealth, 295 S .W.3d 829, 833834 (Ky. 2009) ("the defendant must have knowledge that the principal actor
intends to commit the crime the defendant is actually charged with
facilitating") . "However, "[c]redibility and weight of the evidence are matters
within the exclusive province of the jury." Commonwealth v. Smith, 5 S .W.3d
126, 129 (Ky. 1999) . Thus, while Appellant testified that he dial not know
Wheat intended to commit a robbery, the jury could have disbelieved him, and
concluded that, while he knew of Wheat's intent to commit robbery, he lacked
the specific intent required for a complicity conviction . It was incorrect to deny
Appellant's request for a facilitation instruction on those grounds .
However, the perpetrator's knowledge and state-of--mind do not
constitute the only differentiation of complicity from facilitation . In reviewing
all of the evidence presented at trial, it becomes clear that Appellant was not
entitled to a facilitation instruction because the evidence showed him to be
either an "active participant" in the robbery, or not guilty . See White v.
Commonwealth, 178 S.W.3d 470, 490-491 (Ky. 2005) ; Churchwell v.
Commonwealth, 843 S .W.2d 336, 338 (Ky. App . 1993) (holding that a
facilitation instruction is not warranted where defendant was an "active
participant" in the principal offense) . Appellant's own testimony was that he
went with Wheat to the Burchs' apartment .in. the early hours of the morning
brandishing a shotgun as Wheat robbed the victims . Criminal facilitation
requires proof that the accused "provide[d] such person with means or
opportunity for the commission of the crime ." KRS 506.080(l) . Appellant
argues that the proof at trial satisfied that element of facilitation because the
jury could have believed that he "facilitated the robbery by having a gun during
those events" but yet was indifferent to whether Wheat committed a robbery or
not. We fail to see how entering the residence armed with a shotgun alongside
of Wheat could reasonably be construed as merely providing Wheat with the
means or the opportunity for committing the robbery, but yet not constitute
being an active participant in the robbery. Churchwell, 843 S.W.2d at 338 .
Wheat had the means and opportunity without Appellant's aid. Even if the
jury believed that Appellant left the apartment when he realized Wheat was
committing a robbery, Appellant's initial presence at the robbery with a
shotgun constituted a threat of deadly force against the victims, and actively
aided Wheat's objective . The evidence presented at trial leads to the conclusion
that Appellant was an active participant and was thereby complicit with Wheat
in the robbery, or that he had no criminal intent to accomplish the robbery and
was thereby innocent of the crime. "There was no evidence of a middle-ground
violation of the facilitation statute." White, 178 S .W.3d at 491 . No error was
committed by the trial court's denial of Appellant's request for a criminal
facilitation instruction .
II . THE INTRODUCTION OF THE PAROLE ELIGIBILITY GUIDELINES,
AFTER THE CLOSE OF THE PENALTY PHASE CASE WAS HARMLESS ERROR
Appellant's other allegation of error is that he was prejudiced by the late
introduction of the parole eligibility guidelines into evidence at the end of the
penalty phase . After the close of evidence and the reading of the penalty phase
instructions to the jury, the Commonwealth asked to approach the bench and
informed the trial court that it failed to tender parole eligibility guidelines to the
jury as required by KRS 532 .055. The trial court agreed that the
Commonwealth was required to tender the parole eligibility guidelines and over
Appellant's objection allowed the Commonwealth to tender the parole eligibility
guidelines as Commonwealth's Exhibit 2 . Appellant now argues that this
ruling was error because the jury was allowed to review the parole sentencing
guidelines without any information on how to understand them.
We agree with Appellant that the introduction of the parole sentencing
guidelines after the close of evidence and the reading of the penalty phase
instructions was error. KRS 532 .055 does not require the Commonwealth to
tender parole eligibility guidelines, but does allow the Commonwealth to tender
them during the penalty phase . However, while the trial court's ruling to allow
the tendering of the parole sentencing guidelines is erroneous, the error is
harmless .
Winstead v. Commonwealth, 283 S .W.3d 678, 689 (Ky. 2009) . The
Commonwealth could have submitted the parole sentencing guidelines earlier
as an exhibit before the close of evidence. Thus, the error is really one of
timing, and Appellant has failed to show he was substantially prejudiced by it .
CONCLUSION
Thus, for the foregoing reasons, Appellant's convictions and sentences
are affirmed .
All sitting. All concur.
COUNSEL FOR APPELLANT:
Roy Alyette Durham 11
Assistant Public Advocate
Department of Public Advocacy
100 Fair Oaks Lane
Suite 302
Frankfort, Kentucky 40601
COUNSEL FOR APPELLEE:
Jack Conway
Attorney General
John Paul Varo
Assistant Attorney General
Office of Criminal Appeals
Office of the Attorney General
1024 Capital Center Drive
Suite 200
Frankfort, Kentucky 40601
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