LYNN PORTER v. COMMONWEALTH OF KENTUCKY
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RENDERED: SEPTEMBER 8, 2000; 2:00 p.m.
NOT TO BE PUBLISHED
C ommonwealth O f K entucky
C ourt O f A ppeals
NO.
1998-CA-001576-MR
LYNN PORTER
APPELLANT
APPEAL FROM MARION CIRCUIT COURT
HONORABLE JUDGE DOUGHLAS M. GEORGE, JUDGE
ACTION NO. 96-CR-00171
v.
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
REVERSING AND REMANDING
** ** ** ** **
BEFORE:
GUDGEL, CHIEF JUDGE; BUCKINGHAM AND JOHNSON, JUDGES.
JOHNSON, JUDGE: Lynn Porter has appealed the judgment entered by
the Marion Circuit Court on June 16, 1998, that convicted her of
complicity to robbery in the first degree1 and sentenced her to
prison for ten years.
Having concluded that the trial court
erred to Porter’s substantial prejudice by allowing the
Commonwealth to introduce Porter’s mug shot as evidence, we must
reverse and remand for a new trial.
1
Kentucky Revised Statutes (KRS) 502.020 (complicity) and
KRS 515.020 (robbery in the first degree).
This case was tried before a jury on May 22, 1998.
The
only witness to testify at the trial was the victim, Michala
Wilcher.
She testified that on November 6, 1996, at
approximately 7:45 p.m. she drove to the Wal-Mart store in
Lebanon, Kentucky.
As she entered the front entrance of the
store, she heard someone call out to her.
Porter and her
companion, Angela Johnson, were in the lobby of the store.
Johnson asked Wilcher if she was “Mickie” or “Monty.”2
Johnson
then told Wilcher they were waiting for a friend; but since they
were not sure the friend would come, she asked Wilcher to give
them a ride to a nearby McDonald’s restaurant.
Wilcher told
Porter and Johnson that after she finished her shopping she would
give them a ride.
When Wilcher left the Wal-Mart store approximately 30
minutes later, she notice Porter and Johnson standing outside the
building.
Again, they asked for a ride and Wilcher agreed.
When
the women got into the car, Porter asked Wilcher if she knew who
they were.
Wilcher replied that she remembered them from high
school, but could not remember their names.
Porter then told
Wilcher that she was “Kendra” and Johnson was “Monica”.
After arriving at McDonald’s, Porter and Johnson stated
that they did not see their friends and asked Wilcher to drive
them to the Maple Street Apartments.
2
Porter gave Wilcher
Wilcher identified herself as “Mickie”. Her twin sister is
known as “Monty”. The twin sisters had attended high school with
Porter and Johnson about four to five years before the robbery.
Porter graduated from high school in 1991 and Wilcher in 1992.
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directions.
Upon arrival at the apartments, Porter saw a car
drive by and said “that’s my brother, I don’t want to stay here,
I don’t want to see him.”
Porter and Johnson then asked Wilcher
to drive them to Hamilton Heights Apartments.
at that point she “was getting scared.”
Wilcher said that
When they entered the
apartments’ premises, Porter and Johnson told Wilcher to stop the
car in a cul-de-sac in front of the apartments and to park under
the street light.
After Wilcher started to open the door to let
Johnson out of the back seat, Johnson told Wilcher “Mickie, the
best thing for you to do now is to give us your purse.”
As
Wilcher turned her head to look at Johnson, she felt the small
handgun that Johnson was holding against her face.
Wilcher
turned back around, picked up her purse and handed it over the
seat to Johnson.
Johnson then told Wilcher to empty her pockets.
At this point Wilcher got out of the car to show Johnson that she
did not have any pockets to empty.
hurt her, just take her purse.”
Porter told Johnson, “Don’t
Porter got out of the car and
she and Johnson walked away with Johnson carrying Wilcher’s
purse.
Wilcher drove to the attorney’s office where her twin
sister was working late and her sister took her immediately to
the police department to report the robbery.
Wilcher gave
Officer Shelton Young a statement about the robbery, but she did
not know Porter’s and Johnson’s real names.
Officer Johnny
Masterson took Wilcher’s sister to Wilcher’s mother’s house to
locate some high school yearbooks for Wilcher to use in
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identifying the suspects.
About three days after the robbery,
Wilcher tentatively identified Porter and Johnson from the 1989
and 1991 high school yearbooks; but since she had not seen the
suspects in three to five years, she asked to see more recent
pictures of them.
Approximately two weeks later, Wilcher
identified Porter and Johnson from a photo line-up that included
a mug shot of Porter.3
Porter argues that she was unduly prejudiced when her
mug shot was introduced into evidence and shown to the jury.
The
Commonwealth claims that introduction of the mug shot was
necessary “to confirm the victim’s positive out of court
identification of [Porter].”
We disagree.
The factors that the trial court must consider in
determining the admissibility of a mug shot were set forth by
this Court in Redd v. Commonwealth,4 which involved the eye
witness identification of a robber.
In reversing the conviction
for robbery in the first degree and remanding for a new trial,
Judge Howerton, writing for a split panel, stated that “[t]he
3
The record is unclear as to when the mug shot was taken.
The robbery occurred on November 6, 1996, and Porter was indicted
on December 2, 1996, and arrested on the indictment on December
5, 1996. At the bench conference concerning the admissibility of
the mug shot, the prosecutor indicated that the mug shot was
taken before Porter’s arrest on December 5, 1996. The prosecutor
said, “They arrested her on an unrelated charge.” Defense
counsel responded, “For which, for which [sic] it was dropped
because the were just fishing.” The best that we can determine
from this rather scant record is that Wilcher made the
identification of Porter from the mug shot on November 21, 1996,
after Porter had been arrested on an unrelated charge.
4
Ky.App., 591 S.W.2d 704 (1979).
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error we find so unnecessary, inexcusable, unfair, and reversible
relates to the introduction of improper character evidence
through the use of mug shots and the references to them at
trial.”5
The Court noted that “when [mug shots] are used, the
implication is quite clear that the accused has previously been
in the hands of the law.
Mug shots are so familiar as to create
a natural inference that the one photographed has a criminal
record [citation omitted].”6
The Court noted that “it appears
that the admission of Redd’s mug shot added little probative
value, but it did provide substantial and unnecessary
prejudice.”7
The Court also stated:
When we review this case as a whole, we
can only conclude that there is more than
mere prosecutorial overkill. Some of the
errors complained of were unnecessary,
prejudicial and reversible. Despite the
apparent reliable and positive identification
of Redd as the perpetrator of the offense, he
did not receive a fair trial, and for the
sake of the law, a new trial must be
granted.8
In determining that the mug shot was erroneously
admitted, the Court adopted the three-prong test from United
States v. Harrington9:
5
Id. at 707.
6
Id.
7
Id. at 708.
8
Id. at 706.
9
490 F.2d 487 (2d Cir. 1973).
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(1) the prosecution must have a demonstrable
need to introduce the photographs;
(2) the photos themselves, if shown to the
jury, must not imply that the defendant had a
criminal record; and
(3) the manner of their introduction at trial
must be such that it does not draw particular
attention to the source or implications of
the photographs.10
To determine whether the trial court committed
reversible error in the case sub judice, we need look no further
then the first factor.
Clearly, the Commonwealth cannot
demonstrate any need to introduce the photographs.
Wilcher’s
identification of Porter and Johnson was never questioned by
Porter.
In fact, defense counsel in her opening statement
conceded that Porter “was with Angela Johnson” when Johnson
robbed Wilcher.
The only issue before the jury was whether
Porter was a complicitor with Johnson.
The case at bar is easily distinguishable from Williams
v. Commonwealth.11
In Williams, where our Supreme Court adopted
the three-part Harrington test that was used in Redd, the Court
concluded that “[t]he trial court, using its discretion, found
that the Commonwealth demonstrated the need to introduce the mug
shot in order to confirm the victim’s positive identification of
the appellant.”12
The Supreme Court cited Redd and stated,
10
Redd, supra at 708.
11
Ky., 810 S.W.2d 511 (1991).
12
Id. at 513.
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“[w]hen mug shots are shown at the trial level, the probative
value of the mug shot must outweigh the prejudicial effect.”13
As previously noted, in the case sub judice it is impossible for
the Commonwealth to meet this test since the mug shot had
absolutely no probative value--the identity of Porter was not at
issue.
The Commonwealth’s argument that admission of the mug
shot was necessary “in order to confirm the victim’s positive out
of court identification of the appellant” is not supported by the
record.
The record clearly demonstrates the contrary, and we
reverse and remand for a new trial.
Porter also claims that the trial court erred when it
refused to instruct the jury on the lesser-included offense of
criminal facilitation to robbery in the first degree.
Since this
issue is likely to recur at the new trial, we will address it.
However, under the evidence as presented at this trial, we do not
believe that Porter was entitled to such an instruction.
A trial court’s duty to instruct on a lesser-included
offense arises only when the evidence justifies a finding of
guilt on the lesser-included offense.14
Our analysis requires a
close examination of the definitions of criminal facilitation and
complicity.
Criminal facilitation is defined at KRS 506.080:
(1) A person is guilty of criminal
facilitation when, acting with knowledge that
another person is committing or intends to
13
Id.
14
Wombles v. Commonwealth, Ky., 831 S.W.2d 172 (1992);
Martin v. Commonwealth, Ky., 571 S.W.2d 613 (1978).
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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.
Complicity is defined at KRS 502.020:
(1) 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, counsel, or attempts to aid such
person in planning or committing the offense;
or
(c) Having a legal duty to prevent the
commission of the offense, fails to make a
proper effort to do so.
The principle distinction between criminal facilitation
and complicity is that “[f]acilitation reflects the mental state
of one who is ‘wholly indifferent’ to the actual completion of
the crime[,]” while 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.”15 “The main difference between [criminal
facilitation] and complicity is the state of mind; complicity
requires the complicitor to “intend” that the crime take
place.”16
15
Perdue v. Commonwealth, Ky., 916 S.W.2d 148, 160 (1995).
16
Webb v. Commonwealth, Ky., 904 S.W.2d 226, 228 (1995).
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The differences in the two offenses were explained in
Kentucky Criminal Law17 as follows:
Kentucky . . . is now one of a few
jurisdictions that provides for a lesser
degree of liability for knowingly aiding
another in the commission of a crime. KRS
502.020 forecloses the possibility of
accomplice liability for such conduct (by
requiring the mental state of intention for
such liability) and KRS 506.080 provides for
the lesser form of liability by defining the
offense of criminal facilitation. The new
offense is best described as “a kind of
accessorial conduct in which the actor aids
the commission of a crime with knowledge that
he is doing so but without any specific
intent to participate therein or to benefit
therefrom.”
. . .
Under the accomplice [complicity]
statute, the giving of aid with intent that
the offense be committed is the key element,
whereas under the facilitation statute
knowingly providing assistance[,] without
intent to commit an offense [,] to a person
who intends to commit a felony and actually
commits the crime contemplated, is the key
element and difference.
In Houston v. Commonwealth,18 our Supreme Court noted
that it had consistently held that criminal facilitation can be a
lesser-included offense of complicity.
We have consistently held that criminal
facilitation can be a lesser included offense
of an indictment charging complicity,
“because it has the same elements except that
the state of mind required for its commission
17
Lawson and Fortune, Kentucky Criminal Law §7-5(a) and
(b)(1) (1998)(quoting N.Y. Penal Law, Article 115, Practice
Commentaries (McKinney 1987)).
18
Ky., 975 S.W.2d 925, 930 (1998).
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[knowledge] is less culpable than the state
of mind [intent] required for commission of
the other [complicity] offenses.” Luttrell
v. Commonwealth, Ky., 554 S.W.2d 75, 79
(1977); see also Chumbler v. Commonwealth,
Ky., 905 S.W.2d 488, 499 (1995); Webb v.
Commonwealth, Ky., 904 S.W.2d 226, 229
(1995); cf. Skinner v. Commonwealth, Ky., 864
S.W.2d 290, 298-99 (1993).
These principles provide a workable framework that we
can apply in the case sub judice. Porter claims that “[t]he
evidence presented. . . would have allowed a reasonable jury to
choose between differing interpretations regarding the
Appellant’s state of mind.”
The Commonwealth responds by arguing
that “[t]he record discloses that appellant did more than simply
provide an opportunity for the robbery to occur, she was an
active participant in the crime.”
At trial, Porter’s counsel forcefully argued that from
the evidence the jury could have reasonably believed one of three
things: (1) that Porter was not involved in Johnson’s plan to rob
Wilcher and was surprised when the robbery occurred, but feared
expressing her objection to the robbery since Johnson was armed,
and therefore was not guilty; (2) that Porter intended to promote
or facilitate the robbery by aiding Johnson in planning or
committing the robbing by falsely telling Wilcher their names
were “Kendra” and “Monica,” by giving Wilcher directions to the
apartments, and by saying, “Don’t hurt her, just take her purse,”
and therefore was guilty of complicity; or (3) that Porter knew
that Johnson intended to commit a crime, and that Porter
knowingly provided Johnson with the opportunity to commit the
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crime and in fact aided her in committing the crime, but that
Porter lacked any specific intent to participate therein or to
benefit therefrom, and therefore was guilty of criminal
facilitation.
The flaw in Porter’s criminal facilitation argument is
that the evidence does not support finding both (1) that Porter
knew that Johnson intended to rob Wilcher, that she knowingly
provided Johnson with the opportunity to commit the robbery and
in fact aided her in committing the robbery; but (2) that Porter
lacked any specific intent to participate in the robbery.
If the
jury did not believe that Porter acted as set forth in (1), then
Porter was not guilty.
If the jury believed Porter committed the
acts in (1), Porter was guilty of complicity because there was no
evidence to support the requirement of (2) that Porter lacked any
specific intent to participate in the robbery.
Under the
evidence presented, it would have been inconsistent and
unreasonable for a jury to have believed both (1) and (2).
Our
conclusion is based on the fact that if the jury believed Porter
was aiding Johnson in committing the robbery, that it would also
have to believe that Porter intended to participate in the
robbery.
There was no evidence to support a finding that Porter
did not intend to participate in the robbery other than evidence
that supported a finding of not guilty.
There was no basis for
finding that Porter was not guilty of complicity, but also not
totally innocent.
She was either an unknowing and unwilling
spectator or a complicitor.
On remand, for Porter to be entitled
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to a criminal facilitation instruction, there will have to be
some evidence that she did not intend to participate in the
robbery, but only knew of Johnson’s intentions and knowingly
aided Johnson, e.g., if Porter had knowingly aided Johnson in
getting Johnson a ride with Wilcher, but Porter had exited
Wilcher’s car before Johnson committed the robbery.
Porter relies primarily on Luttrell v. Commonwealth,19
and Webb, supra.
Luttrell has often been cited by our courts in
addressing the issue of entitlement to a jury instruction for
criminal facilitation.
In Luttrell, the Supreme Court reversed
the trial court for refusing to give an instruction on criminal
facilitation that was requested by defendant Sullivan.
Luttrell,
age 25, and Sullivan, age 17, stole a car in Jeffersonville,
Indiana, and drove to Louisville, Kentucky.
“Sullivan discovered
a .38 caliber revolver which belonged to the owner of the car,”20
and showed it to Luttrell.
When Luttrell ran a stop sign, he was
pulled over by Officer Phillips.
Luttrell got out of the stolen
car, walked toward the police car, noticed that the police car
was equipped with a computer that could be used to trace the
license plate of the stolen car, and told Officer Phillips he
would have to get his driver’s license out of the car.
Luttrell
“returned to the car and told Sullivan to ‘shoot him,’ the police
19
Ky., 554 S.W.2d 75 (1977).
20
Id. at 77.
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officer.
Sullivan got the gun out and handed it to Luttrell.
Luttrell spun around and shot Officer Phillips in the chest.”21
In holding that Sullivan was entitled to an instruction
on criminal facilitation the Supreme Court stated:
Sullivan would be guilty of criminal
facilitation if he furnished Luttrell with
the means of committing a crime knowing that
he would use it to commit a crime but without
intention to promote or contribute to its
fruition. He is guilty of the substantive
offense by complicity if he furnished the
means of committing the crime intending to
aid in the commission of the crime. Under
these circumstances criminal facilitation is
a lesser included offense because it has the
same elements except that the state of mind
required for its commission is less culpable
that [sic] the state of mind required for
commission of the other offenses [emphasis
original].
While a reasonable juror might doubt
that Sullivan acted as a principal, because
of the age difference between Sullivan and
Luttrell and the difference between the
levels of activity of Sullivan and Luttrell,
a reasonable juror could conclude that
Sullivan acted as a facilitator.
Consequently, at the new trial Sullivan is
entitled to instructions on criminal
facilitation of attempted murder and assault
in the second degree [emphasis added].22
Our Supreme Court in Webb, relied on Luttrell when it
once again reversed the trial court for refusing to give a jury
instruction on criminal facilitation.
21
Id.
22
Id. at 79.
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The evidence in Webb
“presented two significantly different versions of events.”23
“According to
[Webb’s] theory of the case, his girlfriend, [ ]
Phelps, had been introduced to Detective [ ] Roberts by [ ]
Thompson, a confidential police informant.”24
Webb, in his own
car, drove Phelps and Thompson to meet Det. Roberts.
Thompson
left the car, walked over to Det. Roberts, spoke to Det. Roberts,
returned to Webb’s car, and gave Phelps $150.00.
Webb then drove
Phelps to an apartment where she bought some controlled
substances.
Phelps told Webb she intended to give all the pills
to Thompson except for one pill that he said she could keep.
Webb drove Phelps back to the parking lot where Det. Roberts was
waiting.
Webb gave all but one of the pills to Thompson and Det.
Roberts.
Webb claimed “that he never got out of the car, never
got any of the money, and never got any of the pills.” “The
Commonwealth present[ed] a different version.”25
Det. Roberts
claimed that Webb went with him to an apartment and handed him a
Dilaudid pill.
In reversing, the Supreme Court stated:
[T]he appellant’s testimony alternatively
provides ample evidence to suggest that,
though he became aware of Phelp’s criminal
activity and provided her with
transportation, he did not actually intend
that the criminal transaction occur. His
version of the incident, provided to the
jury, presented evidence that he did not know
23
Webb, supra at 227.
24
Id.
25
Id. at 228.
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about Phelps’ criminal activity until she had
purchased the drugs. He then drove her back
to the apartment. He testified that he did
not accompany Phelps when she agreed to get
the drugs for Roberts, nor when she purchased
the drugs, nor did he deliver the Diluadid
pill to Roberts. Appellant claims he never
helped plan the transaction nor received any
money or other benefit from it.
In light of this evidence, a reasonable
juror could believe that appellant gave
Phelps a ride in his car, knowing that she
was in the process of a drug transaction, but
that appellant did not specifically intend
that that crime be accomplished. An
instruction on a lesser-included offense
should be given if 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 lesserincluded offense. Luttrell v. Commonwealth,
Ky., 554 S.W.2d 75, 78 (1977).
The decision as to whose story to
believe is, of course, an issue for the jury
to decide. The jury should have been given
an opportunity to consider this criminal
facilitation instruction. Refusal to allow
such an instruction, when supported by the
evidence presented, constitutes reversible
error.26
While Luttrell and Webb support Porter’s argument and
Luttrell, in particular, is difficult to distinguish, we must
also consider four cases that strongly support the Commonwealth’s
position.27
In Commonwealth v. Caswell,28 the Commonwealth
appealed from the dismissal of an indictment and sought a
26
Id. at 228-29.
27
We note that in the four pages devoted to this issue in
the Commonwealth’s brief these four cases are not even mentioned.
28
Ky.App., 614 S.W.2d 253 (1981).
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certification of the law.
This Court noted that Caswell and
Montgomery “acting alone or in complicity, were charged with 15
counts of forgery in the second degree in the use of a stolen
credit card.”29
While Caswell “did not sign or actually forge
the name of the holders of the card, she was with Mrs. Montgomery
when 14 of the 15 purchases were made, she selected the
merchandise which was purchased on many of the occasions, she
drove Mrs. Montgomery to all of the stores where Mrs. Montgomery
made purchases and she carried the merchandise so purchased in
her automobile.”30
This Court held that if Caswell “knew that [
] Montgomery intended to commit or was committing a forgery, her
action in providing transportation, selecting various items to be
purchased and hauling the loot away from the stores would
necessarily have evinced an intent to promote the commission of
the crime.
An instruction on criminal facilitation was not
warranted.”31
In Skinner v. Commonwealth,32 the Supreme Court held
that Griffieth was not entitled to an instruction on criminal
facilitation because
[i]n view of all the evidence--that Griffieth
not only provided the car but drove the car
to the scene, returned to the house on foot,
held open the door while Skinner and Hale
29
Id. at 253.
30
Id. at 253-54.
31
Id. at 254.
32
Ky., 864 S.W.2d 290, 298 (1993).
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loaded items from the house into the
wheelbarrow, and accompanied the two with the
wheelbarrow in flight from the house--we
believe that a reasonable juror could not
have acquitted Griffieth both of burglary in
the second degree and burglary by complicity,
and still have found him guilty of criminal
facilitation.
In Churchwell v. Commonwealth,33 this Court held that
Churchwell was not entitled to an instruction on criminal
facilitation because
Irvan testified that Churchwell suggested
they “[get] some radar detectors.” He then
said that the two men gathered rocks from the
side of the dam to shatter the car windows.
He explained that Churchwell “busted the
window out of the first car,” then went to
the next car while Irvan grabbed the radar
detector. According to Irvan, Churchwell
“busted the window out of [the second car]
and reached in a grabbed the radar detector.”
Obviously, Churchwell did more than simply
provide an opportunity for Irvan to steal the
radar detectors: he was an active participant
in the crimes [footnote omitted].
In Adkins v. Commonwealth,34 this Court held that
Adkins was not entitled to an instruction on criminal
facilitation when the evidence showed that Adkins and an
accomplice were in a department store examining some dresses when
“the other man put four of the dresses over his shoulder, placed
his pea-coat on top of them, and both men then walked rapidly to
an exit.”
The store manager “followed them and attempted to stop
them by placing a hand on each man’s shoulder, whereupon [Adkins]
33
Ky.App., 843 S.W.2d 336, 338 (1992).
34
Ky.App., 647 S.W.2d 502, 504-06 (1982).
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shoved him away.”
The store manager “then grabbed the man with
the dresses, and [Adkins] again shoved him.
in opposite directions.”
The two men then ran
This Court stated that “the jury could
reasonably infer . . . that [Adkins] had knowingly assisted his
colleague in stealing the dresses, whereas there is no evidence
to justify a finding that [Adkins] merely provided an opportunity
for the theft.”35
We recognize that it is difficult to distinguish some
of these cases on their facts.
However, we feel more able to
decide this issue when we apply the general principles that were
set forth in Luttrell, supra, Webb, supra, Perdue, supra and
Houston, supra.
Unless the jury found Porter not guilty, we
believe that it would be unreasonable for the jury to determine
that Porter was “wholly indifferent to the actual completion” of
the robbery;36 that she did not “intend that the crime take
place”37; or that she acted “without any specific intent to
participate” in the robbery.38
Thus, based on the evidence
presented below, these principles support the trial court’s
denial of the criminal facilitation instruction.
Accordingly, we reverse on the mug shot issue and
remand for a new trial consistent with this Opinion.
36
Perdue, supra at 160.
37
Webb, supra at 228.
38
Kentucky Criminal Law, supra.
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ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Paul J. Neel, Jr.
Louisville, KY
A.B. Chandler, III
Attorney General
Anitria M. Franklin
Assistant Attorney General
Frankfort, KY
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